AMENDED AND RESTATED MORTGAGE SALE AGREEMENT
DATED {circle} MARCH, 2002
ABBEY NATIONAL PLC
AS SELLER
AND
XXXXXX FUNDING LIMITED
AS FUNDING
AND
XXXXXX TRUSTEES LIMITED
AS MORTGAGES TRUSTEE
AND
JPMORGAN CHASE BANK, LONDON BRANCH
AS SECURITY TRUSTEE
XXXXX & XXXXX
London
CONTENTS
CLAUSE PAGE
1. Definitions, Construction and Amendment and Restatement..................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..........................................................9
6. Completion of the Assignment............................................10
7. Undertakings............................................................11
8. Warranties and Repurchase by the Seller.................................14
9. Other Warranties........................................................16
10. Further Assurance.......................................................16
11. Consequences of breach..................................................16
12. Subordination...........................................................17
13. Non-Merger..............................................................17
14. No Agency or Partnership................................................17
15. Payments................................................................17
16. Waivers and Variation...................................................17
17. Notices.................................................................17
18. Assignment..............................................................18
19. Change of Security Trustee..............................................18
20. New Intercompany Loans..................................................19
21. Third Party Rights......................................................19
22. Governing Law...........................................................19
SCHEDULE
1. Representations and Warranties..........................................20
2. Registered Transfer.....................................................27
3. Unregistered Transfer...................................................28
4. Lending Criteria........................................................30
5. Power of Attorney in Favour of Funding, the Mortgages Trustee and
the Security Trustee....................................................33
6. Loan Purchase Notice....................................................36
7. Assignment of Third Party Rights........................................38
8. Assignment of MIG Policies..............................................40
9. MIG Policies Assignment Notice..........................................42
10. Abbey National PLC Policies Insurance Acknowledgement...................43
11. Properties in Possession Insurance Acknowledgement......................45
12. New Portfolio Notice....................................................47
13. Forms of Scottish Transfer..............................................49
14. Form of Scottish Trust Deed.............................................53
THIS AMENDED AND RESTATED MORTGAGE SALE AGREEMENT is made on {circle} March,
2002
BETWEEN:
(1) ABBEY NATIONAL PLC (registered number 2294747), a public limited company
incorporated under the laws of England and Wales, whose registered office
is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0
0XX (the SELLER);
(2) XXXXXX FUNDING LIMITED (registered number 3982428), a private limited
company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxx XX0 0XX (FUNDING and together with the Seller the
BENEFICIARIES);
(3) XXXXXX TRUSTEES LIMITED (registered number 3982431), a private limited
company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 2 Triton Square, Regents
Place, London NW1 3AN (the MORTGAGES TRUSTEE); and
(4) JPMORGAN CHASE BANK, LONDON BRANCH (formerly known as The Chase Manhattan
Bank, London Branch) (the SECURITY TRUSTEE, which expression where the
context permits shall include such company or person and all other
companies or persons for the time being acting as the trustee or trustees
under the Funding Deed of Charge) whose principal office is at Xxxxxxx
Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX.
WHEREAS:
(A) The Seller carries on the business of, inter alia, originating mortgage
loans to individual borrowers secured on residential properties in
England, Wales and Scotland.
(B) The Seller assigned to the Mortgages Trustee certain of the above
mentioned mortgage loans together with the benefit of the related
security for the same on the terms and subject to the conditions set out
in the Mortgage Sale Agreement dated 26th July, 2000 (as amended and/or
restated from time to time, the MORTGAGE SALE AGREEMENT).
(C) The Mortgages Trustee holds all of the above mentioned assigned mortgage
loans as bare trustee for the Beneficiaries upon, with and subject to the
trusts, powers and provisions of the Mortgages Trust Deed.
(D) On 29th November, 2000 the parties to the Mortgage Sale Agreement agreed
to amend the terms of the Mortgage Sale Agreement as set out in an
Amendment Agreement to the Mortgage Sale Agreement of the same date.
(E) On 23rd May, 2001 the parties to the Mortgage Sale Agreement agreed to
amend and restate 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 assigned a new portfolio of mortgage loans and their related
security to the Mortgages Trustee on that date on such amended terms.
(F) On 5th July, 2001 the parties to the Mortgage Sale Agreement agreed to
amend and restate the terms of the Mortgage Sale Agreement as set out in
an Amended and Restated Mortgage Sale Agreement of the same date.
1
(G) On 8th November, 2001 the parties to the Mortgage Sale Agreement agreed to
amend and restate 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 assigned a new portfolio of mortgage loans and their related
security to the Mortgages Trustee on that date on such amended terms.
(H) On 7th November, 2002 the parties to the Mortgage Sale Agreement agreed
to amend and restate 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 assigned a new portfolio of mortgage loans and their related
security to the Mortgages Trustee on that date on such amended terms.
(I) The parties to the Mortgage Sale Agreement have again agreed to amend and
restate the terms of the Mortgage Sale Agreement as set out herein.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS, CONSTRUCTION AND AMENDMENT AND RESTATEMENT
1.1 The Amended and Restated Master Definitions and Construction Schedule
signed for the purposes of identification by Xxxxx & Xxxxx and Xxxxxxxxx
and May on {circle} March, 2002 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto) is
expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and save
where otherwise defined herein, have the same meanings in this Agreement,
including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in Clause 2 of that
Amended and Restated Master Definitions and Construction Schedule.
1.2 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
15.2 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 This Agreement amends and restates the Mortgage Sale Agreement made on
26th July, 2000 between the parties hereto as amended on 29th November,
2000, as amended and restated on 23rd May, 2001 as amended and restated
on 5th July, 2001, as amended and restated on 8th November, 2001 and as
amended and restated on 7th November, 2002 (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 (or in relation to rights and assets situated in or governed by
the law of Scotland, with absolute warrandice), the Initial Portfolio.
2
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 Notes on the Initial Closing
Date and the borrowing by Funding of the Term Advances under the
First Intercompany Loan Agreement;
(b) the constitution of the Mortgages Trust on or prior to the Initial
Closing Date; and
(c) the Transaction Documents having been executed and delivered by
the parties thereto on or before the Initial Closing Date or, in
the case of such of the Transaction Documents as are to be
executed immediately after the Initial Closing Date pursuant to
the provisions of this Clause 2, the same having been executed and
being available for delivery and the parties knowing of no reason
why the same should not be delivered immediately thereafter.
2.3 The sale of the Portfolio shall not include any obligation to pay any
Delayed Cashback, 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 meeting shall take place on the Initial Closing Date at the offices of
Xxxxx & Xxxxx, Xxx Xxx Xxxxxx, Xxxxxx XX0X 0XX or such offices as the
parties may agree at which the Seller shall deliver to the Security
Trustee or its representative the following documents:
(a) two originals of the power of attorney substantially in the form
set out in Schedule 5, duly executed by the Seller;
(b) a certified copy of each of the Insurance Acknowledgements;
(c) a duly executed assignment of the MIG Policies from the Seller and
a certified copy of a notice (the original of which shall be
served by courier or by special delivery) of such assignment from
the Seller to Carfax or such other insurer under the MIG Policies
in the form (mutatis mutandis) set out in Schedules 8 and 9
respectively and a certified copy of consent to assignment of the
MIG Policies (or acknowledgement that the Mortgages Trustee will
be an insured under the MIG Policies following the assignment)
from Carfax or such other insurers in such form as the Mortgages
Trustee reasonably requires;
(d) a certified 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 and all of
the documentation to be entered into pursuant to this Agreement;
(e) a duly executed assignment of rights against third parties in the
form of the Assignment of Third Party Rights;
(f) a certified copy of the notice from the Seller to Carfax as to the
proposed assignment of the MIG Policies; and
(g) a solvency certificate from an authorised signatory of the Seller
dated as at the Initial Closing Date.
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3.2 The Seller undertakes that from the Initial Closing Date until the
completion of the assignment in accordance with Clause 6.1, 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
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 as
follows:
(a) the Initial Consideration shall be paid by Funding on the Initial
Closing Date; and
(b) the Deferred Consideration (including any Postponed Deferred
Consideration) shall be paid by Funding quarterly on the Interest
Payment Dates (provided there are available funds and after the
making of any provisions in accordance with normal accounting
practice) in accordance with the Funding Pre-Enforcement Revenue
Priority of Payments or, as the case may be, the Funding Post-
Enforcement Priority of Payments.
