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Execution Copy
Exhibit 10.24
LOAN FACILITY
between
MORTGAGE MANAGEMENT LIMITED
as Borrower
and
GREENWICH INTERNATIONAL, LTD.
as Lender
and
CITY MORTGAGE CORPORATION LIMITED
SIDLEY & AUSTIN
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇-▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇-▇▇▇ ▇▇▇▇
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CONTENTS
Clause Page No.
------ --------
1. INTERPRETATION...................................................... 2
2. THE FACILITY AND PURPOSE............................................ 17
3. AVAILABILITY........................................................ 18
4. DRAWINGS............................................................ 21
5. CANCELLATION........................................................ 24
6. INTEREST ON ADVANCES................................................ 24
7. REPAYMENT........................................................... 25
8. EXAMINATION OF MORTGAGE FILES....................................... 26
9. EVIDENCE OF DEBT.................................................... 27
10. TAXES............................................................... 27
11. INCREASED COSTS..................................................... 29
12. ILLEGALITY.......................................................... 30
13. PAYMENTS............................................................ 30
14. REPRESENTATIONS AND WARRANTIES...................................... 30
15. REMEDIES FOR BREACH OF REPRESENTATIONS AND WARRANTIES............... 38
16. UNDERTAKINGS........................................................ 40
17. DEFAULT............................................................. 46
18. DEFAULT INTEREST.................................................... 51
19. CURRENCY OF ACCOUNT................................................. 51
20. SET-OFF............................................................. 52
21. CALCULATION OF INTEREST............................................. 52
22. COSTS AND EXPENSES.................................................. 52
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23. RELEASE FEES........................................................ 53
24. REMEDIES AND WAIVERS................................................ 53
25. CONFIDENTIALITY..................................................... 53
26. NOTICES............................................................. 53
27. SEVERABILITY........................................................ 54
28. WAIVER.............................................................. 55
29. ASSIGNMENT.......................................................... 55
30. FURTHER ASSURANCE................................................... 56
31. GOVERNING LAW....................................................... 56
SCHEDULE 1 FORM OF DRAWDOWN REQUEST(INITIAL ADVANCE)...................... 58
FORM OF DRAWDOWN REQUEST(REVOLVING ADVANCES).............................. 59
SCHEDULE 2AFORMS OF SOLVENCY CERTIFICATE.................................. 61
SCHEDULE 2B............................................................... 62
SCHEDULE 3MORTGAGE LOAN DOCUMENTS......................................... 63
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THIS AGREEMENT is made on February 1998 between:
(1) MORTGAGE MANAGEMENT LIMITED, a company incorporated under the laws of
England and Wales, registered number 2002263 whose registered office is at
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇ (the
"Borrower"); and
(2) GREENWICH INTERNATIONAL, LTD., a company incorporated under the laws of
Bermuda, whose branch office is in the United Kingdom is at ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ (the "Lender"); and
(3) CITY MORTGAGE CORPORATION LIMITED, a company incorporated under the laws
of England and Wales, registered number (3043776) whose registered office
is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇
("CMC" )
WHEREAS:-
(1) CMC and the Lender have entered into the Mortgage Loan Purchase Agreement
and the Commitment Letter pursuant to which Mortgage Loans may be sold by
CMC and its Originating Subsidiaries to the Lender.
(2) CMC and CMF have entered into the Origination and Purchase Agreement and
CMF and the Lender have entered into the Supplemental Agreement pursuant
to which Mortgage Loans may, in lieu of being sold by CMC and its
Originating Subsidiaries to the Lender under the Mortgage Loan Purchase
Agreement and Commitment Letter, be sold by CMC and its Originating
Subsidiaries to CMF and, immediately thereafter, by CMF to the Lender.
(3) Mortgage Loans originated by Originating Subsidiaries and by third parties
(subsequently sold to CMC) have, from time to time, been sold by CMC or
such Originating Subsidiaries to the Lender pursuant to the Sale and
Purchase Agreements.
(4) Certain of the Mortgage Loans sold to the Lender pursuant to the foregoing
agreements have been subsequently securitised under the Securitisations.
(5) The FPD Loans were purchased by CMF from the Lender on 31 July, 1997
pursuant to the FPD Loan Purchase Agreement and the purchase was funded by
a loan made available by the Lender secured by the FPD Loan Charge.
(6) The Existing Mortgage Loans are serviced by the Servicer pursuant to the
Servicing Agreement.
(7) The Borrower is a wholly owned subsidiary of CMC.
(8) Pursuant to a letter dated 25 February 1998, the Lender issued a letter
stating that it terminated its obligation to purchase Mortgage Loans under
the Commitment Letter and the Mortgage Loan Purchase Agreement.
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(9) CMC, the Servicer and the Lender have agreed to provide the financing
arrangements relating to the Existing Mortgage Loans and New Production
Mortgage Loans and as part of those arrangements the Lender has agreed to
make available the Facility to the Borrower on the terms and subject to
the conditions of this Agreement so as to enable the Borrower to purchase
the Existing Mortgage Loans and to finance the purchase by the Borrower of
New Production Mortgage Loans.
(10) CMC has agreed to indemnify the Lender in respect of inter alia, the
obligations of the Borrower under this Agreement.
1. INTERPRETATION
1.1 Definitions
In this Agreement (including the recitals hereto) the following terms
shall have the respective meanings set forth below:-
"Account Assignments" means the Borrower Collection Account Assignment,
the Borrower Funding Account Assignment and the CMC Proceeds Account
Assignment.
"Account Bank" means National Westminster Bank Plc or such other bank or
financial institution as may be substituted as account bank with the prior
written consent of the Lender.
"Advance" means, save as otherwise provided herein, an advance (as from
time to time reduced by repayment and prepayment) made or to be made by
the Lender hereunder pursuant to the Term Loan or the Revolving
Commitment.
"Advance Date" means each date on which the Lender from time to time shall
make Advances to fund purchase of Mortgage Loans hereunder.
"Advance Date Principal Balance" means as to any Mortgage Loan, the unpaid
principal balance thereof as of the related Advance Date (or, if later,
the date of origination of such Mortgage Loan) provided that (unless
otherwise agreed between the Lender and the Borrower) such unpaid
principal balance shall be calculated after application of all payments of
principal due and received on or prior thereto, but without giving effect
to any instalments of principal received in respect of due dates
thereafter.
"Agreement" means this Loan Facility Agreement, including all schedules
and annexures hereto, which expression shall include the same as varied,
supplemented, re-stated, extended or replaced from time to time.
"Approved Affiliate" means each of Assured Funding Corporation Limited,
Home Funding Corporation Limited, J&J Securities Limited and Home Mortgage
Corporation Limited and any subsidiary (as defined in Section 736
Companies Act 1985) of CMC
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which is designated by the Borrower as an "Approved Affiliate" for the
purposes of this Agreement and which is approved as such in writing by the
Lender.
"Assignment Agreement" means the assignment agreement to be entered into
between the Borrower, CMF and CMC on or about the date hereof in form and
substance satisfactory to the Lender assigning all of CMF's rights in the
Securitisation Residuals to the Borrower.
"ASU Policies" has the meaning attributed to it in the Debenture.
"Available Commitment" means, at any time, the Revolving Commitment at
such time less the principal amount of the Revolving Loan then
outstanding.
"Availability Period" means the period commencing on the date of this
Agreement and ending on the earlier of:-
(1) the date on which the Lender ceases to be under any obligation to
make further Advances to the Borrower hereunder pursuant to the
terms hereof; and
(2) the Final Maturity Date.
"Block Building Policies" has the meaning attributed to it in the
Debenture.
"Block Life Policies" has the meaning attributed to it in the Debenture.
"Borrower Collection Account" means the account in the name of the
Borrower with the Account Bank number ▇▇▇▇▇▇▇▇ charged in favour of the
Lender pursuant to the Borrower Collection Account Assignment.
"Borrower Collection Account Assignment" means the assignment agreement in
relation to the Borrower Collection Account dated on or about the date
hereof in form and substance satisfactory the Lender to be granted by the
Borrower in favour of the Lender.
"Borrower Funding Account" means an account in the name of the Borrower at
the Account Bank number ▇▇▇▇▇▇▇▇ charged in favour of the Lender under the
Borrower Funding Account Assignment.
"Borrower Funding Account Assignment" means the assignment agreement in
relation to the Borrower Funding Account dated on or about the date hereof
in form and substance satisfactory to the Lender to be granted by the
Borrower in favour of the Lender.
"Borrower Share Charge" means the share charge to be entered into on or
about the date hereof in form and substance satisfactory to the Lender by
CMC over all of its shares in the Borrower in favour of the Lender.
