Exhibit 4.3
DRAFT
AMENDED AND RESTATED MORTGAGE SALE AGREEMENT
DATED [o], 2004
ABBEY NATIONAL PLC
as Seller
and
▇▇▇▇▇▇ FUNDING LIMITED
as Funding
and
▇▇▇▇▇▇ TRUSTEES LIMITED
as Mortgages Trustee
and
JPMORGAN CHASE BANK, LONDON BRANCH
as Security Trustee
▇▇▇▇▇ & ▇▇▇▇▇
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............................................21
2. Registered Transfer.......................................................28
3. Unregistered Transfer.....................................................29
4. Lending Criteria..........................................................31
5. Power of Attorney in Favour of Funding, the Mortgages Trustee and
the Security Trustee....................................................34
6. Loan Purchase Notice......................................................37
7. Assignment of Third Party Rights..........................................39
8. Assignment of MIG Policies................................................41
9. MIG Policies Assignment Notice............................................43
10. Assignment of the Right to Cancel MIG Policies............................44
11. MIG Policies Assignment of the Right to Cancel Notice.....................46
12. Abbey National PLC Policies Insurance Acknowledgement.....................47
13. Properties in Possession Insurance Acknowledgement........................49
14. New Portfolio Notice......................................................51
15. Forms of Scottish Transfer................................................53
16. Form of Scottish Trust Deed...............................................59
THIS AMENDED AND RESTATED MORTGAGE SALE AGREEMENT is made on [o], 2004
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, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (the Seller);
(2) ▇▇▇▇▇▇ 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, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ (Funding and together with the Seller the Beneficiaries);
(3) ▇▇▇▇▇▇ 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, Regent's 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 ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
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 their 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
restated this Agreement and 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.
(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
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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) On 26th March, 2003 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 Agreement of the same date.
(J) 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 ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
and May on [o], 2004 (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) ▇▇▇ ▇▇▇▇, 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, as amended
and restated on 7th November, 2002 and as amended and restated on 26th
March, 2003 (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
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(or in relation to rights and assets situated in or governed by the law of
Scotland, with absolute warrandice), the Initial Portfolio.
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
▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ 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 minutes 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
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(g) a solvency certificate from an authorised signatory of the Seller
dated as at the Initial Closing Date.
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 ▇▇▇ ▇▇▇▇.
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
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relation to rights and assets situated in or governed by the law of
Scotland, with absolute warrandice) to the Mortgages Trustee the relevant
New Portfolio.
4.2 The conditions to be met as at each 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 4 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 the 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)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;
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(k) the Principal Deficiency Ledger shall not have a debit balance as at
the relevant Assignment Date;
(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) unless otherwise agreed by the relevant Rating Agency, the short
term, unsecured, unguaranteed and unsubordinated debt obligations of
the Seller are rated at least P-1 by ▇▇▇▇▇'▇, 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, at least 85 per
cent. (by number) of the Loans and their related Security in the
Mortgages Trust at the expiry of any Interest Period shall have been
in the Mortgages Trust as at the beginning of such 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 0.50 per cent. The yield of the Relevant Loans is to be
calculated as follows:
(AxB)+(Cx(D-E+F))+(Gx(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 and/or the Term A 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 any Interest Payment Date
on which any Issuer does not exercise its option to redeem the relevant
Notes issued on the relevant date pursuant to the terms and conditions of
such Notes.
4.4 Subject to fulfilment of the conditions referred to in Clauses 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
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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 16 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:
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(i) up to and including the Interest Payment Date falling in April, 2009
(or such later date as may be notified by Funding) or until the
occurrence of a Trigger Event (if earlier), sufficient New Loans and
their Related Security so that the aggregate Outstanding Principal
Balance of Loans in the Portfolio is not less than
(pound)25,000,000,000; and
(ii) up to and including the Interest Payment Date falling in July 2010
(or such later date as may be notified by Funding) or until the
occurrence of a Trigger Event (if earlier), sufficient New Loans and
their Related Security so that the aggregate Outstanding Principal
Balance of Loans in the Portfolio is not less than
(pound)2,500,000,000,
(or such other amount or amounts specified by Funding in the notice
referred to in Clause 4.7(b) 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 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.