3.4 The Seller shall provide all reasonable co-operation to the Mortgages
Trustee, Funding 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, 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 making the
disclosure 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 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 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
and 4.3, if the Seller shall, at any time and from time to time serve a
properly completed New Portfolio Notice on the Mortgages Trustee and
Funding with a copy to the Security Trustee (such service to be in the
Seller's sole discretion), then on the date for completion of the sale
and assignment specified in the 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
4.2 The conditions to be met as at each Assignment Date are:
(a) the Seller shall as at the relevant Assignment Date make the
Representations and Warranties to the Mortgages Trustee, Funding
and the Security Trustee in relation to each New Loan in the New
Portfolio being sold on the relevant Assignment Date in accordance
with Clause 8 and such Representations and Warranties must be true
in relation to each New Loan (but if such Representation and
Warranties are only discovered to be untrue after the relevant
Assignment Date, the Mortgages Trustee's only remedy shall be
under Clause 7);
(b) the Lending Criteria applicable at the time of origination of each
relevant New Loan have been applied to the New Loan and to the
circumstances of the Borrower at the time the New Loan was made;
(c) the total amount of arrears in respect of all the Loans in the
Mortgages Trust, as a percentage of the total amount of gross
interest due to the Mortgages Trustee during the previous 12
months on all Loans outstanding during all or part of such period,
must not exceed 2 per cent. "Arrears" for this purpose in respect
of a Loan on any date means the aggregate amount overdue on the
Loan on that date but only where such aggregate amount overdue
equals or exceeds an amount equal to twice the Monthly Payment
then due on the Loan;
(d) as at the relevant Assignment Date, the aggregate Outstanding
Principal Balances 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 Balances of the Loans in the
Mortgages Trust;
(e) no New Loan has on the relevant Assignment Date an aggregate
amount in arrear which is more than the amount of the Monthly
Payment then due and each New Loan was made at least three
calendar months prior to the relevant Assignment Date;
(f) each New Loan is secured by a Mortgage constituting a valid and
subsisting first charge by way of legal mortgage or first ranking
standard security over the relevant Property (except in the case
of some Flexible Loans in respect of which the Mortgage
constitutes valid and subsisting first and second charges by way
of legal mortgage or first and second ranking standard securities
over the relevant Property), subject only (in appropriate cases)
to registration or recording at HM Land Registry or the Registers
of Scotland;
(g) no Outstanding Principal Balance of any New Loan is, at the
relevant Assignment Date, greater than {pound-sterling}350,000;
(h) for so long as amounts are owed by Funding to the First Issuer
under the First Intercompany Loan Agreement, no New Loan has a
final maturity date beyond July, 2038;
(i) each Borrower has made at least one full Monthly Payment in
respect of the relevant New Loan;
(j) no event of default under the Transaction Documents shall have
occurred which is continuing as at the relevant Assignment Date;
(k) the Principal Deficiency Ledger shall not have a debit balance as
at the relevant Assignment Date;
5
(l) the Mortgages Trustee is not aware that the credit rating then
assigned to any of the Notes by the Ratings Agencies (or any of
them) will be adversely affected by the purchase of the relevant New
Portfolio;
(m) the short term, unsecured, unguaranteed and unsubordinated debt
obligations of the Seller are 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
assignment of the New Loans to the Mortgages Trustee;
(n) except where the Seller assigns New Loans to the Mortgages Trustee
in consideration of the payment by Funding of the Purchase Price
funded by a New Intercompany Loan from an Issuer, 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 Portfolio as at the beginning
of that Interest Period;
(o) the purchase of the New Portfolio on the relevant Assignment Date
does not result in the product of WAFF and WALS for the Portfolio
after such purchase calculated on the relevant Assignment 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 previous Closing Date plus 0.25 per cent.;
(p) the yield (as calculated below) of the Loans in the Mortgages Trust
together with the yield of the New Loans to be assigned to the
Mortgages Trustee on the relevant Assignment Date (together the
purposes of this paragraph, the RELEVANT LOANS) and the Second
Reserve Fund Calculation is not less than LIBOR for three month
sterling deposits as at the immediately preceding Interest Payment
Date plus 0.80 per cent. The yield of the Relevant Loans is to be
calculated as follows:
(A x B) + (C x (D-E + F)) + (G x (H + I))
-----------------------------------------
J
where,
A = the average Outstanding Principal Balance, on the relevant
Assignment Date, of the Relevant Loans which are Fixed Rate
Loans
B = LIBOR plus the Fixed Rate Spread on the relevant Assignment
Date
C = the average Outstanding Principal Balance, on the relevant
Assignment Date, of the Relevant Loans which are Variable Rate
Loans
D = the weighted average Variable Rate of the Relevant Loans on
the relevant Assignment Date
E = the current SVR for the Relevant Loans on the relevant
Assignment Date
F = LIBOR plus the Variable Rate Spread on the relevant
Assignment Date
6
G = the average Outstanding Principal Balance, on the relevant
Assignment Date, of the Relevant Loans which are Tracker Loans
H = LIBOR plus the Tracker Rate Spread on the relevant
Assignment Date
I = the weighted average margin of the Tracker Loans over the
Bank of England Repo Rate on the Relevant Assignment Date
J = the average Outstanding Principal Balance of the Relevant
Loans on the relevant Assignment Date;
(q) the purchase of the New Portfolio on the relevant Assignment Date
does not result in the loan-to-value ratio of Loans in the Portfolio
on the Assignment Date (after the purchase of the New Portfolio)
after application of the LTV Test on the relevant Assignment Date
exceeding the loan-to-value ratio (based on the LTV Test) of Loans
in the Portfolio on the most recent previous Closing Date plus 0.25
per cent.;
(r) the assignment by the Seller to the Mortgages Trustee of New Loans
on the relevant Assignment Date does not result in the Loans (other
than Fixed Rate Loans) with a discount of more than 0.80 per cent.
to the Stabilised Rate as at the relevant Assignment Date that have
more than two years remaining on their incentive period in aggregate
accounting for more than 20 per cent. of the aggregate Outstanding
Principal Balance of all Loans constituting the Trust Property; and
(s) the First Reserve Fund has not been debited on or before the
relevant Assignment Date for the purposes of curing a Principal
Deficiency in respect of the Term BBB Advances and/or the Term AA
Advances in circumstances where the First Reserve Fund has not been
replenished by a corresponding amount by the relevant Assignment
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 No assignment of a New Portfolio may occur after the Interest Payment
Date falling in October, 2010 if the option to redeem the First Issuer
Notes on the Interest Payment Date in July, 2010 pursuant to Condition 5
of those Notes is not exercised.
4.4 Subject to fulfilment of the conditions referred to in Clause 4.2 and
4.3, the consideration to be provided to the Seller by the assignment of
the New Portfolio to the Mortgages Trustee on an Assignment Date shall be
the aggregate of:
(a) the payment by Funding to the Seller by telegraphic transfer on
the New Portfolio Date of the proceeds of any New Intercompany
Loan advanced to Funding by a New Issuer; and/or
(b) the covenant of the Mortgages Trustee to hold the Trust Property
on trust pursuant to the terms of the Mortgages Trust Deed; and
(c) the Deferred Consideration (including any Postponed Deferred
Consideration) which shall be paid by Funding quarterly on the
Interest Payment Dates (provided there are available funds and
after making any provisions in accordance with normal accounting
practice) in accordance with the Funding Pre-Enforcement Revenue
7
Priority of Payments or, as the case may be, the Funding Post- Enforcement
Priority of Payments.
4.5 On the date of the assignment of the relevant New Portfolio, a meeting
shall take place at the offices of the Seller or at such other office as
may be agreed by the parties at which the Seller shall deliver to the
Security Trustee or its representative the following documents:
(a) in respect of the first New Portfolio assigned on or after the
date of this Agreement only, two originals of the power of
attorney substantially in the form set out in Schedule 5, duly
executed by the Seller;
(b) a duly executed assignment of the MIG Policies from the Seller and
a certified copy of a notice (the original of which shall be
served by courier or by special delivery) of such assignment from
the Seller to Carfax or such other insurer under the MIG Policies
in the form (mutatis mutandis) set out in Schedules 8 and 9
respectively and a certified copy of consent to assignment of the
MIG policies (or acknowledgement that the Mortgages Trustee will
be an insured under the MIG Policies following the assignment)
from Carfax or such other insurers in such form as the Mortgages
Trustee reasonably requires;
(c) a duly executed assignment of rights against third parties
comprised in the relevant New Portfolio dated as of the date of
the sale and purchase of the New Portfolio and in the form
(mutatis mutandis) of the Assignment of Third Party Rights;
(d) a certificate of a duly authorised officer of the Seller attaching
a copy of the board minute referred to in Clause 3.1(d) 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;
(e) a solvency certificate from the Seller dated as of the date of the
sale and purchase of the New Portfolio; and
(f) a Scottish Trust Deed in respect of the Scottish Loans in the New
Portfolio (if any) and their Related Security, in the form
(mutatis mutandis) set out in Schedule 14 and with the annexure
thereto duly completed, duly executed by the Seller, the Mortgages
Trustee and Funding.
4.6 The Seller undertakes that from the Assignment Date until the completion
of the sale and purchase in accordance with Clause 6.1, 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.
4.7 Prior to the earlier to occur of:
(a) a Trigger Event; and
(b) if Funding enters into New Intercompany Loan Agreements, the
latest Interest Payment Date specified by Funding by notice in
writing to the Seller and the Mortgages Trustee as applying in
relation to this covenant and undertaking,
the Seller undertakes to use all reasonable endeavours to offer to
assign, 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:
8
(i) until the earlier of the Interest Payment Date falling in
April, 2004 (or such later date as may be notified by
Funding) 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 is
not less than {pound-sterling}[21,000,000,000]; and
(ii) until the earlier of the Interest Payment Date falling in
July, 2006 (or such later date as may be notified by
Funding) 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 is
not less than {pound-sterling}[14,000,000,000]; and
(iii) until the earlier of the Interest Payment Date falling in
July 2010 (or such later date as may be notified by Funding)
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 is not less than
{pound-sterling}2,500,000,000.
(or such other amount or amounts specified by Funding in the notice
referred to in Clause 4.7(b)(ii) above) provided that the Seller shall
not be obliged to assign to the Mortgages Trustee, and the Mortgages
Trustee shall not be obliged to acquire, New Loans and their Related
Security if in the opinion of the Seller the assignment to the Mortgages
Trustee of New Loans and their Related Security would adversely affect
the business of the Seller.
4.8 On each Assignment Date that Funding provides consideration for New Loans
to be assigned to the Mortgages Trustee pursuant to Clause 4.4(a) above,
the Beneficiaries shall appoint a firm of independent Auditors to
determine whether the Loans and their Related Security (or any part of
them) constituting the Trust Property complied with the representations
and warranties set out in Schedule 1 of this Agreement as at the date
such Loans were assigned to the Mortgages Trustee. The costs of such
independent auditors shall be borne by the relevant New Issuer (which
shall be procured by Funding).