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"Borrower Working Capital Account" means the account in the name of the
Borrower with the Account Bank number ▇▇▇▇▇▇▇▇ charged by way of floating
charge in favour of the Lender pursuant to the Debenture.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are generally open for business in London and New York.
"CCA" means the Consumer Credit ▇▇▇ ▇▇▇▇.
"Cityscape" means Cityscape Corp., a Delaware corporation.
"CMC Charge" means the charge to be entered into on or about the date
hereof in form and substance satisfactory to the Lender creating first
fixed charges and assignments over the Securitisation Residuals to be
granted by CMC in favour of the Lender.
"CMC Collection Account" means account number ▇▇▇▇▇▇▇▇ with the Account
Bank utilised for the time being for the purpose of collection of sums
payable by Mortgagors under all Mortgage Loans originated by CMC and J&J.
"CMC Collection Account Declaration of Trust" means the declaration of
trust dated 21 March 1996, as supplemented by all supplemental
declarations of trust relating thereto, pursuant to which trusts over all
amounts credited from time to time to the CMC Collection Account are
constituted in favour of, inter alia, the Lender, CMF, certain Issuers and
the trustee under each Securitisation Receivables Trust.
"CMC Floating Charge" means the lightweight floating charge to be entered
into on or about the date hereof in form and substance satisfactory to the
Lender whereby CMC will grant a floating charge over all of its
undertaking and assets in favour of the Lender.
"CMC Proceeds Account" means the account of CMC with the Account Bank
number ▇▇▇▇▇▇▇▇ charged in favour of the Lender under the CMC Proceeds
Account Assignment.
"CMC Proceeds Account Assignment" means the assignment agreement in
relation to the CMC Proceeds Account to be entered into on or about the
date hereof in form and substance satisfactory to the Lender to be granted
by CMC in favour of the Lender.
"CMF" means City Mortgage Funding 1 Limited, incorporated under the laws
of England and Wales, number 3299937, whose registered office is at
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇.
"CMF Collection Account" means an account in the name of CMF with the
Account Bank number ▇▇▇▇▇▇▇▇.
"CMF Collection Account Declaration of Trust" means the declaration of
trust dated 30 April 1997, as supplemented by all supplemental
declarations of trust relating thereto,
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pursuant to which trusts over all amounts credited from time to time to
the CMF Collection Account are constituted in favour of, inter alia, the
Lender and City Mortgage Receivables 6 plc.
"CMS Share Charge" means the charge to be entered into on or about the
date hereof in form and substance satisfactory to the Lender by CMC over
all of its shares in CMS in favour of the Lender.
"Collateral Value" has the meaning attributed to it in the Proceeds
Agreement.
"Collateral Security" has the meaning attributed to it in the Debenture.
"Collection Accounts" means the CMC Collection Account, the GFS Master
Collection Account and the Greyfriars Originator Collection Accounts.
"Commitment Letter" means the letter agreement dated 28 March, 1996
between CMC and the Lender.
"Contingency Policies" has the meaning attributed to it in the Debenture.
"Counter Indemnity" means the counter indemnity to be entered into on or
about the date hereof between CMC and the Borrower in respect of the
Indemnity, in form and substance satisfactory to the Lender.
"Current Mortgage Loans" means, at any time, all Mortgage Loans purchased
by the Lender under the Mortgage Loan Purchase Agreement on or after the
date of this Agreement other than such of those Mortgage Loans as shall,
by the relevant time, have been subject to a Disposition or shall have
been redeemed.
"Debenture" means the debenture to be entered into on or about the date
hereof in form and substance satisfactory to the Lender by the Borrower in
favour of the Lender creating fixed and floating charges over all of the
Borrower's undertaking and assets.
"Delinquent Loans" has the meaning attributed thereto in the Mortgage
Transfer Agreement.
"Distribution Date" shall have the meaning attributed to it in the
Proceeds Agreement.
"Drawdown Request" means the form of written request for an Advance to be
delivered by the Borrower to the Lender prior to the relevant Advance
Date, substantially in the form set out in Schedule 1.
"Due Date" means the due date for payment by the Mortgagor of principal
and/or interest under the terms of the relevant Mortgage Loan.
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"English Mortgage Loan" means a Mortgage Loan secured over a Mortgaged
Property situated in England or Wales.
"Event of Default" means any one of the conditions or circumstances
referred to in clause 17.
"Existing Mortgage Loans" means those Mortgage Loans to be purchased by
the Borrower from, inter alia, the Lender and CMF pursuant to the terms of
the Mortgage Transfer Agreement.
"Facility" means the facility granted to the Borrower by the Lender under
this Agreement.
"Facility Office" means the office of the Lender through which it makes
any Advance to the Borrower.
"Final Maturity Date" means 30 December 1998.
"First Pay Default Mortgage Loans" means, any Existing Mortgage Loan and
New Production Mortgage Loan financed by the Lender hereunder in respect
of which the Mortgagor shall have failed to make the First Mortgage
Payment due thereunder within 59 days of its due date unless and until:-
(a) the Mortgagor has subsequently repaid the First Mortgage Payment in
full; and
(b) if, pending the payment of the First Mortgage Payment in full the
Mortgagor has also failed to pay any other Monthly Payment in full
under the Mortgage Loan for 30 days or more, all such Monthly
Payment shall have been paid in full.
"FPD Loan Charge" means the charge and assignment by way of security dated
31 July, 1997 pursuant to which CMF granted security over the FPD Loans in
favour of the Lender to secure CMF's obligations under the loan advanced
to finance the acquisition of the FPD Loans.
"FPD Loan Purchase Agreement" means the agreement dated 31 July, 1997
between the Lender and CMF pursuant to which the FPD Loans were purchased
by CMF from the Lender.
"FPD Loans" means any outstanding Mortgage Loan that, immediately prior to
the date hereof, was subject to the FPD Loan Charge.
"Further Scottish Trust Property" has the meaning given to that term in
the Supplemental Scottish Declaration of Trust.
"GFS Master Collection Account" means an account in the name of Greyfriars
Financial Services Limited with the Account Bank number ▇▇▇▇▇▇▇▇ to which
are
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credited all payments made by Mortgagors under Mortgage Loans originated
by any Greyfriars Originator.
"GFS Master Collection Account Declaration of Trust" means the declaration
of trust dated 18 October 1996 (as supplemented by all supplemental
declarations of trust relating thereto) constituting trusts over all
amounts standing to the credit or the GFS Master Collection Account in
favour of, inter alia, the Lender, CMF, certain Issuers and the trustees
of each Securitisation Receivables Trust.
"Greyfriars Originator" means each of Home Funding Corporation Limited,
Assured Funding Corporation Limited and Home Mortgages Corporation
Limited.
"Greyfriars Originator Collection Accounts" has the meaning attributed
thereto in the Greyfriars Originator Collection Account Declaration of
Trust.
"Greyfriars Originator Collection Account Declaration of Trust" means the
declaration of trust dated 18 October 1996 (as supplemented by all
supplemental declarations of trust relating thereto) constituting trusts
(declared by, inter alia, each Greyfriars Originator) over all amounts
standing to the credit of the Greyfriars Originator Collection Accounts in
favour of, inter alia, the Lender, CMF, certain Issuers and the trustees
of each Securitisation Receivables Trust.
"holding company" of a company or corporation means any company or
corporation of which the first-mentioned company or corporation is a
subsidiary.
"Indebtedness" means any obligation (whether incurred as principal,
cautioner or surety) for the payment or repayment of money in respect of:
(a) monies borrowed and debit balances at banks;
(b) any loan note, bond, note, loan stock, commercial paper, debenture
or other security;
(c) any acceptance or documentary credit;
(d) any receivable sold or discounted (otherwise than on a non-recourse
basis);
(e) the capital value of any lease (whether in respect of land,
machinery, equipment or otherwise) entered into primarily as a
method of raising finance or financing the acquisition of the asset
leased;
(f) any currency or interest swap, cap, collar, floor or corridor
transaction, any repurchase or reverse repurchase transaction, any
foreign exchange, spot or forward transaction, any stock lending
transaction, any financial option, or any combination of any of the
foregoing; or
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(g) without double counting, any guarantee, indemnity or contingent
liability in respect of any borrowings of any person of a type
referred to in (a) to (f) above but only to the extent the
borrowings thereby guaranteed or indemnified against are
outstanding.
"Indemnity" means the indemnity to be given by CMC on or about the date
hereof in form and substance satisfactory to the Lender indemnifying,
inter alia, the Lender for, inter alia, the obligations of the Borrower
under this Agreement.
"Initial Advance" means the advance of the Term Loan.