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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 ▇▇▇▇▇'▇ 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:
(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 the
Land Registry or at the 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
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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 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
11
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
(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 ▇▇▇▇▇'▇ and BBB or more 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 ▇▇▇▇▇'▇ and BBB- or more from S&P and BBB- or more from
Fitch, then the Seller shall within 10 London
12
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 the 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.
7.8 The Mortgages Trustee undertakes with the Seller to duly execute on the
date of this Agreement the assignment of its right to cancel the MIG
Policies to the Seller, substantially in the form set out in Schedule 10
hereto and to deliver forthwith a notice of such assignment to Carfax or
such other insurer under the MIG Policies substantially in the form set
out in Schedule 11. The Mortgages Trustee shall use its reasonable
endeavours to procure, at the expense of the Seller, that Carfax or such
other insurer under the MIG Policies consents to such assignment of the
right to cancel the MIG Policies and confirms the same to the Seller
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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 (if applicable), 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, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile
number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of the Company Secretary
with a copy to Abbey National plc, c/o Abbey House, (AAM 126), ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile
17
number (▇▇) ▇▇▇▇ ▇▇▇▇▇▇) for the attention of Securitisation Team,
Customer Risk and Decisioning;
(b) in the case of Funding, to ▇▇▇▇▇▇ Funding Limited, c/o Abbey
National plc Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the
attention of the Company Secretary with a copy to Abbey National
plc, c/o Abbey House, (AAM 126), ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇▇▇ ▇▇▇▇▇▇) for the attention
of Securitisation Team, Customer Risk and Decisioning;
(c) in the case of the Mortgages Trustee, to ▇▇▇▇▇▇ Trustees Limited,
c/o Abbey National plc, Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇)
for the attention of the Company Secretary with a copy to Abbey
National plc, c/o Abbey House, (AAM 126), ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇▇▇ ▇▇▇▇▇▇) for the
attention of Securitisation Team, Customer Risk and Decisioning; and
(d) in the case of the Security Trustee, to JPMorgan Chase Bank, London
Branch, Trinity Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of the
Manager, Trust Administration,
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party
to the others by written notice in accordance with the provisions of this
Clause 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.
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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) ▇▇▇ ▇▇▇▇.
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.
19
SIGNATORIES
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
▇▇▇▇▇▇ FUNDING LIMITED )
SIGNED for and on behalf of )
▇▇▇▇▇▇ TRUSTEES LIMITED )
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
20
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)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
21
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
22
(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 ▇▇▇ ▇▇▇▇ 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 the 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 ▇▇▇ ▇▇▇▇ or the Housing (Scotland) ▇▇▇
▇▇▇▇ 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 or (as the case may be) the Unfair
Terms in Consumer Contracts Regulations 1999, valid and
23
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 ▇▇▇ ▇▇▇▇; or
(b) an assured tenancy; or
(c) a short assured tenancy which meets the requirements of section 32
of the Housing (Scotland) ▇▇▇ ▇▇▇▇,
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 (or such longer period as may be acceptable to a
reasonable, prudent mortgage lender) prior to the grant 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 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 (including any
retention(s) subsequently advanced to the Borrower but disregarding
Capitalised Expenses) is either:
24
(a) not more than 75 per cent. of the lower of the purchase price and
the appraised value of the Property as stated in the valuation
report referred to above in paragraph 4.1 (the appraised value) (or,
in case of a remortgage, of the appraised value) of the Property; or
(b) greater than 75 per cent. (but not more than 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, prior to the Seller exercising its right to
cancel the MIG Policies, recoverable under an 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 the 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; or
25
(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 and prior to the Seller exercising its right to cancel
the MIG Policies, the MIG Policies are in full force and effect in
relation to the Portfolio and all premiums thereon have been paid.
6.2 Prior to the Seller exercising its right to cancel the MIG Policies, 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 Prior to the Seller exercising its right to cancel the MIG Policies, 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 Prior to the Seller exercising its right to cancel the MIG Policies, 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 ▇▇▇ ▇▇▇▇ 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 the 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:
26
(a) the Seller; or
(b) the Seller's solicitors to the order of the Seller,
and the Title Deeds held at the 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, Properties in
Possession Policy or, prior to Seller exercising its right to cancel the
MIG Policies, any MIG 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.