5. TRUST OF MONIES
5.1 Notwithstanding the assignment effected by this Agreement if at, or at
any other time after, the Initial 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, interest, right or benefit and/or the proceeds thereof hereby
agreed to be sold the Seller undertakes with the Mortgages Trustee,
Funding and the Security Trustee that it will hold such property,
interest, right or benefit 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, interest, right or benefit 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 with the
Seller that it will remit, assign or transfer the same to the Seller, as
the case may require, and until it does so or
9
to the extent that the Mortgages Trustee is unable to effect such
remittance, assignment or transfer, the Mortgages Trustee undertakes to
hold such property, interest, right or benefit 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 moneys and paid them to third parties in error, it pays an amount
equal to the moneys so paid in error to the Seller in accordance with the
Servicing Agreement.
6. COMPLETION OF THE ASSIGNMENT
6.1 The assignments contemplated by this Agreement shall be completed on the
fifth London Business Day after the earliest to occur of:
(a) the service of an Intercompany Loan Enforcement Notice or a Note
Enforcement Notice; 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 to which the Seller is subject or any organisation 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 comprised in the
security constituted by the Funding 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 paragraphs (a) to (c) inclusive of
Clause 6.3 is necessary in order materially to reduce such
jeopardy; or
(e) unless otherwise agreed 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 completion by serving notice to that effect
on the Mortgages Trustee, Funding and the Security Trustee; or
(g) the date on which the Seller ceases to be assigned a long term
unsecured, unsubordinated and unguaranteed debt obligations rating
from S&P of BBB- or more, or from Xxxxx'x of Baa3 or more, or from
Fitch of BBB- or more; or
(h) the last final repayment date of the Intercompany Loans.
6.2 Completion of the transfer of Mortgages in the Portfolio over Registered
Land shall be effected by means of a transfer in the form of the
Registered Transfer and, in the case of Mortgages in the Portfolio over
Unregistered Land, by a transfer in the form of the Unregistered Transfer
and, in the case of Scottish Mortgages in the Portfolio, by an
assignation in the applicable form of Scottish Transfer, and in respect
of any other matter comprised in the Portfolio, shall be in such form as
the Mortgages Trustee may reasonably require.
6.3 Prior to completion pursuant to Clause 6.1, neither the Mortgages Trustee
nor Funding nor the Security Trustee will:
10
(a) submit or require the submission of any notice, form, request or
application to or pay any fee for the registration or recording
of, or the noting of any interest at the Land Charges Department
of H.M. Land Registry or at H.M. Land Registry or the Registers of
Scotland in relation to, the Mortgages Trustee's and/or Funding'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 of
Funding's interest in that Borrower's Loan and its Related
Security to the Security Trustee pursuant to the Funding 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).
6.4 Within 25 London Business Days following completion pursuant to Clause
6.1, the Seller will do such of the acts or things referred to in Clause
6.3 as the Security Trustee or the Mortgages Trustee requires the Seller
to do.
6.5 The Seller shall indemnify each of the Mortgages Trustee and Funding and
the Security Trustee from and against any and all costs, fees and
expenses which may be incurred by the Mortgages Trustee and/or Funding
and/or the Security Trustee by reason of the doing of any act matter or
thing referred to in this Clause 6.
7. UNDERTAKINGS
7.1 The Mortgages Trustee and Funding undertake that they will at all times
(or will direct the Servicer at all times 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:
(a) an interest rate change; or
(b) a change in the terms and conditions relating to a Loan in respect
of which interest is calculated by reference to SVR, to a Tracker
Loan.
7.2 The Seller hereby undertakes with the Mortgages Trustee and Funding 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
Assignment 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 harmless against any such claims and to indemnify the Mortgages
Trustee and Funding 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
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Mortgages Trustee and Funding in discharge of the foregoing indemnity
shall be regarded as a rebate of part of the Purchase Price of the
relevant Loan.
7.3 If, as a result of a breach of Representation and Warranty 1.19 of
Schedule 1, the Mortgages Trustee or Funding suffers any loss, cost,
expense or liability (any such loss, cost, expense or liability referred
to in this sub-clause as a LOSS), then the Seller agrees to hold the
Mortgages Trustee and Funding harmless against any such Loss and to
indemnify the Mortgages Trustee and Funding on an after Tax basis in
relation to any Loss which may arise in connection therewith. If the
Seller fails to so indemnify the Mortgages Trustee and Funding within 30
London Business Days of demand being made therefor, then the amounts due
may be deducted by way of set-off from income due to the Seller pursuant
to Clause 10.2(c) of the Mortgages Trust Deed.
7.4 Each of the Seller and the Mortgages Trustee and Funding undertakes with
the others that if and to the extent that any determination shall be made
by any court, tribunal, ombudsman or other competent authority in respect
of any Loan and its Related Security that:
(a) any material 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 treatment of any Borrower in relation to the interest payable
by that Borrower under any Loan is unfair; or
(c) the interest payable under any Loan is to be set by reference to
the Abbey SVR (and not its successors or assigns or those deriving
title from them); or
(d) the variable margin under any Tracker Loan must be set by Abbey
National (rather than by its successors or assigns or those
deriving title from them); or
(e) 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; or
(f) a Borrower should be or should have been offered the opportunity
to switch to an interest rate other than that required by the
Servicer or Mortgage Trustee for that Borrower as a result of the
Seller having more than one variable mortgage rate; or
(g) there has been any breach of or non-observance or non-compliance
with any obligation, undertaking, covenant or condition on the
part of the Seller relating to the interest payable by or
available to a Borrower under any Loan,
then, at Funding's and the Security Trustee's direction, 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 (c) above, only if at any time on or after
such determination, the Abbey SVR shall be below or shall fall below the
standard variable rate set by such successors or assigns or those
deriving title from them).
7.5 The Seller hereby undertakes with the Mortgages Trustee, Funding 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
more from Xxxxx'x and BBB or more
12
from S&P and BBB or more from Fitch, the Seller shall deliver to the
Mortgages Trustee, Funding, the Security Trustee and the Rating Agencies
a draft letters 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
more from Xxxxx'x and BBB- or more from S&P and BBB- or more from
Fitch, then the Seller shall within 10 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.
7.6 The Seller undertakes with the Mortgages Trustee, Funding and the
Security Trustee that, pending completion 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 Funding and/or the Security Trustee in the Portfolio;
(b) shall promptly notify the Mortgages Trustee, Funding and the
Security Trustee 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's or the Security
Trustee's title to or interest in any Loan or its Related
Security;
(d) shall use all reasonable efforts to obtain the title numbers to
each Property in respect of which a Mortgage is registered at H.M.
Land Registry or the Land Register of Scotland and the recording
dates of each Scottish Mortgage recorded at the General Register
of Sasines to the extent that such title number or recording date
does not appear in the Exhibit to this Agreement (or, as the case
may be, the relevant New Portfolio Notice) and shall in any event
obtain the same prior to the Interest Payment Date falling in the
month during which the first anniversary of the Closing Date (or,
as the case may be, the relevant Assignment Date) falls; and
(e) shall make and enforce claims under the Buildings Policies and the
Abbey Insurance Policies and hold the proceeds of such claims on
trust for the Mortgages Trustee or as the Mortgages Trustee may
direct.
7.7 The Seller hereby further undertakes with the Mortgages Trustee and
Funding that it is and at all times shall remain solely responsible for
funding any Flexible Loan Drawings 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 will be required to
advance moneys to the Seller or to a Borrower in order to fund such a
Drawing or Further Advance in any circumstances whatsoever.
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8. WARRANTIES AND REPURCHASE BY THE SELLER
8.1 The Seller makes the Representations and Warranties:
(a) 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
(b) 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 Assignment Date.
The Seller acknowledges that the Representations and Warranties are made
with a view (as the case may be) to inducing the Mortgages Trustee,
Funding and the Security Trustee 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 that each of the Mortgages Trustee, Funding 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 and/or the
Security Trustee or otherwise disclosed to any of them and that prior to
entering into this Agreement and the other Transaction Documents to which
each is a party neither the Mortgages Trustee nor Funding nor the
Security Trustee has made any enquiries of any matter.
8.2 The Mortgages Trustee's, Funding'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 8 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 or if any
of the Representations or Warranties proves to be materially untrue as at
the Closing Date or, as the case may be, the relevant Assignment Date,
and provided that:
(a) the Mortgages Trustee has given the Seller not less than 20 days'
notice in writing;
(b) the Mortgages Trustee has obtained the consent of the Security
Trustee; and
(c) such breach or untruth, where capable of remedy, is not remedied
within the 20 day period referred to in (a) (or such longer period
as Funding and the Security Trustee may direct the Mortgages
Trustee),
then at Funding's and the Security Trustee's direction the Mortgages
Trustee may 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 If the Seller accepts an application from, or makes an offer (which is
accepted) to, a Borrower for a Further Advance or a Product Switch then,
at Funding and the Security Trustee's direction, 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.
14
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 to the Seller free from the Security created by the
Funding 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 of such notice by the Seller 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 plus any amounts which have been deducted from the
amounts outstanding under that Loan or those Loans as a result of any
determination referred to in Clause 7.4 or any breach of the
Representations and Warranties (whether by set off, concession or
otherwise) 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 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 Deed of Charge in a form
reasonably acceptable to the Seller;
(b) if completion of the assignment to the Mortgages Trustee has
occurred in accordance with Clause 6:
(i) if the relevant 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 Mortgage is over Unregistered Land, a
transfer to the Seller in the form of the Unregistered
Transfer; or
(iii) if the relevant Mortgage is a Scottish Mortgage, an
assignation to the Seller in the applicable form of Scottish
Transfer;
(c) a re-assignment 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
(d) a notification to the Servicer that all further sums due in
respect of such repurchased Loan are for the Seller's account.