"Initial Revolving Advance" means the Advance in the amount of
(pound)21,215,886.71 to be made under the Revolving Facility to finance
the purchase by the Borrower of Existing Mortgage Loans acquired by the
Lender under the Mortgage Loan Purchase Agreement on or after 1 January,
1998.
"Initial Undertaking" means an undertaking in favour of the Lender given,
in relation to any proposed Advance, by the relevant Solicitor or
Solicitors, undertaking, inter alia, to hold the Advance to the order of
the Lender pending advance of funds under the relevant New Production
Mortgage Loan, in each case in or substantially in the form set out in the
Letter Agreement.
"Interest Payment Date" means the 15th day of each month unless that day
is not a Business Day in which case the Interest Payment Date shall be the
immediately preceding day which is a Business Day.
"Interest Period" means, for each Advance, each of the following periods:
(a) the period commencing on (and including) the day the relevant
Advance is made and ending on (but excluding) the next following
Interest Payment Date; and
(b) thereafter, each period commencing on (and including) an Interest
Payment Date and ending on (but excluding) the next following
Interest Payment Date,
provided that any Interest Period which would otherwise overrun the Final
Maturity Date or the Repayment Date (of the relevant Advance) shall end
upon whichever is the earlier of the Final Maturity Date or the relevant
Repayment Date.
"Insurance Policies" has the meaning attributed to it in the Debenture.
"Interim Servicing Agreement" means the interim servicing agreement in
form and substance satisfactory to the Lender to be entered into on or
about the date hereof between the Borrower, the Lender and CMS.
"Issuers" means each of City Mortgage Receivables 1 Plc (Company No.
3126751), City Mortgage Receivables 2 Plc (Company No. 3245450), City
Mortgage Receivables 3 Plc
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(Company No. 3245445), City Mortgage Receivables 4 Plc (Company No.
3246090), City Mortgage Receivables 5 Plc (Company No. 3304205) and City
Mortgage Receivables 6 Plc (Company No. 3328209).
"J&J" means J&J Securities Limited, a company incorporated in England and
Wales under number 1335672 whose registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇.
"Late Interest Payment Distribution Date" has the meaning attributed to it
in the Proceeds Agreement.
"Letter Agreement" means a letter of 26 February 1998 addressed to
Mortgage Management Limited, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co and Tomlinsons.
"LIBOR" in respect of a particular period and in relation to an Advance or
other amount in respect of which an interest rate is to be determined
pursuant to this Agreement, means the percentage interest rate per annum
for the time being offered in the London Interbank Market to prime banks
for sterling deposits for the relevant period at or about 11.00 a.m.
(London time) on the first day of such period as published on the relevant
page of The Bloomberg (Bloomberg L.P.) under the heading "Money Market -
Money Market Rates".
"Loan Value" has the meaning attributed to it in the Proceeds Agreement.
"Manuals" has the meaning attributed to it in the Interim Servicing
Agreement or, after execution of the same, the Substitute Servicing
Agreement.
"Margin" means 2.0 per cent per annum.
"MHA Documentation" means in relation to any Scottish Mortgage Loan, any
affidavit, consent or renunciation granted in terms of the Matrimonial
Homes (Family Protection) (Scotland) ▇▇▇ ▇▇▇▇ given in connection with
such Scottish Mortgage Loan or the Mortgaged Property secured thereunder.
"Minded to Revoke Notice" means any notice given under section 32 of the
CCA.
"MIRAS Scheme" means the mortgage interest relief at source scheme
specified in section 369 of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
"Mortgage Deed" means in relation to each Mortgage Loan, the deed creating
the charge by way of first or subsequent ranking legal mortgage or first
or subsequent ranking Standard Security over the relevant Mortgaged
Property, and incorporating the terms and conditions on which the relevant
advance to the Mortgagor was made.
"Mortgage File" means the Mortgage Loan Documents pertaining to a
particular Mortgage Loan, together with the related mortgage application
forms completed by the relevant Mortgagor(s), credit agency checks, if
any, carried out in respect of such
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Mortgagor(s), correspondence files and all other material documents,
papers and computer records held by or for the relevant Originator in
respect of the particular Mortgage Loan.
"Mortgage Indemnity Policies" has the meaning attributed to it in the
Debenture.
"Mortgage Loan" means the relevant loan (and, as the context admits, all
security therefor and all rights and entitlements of the relevant
Originator in relation thereto) made by an Originator to a Mortgagor
secured by a first or junior ranking legal mortgage or first or junior
ranking Standard Security in favour of the Originator over the relative
Mortgaged Property.
"Mortgage Loan Documents" means the documents listed in Schedule 3
pertaining to any Mortgage Loan.
"Mortgage Loan Package" means the Mortgage Loans purchased on an Advance
Date or, if later, the date on which the Lender receives a Solicitors
Undertaking in relation thereto.
"Mortgage Loan Proceeds" has the meaning attributed to it in the Proceeds
Agreement.
"Mortgage Loan Purchase Agreement" means an agreement dated 14 June 1996
between the Lender (1) and CMC (2) whereby the Lender has agreed to
purchase and CMC has agreed to sell Mortgage Loans originated by CMC and
its Approved Affiliates.
"Mortgage Payment" has the meaning attributed to it in the Proceeds
Agreement.
"Mortgage Loan Schedule" means the schedule of Mortgage Loans annexed to
each Drawdown Request.
"Mortgage Transfer Agreement" means the mortgage transfer agreement to be
entered into on or about the date hereof in form and substance
satisfactory to the Lender between the Lender, CMF, the Borrower, CMC and
each Approved Affiliate.
"Mortgaged Properties" means each and all (as the context admits) freehold
and/or leasehold properties in England or Wales mortgaged under and/or
properties held on heritable title or long lease in Scotland secured under
the relative Mortgage Deeds.
"Mortgagor" means the party (or parties) referred to as such or as "the
Borrower"in the relevant Mortgage Deed.
"New Production Mortgage Loans" means Mortgage Loans originated by CMC and
any of its Approved Affiliates on or after the date hereof.
"New Production Power of Attorney" means a power of attorney, in or
substantially in the form set out in Schedule 1 to the New Production
Purchase Agreement, to be given
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by CMC, and each other Approved Affiliate in relation to New Production
Mortgage Loans.
"New Production Purchase Agreement" means the mortgage transfer agreement
to be entered into on or about the date hereof between, inter alia, the
Borrower, CMC and each Approved Affiliate in form and substance
satisfactory to the Lender.
"OFT" means the Office of Fair Trading.
"OFT Guidelines" means the guidelines issued by the OFT relating to the
non-status lending market in effect from time to time.
"Originating Subsidiaries" means subsidiaries or affiliates of CMC which
have acceded to the Mortgage Loan Purchase Agreement from time to time so
as to become Sellers (as defined therein) thereunder.
"Origination and Purchase Agreement" means the origination and purchase
agreement dated 27 March, 1997 between CMC, CMF and certain subsidiaries
of CMC pursuant to which Mortgage Loans are sold by CMC and the
subsidiaries to CMF.
"Originator" means the originator of any Mortgage Loan.
"Potential Event of Default" means any event which with the giving of
notice or the passing of time or both or the occurrence of any other event
will become an Event of Default.
"PIP Policies" has the meaning attributed to it in the Debenture.
"Principal" means, with respect to any Mortgage Loan, any payment or other
recovery of principal of such Mortgage Loan, which is received by or on
behalf of the Borrower.
"Proceeds" has the meaning attributed to it in the Proceeds Agreement.
"Proceeds Agreement" means the proceeds agreement to be entered into on or
about the date hereof between the Lender, the Borrower, CMC, CMS and CMF
relating to the application and distribution of Proceeds, in form and
substance satisfactory to the Lender.
"Registers of Scotland" means the Land Register of Scotland and/or the
General Register of Sasines.
"Regulated Mortgage Loan" means a Mortgage Loan that is a regulated or
partly regulated agreement for the purposes of the Consumer Credit ▇▇▇
▇▇▇▇.
"Repayment Date" means in relation to any Advance, the date which shall be
180 days following its Advance Date or the Final Maturity Date, whichever
is the earlier.
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"Restructuring Agreement" means the Restructuring Agreement dated as of 15
January 1998 between the Lender and CMC.
"Revolving Advance" means an Advance drawn under the Revolving Facility
including, unless otherwise stated, the Initial Revolving Advance.
"Revolving Commitment" means (pound)30,000,000 (thirty million pounds) or
such greater amount as may be agreed by the Lender pursuant to clause 2.6.
"Revolving Facility" means the revolving credit facility made available
pursuant to clause 2.1(b).
"Revolving Loan" means the aggregate of Advances drawn down against the
Revolving Commitment by the Borrower (including, for the avoidance of
doubt, the Initial Revolving Advance) save to the extent that any such
Advances have been repaid to the Lender.