27
SCHEDULE 2
REGISTERED TRANSFER
In the form of the Land Registry Form TR4 as shown overleaf with such amendments
as the Mortgages Trustee may reasonably require to give effect to this Agreement
or in such other form as the Mortgages Trustee may reasonably require to take
account of changes in law or practice.
28
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, ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (hereinafter called the
Transferor) of the one part; and
(2) ▇▇▇▇▇▇ TRUSTEES LIMITED whose registered office is Abbey National House, 2
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (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, ▇▇▇ 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 ▇▇▇ 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.
29
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
30
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).
31
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
32
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.
33
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 [o], 2004 by:
(1) ABBEY NATIONAL PLC whose registered office is at Abbey National House, ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (registered number 2294747)
(the Seller);
in favour of each of:
(2) ▇▇▇▇▇▇ FUNDING LIMITED whose registered office is at Abbey National House,
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (registered number
3982428) (Funding);
(3) ▇▇▇▇▇▇ TRUSTEES LIMITED whose registered office is at Abbey National
House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ 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, as amended and restated on 7th
November, 2002, as amended and restated on 26th March, 2003 and as amended
and restated on [o], 2004 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 ▇▇▇▇▇ & Overy and ▇▇▇▇▇▇▇▇▇ 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:
34
(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 the 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.
35
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
36
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), ▇▇▇▇▇▇ Funding Limited (2), ▇▇▇▇▇▇ 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
▇▇▇▇▇▇ TRUSTEES LIMITED
[On duplicate
............................................
Signed for and on behalf of
ABBEY NATIONAL PLC]
37
Schedule
1 2 3
Title No. (if registered) Borrower Property
38
SCHEDULE 7
ASSIGNMENT OF THIRD PARTY RIGHTS
THIS DEED is made on [o], 2004
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, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (the Transferor); and
(2) ▇▇▇▇▇▇ 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, Regent's Place, London
NW1 3AN (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, as amended and
restated on 7th November, 2002, as amended and restated on 26th March,
2003 and as amended and restated on [o], 2004 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 ▇▇▇▇▇▇▇▇▇ and May and ▇▇▇▇▇ & 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.
39
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was hereunto affixed in the )
presence of: )
................................. Authorised Signatory
................................. Authorised Signatory
40
SCHEDULE 8
ASSIGNMENT OF MIG POLICIES
THIS DEED is made on [o], 2004
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, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (the Seller); and
(2) ▇▇▇▇▇▇ 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, Regent's Place, London
NW1 3AN (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, as amended and
restated on 26th March, 2003 and as amended and restated on [o], 2004 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. Subject to Clause 3 below, 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. Notwithstanding anything to the contrary contained in this Deed or
elsewhere, the Seller retains its right to cancel each or any of the MIG
Policies and to reclaim the rebate of
41
premium (if any) upon the cancellation of the relevant MIG Policy or MIG
Policies as the case may be.
4. This Deed shall be governed by and construed in accordance with English
law.
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
42
SCHEDULE 9
MIG POLICIES ASSIGNMENT NOTICE
To: Carfax Insurance Limited
The Albany
South Esplanade
St. ▇▇▇▇▇ Port
Guernsey
Channel Islands
[o], 2004
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
(each an MIG Policy and together the MIG Policies)
We hereby give you notice that, by an assignment dated [o], 2004 and made
between ourselves and ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇ Funding Limited,
the Mortgages Trustee and ▇▇ ▇▇▇▇▇▇ Chase Bank, London Branch (formerly known as
The Chase Manhattan Bank, London Branch)) to the Mortgages Trustee (excluding
our rights to cancel each or any of the MIG Policies and to reclaim the rebate
of premium (if any) upon the cancellation of the relevant MIG Policy or MIG
Policies, as the case may be, which we have retained).
Yours faithfully,
.....................................