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 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 such repurchase by the Seller 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 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
15
any other express provision of this Agreement or any Representation or
Warranty in relation to any other Loan and other Related Security.
8.7 Forthwith after the Seller becomes aware of any event which may
reasonably give rise to an obligation under Clause 8.5 to repurchase any
Loan it shall notify the Mortgages Trustee, Funding 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 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, in relation to the First Issue, exercise its discretion in
accordance with the terms of the Funding Deed of Charge and in relation
to the Second Issue, the Third Issue and any New Issue, shall give its
consent thereto provided that the Rating Agencies have confirmed that the
then current ratings of the Notes would not be adversely affected as a
result of such amendments (but without prejudice to the exercise by the
Security Trustee of its discretions in relation to the First Issue).
9. OTHER WARRANTIES
The Seller represents and warrants to the Mortgages Trustee, Funding and
the Security Trustee that:
(a) the Seller has not acquired or owned or possessed any rights in
any Issuer, the Mortgage Trustee or Funding 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 Clause 8, Funding and 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 and the
Mortgages Trustee, that the Seller shall have no liability or
responsibility (whether, in either case, contractual, tortious, or
delictual, 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
indirectly or consequentially) suffered by the Mortgages Trustee and/or
Funding or the assets comprised in the security constituted by the
Funding 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 or such assets which
would not have been suffered by it or such assets had the breach, act or
omission in question not also been or given rise to an Event of Default
or enforcement of the security constituted by the Funding Deed of Charge
shall be treated as indirect or consequential loss or damage.
16
12. SUBORDINATION
The Seller agrees with Funding, 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 Assignment Date (including in particular, but
without limitation, the liability of the Seller under the Representations
and Warranties and the indemnity in Clause 6.5 and the provisions of
Clause 4) shall not merge and shall remain in full force and effect
notwithstanding the sale and purchase 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. WAIVERS 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 No variation of this Agreement shall be effective unless it is in writing
and signed by (or by some person duly authorised by) each of the parties
hereto.
17. NOTICES
Any notices to be given pursuant to this Agreement to any of the parties
hereto shall be sufficiently served if sent by prepaid first class post,
by hand or 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 Abbey National plc, Abbey National
House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (facsimile
number (00) 00 0000 0000) for the attention of the Company
Secretary with a copy to Abbey National plc, c/o Abbey House, (AAM
126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile
17
number (00) 0000 000000) for the attention of Securitisation
Team, Business Relationship Management;
(b) in the case of Funding, to Xxxxxx Funding Limited, c/o Abbey
National plc Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx,
Xxxxxx XX0 0XX (facsimile number (00) 00 0000 0000) for the
attention of the Company Secretary with a copy to Abbey National
plc, c/o Abbey House, (AAM 126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx
Xxxxxx XX0 0XX (facsimile number (00) 0000 000000) for the
attention of Securitisation Team, Business Relationship
Management;
(c) in the case of the Mortgages Trustee, to Xxxxxx Trustees Limited,
c/o Abbey National plc, Abbey National House, 0 Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (facsimile number (00) 00 0000 0000)
for the attention of the Company Secretary with a copy to Abbey
National plc, c/o Abbey House, (AAM 126), 000 Xxxxxxx Xxxx Xxxx,
Xxxxxx Xxxxxx XX0 0XX (facsimile number (00) 0000 000000) for the
attention of Securitisation Team, Business Relationship
Management; and
(d) in the case of the Security Trustee, to JPMorgan Chase Bank,
London Branch, Trinity Tower, 9 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX
(facsimile number (00) 00 0000 0000) for the attention of the
Manager, Trust Administration,
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party
to the others by written notice in accordance with the provisions of this
Clause 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 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 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 under the Funding Deed of Charge.
18.2 The Seller acknowledges that on the assignment pursuant to the Funding
Deed of Charge by Funding to the Security Trustee of Funding's rights
under this Agreement the Security Trustee may enforce such rights in the
Security Trustee's own name without joining Funding in any such action
(which right the Seller hereby waives) and the Seller hereby waives as
against the Security Trustee any rights or equities in its favour arising
from any course of dealing between the Seller and Funding.
19. CHANGE OF SECURITY TRUSTEE
19.1 If there is any change in the identity of the Security Trustee in
accordance with the Funding Deed of Charge, the Seller, the Mortgages
Trustee and Funding 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.
18
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 or the Mortgages
Trustee hereunder.
20. NEW INTERCOMPANY LOANS
If Funding enters into a New Intercompany Loan Agreement or if a New
Issuer otherwise acquires an interest in the Trust Property, then the
Seller, Funding, the Security Trustee and the Mortgages Trustee shall
execute such documents and take such action as may be reasonably required
by the Security Trustee and the Rating Agencies for the purpose of
including the New Issuer in the Transaction including, without
limitation:
(a) effecting any necessary changes to Clause 4;
(b) ensuring that any Transaction Document relevant to a New Issue has
been executed and delivered prior to the Relevant Closing Date;
and
(c) executing and delivering all Assignments of MIG Policies and
Assignments of Third Party Rights in relation to any New
Portfolio.
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 and construed in accordance with the
laws of England (provided that any terms hereof which are particular to
Scots law shall be construed in accordance with the laws of Scotland).
22.2 This Agreement may be executed (manually or by facsimile) in any number
of counterparts and all such counterparts taken together shall be deemed
to constitute one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this Agreement for delivery
on the day and year first before written.
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
XXXXXX FUNDING LIMITED )
SIGNED for and on behalf of )
XXXXXX TRUSTEES LIMITED )
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
19
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) 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 Initial Portfolio was made not earlier than 1st August,
1995 and not later than 31st December, 1999, and each Loan in each New
Portfolio was made not later than three calendar months before the
relevant Assignment Date and each Loan matures for repayment not later
than July 2038.
1.4 No Loan has an Outstanding Principal Balance of more than
{pound-sterling}350,000.
1.5 The Lending Criteria are the lending criteria applicable to the Loans and
their Related Security.
1.6 Prior to the making of each Initial Advance or 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 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.
1.7 (a) Each Loan was made and its Related Security taken substantially
on the terms of the 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 of
the relevant Standard Documentation agreed to by the
relevant Borrower 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:
(A) the assignment of the Loans and their Related Security
to the Mortgages Trustee;
(B) the administration of the Loans and their Related
Security by the Seller or a delegate of the Seller or
the appointment of a new Servicer
20
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 Abbey SVR, 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 under
any Tracker 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
which is not itself linked to any margin set by the
Seller.
1.8 The Seller is under no obligation to make further advances (other than
Flexible Loan Drawings and Delayed Cashbacks) or to release retentions or
to pay fees or other sums relating to any Loan or its Related Security to
any Borrower.
1.9 Each Borrower has made at least one Monthly Payment.
1.10 Other than with respect to monthly payments, 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.
1.11 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, as the case may be, the Assignment Date) more than the Monthly
Payment payable in respect of such Loan in respect of the month in which
such date falls and has at no date in the past been more than two times
the Monthly Payment payable in respect of such Loan in respect of the
month in which such date falls.
1.12 No Loan is guaranteed by a third party.
1.13 The Outstanding Principal Balance, all Accrued Interest and all Arrears
of Interest on each Loan and its Related Security constitute a valid debt
due to the Seller from the relevant Borrower and the terms of each Loan
and its Related Security constitute valid and binding obligations of the
Borrower.
1.14 Interest on each Loan is charged in accordance with the Standard
Documentation.
1.15 Interest on each Loan is payable monthly in arrears.
1.16 In respect of each Loan, either:
(a) no agreement for that Loan or any part of it is or has ever been:
(i) a regulated agreement under the CCA;
(ii) treated as a regulated agreement under the CCA;
a linked transaction under the CCA; or
21
(iii) liable to be re-opened on the grounds that the credit
bargain is extortionate under the CCA; or
(b) to the extent that any agreement for that Loan or any part of it
is or has ever been a regulated agreement or treated as such under
the CCA or is or has ever been a linked transaction under the CCA
all requirements of the CCA have been met in full.
In this warranty 1.16, the CCA means the Consumer Credit Xxx 0000 as
amended, extended or re-enacted from time to time.
1.17 All of the Borrowers are individuals.
1.18 No Loan in the Initial Portfolio is a Flexible Loan.
1.19 In relation to any Loan in respect of which interest is calculated by
reference to SVR, the Mortgages Trustee or the Security Trustee has a
right pursuant to the Mortgage Terms to set the SVR at any time and from
time to time at a level which is independent of the right pursuant to the
Mortgage Terms to set the variable margin applicable to any Tracker Loan
and such SVR is and will be binding on the Borrower and enforceable
against it. The Seller has not, since the date of the relevant Mortgage,
done or omitted to do any act or thing which has caused any material non-
observance or material non-compliance with nor any material breach of any
obligation, undertaking, covenant or condition on the part of the Seller
under any Loan or its Related Security (and for the purposes of this
warranty, any overpayment which is the subject of Clause 7.2 shall not be
treated as such a material non-observance, non-compliance or breach).
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.