"Sale and Purchase Agreements" means the sale and purchase agreement dated
23 April, 1996 between, inter alia, CMC and the Lender pursuant to which
certain loans originated by J&J Securities and by UK Credit were sold to
the Lender and the sale agreement between the Lender, CMC, CMF and
Cityscape dated 14 June, 1996 pursuant to which mortgage loans originated
by certain companies acquired by CMC on 14 June, 1996 were sold to the
Lender.
"Scottish Declaration of Trust" means a declaration of trust over Scottish
Mortgage Loans and their related Collateral Security granted by the
relevant Originator in favour of the Borrower in accordance with Clause
4.2(c) of and substantially in the form set out in Schedule 10 of the
Mortgage Transfer Agreement relating to the Existing Mortgage Loans.
"Scottish Mortgage Loan" means a mortgage Loan secured over a Mortgaged
Property situated in Scotland.
"Scottish Transfers" means (a) with respect to an Existing Mortgage Loan,
the assignations by the relevant Originators in favour of the Borrower in
respect of the Scottish Mortgage Loans and their Collateral Security in
accordance with Clause 4.2(b) of and substantially in the form set out in
Parts A and B of Schedule 4 of the Mortgage Transfer Agreement or (b) with
respect to New Production Mortgage Loans, in accordance with clause 2.1 of
and substantially in the form set out in Schedules 7 and 8 of the New
Production Purchase Agreement.
"Scottish Trust Property" has the meaning given to that term in any
Scottish Declaration of Trust.
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"Securitisation Bank Agreements" means the bank agreements dated 21 March
1996, 18 October 1996, 31 October 1996, 31 January 1997 and 30 April 1997
in relation to the Securitisations.
"Securitisation Receivables Trust" has the meaning attributed to it in the
Proceeds Agreement.
"Securitisation Residuals" has the meaning attributed to it in the
Proceeds Agreement.
"Securitisation Residual Proceeds" has the meaning attributed to it in the
Proceeds Agreement.
"Securitisation Collection Account Trusts" means the CMC Collection
Account Declaration of Trust, the CMF Collection Account Declaration of
Trust, the GFS Master Collection Account Declaration of Trust and the
Greyfriars Originator Collection Account Declaration of Trust.
"Securitisations" means each of the six securitisations of Mortgage Loans
originated by CMC and certain of its subsidiaries, effected through sales
of the Mortgage Loans to the Issuers on 21 March, 1996, 18 October, 1996,
31 October, 1996, 31 January, 1997 and 30 April, 1997.
"Security" includes any mortgage, sub mortgage, fixed or floating charge,
sub charge, encumbrance, lien, pledge, hypothecation, absolute assignment,
assignment by way of security, or title retention arrangement, and any
agreement or arrangement having substantially the same economic or
financial effect as any of the foregoing (including any "hold back" or
"flawed asset" arrangement).
"Security Documents" means the Debenture, (and each further security
document executed pursuant thereto including any Supplemental Deed of
Charge) the CMC Charge, the CMC Floating Charge, the Borrower Share
Charge, the CMS Share Charge and the Account Assignments.
"Servicer" or "CMS" means City Mortgage Servicing Limited (company number
3043775).
"Servicing Agreement" means an agreement dated 14 June 1996 between the
Lender, CMC and the Servicer relating to the servicing of the Mortgage
Loans purchased by the Lender under the Mortgage Loan Purchase Agreement
and Commitment Letter.
"Software Licences" means each of:- (a) a licence between CMC and Suburban
& Provincial Management Limited dated 16 June 1995, as amended by a deed
of variation of same date (the "CMC Licence"); and (b) a licence between
CMS and Suburban & Provincial Management Limited dated 1 May 1995, as
varied by a deed of variation of 16 June 1995 (the "CMS Licence").
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"Solicitors" means each of Tomlinsons, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co,
▇▇▇▇▇▇ MacFarlane Green (in relation to Scottish Mortgage Loans) and each
other firm of solicitors approved in writing by the Lender, each
comprising a minimum of two partners holding current practising
certificates issued by the Law Society or the Law Society of Scotland,
engaged by CMC or the Originator to undertake conveyancing and/or security
enforcement services in relation to Mortgaged Properties, and who carry
professional indemnity insurance in the sum of at least (pound)1,000,000
for each and every claim against them by any party in any one year or such
increased amount as may from time to time be prescribed by the Lender,
acting reasonably.
"Solicitors Undertaking" means with respect to each New Production
Mortgage Loan the purchase of which is to be funded by an Advance made
hereunder, a Solicitors' certificate and undertaking in or substantially
in the form set out in the Letter Agreement.
"Standard Security" means a standard security in terms of the Conveyancing
and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇) ▇▇▇ ▇▇▇▇.
"Standby Servicer" means Guardian Mortgage Services Limited.
"Standby Servicing Agreement" means any standby servicing agreement in
form and substance satisfactory to the Lender entered into between, inter
alia, the Borrower, the Lender and the Standby Servicer relating to
servicing of the Existing Mortgage Loans and New Production Mortgage Loans
financed under this Agreement.
"Subordinated Loan Agreement" means the subordinated loan agreement to be
entered into between CMC, the Borrower and the Lender on or about the date
of this Agreement in form and substance acceptable to the Lender.
"subsidiary" has the meaning given to it by section 736 of the Companies
▇▇▇ ▇▇▇▇ save that references therein to company shall be deemed to
include a company which has not been formed and registered under the
Companies ▇▇▇ ▇▇▇▇.
"Substitute Servicing Agreement" means the servicing agreement in form and
substance satisfactory to the Lender to be entered into pursuant to clause
16.3 between, inter alia, the Borrower, the Lender and CMS relating to the
servicing of the Existing Mortgage Loans and New Production Mortgage Loans
financed under this Agreement and which shall include provisions which
address, in all material respects, those matters referred to in a letter
of even date herewith between the Lender and CMC referenced "Substitute
Servicing Agreement".
"Supplemental Agreement" means the agreement dated 27 March, 1997 between
CMC, CMF, the Lender and certain subsidiaries of CMC pursuant to which
mortgage loans purchased by CMF under the Origination and Purchase
Agreement are sold by CMF to the Lender.
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"Supplemental Deed of Charge" means any assignation in security made by
the Borrower in favour of the Lender pursuant to the Debenture.
"Supplemental Scottish Declaration of Trust" means any declaration of
trust over Scottish Mortgage Loans and their related Collateral Security
granted by the relevant Originator in favour of the Borrower in accordance
with clause 6(b) of the Debenture and substantially in the form set out in
Schedule 9 of the New Production Purchase Agreement.
"Term" means save as otherwise provided herein, in relation to any
Advance, the period commencing on (and including) the date on which such
Advance is made and ending on (but excluding) the Repayment Date relating
to such Advance.
"Term Loan" means a loan of the amount of (pound)187,428,993.42 to be made
available to finance the purchase of all Existing Mortgage Loans acquired
by the Lender under the Mortgage Loan Purchase Agreement prior to 1
January 1998.
"Term Loan Repayment Date" means the date which shall be 180 days after
the date on which the Term Loan is drawn or the Final Maturity Date,
whichever is the earlier.
"Transaction Documents" means this Agreement, the Security Documents, the
Indemnity, the Interim Servicing Agreement, the Proceeds Agreement, the
Mortgage Transfer Agreement, the New Production Purchase Agreement, the
Subordinated Loan Agreement, the Assignment Agreement each Supplemental
Scottish Declaration of Trust, each Scottish Declaration of Trust and each
Scottish Transfer and each other document at any time entered into between
all or any of CMC, the Borrower, the Lender, any Approved Affiliate, CMF,
CMS and any third party and which is either expressed to be a Transaction
Document, agreed to be a Transaction Document or is entered into pursuant
to or in connection with any document which is a Transaction Document.
"Transfer" has the meaning attributed to it in the Mortgage Transfer
Agreement.
"Undertaking" means the undertaking to be given by CMC to the Borrower on
or about the date hereof, in form and substance satisfactory to the
Lender.
"Underwriting Guidelines" means the underwriting guidelines published by
CMC or any Approved Affiliate in effect as at the date hereof, as the same
may be amended or supplemented from time to time with the prior written
consent of the Lender.
the "Lender" shall be construed so as to include its and any subsequent
successors and assigns in accordance with their respective interests.
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
following calendar month; provided that, where any such period would
otherwise end on a day which is not a Business Day, it shall end on the
following succeeding Business Day, unless that day falls in the
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calendar month next following that in which it would otherwise have ended,
in which case it shall end on the immediately preceding Business Day; and
provided further that, if there is no numerically corresponding day in the
next following calendar month, that period shall end on the last Business
Day in that next following calendar month (and references to "months"
shall be construed accordingly).