For and on behalf of
ABBEY NATIONAL PLC
Copy: ▇▇▇▇▇▇ Trustees Limited
▇▇▇▇▇▇ Funding Limited
43
SCHEDULE 10
ASSIGNMENT OF THE RIGHT TO CANCEL MIG POLICIES
THIS DEED is made on [o], 2004
BETWEEN:
(1) ▇▇▇▇▇▇ 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, Regent's Place, London
NW1 3AN (the Mortgages Trustee); and
(2) 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, 2 Triton Square, Regent's Place, London NW1
3AN (the Seller).
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, as amended and
restated on 7th November, 2002, as amended and restated on 26th March,
2003 and as amended and restated on [o], 2004, 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 assigned to the Mortgages Trustee all its right, title,
interest and benefit in the 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 (the MIG Policies).
(C) The Mortgages Trustee has agreed to re-assign to the Seller its right to
cancel 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 Amended and Restated
Master Definitions and Construction Schedule signed for the purposes of
identification by ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ and May on [o], 2004 (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 Mortgages Trustee hereby assigns to the Seller absolutely its right to
cancel each and/or any of the MIG Policies to the extent that they relate
to the Loans and the Mortgages in the Portfolio and to reclaim the rebate
of premium (if any) upon the cancellation of the relevant MIG Policy or
MIG Policies as the case may be.
3. This Deed shall be governed by and construed in accordance with English
law.
44
IN WITNESS of which this document has been executed and delivered as a deed the
day and year first before written.
EXECUTED as a DEED )
▇▇▇▇▇▇ TRUSTEES LIMITED )
acting by: )
.................................. Director
.................................. Director/Secretary
45
SCHEDULE 11
MIG POLICIES ASSIGNMENT OF THE RIGHT TO CANCEL NOTICE
To: Carfax Insurance Limited
The Albany
South Esplanade
St. ▇▇▇▇▇ Port
Guernsey
Channel Islands
[o], 2004
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
(each an MIG Policy and together the MIG Policies)
We hereby give you notice that, by an assignment dated [o], 2004 and made
between ourselves and Abbey National PLC (the Seller), we assigned our right to
cancel each and/or any of 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 [o], 2004 (as amended and/or restated from time to time) between
ourselves, ▇▇▇▇▇▇ Funding Limited, the Mortgages Trustee and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Bank, London Branch (formerly known as The Chase Manhattan Bank, London Branch))
and to reclaim the rebate of premium (if any) upon the cancellation of the MIG
Policy or MIG Policies, as the case may be, to the Seller.
Yours faithfully,
...............................
For and on behalf of
▇▇▇▇▇▇ TRUSTEES LIMITED
Copy: ▇▇▇▇▇▇ Trustees Limited
▇▇▇▇▇▇ Funding Limited
46
SCHEDULE 12
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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Regent's Place
London NW1 3AN
▇▇▇▇▇▇ Trustees Limited (the Mortgages Trustee)
Abbey ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Regent's Place
London NW1 3AN
▇▇▇▇▇▇ Funding Limited (Funding)
Abbey National House
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
JPMorgan Chase Bank, London Branch
(formerly known as The Chase Manhattan Bank, London Branch)
(the Security Trustee)
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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;
47
(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)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]
48
SCHEDULE 13
PROPERTIES IN POSSESSION INSURANCE ACKNOWLEDGEMENT
ON THE HEADED NOTEPAPER OF ▇▇▇▇▇ STREET RISK AND INSURANCE (GUERNSEY) LIMITED
To: Abbey National PLC (the Seller)
Abbey ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Regent's Place
London NW1 3AN
▇▇▇▇▇▇ Trustees Limited (the Mortgages Trustee)
Abbey ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Regent's Place
London NW1 3AN
▇▇▇▇▇▇ Funding Limited (Funding)
Abbey National House
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
JPMorgan Chase Bank, London Branch
(formerly known as The Chase Manhattan Bank, London Branch)
(the Security Trustee)
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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)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.
49
Yours faithfully,
For and on behalf of ▇▇▇▇▇ Street Risk and Insurance (Guernsey) Limited
50
SCHEDULE 14
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) ▇▇▇▇▇▇ Funding Limited (Funding), (3) ▇▇▇▇▇▇ 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
▇▇▇▇▇▇ FUNDING LIMITED
....................................