2.3 Each Mortgage constitutes a valid and subsisting first charge by way of
legal mortgage or first ranking standard security over the relevant
Property (except in the case of some Flexible Loans in respect of which
the Mortgage may constitute valid and subsisting first and second charges
by way of legal mortgage or first and second ranking standard securities
over the relevant Property) subject only in certain appropriate cases to
applications for registrations or recordings at H.M. Land Registry or the
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 (or, in the case of some Flexible Loans, each first and
second Mortgage together) 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 None of the Mortgages secures a Loan made to a tenant to purchase a
dwelling pursuant to the Housing Xxx 0000 or the Housing (Scotland) Xxx
0000 or any subsequent applicable right-to-buy legislation.
2.6 Each Loan and its Related Security is, save in relation to any Loan and
Related Security which is not binding by virtue of the Unfair Terms in
Consumer Contracts Regulations 1994
22
or (as the case may be) the Unfair Terms in Consumer Contracts Regulations
1999, valid and binding and enforceable in accordance with its terms. To
the best of the Seller's knowledge, none of the Loans or their Related
Security is not binding by virtue of its being unfair pursuant to the
Unfair Terms in Consumer Contracts Regulations 1994 or (as the case may
be) the Unfair Terms in Consumer Contracts Regulations 1999.
2.7 Each of the Mortgages over Registered Land is protected by a restriction
prohibiting any dealings in the relevant title without the consent of the
Seller unless the Seller is prevented by any change in legislation or the
decision of any competent court, authority or regulatory body applicable
to mortgage lenders (or a class of them) generally from imposing such a
restriction.
3. THE PROPERTIES
3.1 All of the Properties are in England, Wales or Scotland.
3.2 Each Property constitutes a separate dwelling unit and is either
freehold, heritable or leasehold.
3.3 Every person who, at the date upon which an English Mortgage was granted,
had attained the age of eighteen and was or 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. 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 related Property is
subject to or affected by any statutory right of occupancy.
3.4 No Property has been let otherwise than by way of:
(a) an assured shorthold tenancy which meets the requirements of
section 19A or section 20 of the Housing Xxx 0000; or
(b) an assured tenancy; or
(c) a short assured tenancy which meets the requirements of section 32
of the Housing (Scotland) Xxx 0000
in each case which meets the Seller's Policy in connection with lettings
to non-owners.
3.5 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 six months 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 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 (other than with respect to
Flexible Loans with a LTV ratio of between 75 per cent. and 89.99 per
cent.) advanced to then existing Borrowers of Abbey National (including
any retention(s) subsequently advanced to the Borrower but disregarding
Capitalised Expenses) is either:
23
(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
(a) greater than 75 per cent. (but not more than 95 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, as
regards such Loans made prior to 1st January, 2002 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 recoverable under a MIG
Policy.
4.3 Prior to the taking of each Mortgage (excluding any Mortgage granted in
relation to a Flexible Loan as a result of such Loan being the subject
matter of a Product Switch to that Flexible Loan), the Seller:
(a) instructed the Seller's solicitor or licensed or qualified
conveyancer:
(i) 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 General Instructions to
Solicitors or the Lenders' Handbook contained in the
Standard Documentation (or other comparable or successor
instructions and/or guidelines as may for the time being be
in place), subject only to such variations as would be
acceptable to a reasonable, prudent mortgage lender; or
(ii) in the case of a re-mortgage to carry out a more limited
form of investigation of title for the relevant Property
(including, in the case of Registered Land confirming that
the Borrower is the registered proprietor of the Property
and that the description of the Property corresponds with
the entries on the relevant register at H.M. Land Registry)
and to confirm all other matters as would be required by a
reasonable, prudent mortgage lender; and
(b) received a Certificate of Title from the solicitor or licensed or
qualified conveyancer referred to in paragraph (a) relating to
such Property the contents of which were such as would be
acceptable to a reasonable, prudent mortgage lender.
4.4 The benefit of all Valuation Reports any other valuation report referred
to in paragraph 4.1, Home Loan Protection Policies and Certificates of
Title can be validly assigned to the Mortgages Trustee without obtaining
the consent of the relevant valuer, Insurer, solicitor or licensed or
qualified conveyancer.
4.5 Each solicitor or licensed or qualified conveyancer has complied with the
instructions referred to in paragraph 4.3(a).
5. BUILDINGS INSURANCE
5.1 Insurance cover for each Property is or will at all relevant times be
available under:
(a) a policy arranged by the Borrower in accordance with the relevant
Mortgage Conditions or in accordance with the Alternative
Insurance Recommendations; or
(b) Abbey National Plc Policies or a policy introduced to the Borrower
by Abbey National; or
24
(c) a policy arranged by the relevant landlord; or
(d) the Properties in Possession Policy.
5.2 No act, event or circumstance has occurred which would adversely affect
the Properties in Possession Policy 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 Policy 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.
6. MIG POLICIES
6.1 Where applicable, the MIG Policies are in full force and effect in
relation to the Portfolio and all premiums thereon have been paid.
6.2 The benefit of the MIG Policies can be and will, with effect from the
Closing Date (or, as the case may be, the relevant Assignment Date), have
been (or, as the case may be, will be) 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, the relevant New
Portfolio).
6.3 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 in each case so as adversely to affect the Trust Property or
any part of it.
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 by the Seller to the Mortgages Trustee pursuant to this
Agreement free and clear of all mortgages, securities, charges, liens,
encumbrances, claims and equities (including, without limitation, rights
of set-off or counterclaim and overriding interests within the meaning of
section 3 (xvi) of the Land Registration Xxx 0000 or section 28(1) of the
Land Registration (Scotland) Act 1979) and the Seller is not in breach of
any covenant or obligation implied by reason of its selling the Portfolio
with full title guarantee or absolute warrandice (or which would be
implied if the Registered Transfers or 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 H.M. Land Registry or the 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
25
(b) the Seller's solicitors to the order of the Seller,
and the Title Deeds held at H.M. Land Registry or the Registers of
Scotland 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 or
assignment contemplated by this Agreement affects or will adversely
affect any of the Loans and their Related Security and the Seller may
freely assign its interest therein 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 Mortgage, other than waivers and
acquiescence such as a reasonable, prudent mortgage lender might make.
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 any of its agents has received written notice of
any litigation or dispute (subsisting, threatened or pending) in respect
of any Borrower, Property, Loan, Related Security, MIG Policy or
Properties in Possession Policy which 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 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.
26
SCHEDULE 2
REGISTERED TRANSFER
In the form of H.M. 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.
27
SCHEDULE 3
UNREGISTERED TRANSFER
THIS DEED OF TRANSFER OF MORTGAGES is made the day of
20[ ]
BETWEEN:
(1) ABBEY NATIONAL PLC whose registered office is at Abbey National House, 0
Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (hereinafter called the
TRANSFEROR) of the one part; and
(2) XXXXXX TRUSTEES LIMITED whose registered office is Abbey National House,
0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, 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 moneys 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 26th
July, 2000, 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:
The Transferor hereby transfers unto the Transferee with full title guarantee
all right, title, interest, benefit and obligation (both present and future) of
the mortgagee in and under the Mortgages which do not relate to registered land
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 (provided that the principal moneys payable under any
Mortgage shall not be deemed to be due for the purpose of this paragraph
merely because the legal date for redemption of the relevant Mortgage has
passed);
(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 each Mortgage and the rights to exercise
all powers of the mortgagee in relation to each Mortgage;
(c) all the estate and interest in the 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.
28
IN WITNESS of which this document has been executed and delivered as a deed the
day and year first before written.
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was hereunto affixed in the )
presence of: )
.................................. Authorised Signatory
.................................. Authorised Signatory
29
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
relevant time, which in the case of the Initial Portfolio 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 the New Loans may
not be the same as those set out below.
1. TYPES OF PROPERTY
Properties may be either freehold or leasehold. 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.
All properties have been valued by a valuer approved by the Seller.
2. TERM OF LOAN
There is no minimum term on the Loans. The maximum term is normally 35
years. For interest only loans where the Borrower is using a pension
plan as the relevant repayment mechanism to repay the loan at maturity,
the maximum term is extended to 57 years to reflect the long-term nature
of pension plans. For such pension-linked loans, if the property is a
leasehold and the lease has 55 or fewer years unexpired as at the date of
completion of the mortgage, the maximum term is 25 years. Otherwise, the
maximum term on a leasehold property may not exceed the unexpired residue
of the term of the relevant lease.
3. AGE OF APPLICANT
All Borrowers must be aged 18 or over. The Mortgage Account must mature
no later than the time when the Borrower reaches 85 years of age if the
Loan has a related MIG policy. Otherwise there is no maximum age limit
unless the Mortgage Account is linked to a pension policy when the
Mortgage Account must mature no later than the time when the Borrower
reaches 75 years of age.
4. LOAN TO VALUE RATIO
The maximum original loan to value ratio of Loans in the Initial
Portfolio is 95 per cent. (excluding any capitalised high loan to value
fee, booking fee or valuation fee).
Value is determined, in the case of a remortgage, on the basis of the
valuer's valuation only and, in the case of a Property which is being
purchased, on the lower of the valuer's valuation and the purchase price
and, in the case of a further advance, on the basis of the valuer's
valuation 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 Director of Group Property and Survey of the Seller
(or his successor).
30
5. MORTGAGE INDEMNITY POLICY
Cover under the then current MIG Policies was required for each Mortgage
Account where the aggregate of the Outstanding Principal Balance at
origination (excluding capitalised High Loan-to-Value Fees, booking fees
or valuation fees), or the aggregate Outstanding Principal Balance
(including any further advance at the time at which it was advanced),
exceeded 75 per cent. of the Property value as determined above.
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, regular overtime,
bonus and commission as primary income. If these payments are not
guaranteed or regular, they are treated as secondary income, together
with, inter alia, rental income from tenanted residential property (up to
75 per cent. of such rental income).