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing.
"repay" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "prepay" (or, as the case may be, the
corresponding derivative form thereof).
"tax" shall be construed so as to include any present or future tax, levy,
impost, duty or other charge of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay in
paying any of the same).
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time.
the "winding-up", "dissolution" or "administration" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which such
company or corporation carries on business including the seeking of
liquidation, winding-up, reorganisation, dissolution, administration,
arrangement, adjustment, protection or relief of debtors.
1.2 Interpretation
For the purposes of this Agreement except as otherwise expressly provided
or unless the context otherwise requires:-
(1) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(2) references herein to "clauses", "sub-clauses", "paragraphs", and
other subdivisions without reference to a document are to designated
clauses, sub-clauses paragraphs and other subdivisions of this
Agreement;
(3) reference to a sub-clause without further reference to a clause is a
reference to such sub-clause as contained in the same clause in
which the reference appears, and this rule shall also apply to
paragraphs and other subdivisions;
(4) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
provision;
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(5) headings to clauses and Schedules are for convenience only and do
not affect the interpretation of this Agreement;
(6) references to a "company" shall be construed so as to include any
company, corporation or other body corporate, wherever and however
incorporated or established;
(7) references to times of the day are to London time;
(8) references to any agreement (including without limitation to each
Transaction Document), shall be construed as a reference to such
agreement as the same may be, or may from time to time have been,
amended, modified, supplemented or restated in accordance with the
terms of the Transaction Documents;
(9) "(pound)", "pounds" and "Sterling" denote the lawful currency of the
United Kingdom;
(10) any reference in this Agreement to a statute shall be construed as a
reference to such statute as the same may have been, or may from
time to time be, amended, modified or re-enacted.
2. THE FACILITY AND PURPOSE
2.1 The Lender hereby grants to the Borrower a credit facility comprising:-
(1) the Term Loan; and
(2) a revolving credit facility in the maximum aggregate principal
amount of (pound)30,000,000 (thirty million pounds) or such greater
amount as may be agreed by the Lender in writing from time to time
pursuant to clause 2.6 or such lesser amount following a
cancellation pursuant to Clause 5,
on and subject to the terms of this Agreement.
2.2 At no time may the aggregate principal amount of Advances drawn under the
Revolving Facility hereunder exceed the Revolving Commitment.
2.3 The Initial Advance and the Initial Revolving Advance will be used by the
Borrower for the sole purpose of financing the purchase of the Existing
Mortgage Loans from the Lender and CMF on the terms of the Mortgage
Transfer Agreement.
2.4 Advances drawn under the Revolving Commitment other than the Initial
Revolving Advance will be used by the Borrower for the sole purpose of
financing the origination or purchase of New Production Mortgage Loans by
or from CMC and its Approved Affiliates which shall be transferred to the
Borrower on the terms of and pursuant to the New Production Purchase
Agreement.
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2.5 The Lender shall not be obliged to concern itself with the application of
amounts borrowed by the Borrower under this Agreement and application by
the Borrower of funds so borrowed contrary to the provisions of clauses
2.3 and 2.4 shall not prejudice the Lender's rights hereunder or under any
other Transaction Document.
2.6 The Lender will review the Revolving Commitment in good faith for possible
increase when each of the following conditions is fulfilled:-
(1) 70% (seventy per cent) or more (in aggregate) of the Term Loan and
the Initial Revolving Advance shall have been repaid;
(2) the ratio (expressed as a percentage) of outstanding Advances to
aggregate Collateral Value must not have been greater than 90% as of
the two immediately preceding Interest Payment Dates (after
application of monies on those dates); and
(3) the ratio (expressed as a percentage) of outstanding Advances to
aggregate Loan Value must not have been greater than 100% as of the
two immediately preceding Interest Payment Dates (after application
of monies on those dates).
2.7 The Lender shall cease to be obliged to make any Advances hereunder on the
Final Maturity Date and any undrawn portion of the Revolving Commitment
shall be automatically cancelled on that date.
3. AVAILABILITY
3.1 The Facility will not become available to the Borrower and the Lender
shall be under no obligation to make any Advance hereunder until each of
the following conditions precedent shall have been fulfilled to the
satisfaction of the Lender:-
(1) the Lender shall have received each of the following documents, each
in form and substance satisfactory to it:-
(1) a certified copy of the Certificate of Incorporation and
Memorandum and Articles of Association of each of the
Borrower, CMC, CMF, the Servicer and each Approved Affiliate,
each duly certified by the secretary or a director of the
relevant company as true, accurate and complete as at the date
of drawing of the Initial Advance;
(2) originals (or, where the Lender is not party to the relevant
document, copies) of each of the following documents, duly
executed by each party thereto other than the Lender:-
(1) the Indemnity, Counter Indemnity and Undertaking;
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(2) the Security Documents and all notices and
acknowledgements thereof to be given and received
thereunder and all consents to any such security being
granted, including that of each rating agency which
rated any Securitisation;
(3) the Interim Servicing Agreement;
(4) the Proceeds Agreement;
(5) a New Production Power of Attorney given by each of CMC,
J&J and each other Approved Affiliate;
(6) the Mortgage Transfer Agreement;
(7) the Deeds of Variation (varying the Securitisation Deeds
of Charge and Assignment and the Securitisation
Mortgages Trusts Deeds);
(8) the New Production Purchase Agreement; and
(9) the Subordinated Loan Agreement.
(3) a deed of release (together with related form 403) in respect
of the existing charge dated 30 October, 1996 granted by CMC
in favour of Cityscape over the Securitisation Residuals;
(4) in respect of each of the Borrower, CMC, the Servicer, CMF and
each Approved Affiliate, a copy (certified by the secretary or
a director of the relevant company to be true, complete and up
to date as at the date of drawing of the Initial Advance) of
all board minutes and all other resolutions and authorisations
passed or given in relation to the restructuring and the
Transaction Documents;
(5) in respect of each of the Borrower and each Approved
Affiliate, a solvency certificate in the form set out in
Schedule 2 A and in the case of CMC a solvency certificate in
the form set out in Schedule 2B dated the date of the Initial
Advance;
(6) in respect of each of the Borrower, CMC and the Servicer a
copy (certified by the secretary or a director of the relevant
company to be true, complete and up to date as at the date of
advance of the Initial Advance) of all consents, approvals,
authorisations or orders of any court or governmental agency
or body (including, without limitation, the OFT) required for
the execution, delivery and performance by it of, or
compliance by it with, the terms of any Transaction Document
or the consummation of the transactions contemplated thereby;
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(7) in relation to each of the Borrower, CMC, the Servicer and
each Approved Affiliate a copy (certified by the secretary or
a director of the relevant company as in full force and
effect) of the Consumer Credit Act licence held by such
company together with evidence of registration of each such
company under the Data Protection ▇▇▇ ▇▇▇▇;
(8) duly executed account mandates in relation to the Borrower
Working Capital Account, Borrower Funding Account, the CMC
Proceeds Account and the Borrower Collection Account,
specifying the authorised signatories for the Borrower and, as
the case may be, CMC;
(9) Transfers and Scottish Transfers in favour of the Borrower,
duly executed (as appropriate in each case) by or on behalf of
each of CMC and each Approved Affiliate transferring legal
title to each Existing Mortgage Loan to the Borrower and
Assignments in favour of the Borrower, duly executed (as
appropriate in each case) by or on behalf of each of CMC and
each Approved Affiliate (and the Lender and CMF) transferring
legal title to the Collateral Security to the Borrower;
(10) Scottish Declarations of Trust or Supplemental Declarations of
Trust (as the case may be) in favour of the Borrower executed
by CMC and the Approved Affiliates.
(2) the Lender shall have received confirmation as to the identity of
all Solicitors engaged or intended by any of the Borrower, CMC and
any Approved Affiliate as at the date of this Agreement to be
engaged in relation to conveyancing and/or security enforcement
concerning Mortgaged Properties, together with evidence as to their
respective professional indemnity insurance cover;
(3) the Lender shall have received written confirmation from the
relevant insurer (or broker) that each of the Borrower and the
Lender are named (whether through a generic endorsement or
otherwise) as additional assureds, in respect of their respective
interests, and that the Borrower is named as loss payee, on each
Block Buildings Policy and each Block Life Policy (and any other
block building or block life policy relating to any Mortgage Loan),
in each case subject to a breach of warranty endorsement and an
endorsement as to non-liability for premia.