Signed for and on behalf of
▇▇▇▇▇▇ TRUSTEES LIMITED
51
Schedule
1 2 3
Title No. (if registered) Borrower Property
52
SCHEDULE 15
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 ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and now at Abbey ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, Regent's Place, London NW1 3AN (the Transferor) CONSIDERING THAT in
terms of a Mortgage Sale Agreement among us the Transferor, ▇▇▇▇▇▇ TRUSTEES
LIMITED, incorporated under the Companies Acts in England (Registered Number
3982431) and having its Registered Office formerly at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇ and now at Abbey ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Regent's Place,
London NW1 3AN (the Transferee) and others 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, as
amended and restated on 7th November, 2002, as amended and restated on 26th
March, 2003 and as amended and restated on [o], 2004 (the Mortgage Sale
Agreement) we have sold our whole right, title and interest in and to the
Standard Securities and others hereinafter mentioned to the Transferee NOW
THEREFORE we the Transferor IN CONSIDERATION of the sums payable in terms of and
in implement 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 on
29th November, 2000, as amended on 23rd May, 2001, as amended and restated on
5th July, 2001, as amended and restated on 8th November, 2001, as amended and
restated on 7th November, 2002, as amended and restated on 26th March, 2003 and
as amended and restated on [o], 2004 (the Mortgages Trust Deed) and its
successor or successors as trustee or trustees under and in terms of the
Mortgages Trust Deed:
(a) the Standard Securities granted by the respective parties whose names are
specified in Column 3 of the Schedule annexed and executed as relative
hereto in favour of us the Transferor for all sums due and to become due,
to the extent of the sums specified in the relative entry in Column 6 of
the said Schedule being the amounts now due under the said respective
Standard Securities, registered said Standard Securities in the Land
Register under the Title Number specified in the relative entry in Column
4 of the said Schedule on the date specified in the relative entry in
Column 5 of the said Schedule; and
(b) the whole rights 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 .............................. ........................................
53
Schedule referred to in the foregoing Assignation by Abbey National plc in
favour of ▇▇▇▇▇▇ Trustees Limited
1 2 3 4 5 6 7
Account No. Address Borrowers' Title Registration Sum Due Date of Bond or
Full Names Number Date Loan Agreement
54
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 ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and now at Abbey ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, Regent's Place, London NW1 3AN (the Transferor) CONSIDERING THAT in
terms of a Mortgage Sale Agreement among us the Transferor, ▇▇▇▇▇▇ TRUSTEES
LIMITED, incorporated under the Companies Acts in England (Registered Number
3982431) and having its Registered Office formerly at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇ and now at Abbey ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Regent's Place,
London NW1 3AN (the Transferee) and others 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, as
amended and restated on 7th November, 2002, as amended and restated on 26th
March, 2003 and as amended and restated on [o], 2004 (the Mortgage Sale
Agreement) we have sold our whole right, title and interest in and to the
Standard Securities and others hereinafter mentioned to the Transferee NOW
THEREFORE we the Transferor IN CONSIDERATION of the sums payable in terms of and
in implement 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 on
29th November, 2000, as amended on 23rd May, 2001, as amended and restated on
5th July, 2001, as amended and restated on 8th November, 2001, as amended and
restated on 7th November, 2002, as amended and restated on 26th March, 2003 and
as amended and restated on [o], 2004 (the Mortgages Trust Deed) and its
successor or successors as trustee or trustees under and in terms of the
Mortgages Trust Deed:
(a) the Standard Securities granted by the respective parties whose names are
specified in Column 3 of the Schedule annexed and executed as relative
hereto in favour of us the Transferor for all sums due and to become due,
to the extent of the sums specified in the relative entry in Column 6 of
the said Schedule being the amounts now due under the said respective
Standard Securities, recorded said Standard Securities in the Register for
the County specified in the relative entry in Column 4 of the said
Schedule on the date specified in the relative entry in Column 5 of the
said Schedule; and
(b) the whole rights 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 ............................... ........................................