The amount available is initially calculated as follows:
Single Applicant - 3 times primary income plus 1 times secondary
income.
Multiple - 3 times primary income of one applicant plus
primary income of any other applicant (up to a
maximum of 3 other applicants) plus 1 times
secondary income of all applicants, or
2.5 times joint primary income (of two
applicants) plus 1 times primary income of any
other applicant plus 1 times secondary income
of all applicants
This criterion is similarly applied to the relevant share of net profit
for self employed applicants.
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, the above parameters may vary.
7. CREDIT HISTORY
(a) Credit Search
A credit search is carried out in respect of all applicants.
Applications may be declined where an adverse credit history (e.g. county
court judgement, default, bankruptcy notice) is revealed.
(b) Existing Lender's Reference
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, a landlord's
reference may be sought by the Seller. In addition, if considered
appropriate, a further reference may be taken
31
in connection with any other property rented by the applicant(s) within
the three preceding years.
(d) Bank Reference
A bank reference may be sought or the applicants may be required to
provide bank statements in support of their application.
8. SCORECARD
The Seller uses some of the above criteria and various other criteria to
provide an overall score for the application which reflects a statistical
analysis of the risk of advancing the Loan.
32
SCHEDULE 5
POWER OF ATTORNEY IN FAVOUR OF FUNDING, THE MORTGAGES TRUSTEE AND THE SECURITY
TRUSTEE
THIS DEED OF POWER OF ATTORNEY is made on the {circle} March, 2003 by:
(1) ABBEY NATIONAL PLC whose registered office is at Abbey National House, 0
Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (registered number 2294747)
(the SELLER);
in favour of each of:
(2) XXXXXX FUNDING LIMITED whose registered office is at Abbey National
House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (registered number
3982428) (FUNDING);
(3) XXXXXX TRUSTEES LIMITED whose registered office is at Abbey National
House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (registered number
3982431) (the MORTGAGES TRUSTEE); and
(4) JPMORGAN CHASE BANK, LONDON BRANCH (formerly known as The Chase Manhattan
Bank, London Branch) whose principal office is at Xxxxxxx Xxxxx, 0 Xxxxxx
Xxxx Xxxxxx, Xxxxxx X0X 0XX in its capacity as trustee (the SECURITY
TRUSTEE, which expression shall include such company and all other
persons or companies for the time being acting as the trustee or
trustees under the Funding Deed of Charge).
WHEREAS:
(A) By virtue of a mortgage sale agreement (the MORTGAGE SALE AGREEMENT)
dated 26th July, 2000, as amended on 29th November, 2000, as amended and
restated on 23rd May, 2001, as amended and restated on 5th July, 2001, as
amended and restated on 8th November, 2001 and as amended and restated on
7th November, 2002 and made between the Seller (1) Funding (2) the
Mortgages Trustee (3) and The Security Trustee (4) provision was made for
the execution by the Seller of this Power of Attorney.
(B) Words and phrases in this Deed shall (save where expressed to the
contrary) have the same meanings respectively as the words and phrases in
the Master Definitions Schedule dated 7th November, 2002 and signed for
the purposes of identification by Xxxxx & Overy and Xxxxxxxxx and May.
NOW THIS DEED WITNESSETH:
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, the Mortgages Trustee and the Security
Trustee (each an ATTORNEY) and any receiver and/or administrator
appointed from time to time in respect of Funding and/or the Mortgages
Trustee or their assets 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 for the protection or
preservation of that Attorney's interest in the Loans and their Related
Security 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 that is say:
33
(a) to execute, sign, seal and deliver (using the company seal of the
Seller where appropriate) a conveyance, assignment, assignation or
transfer of the Loans or any of them to the Mortgages Trustee and
its successors in title or 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) a conveyance, assignment, assignation or
transfer 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 other person
or persons entitled to the benefit thereof or entitled to be
registered at H.M. Land Registry as proprietor thereof or to be
registered or recorded in the Registers of Scotland 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 now or at
any time hereafter 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 the Mortgages Trustee and its
successors in title or 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 any of the acts referred to in Clause 6.2(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;
(e) to discharge the Mortgages or any of them and to sign, seal,
deliver and execute such receipts releases surrenders instruments
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 Deed (including,
without limitation, the power of further substitution) and/or to revoke
any such appointment at any time without assigning any reason therefor.
3. The laws of England shall apply to this Deed and the interpretation
thereof and to all acts of the Attorney carried our or purported to be
carried out under the terms hereof.
4. 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 Deed.
34
IN WITNESS WHEREOF the Seller has executed this document as a deed the day and
year first before written.
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was hereunto affixed in )
the presence of: )
.......................... Authorised Signatory
.......................... Authorised Signatory
35
SCHEDULE 6
LOAN PURCHASE NOTICE
Dated [ ]
1. It is hereby agreed that for the purpose of this notice the PRINCIPAL
AGREEMENT shall mean the Mortgage Sale Agreement dated 26th July, 2000
(as amended and/or restated from time to time) made between Abbey
National PLC (the SELLER) (1), Xxxxxx Funding Limited (2), Xxxxxx
Trustees Limited (the MORTGAGES TRUSTEE) (3) and JPMorgan Chase Bank,
London Branch (formerly known as The Chase Manhattan Bank, London Branch)
(the SECURITY TRUSTEE) (4).
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 8.4 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
XXXXXX TRUSTEES LIMITED
[On duplicate
............................................
Signed for and on behalf of
ABBEY NATIONAL PLC]
36
SCHEDULE
1 2 3
Title No. (if registered) Borrower Property
37
SCHEDULE 7
ASSIGNMENT OF THIRD PARTY RIGHTS
THIS DEED is made on 7th November, 2002
BETWEEN:
(1) ABBEY NATIONAL PLC (registered number 2294747), a public limited company
incorporated under the laws of England and Wales, whose registered office
is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0
0XX (the TRANSFEROR); and
(2) XXXXXX TRUSTEES LIMITED (registered number 3982431), a private limited
company incorporated under the laws of England and Wales, whose registered
office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx
XX0 0XX (the TRANSFEREE).
WHEREAS:
(A) By the charges by way of legal mortgage or standard securities (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 a Mortgage Sale Agreement made between, inter alia, the Transferor and
the Transferee on 26th July, 2000, as amended on 29th November, 2000, as
amended and restated on 23rd May, 2001, as amended and restated on 5th
July, 2001, as amended and restated on 8th November, 2001 and as amended
and restated on 7th November, 2002 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 (as defined in the Master Definition Schedule of
even date herewith and signed, for the purposes of identifications by
Xxxxxxxxx and May and Xxxxx & Overy relating hereto) and all monies
secured by those Mortgages and Related Security.
NOW THIS DEED WITNESSETH as follows:
The Transferor hereby transfers and assigns unto the Transferee with full title
guarantee (or, in relation to rights and assets situated in or governed by the
law of Scotland, 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 all MHA
Documentation) other than any such Related Security which has been
transferred to the Transferee by other means or which is not otherwise
capable of such transfer; and
(b) all causes and rights of action of the Transferor 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.
IN WITNESS of which this document has been executed and delivered as a deed the
day and year first before written.
38
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was hereunto affixed in the )
presence of: )
.................................... Authorised Signatory
.................................... Authorised Signatory
39
SCHEDULE 8
ASSIGNMENT OF MIG POLICIES
THIS DEED is made on 7th November, 2002
BETWEEN:
(1) ABBEY NATIONAL PLC (registered number 2294747), a public limited company
incorporated under the laws of England and Wales, whose registered office
is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0
0XX (the SELLER); and
(2) XXXXXX TRUSTEES LIMITED (registered number 3982431), a private limited
company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxx XX0 0XX (the MORTGAGES TRUSTEE).
WHEREAS:
(A) By a Mortgage Sale Agreement made between, inter alia, the Seller and the
Mortgages Trustee on 26th July, 2000, as amended on 29th November, 2000,
as amended and restated on 23rd May, 2001, as amended and restated on 5th
July, 2001, as amended and restated on 8th November, 2001 and as amended
and restated on 7th November, 2002, the Seller agreed to transfer to the
Mortgages Trustee certain charges by way of legal mortgage secured on
residential property in England and Wales and standard securities secured
on residential property in Scotland together with the benefit of any
monies secured thereby.
(B) The Seller has the benefit of mortgage indemnity insurance policies
numbered CAR 9401A, CAR 9401X, CAR 9601A and CAR 9601X and issued by
Carfax Insurance Limited on 4th November, 1994, 4th November, 1994, 30th
December, 1996 and 30th December, 1996 respectively.
(C) The Seller has agreed with the Mortgages Trustee to assign to the
Mortgages Trustee the benefit of the MIG Policies to the extent that they
relate to the Loans in the Portfolio.
NOW THIS DEED WITNESSETH as follows:
1. Capitalised terms in this Deed (including the recitals) shall, except
where the context otherwise requires and save where otherwise defined in
this Deed, bear the meanings given to them in the Master Definitions and
Construction Schedule dated 26th July, 2000 signed on behalf of, inter
alios, the parties to this Deed (as the same may be amended, varied or
supplemented from time to time) and this Deed shall be construed in
accordance with the interpretation provisions set out in Clause 2
thereof.
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 MIG Policies to the extent that they relate
to the Loans and the Mortgages 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.
40
IN WITNESS of which this document has been executed and delivered as a deed the
day and year first before written.