(4) all conditions precedent under each other Transaction Document
(other than any requirement that the Facility shall have become
available hereunder) shall have been fulfilled;
(5) the Lender shall have received legal opinions, each in form and
substance satisfactory to it, from each of the following firms:-
(1) ▇▇▇▇▇▇▇▇ Chance; and
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(2) Tods ▇▇▇▇▇▇; and
(6) the memorandum and articles of association of the Borrower shall be
in form and substance satisfactory to the Lender.
4. DRAWINGS
4.1 Subject to:-
(1) The conditions precedent in Clause 3 having been fulfilled to the
satisfaction of the Lender or waived by the Lender;
(2) no Event of Default or Potential Event of Default having occurred
and subsisting unremedied (to the satisfaction of the Lender) and
unwaived;
(3) there having been received from the Borrower by the Lender not later
than 5pm (London time) on the Business Day before the date on which
the Initial Advance and the Initial Revolving Advance is to be made
a duly completed Drawdown Request relating thereto including a
schedule giving required details of each Existing Mortgage Loan,
the Lender will make the Initial Advance and the Initial Revolving Advance
to the Borrower on the date hereof.
4.2 Subject to:-
(1) each condition precedent in Clause 3 having been fulfilled to the
satisfaction of the Lender or waived by the Lender;
(2) no Event of Default or Potential Event of Default having occurred
and subsisting unremedied (to the satisfaction of the Lender) and
unwaived;
(3) there having been received from the Borrower by the Lender not later
than 5pm (London time) on the Business Day before the date on which
an Advance under the Revolving Commitment is to be made an Initial
Undertaking in respect of each Mortgage Loan the acquisition of
which the Borrower proposes to finance by the relevant Advance and a
duly completed Drawdown Request (and a schedule thereto) together
with a copy of the schedules of all Mortgage Loans to be originated
on its behalf or, as the case may be, to be offered for sale to it
by CMC, J&J and each relevant Approved Affiliate pursuant to the New
Production Purchase Agreement on the relevant date and a data tape
in respect of the relevant Mortgage Loans, in computer readable
form, containing such information regarding the Mortgage Loans as
was previously provided to the Lender under the Mortgage Loan
Purchase Agreement immediately prior to the date hereof;
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(4) the Lender having approved the Mortgage Loans to be financed, such
approval to be evidenced by the Lender by signing the schedule of
Mortgage Loans and the related Drawdown Request having deleted
therefrom any Mortgage Loans which do not meet the Underwriting,
Guidelines;
(5) no event described under 17.1 l), (m) or (n) having occurred in
relation to any Approved Affiliate;
(6) the Lender having received evidence satisfactory to it that legal
and equitable title (or in the case of Scottish Mortgage Loans an
appropriate Scottish Declaration of Trust in its favour) to each
Mortgage Loan to be financed will, immediately upon origination of
the same, (subject only to completion of any necessary registration
at HM Land Registry), be transferred to the Borrower;
(7) no breach of clause 16.2 having occurred in respect of a solvency
certificate required of any Approved Affiliate (having taken account
of the one week grace period thereunder);
(8) if any Originator is not an Approved Affiliate as of the date
hereof, a New Production Power of Attorney duly executed by such
Originator;
(9) no Minded to Revoke Notice having been served on CMC, the Borrower
or any Approved Affiliate; and
(10) no injunction or interdict having been obtained by (or on behalf of)
the OFT against CMC, the Borrower or any Approved Affiliate which
relates to its respective residential mortgage lending activities
including, without limitation, any Mortgage Loan financed hereunder,
(11) where the proposed Advance is to fund Mortgage Loans secured by a
Mortgage over unregistered land where the Originator does not hold
the title deeds to such Mortgaged Property (and in relation to which
the Originator's legal mortgage is therefore a second or subsequent
ranking legal mortgage protected at Central Land Charges Registry by
registration of a C(i) Land Charge) the Lender shall have received a
schedule of such Mortgage Loans (together in relation to such
Mortgage Loans with the full names of the owners of such Mortgaged
Property and the full address of that Mortgaged Property),
the Borrower may draw additional Advances under the Revolving Commitment
(subject to the provisions of this Agreement) Provided always that:-
(1) Advances may be made only on Business Days during the
Availability Period;
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(2) each Advance shall be a minimum of (pound)100,000 or, if less
than (pound)100,000, the Available Commitment;
(3) no Advance shall be made to the extent that, if as a result
thereof the Revolving Loan for the time being outstanding
would exceed the Revolving Commitment;
(4) no Advance shall be made or may be requested to refinance any
Mortgage Loan the origination or purchase of which was
financed by a prior Advance under this Agreement;
(5) the amount of each Advance requested shall not be greater than
the lesser of;
(1) the market value of the Mortgage Loan to be financed as
determined by the Lender in good faith (market values
(from time to time) of various categories of Mortgage
Loan as so determined by the Lender having been notified
to the Borrower by the Lender); and
(2) 100% (one hundred per cent) of the Advance Date
Principal Balance;
(6) any failure of condition 4.2(e) or 4.2(g) or 4.2(k) in relation to
any Approved Affiliate (or, but only in the case of condition
4.2(k), any failure of such condition in relation to CMC) shall not
preclude Advances being made hereunder to fund purchases of Mortgage
Loans originated by other Approved Affiliates.
4.3 Subject to the foregoing provisions of this Clause 4, upon receipt of a
duly executed Drawdown Request, the Lender shall, not later than 10 am New
York time on the date on which the Advance is to be made (or such later
time as maybe agreed between the Borrower and the Lender), make the
Advance requested, such Advance to be credited to the Borrower Funding
Account or, after prior consultation with and written notice to the
Borrower, the applicable Solicitors and CMS, to be advanced to the
Solicitors acting for the relevant Originator in relation to the
particular New Production Mortgage Loans, against an Initial Undertaking
from the relevant Solicitors, and it is acknowledged (for the avoidance of
doubt) that any Advance paid to Solicitors under clause 4.3 shall be
deemed to have been drawn by the Borrower under this Agreement on the date
of such payment.
4.4 If the Borrower fails for any reason whatsoever (other than as a
consequence of a breach of the Lender's obligations) to draw down an
Advance after a Drawdown Request has been received by the Lender (whether
such failure be the result of the occurrence of an Event of Default or
otherwise), the Borrower will pay to the Lender on demand such
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amount as the Lender certifies to be necessary to compensate for all
losses excluding loss of Margin incurred or to be incurred on account of
deposits acquired or arranged in order to fund the Advance. Any such
certificate by the Lender shall be prima facie evidence of such losses.
4.5 In the event that no duly completed Solicitors Undertaking shall have been
received by the Lender in respect of any Mortgage Loan(s) in respect of
which an Advance shall have been made hereunder by the close of business
on the third Business Day following the making of the Advance the Lender
shall immediately notify the Borrower and an amount equal to the Advance,
or such part thereof as was advanced in respect of such Mortgage Loan or
Mortgage Loans shall become immediately due and repayable by the Borrower
to the Lender together with accrued interest thereon.
4.6 If all or any part of any Advance made to finance a Mortgage Loan which is
subject to the provisions of Clause 4.5 shall be held by any Solicitors
payment in full by such Solicitors to the Lender of the amounts due under
Clause 4.5 shall discharge the Borrower's obligation to the same.
5. CANCELLATION
5.1 The Borrower may at any time by giving not less than two Business Days
irrevocable written notice to the Lender cancel any amount (in integral
multiples of (pound)5,000,000) of the Revolving Commitment to the extent
not currently outstanding or requested in a current Drawdown Request
Provided that the cancelled amount does not reduce the Revolving
Commitment below the outstanding principal amount of Advances drawn under
the Revolving Commitment plus the amount of Advances requested in a
current Drawdown Request.
5.2 During such period of notice the Borrower may not serve a Drawdown Request
purporting to draw all or any part of the amount of the subject of such
notice of cancellation.
5.3 Upon such cancellation becoming effective, the Revolving Commitment shall
be appropriately reduced.
6. INTEREST ON ADVANCES
6.1 The Borrower will pay interest on each Advance on each Interest Payment
Date in respect of each Interest Period referable thereto at the rate per
annum equal to the aggregate of (i) the Margin and (ii) LIBOR for the
relevant Interest Period.
6.2 The Lender will, as soon as practicable after commencement of each
Interest Period advise the Borrower of LIBOR for that Interest Period. Any
certificate of the Lender as to the rate and amount of interest determined
by it under this Agreement in respect of any
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Interest Period shall, save for manifest error, be conclusive and binding
on the Borrower and CMC.
6.3 Interest at the rate determined as aforesaid shall be calculated on each
Advance and each part thereof on the basis of actual days elapsed and a
365 day year, shall accrue from day to day from and including the first
day of each Interest Period to but excluding the date of repayment of such
Advance.