55
REGISTER on behalf of the within named ▇▇▇▇▇▇ TRUSTEES LIMITED as trustee within
mentioned in the REGISTERS of the COUNTIES of [ ]
56
Schedule referred to in the foregoing Assignation by Abbey National plc in
favour of ▇▇▇▇▇▇ Trustees Limited
1 2 3 4 5 6 7
Account No. Address Borrowers' Title Registration Sum Due Date of Bond or
Full Names Number Date Loan Agreement
57
SCHEDULE 16
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 ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and now at Abbey ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the Seller)
and
▇▇▇▇▇▇ TRUSTEES LIMITED, a private limited company incorporated under the laws
of England and Wales (registered number 3982431) and having its Registered
Office formerly at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and now at Abbey
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as trustee under
and in terms of the mortgages trust deed aftermentioned (the Mortgages Trustee)
and
▇▇▇▇▇▇ FUNDING LIMITED, a private limited company incorporated under the laws of
England and Wales (registered number 3982428) and having its Registered Office
formerly at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and now at Abbey ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (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
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, as amended and restated on 7th November, 2002, as amended
and restated on 26th March, 2003 and as amended and restated on [o], 2004
(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:
58
NOW THEREFORE the parties HEREBY AGREE and DECLARE as follows:
1. Interpretation
In this deed:
1.1 words and expressions defined in the Amended and Restated Master
Definitions and Construction Schedule signed for the purposes of
identification by ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ and May on [ ], 2004
(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
59
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.
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 ▇▇▇▇▇▇ 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
60
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.
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
▇▇▇▇▇▇ TRUSTEES LIMITED
by .................................. ........................................
and ................................. ........................................
SUBSCRIBED for and on behalf of the said
61
▇▇▇▇▇▇ FUNDING LIMITED
by .................................. ........................................
and ................................. ........................................
62
SCHEDULE referred to in the foregoing Declaration of Trust among Abbey National
plc, ▇▇▇▇▇▇ Trustees Limited and ▇▇▇▇▇▇ Funding Limited
Details of Scottish Mortgage Loans and Related Security
1 2 3 4 5
Account No. Address Borrower's full name Title Sum
Number Due
63
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
▇▇▇▇▇▇ FUNDING LIMITED )
SIGNED for and on behalf of )
▇▇▇▇▇▇ TRUSTEES LIMITED )
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
64
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), ▇▇▇▇▇▇ Funding Limited (2), ▇▇▇▇▇▇ Trustees
Limited (3) and JPMorgan Chase Bank, London Branch (formerly known as The Chase
Manhattan Bank, London Branch) (4)
..........................................
ABBEY NATIONAL PLC
..........................................
▇▇▇▇▇▇ FUNDING LIMITED
..........................................
▇▇▇▇▇▇ TRUSTEES LIMITED
..........................................
JPMORGAN CHASE BANK, LONDON BRANCH
65
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, as amended and restated on 7th November, 2002, as amended and
restated on 26th March, 2003 and as amended and restated on [o], 2004 made
between Abbey National PLC (1), ▇▇▇▇▇▇ Funding Limited (2), ▇▇▇▇▇▇ Trustees
Limited (3) and JPMorgan Chase Bank, London Branch (formerly known as The Chase
Manhattan Bank, London Branch) (4)
...........................................
ABBEY NATIONAL PLC
...........................................
▇▇▇▇▇▇ FUNDING LIMITED
...........................................
▇▇▇▇▇▇ TRUSTEES LIMITED
...........................................
JPMORGAN CHASE BANK, LONDON BRANCH
66
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
67
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
36. Flexible Plus Mortgage Conditions 2003 (MORT 0201 May 03DS)
37. Mortgage Deed (MD684U)
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)
68
12. Tracker Mortgage Conditions (2001 - Scotland)
13. Standard Mortgage Conditions (2002 - UK)
14. Flexible Mortgage Conditions (2002 - UK)
15. Standard Security (MORT 0204 May 03DS)
16. Standard Security (MORT 0204 Oct. 03DS)
17. Standard Security (MORT 0204 Dec 03F)
18. Mortgage Conditions for Regulated Loans (1998 - Scotland) (Printed
December 2003)
19. [Deed of Guarantee (Scotland)]
20. [Certificate of Title and Funds Request Form (Scotland)]
21. All Conditions (Scotland) (19-12-03)
69