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was hereunto affixed in the )
presence of: )
.................................... Authorised Signatory
.................................... Authorised Signatory
41
SCHEDULE 9
MIG POLICIES ASSIGNMENT NOTICE
To: Carfax Insurance Limited
The Albany
South Esplanade
St. Xxxxx Port
Guernsey
Channel Islands
7th November, 2002
Dear Sirs,
RE: ASSIGNMENT OF MORTGAGE INDEMNITY INSURANCE POLICIES NUMBERED CAR 9401A,
CAR 9401X, CAR 9601A AND CAR 9601X ISSUED ON 4TH NOVEMBER, 1994, 4TH
NOVEMBER, 1994, 30TH DECEMBER, 1996 AND 30TH DECEMBER, 1996 RESPECTIVELY
(THE MIG POLICIES)
We hereby give you notice that, by an Assignment dated 7th November, 2002 and
made between ourselves and Xxxxxx Trustees Limited (the MORTGAGES TRUSTEE), we
assigned all of our right, title, benefit and interest in the MIG Policies (to
the extent that they relate to the loans and the mortgages in a portfolio
referred to in a mortgage sale agreement dated 26th July, 2000 (as amended
and/or restated from time to time) between ourselves, Xxxxxx Funding Limited,
the Mortgages Trustee and XX Xxxxxx Chase Bank, London Branch (formerly known
as The Chase Manhattan Bank, London Branch)) to the Mortgages Trustee.
Yours faithfully,
....................................................
For and on behalf of
ABBEY NATIONAL PLC
Copy: Xxxxxx Trustees Limited
Xxxxxx Funding Limited
42
SCHEDULE 10
ABBEY NATIONAL PLC POLICIES INSURANCE ACKNOWLEDGEMENT
ON THE HEADED NOTEPAPER OF EACH OF THE ABBEY NATIONAL PLC POLICY INSURERS
To: Abbey National PLC (the SELLER)
Abbey National House
0 Xxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx XX0 0XX
Xxxxxx Trustees Limited (the MORTGAGES TRUSTEE)
Abbey National House
0 Xxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx XX0 0XX
Xxxxxx Funding Limited (FUNDING)
Abbey National House
0 Xxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx XX0 0XX
JPMorgan Chase Bank, London Branch (formerly known as The Chase Manhattan
Bank, London Branch) (the SECURITY TRUSTEE)
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
Dear Sirs,
ABBEY NATIONAL PLC POLICIES
We refer to the home insurance policies issued or to be issued by the
Seller on our behalf to borrowers in respect of properties mortgaged by such
borrowers to the Seller on or after [ ], 20[ ], and in respect of which the
Seller and the borrower is named or will be named as the insured (the ABBEY
NATIONAL PLC POLICIES).
The Seller has informed us that:
(a) the Seller may transfer or agree to transfer its interest in properties
which are covered by Abbey National Insurance Plc Policies to the
Mortgages Trustee
43
(b) the Mortgages Trustee may declare a trust over its interest in such
properties in favour of Funding and the Seller; and
(c) Funding may charge its interest in such properties to the Security
Trustee.
In consideration of the execution of the attached indemnity in our favour by
the Seller and the payment of {pound-sterling}1 made by each of the Seller, the
Mortgages Trustee, Funding and the Security Trustee (receipt whereof is hereby
acknowledged), we hereby confirm that the arrangements set out in (a), (b) and
(c) will not cause the Abbey National Plc Policies to lapse or terminate and,
notwithstanding any such arrangements, we will continue to pay claims in the
same way and in the same amount as we would have paid, had the arrangements not
been entered into.
Yours faithfully,
FOR AND ON BEHALF OF [THE RELEVANT ABBEY NATIONAL PLC POLICIES INSURER]
44
SCHEDULE 11
PROPERTIES IN POSSESSION INSURANCE ACKNOWLEDGEMENT
ON THE HEADED NOTEPAPER OF XXXXX STREET RISK AND INSURANCE (GUERNSEY) LIMITED
To: Abbey National PLC (the SELLER)
Abbey National House
0 Xxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx XX0 0XX
Xxxxxx Trustees Limited (the MORTGAGES TRUSTEE)
Abbey National House
0 Xxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx XX0 0XX
Xxxxxx Funding Limited (FUNDING)
Abbey National House
0 Xxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx XX0 0XX
JPMorgan Chase Bank, London Branch (formerly known as The Chase Manhattan
Bank, London Branch) (the SECURITY TRUSTEE)
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X 0XX
Dear Sirs,
PROPERTIES IN POSSESSION POLICY NUMBER BSRI0004PIP (THE POLICY)
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 its interest in properties
which are (or may from time to time be) covered by the Policy to the
Mortgages Trustee;
(b) the Mortgages Trustee may declare a trust over its interest in such
properties in favour of Funding and the Seller; and
(c) Funding may charge its interest in such properties to the Security
Trustee.
In consideration of the payment of {pound-sterling}1 made by each of the
Seller, the Mortgages Trustee, Funding and the Security Trustee (receipt
whereof is hereby acknowledged), we hereby confirm that the arrangements set
out in (a), (b) and (c) will not cause the Policy to lapse or terminate and,
notwithstanding any such arrangements, we will continue to pay claims under the
Policy in the same way and in the same amount as we would have paid them, had
the said arrangements not been entered into.
45
Yours faithfully,
FOR AND ON BEHALF OF XXXXX STREET RISK AND INSURANCE (GUERNSEY) LIMITED
46
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 26th July, 2000
(as amended and/or restated from time to time) made between (1) Abbey
National PLC (the SELLER), (2) Xxxxxx Funding Limited (FUNDING), (3)
Xxxxxx Trustees Limited (the MORTGAGES TRUSTEE) and (4) JPMorgan Chase
Bank, London Branch (formerly known as The Chase Manhattan Bank, London
Branch) (the SECURITY TRUSTEE).
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 and the Mortgages Trustee, there shall exist between the Seller,
Funding 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
the 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 Assignment 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
ABBEY NATIONAL 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
XXXXXX FUNDING LIMITED
.................................................................
Signed for and on behalf of
XXXXXX TRUSTEES LIMITED
47
SCHEDULE
1 2 3
Title No. (if registered) Borrower Property
48
SCHEDULE 13
FORMS OF SCOTTISH TRANSFER
PART 1
LAND REGISTER
We, ABBEY NATIONAL PLC, incorporated under the Companies Acts in England
(Registered Number 2294747) and having our Registered Office formerly at Xxxxx
Xxxxx, Xxxxx Xxxxxx, Xxxxxx XX0 0XX and now at Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0Xx (the Transferor) CONSIDERING THAT in
terms of a Mortgage Sale Agreement among us the Transferor, XXXXXX TRUSTEES
LIMITED, incorporated under the Companies Acts in England (Registered Number
3982431) and having its Registered Office formerly at Xxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxx X0 0XX and now at Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxx XX0 0XX (the TRANSFEREE) and others dated 26th July, 2000 as
amended and restated on [ ], 2002 (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 pro tanto 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 25th July, 2000 as amended and
restated on [ ] 2002 (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 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 the said ABBEY NATIONAL PLC
by ................................... ....................................
and .................................. ....................................
49
SCHEDULE REFERRED TO IN THE FOREGOING ASSIGNATION BY ABBEY NATIONAL PLC IN
FAVOUR OF XXXXXX TRUSTEES LIMITED
1 2 3 4 5 6 [7
Account Address Borrowers Title Registration Sum Due Date of Bond
No. Full Names Number Date or Loan
Agreement
50
PART 2
SASINE REGISTER
We, ABBEY NATIONAL PLC, incorporated under the Companies Acts in England
(Registered Number 2294747) and having our Registered Office formerly at Xxxxx
Xxxxx, Xxxxx Xxxxxx, Xxxxxx XX0 0XX and now at Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the TRANSFEROR) CONSIDERING THAT in
terms of a Mortgage Sale Agreement among us the Transferor, XXXXXX TRUSTEES
LIMITED, incorporated under the Companies Acts in England (Registered Number
3982431) and having its Registered Office formerly at Xxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxx X0 0XX and now at Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxx XX0 0XX (the TRANSFEREE) and others dated 26th July, 2000 as
amended and restated on [ ] 2002 (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 pro tanto 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 25th July, 2000 as amended and
restated on [ ] 2002 (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 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 the said
ABBEY NATIONAL PLC
by ................................... ....................................
and .................................. ....................................