6.4 If LIBOR cannot be determined for any reason the rate of interest
applicable to such Advance shall be the sum of the Margin and the rate,
expressed as a percentage rate per annum, which is the actual cost to
Lender of funding such Advance from whatever sources it may select during
such Interest Period (as applicable) and, if the Lender so requires,
within five days of such notification the Lender and the Borrower shall
enter into negotiations with a view to agreeing a substitute basis for
determining the rates of interest which may be applicable to Advances in
the future.
7. REPAYMENT
7.1 The Borrower shall, subject as provided below, repay the amount of the
Term Loan then outstanding in full on the Term Loan Repayment Date. Any
amount repaid, or any part thereof, may not be redrawn.
7.2 The Borrower shall repay the whole of the outstanding amount of each
Revolving Advance on the Repayment Date relating thereto. Any amount
repaid or any part thereof may, subject to the provisions of this
Agreement, be redrawn.
7.3 On each Interest Payment Date (or, if later, any Late Interest Payment
Distribution Date) the Borrower shall, in respect of each relevant
Advance, repay a principal amount thereof equal to the amount available to
be applied under clauses 6.1(a), 6.2(c), 6.3(b) and 6.4(b) (taken
together) of the Proceeds Agreement (having taken account of the
provisions of clause 6.5 thereof) in or towards repayment of such Advance,
a "relevant Advance" for such purpose being:-
(1) each Advance which funded a Mortgage Loan in respect of which
Principal (as defined in the Proceeds Agreement) or Mortgage Loan
Proceeds has been received which, in either case, falls to be
applied under the Proceeds Agreement on such date; and
(2) if Securitisation Residual Proceeds have been received and fall to
be applied on such date, such Advances in such amounts as the
Borrower shall notify to the Lender.
7.4 On any Distribution Date which is not also an Interest Payment Date the
Borrower shall, in respect of each relevant Advance, repay a principal
amount thereof equal to the amount available to be applied under clauses
6.3(b) and 6.4(b) of the Proceeds Agreement
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(having taken account of the provisions of clause 6.5 thereof) in or
towards repayment of such Advance, a "relevant Advance" for such purpose
being:-
(1) each Advance which funded a Mortgage Loan in respect of which
Mortgage Loan Proceeds have been received which fall to be applied
under the Proceeds Agreement on such date; and
(2) if Securitisation Residual Proceeds have been received and fall to
be applied on such date such Advances in such amounts as the
Borrower shall notify to the Lender.
7.5 If the Borrower is required to repay principal on any Advance on any day
other than an Interest Payment Date, the Borrower shall be obliged to pay
such amount together with interest accrued thereon to the date of such
repayment.
7.6 Any part of any Advance drawn under the Revolving Commitment repaid under
the provisions of sub-clauses 7.3, 7.4 or 7.9 may, subject to the
provisions of this Agreement, be redrawn.
7.7 Any part of the Term Loan repaid under the provisions of any of
sub-clauses 7.3 or 7.4 may not be redrawn.
7.8 If all or any part of any Advance is repaid under this clause other than
on an Interest Payment Date, the Borrower will pay to the Lender on demand
such amount as the Lender certifies to be necessary to compensate it for
all losses excluding loss of Margin incurred or to be incurred by it on
account of deposits acquired or arranged in order to fund the relevant
Advance except in the case of repayment of any Advance pursuant to clause
15.8. Any such certificate by the Lender shall be prima facie evidence of
such losses.
7.9 Subject to Clause 7.8, the Borrower may at any time prepay in whole or in
part any Advance outstanding hereunder together with all accrued interest
thereon.
8. EXAMINATION OF MORTGAGE FILES
8.1 The Lender shall have the right to examine the Mortgage Files to determine
whether the Mortgage Loans to be financed fulfil the Underwriting
Guidelines. Such examination may be made by the Lender at any time before
or after the date on which any Advance is to be or was made.
8.2 If the Lender makes such examination prior to the date on which an Advance
is to be made and properly identifies any Mortgage Loans which do not
fulfill the Underwriting Guidelines such Mortgage Loans shall be deleted
from the schedule of Mortgage Loans appended to the Drawdown Request.
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8.3 The Lender may make an Advance without conducting any partial or complete
examination. The fact that the Lender has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall
not affect the Lender's (or any of its successor's) rights provided
herein.
9. EVIDENCE OF DEBT
The Lender shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder, and in any legal action or proceeding arising out of or in
connection with this Agreement, the entries made in such accounts shall in
the absence of manifest error be prima facie evidence of the existence and
amounts of the specified obligations of the Borrower.
10. TAXES
10.1 The Lender and the Borrower intend that:
(1) they shall not vary this Agreement so as to extend:
(1) the term of the Term Loan; or
(2) the period during which any Advance may be drawn down or
outstanding;
beyond the Final Maturity Date; and
(2) the Lender shall not make any further advance or advances to
the Borrower after the Final Maturity Date under or pursuant
to any further agreement.
10.2 Accordingly, all payments to be made by the Borrower to the Lender
hereunder shall be made free and clear of and without deduction or
withholding for or on account of tax.
10.3 If the Borrower is nevertheless required by law (including, without
limitation, as a result of any change in law or in its interpretation or
administration) to make any payment to the Lender hereunder subject to any
deduction or withholding on account of tax, the sum payable by the
Borrower in respect of which such deduction or withholding is required to
be made shall be increased to the extent necessary to ensure that, after
the making of the required deduction or withholding, the Lender receives
and retains (free from any liability in respect of such deduction or
withholding) a net sum equal to the sum which it would have received and
so retained had no such deduction or withholding been made or required to
be made.
10.4 Without prejudice to the provisions of clause 10.3, if the Lender is
required to make any payment on account of tax (excluding a tax imposed on
and calculated by reference to the net income of its Facility Office by
the jurisdiction in which it is incorporated or in which its Facility
Office is located) on or in relation to any sum received or receivable by
the Lender under this Agreement (including any sum received or receivable
under this clause
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l0) or under any Fees Letter, or any liability in respect of any such
payment is asserted, imposed, levied or assessed against the Lender, the
Borrower shall, upon demand of the Lender, promptly indemnify the Lender
against such payment or liability, together with any interest, penalties,
costs and expenses payable or incurred in connection therewith.
10.5 If the Lender intends to make a claim pursuant to clause l0.4 it shall
notify the Borrower of the event by reason of which it is entitled to do
so provided that nothing herein shall require the Lender to disclose any
confidential information relating to the organisation of its affairs.
10.6 If, at any time, the Borrower is required by law to make any deduction or
withholding on account of tax from any sum payable by it hereunder (or if
thereafter there is any change in the rates at which or the manner in
which such deductions or withholdings are calculated), the Borrower shall
promptly notify the Lender.
10.7 If the Borrower makes any payment hereunder in respect of which it is
required by law to make any deduction or withholding on account of tax, it
shall pay the full amount required to be deducted or withheld to the
relevant taxation or other authority within the time allowed for such
payment under applicable law and shall deliver to the Lender, within
thirty days after it has made such payment to the applicable authority, an
original receipt (or a certified copy thereof) issued by such authority
evidencing the payment to such authority of all amounts so required to be
deducted or withheld in respect of such payment or any other written
evidence acceptable to the Lender.
10.8 If the Borrower pays any increased amount under clause 10.3 or any
indemnity under clause 10.4 (each, a "Tax Payment") and the Lender, acting
reasonably, determines that it has received and retained a refund of, or a
credit against, the tax paid or payable by it and that the refund or
credit is in respect of, or calculated with reference to, the deduction or
withholding giving rise to the Tax Payment (where the Tax Payment is made
under clause 10.3) or the liability giving rise to the Tax Payment (where
the Tax Payment is made under clause 10.4) (in each case, such refund or
credit being referred to hereafter as a "Tax Credit"), then the Lender
shall, to the extent that it can do so without prejudice to the retention
of the Tax Credit, reimburse to the Borrower in the manner described in
the following sentence such amount as the Lender shall reasonably
determine to be the proportion of the Tax Credit as will leave the Lender
after reimbursement in no better or worse position than it would have been
in if the Tax Payment had not been required. The manner in which such
reimbursement is to be made shall first be by way of set off against such
of the amount(s) which the Borrower is then liable to pay to the Lender
(for whatever reason and regardless of whether the payment of such
amount(s) has fallen due) as the Lender shall, in its sole opinion,
specify and notify to the Borrower.
10.9 Nothing in this clause 10 shall interfere with the Lender's right to
arrange its tax affairs in whatever manner it thinks fit and, without
limiting the foregoing, the Lender shall not be under any obligation to
claim any Tax Credit in priority to any other claims, reliefs, credits or
deductions available to it. The Lender shall not in any event be obliged
to
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disclose any information relating to its tax affairs or any computations
in respect thereof to the Borrower or any other person.