REGISTER on behalf of the within named XXXXXX TRUSTEES LIMITED as trustee
within mentioned in the REGISTERS of the COUNTIES of [ ]
51
SCHEDULE REFERRED TO IN THE FOREGOING ASSIGNATION BY ABBEY NATIONAL PLC IN
FAVOUR OF XXXXXX TRUSTEES LIMITED
1 2 3 4 5 6 [7
Account Address Borrowers Title Registration Sum Due Date of Bond
No. Full Names Number Date or Loan Agreement
52
SCHEDULE 14
FORM OF SCOTTISH TRUST DEED
DECLARATION OF TRUST
among
ABBEY NATIONAL PLC, a public limited company incorporated under the laws of
England and Wales (registered number 2294747) and having its Registered Office
formerly at Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx XX0 0XX and now at Abbey Xxxxxxxx
Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the SELLER)
and
XXXXXX TRUSTEES LIMITED, a private limited company incorporated under the laws
of England and Wales (registered number 3982431) and having its Registered
Office formerly at Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx XX0 0XX and now at Abbey
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX as trustee under
and in terms of the mortgages trust deed aftermentioned (the MORTGAGES TRUSTEE)
and
XXXXXX FUNDING LIMITED, a private limited company incorporated under the laws
of England and Wales (registered number 3982428) and having its Registered
Office formerly at Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx XX0 0XX and now at Abbey
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (FUNDING)
WHEREAS:
(A) Title to the Scottish Trust Property aftermentioned is held by and vested
in the Seller;
(B) In terms of a Mortgages Trust Deed entered into among the Seller,
Funding, the Mortgages Trustee and SPV Management Limited dated 25th
July, 2000 (as subsequently amended and restated) and the 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 and the Mortgages Trustee dated 26th July, 2000 as
amended and restated on [ ] 2002 (the MORTGAGE SALE
AGREEMENT) the Seller has agreed to sell 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; and
(D) In implement of Clause 4.5 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:
53
1.1 words and expressions defined in the Amended and Restated Master
Definitions and Construction Schedule signed for the purposes of
identification by Xxxxx & Xxxxx and Xxxxxxxxx and May on [
], 2002 (as the same may be amended, varied or supplemented from time to
time with the consent of the parties hereto) shall, except where the
context otherwise requires and save where otherwise defined herein, have
the same meanings in this deed, including the recitals hereto, and this
deed shall be construed in accordance with the interpretation provisions
set out in Clause 2 of the said Amended and Restated Master Definitions
and Construction Schedule; and
1.2 SCOTTISH TRUST PROPERTY shall mean the Scottish Loans and the Scottish
Mortgages and other Related Security relative thereto, brief particulars
of which Scottish Loans and Related Security are detailed in the schedule
annexed and executed as relative hereto, and all principal sums,
including any further advances, present or future, interest and expenses
comprised therein and secured thereby, together with (a) all monies,
rights, interests, benefits and others pertaining thereto or deriving
therefrom, (b) all powers and remedies for enforcing the same and (c) all
proceeds resulting from the enforcement of any of the said Scottish Loans
and the Related Security relative thereto.
2. DECLARATION OF TRUST
The Seller hereby DECLARES that from and after the date hereof the Seller
holds and subject to clause 8 hereof, 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:
4.1 as at the date hereof it holds, subject to any pending registration or
recording in the Registers of Scotland, legal title to the Scottish Trust
Property unencumbered by any fixed or floating charge, diligence or other
Security Interest;
4.2 it shall not create or agree to create any fixed or floating charge or
other Security Interest or Encumbrance 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
4.3 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
6 hereof, 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.
54
5. TRANSFER OF TITLE
5.1 The Mortgages Trustee and its foresaids as beneficiaries 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 or the
making of any administration order 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 (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, the said Xxxxxx Funding Limited 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 as defined in and held by the Mortgages Trustee
under the Mortgages Trust Deed.
7. MORTGAGES TRUST INTIMATION
The Mortgages Trustee hereby intimates to Funding and the Seller, as
Beneficiaries of the Mortgages Trust, the declaration of trust made in
terms of clause 6 hereof and Funding and the Seller by their respective
executions of this deed acknowledge such intimation.
8. TERMINATION OF TRUST
If:
8.1 legal title to any part or parts of the Scottish Trust Property is taken
by the Mortgages Trustee or its foresaids (including the Issuer or the
Security Trustee) in accordance with the provisions of clause 5 hereof
(which in the case of any Scottish Mortgage shall be constituted by the
registration or recording of the title thereto in the Registers of
Scotland); or
8.2 any part or parts of the Scottish Trust Property forms the subject of a
repurchase in accordance with the terms of clauses 7.4 or 8.5 of the
Mortgage Sale Agreement;
the trust hereby declared and created 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.
55
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 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.
10. VARIATION
This deed and the trust hereby declared and created shall not be varied
in any respect without the consent in writing of the Mortgages Trustee or
its foresaids and (for so long as each retains any right or interest in
the Scottish Trust Property) Funding 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 four
pages together with the Schedule annexed hereto are executed for and on behalf
of the Seller, the Mortgages Trustee and Funding at [
] on [ ] as follows:
SUBSCRIBED for and on behalf of the said
ABBEY NATIONAL PLC
by.................................. ..........................................
and................................. ..........................................
SUBSCRIBED for and on behalf of the said
XXXXXX TRUSTEES LIMITED
by.................................. ..........................................
and................................. ..........................................
SUBSCRIBED for and on behalf of the said
XXXXXX FUNDING LIMITED
by.................................. ..........................................
and................................. ..........................................
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SCHEDULE REFERRED TO IN THE FOREGOING DECLARATION OF TRUST AMONG ABBEY NATIONAL
PLC, XXXXXX TRUSTEES LIMITED AND XXXXXX FUNDING LIMITED
Details of Scottish Mortgage Loans and Related Security
1 2 3 4 5
Account No. Address Borrower's full name Title Number Sum Due
57
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
XXXXXX FUNDING LIMITED )
SIGNED for and on behalf of )
XXXXXX TRUSTEES LIMITED )
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
58
EXHIBIT
PART 1
INITIAL PORTFOLIO
This is Part 1 of the Exhibit to a Mortgage Sale Agreement dated 26th July,
2000 made between Abbey National PLC (1), Xxxxxx Funding Limited (2), Xxxxxx
Trustees Limited (3) and JPMorgan Chase Bank, London Branch (formerly known as
The Chase Manhattan Bank, London Branch) (4)
......................................
ABBEY NATIONAL PLC
......................................
XXXXXX FUNDING LIMITED
......................................
XXXXXX TRUSTEES LIMITED
......................................
JPMORGAN CHASE BANK, LONDON BRANCH
(FORMERLY KNOWN AS THE CHASE MANHATTAN BANK, LONDON BRANCH)
59
EXHIBIT
PART 2
STANDARD DOCUMENTATION
This is Part 2 of the Exhibit to a Mortgage Sale Agreement dated 26th July,
2000, as amended on 29th November, 2000, as amended and restated on 23rd May,
2001, as amended and restated on 5th July, 2001, as amended and restated on 8th
November, 2001 and as amended and restated on 7th November, 2002 made between
Abbey National PLC (1), Xxxxxx Funding Limited (2), Xxxxxx Trustees Limited (3)
and JPMorgan Chase Bank, London Branch (formerly known as The Chase Manhattan
Bank, London Branch) (4)
......................................
ABBEY NATIONAL PLC
......................................
XXXXXX FUNDING LIMITED
......................................
XXXXXX TRUSTEES LIMITED
......................................
JPMORGAN CHASE BANK, LONDON BRANCH
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LIST OF STANDARD DOCUMENTATION
PART 1
STANDARD DOCUMENTATION FOR ENGLAND AND WALES (INCLUDING FORMS FOR THE WHOLE OF
GREAT BRITAIN)
1. Mortgage Deed (CPA20103) - 2 versions - June, 1996 and January 1998
2. 3rd Party Mortgage Deed (Q90) - November 1994
3. Deed of Substitution (CPA10063) - July 1995
4. Certificate of Title & Funds Request (CPA20105) - 2 versions - August
1997 and August 1999
5. Deed of Consent (M94/CPA10049) - 2 versions - July 1995 and December 1997
6. Deed of Consent - Additional Loan (CPA30147) - March 1998
7. Deed of Guarantee (CPC10017) - August 1997
8. Deed of Postponement (Additional Loan Q95) - November 1994
9. Deed of Postponement (New Loan Q96) - November 1994
10. Mortgage Application Form (CPA20073) - 2 versions - April 1996 and
undated
11. Deed of Further Charge - March 1998
12. Additional Loan Application - undated
13. Mortgage Conditions (1995 Edition) - 2 versions (1995 print and 1998
reprint)
14. Re-mortgage Application Form - August 1997
15. Offer Letter (with Mortgage Account Summary in completion letter) - 7th
January, 1999
16. Mortgage Conditions (1994 Edition)
17. Mortgage Overpayments and Underpayments - undated
18. High Loan to Value Fee - 2 versions - December 1997 and undated
19. Interest Charging and Accrued Interest - 2 versions - January 1998 and
undated
20. Valuation for Mortgage Purposes (blank form) - April 1997
21. Additional Loan Valuation - July 1995
22. Home Improvement Loan Application Form - May 1995
23. Tariff of Charges for Residential Mortgages and Secured Loans - June 1997
61
24. Deed of Covenant - July 1995
25. Assignment of Building Contract - July 1995
26. Your Additional Loan Offer - March 1998
27. General Instructions for Solicitors and Licensed Conveyancers - 1994
edition
28. Council of Mortgage Lenders - Lenders' Handbook - 1999 edition
29. Fee Schedules - January 1998, March 2000 and April 2000
30. Properties in Possession Policy and endorsements
31. Offer Letter for flexible mortgage product
32. Flexible Mortgage Standard Offer Conditions
33. Flexible Mortgage - Copy of proposed credit agreement containing notice
of right to withdraw
34. Flexible Mortgage Product - Drawdown Conditions
35. Special conditions
PART 2
STANDARD DOCUMENTATION FOR SCOTLAND
1. Standard Security (1995)
2. Standard Security (2002)
3. Standard Security (Tracker)
4. Standard Security (Flexible Mortgages)
5. Deed of Guarantee (Scotland)
6. Certificate of Title and Funds Request form (Scotland)
7. Mortgage Conditions (1995 - Scotland)
8. Mortgage Conditions for Regulated Loans (1998 - Scotland)
9. Flexible Mortgage Conditions (2000 - Scotland)
10. Mortgage Conditions ("Classic") (2001 - Scotland)
11. Mortgage Conditions ("Lifestyle") (2001 - Scotland)
12. Tracker Mortgage Conditions (2001 - Scotland)
13. Standard Mortgage Conditions (2002 - UK)
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14. Flexible Mortgage Conditions (2002 - UK)
IN WITNESS WHEREOF the parties hereto have executed this Agreement for delivery
on the day and year first before written.
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
XXXXXX FUNDING LIMITED )
SIGNED for and on behalf of )
XXXXXX TRUSTEES LIMITED )
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
63