10.10 All amounts payable under this Agreement and under any Fees Letter are
expressed to be exclusive of any VAT chargeable in respect thereof. If any
VAT is chargeable in respect of such amounts, the Borrower shall, in
addition, pay to the Lender an amount equal to such VAT, and the Lender
shall provide the Borrower with a proper VAT invoice in respect thereof.
11. INCREASED COSTS
11.1 If, by reason of:-
(1) the introduction of, or any change in any applicable law, regulation
or regulatory requirement or any change in the interpretation or
application of any thereof in each case after the date hereof and/or
(2) compliance by the Lender or any holding company of the Lender with
any applicable directive, request or requirement whether or not
having the force of law but, if not having the force of law being of
general application and of a type with which the Lender or a holding
company of the Lender is accustomed to comply of any central bank or
any self regulating organisation or any governmental, fiscal,
monetary or other authority (including, but not limited to, a
directive, request or requirement which affects the manner in which
any bank allocates capital in support of its assets or liabilities
or contingent liabilities or deposits with it or for its account or
advances or commitments made by it) which is brought into effect
after the date hereof,
and if, to the extent of compliance with either or both of paragraphs (a)
and (b):-
(3) the Lender or any holding company of the Lender is unable to obtain
the rate of return on its capital which it would have been able to
obtain but for the Lender's entering into or assuming or maintaining
a commitment or performing its obligations (including its obligation
to make Advances) under this Agreement;
(4) the Lender or any holding company of the Lender incurs a cost as a
result of the Lender's entering into or assuming or maintaining a
commitment or performing its obligations (including its obligation
to make Advances) under this Agreement;
(5) there is any increase in the cost to the Lender or any holding
company of the Lender of funding or maintaining all or any of the
Advances;
(6) the Lender or any holding company of the Lender becomes liable to
make any payment on account of tax or otherwise (except on account
of any tax imposed on and calculated by reference to the net income
of the Facility Office by the
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jurisdiction in which the Lender (or its holding company) is
incorporated or in which the Facility Office is located), or
foregoes any interest or other return, on or calculated by reference
to the amount of any Advance or the amount of any sum received or
receivable by it (or its subsidiary) under this Agreement,
then the Borrower shall, from time to time on demand of the Lender,
promptly pay to the Lender amounts sufficient to indemnify the Lender and
its holding company against, as the case may be, (1) such reduction in the
rate of return of capital, (2) such cost, (3) such increased cost (or such
proportion of such increased cost as is, in the opinion of the Lender,
attributable to its or its holding company funding or maintaining the
Advance), or (4) such liability.
11.2 If the Lender intends to make a claim pursuant to clause 11.1 it shall
notify the Borrower of the event by reason of which it is entitled to do
so provided that nothing herein shall require the Lender to disclose any
confidential information relating to the organisation of its affairs.
11.3 No obligation shall arise under Clause 11.1 to the extent that the
Borrower is liable to compensate the Lender under Clause 10.3 or 10.4.
12. ILLEGALITY
If, at any time, it is or becomes unlawful for the Lender to make, fund or
allow to remain outstanding all or part of any of the Advances, then the
Lender shall, promptly after becoming aware of the same, deliver to the
Borrower a notice to that effect, the Lender shall not thereafter be
obliged to make any Advances hereunder, the Revolving Commitment shall be
immediately reduced to zero and, if the Lender so requires, the Borrower
shall on such date as the Lender shall have specified repay any
outstanding Advances, in each case together with accrued interest thereon
and all other amounts owing to the Lender hereunder.
13. PAYMENTS
Any payment to be paid by the Borrower to the Lender pursuant to this
Agreement shall be made in sterling, in immediately available, freely
transferrable and cleared funds for value same day, to such account of the
Lender as the Lender shall, from time to time, have specified in writing
for such purpose.
14. REPRESENTATIONS AND WARRANTIES
14.1 The Borrower and CMC (each in relation to itself) hereby represent,
warrant, covenant and undertake to the Lender that:-
(1) it is a limited liability company duly incorporated under the laws
of England and Wales and is duly authorised and qualified to
transact any and all business contemplated by this Agreement and the
other Transaction Documents to be
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conducted by it and is in compliance with such laws to the extent
necessary to ensure its ability to enforce each Mortgage Loan.
(2) it has the full corporate power and authority to execute, deliver
and perform, and to enter into and consummate the transactions
contemplated by this Agreement and the other Transaction Documents
and has been duly authorised by all necessary corporate action on
its part the execution, delivery and performance of this Agreement
and the other Transaction Documents; and this Agreement and each
Transaction Document, assuming the due authorisation, execution and
delivery thereof by the Lender, constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its
respective terms, except to the extent that (a) the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights
generally and (b) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable
defences and to the discretion of the court before which any
proceeding therefor may be brought;
(3) its execution and delivery of this Agreement and each Transaction
Document, the consummation of any other of the transactions herein
or therein contemplated on its part and the fulfilment of or
compliance with the terms hereof or thereof will not (i) result in a
material breach of any term or provision of its Memorandum and
Articles of Association and/or its other constitutional documents or
(ii) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under,
the terms of any other material agreement or instrument to which it
is a party or by which it may be bound, or any statute, order or
regulation applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
it;
(4) it is not party to, bound by, or in breach or violation of any
material indenture or other material agreement or instrument, or
subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it, which materially and adversely
affects or, to its knowledge, would in the future materially and
adversely affect, (i) its ability to perform its obligations under
this Agreement or the Transaction Documents or (ii) its business,
operations, financial condition, properties or assets taken as a
whole;
(5) no litigation is pending or, to the best of its knowledge,
threatened against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or the
Transaction Documents or its ability to perform any of its
obligations hereunder or thereunder in accordance with the terms
hereof or thereof;
(6) no consent, approval, authorisation or order of any court or
governmental agency or body is required for the execution, delivery
and performance by it of, or compliance by it with, this Agreement
or any Transaction Document or the
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consummation of the transactions contemplated hereby or thereby, or
if any such consent, approval, authorisation or order is required,
it has obtained or it is in the process of obtaining the same;
(7) it has caused to be performed any and all acts required to preserve
all rights and remedies in any block insurance policies taken out at
any time and from time to time applicable to the Mortgage Loans
including without limitation, the Block Buildings Policies and the
Block Life Policies;
(8) the Borrower has not, at any time since its incorporation, had any
employee, entered into any contracts or traded;
(9) CMC has, on or prior to the date hereof, provided the Lender with
access to all correspondence between it, any of its subsidiaries,
affiliates or other members of its group or its or their respective
advisers and the OFT in respect of the current OFT investigation of
such companies.
The representations and warranties under clause 14.1(a)-(g) inclusive
shall be given on the date of this Agreement and shall be repeated on each
date on which any Advance is outstanding hereunder by reference to the
facts and circumstances existing at the relevant time.
14.2 The Lender represents and warrants to the Borrower in terms of clauses
14.1(a) to (f) (inclusive), mutatis mutandis, provided that the reference
in clause 14.1(a) to England and Wales shall be construed as a reference
to Bermuda.
14.3 (A) With respect to each Existing Mortgage Loan, the Borrower hereby
represents and warrants (as of the date hereof and the date on which
the Initial Advance is made) that each of the representations and
warranties set out in paragraph 7.3 of the Mortgage Loan Purchase
Agreement was, on the Closing Date (as defined in the Mortgage Loan
Purchase Agreement) in respect of such Existing Mortgage Loan true
and accurate in all respects.
(B) The Borrower hereby represents and warrants to the Lender in
relation to each New Production Mortgage Loan, in each case as of
the Advance Date on which an Advance was made to fund the purchase
of the same hereunder or, if later, the date on which a Solicitors
Undertaking in respect thereof is issued, as follows (but on the
basis that each reference in each representation and warranty to:-
(1) a Mortgage Loan shall be construed as a reference to the
relevant New Production Mortgage Loan; and
(2) the Advance Date shall be construed as a reference to
whichever is the later of the relevant Advance Date or the
date on which the relevant Solicitors Undertaking is given).
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(2) The information set forth on the Mortgage Loan Schedule with respect
to each Mortgage Loan is true and correct in all material respects;
(3) Unless otherwise agreed from time to time, all payments due prior to
the Advance Date have been made and none of the Mortgage Loans will
have been contractually delinquent for 31 or more days more than
once since the origination thereof;
(4) Each Mortgage Deed constitutes (i) in the case of English Mortgage
Loans, a valid and enforceable legal mortgage of the relevant
Mortgaged Property subject only in certain cases to registration of
the relevant Mortgage Deed at HM Land Registry, or (ii) in the case
of Scottish Mortgage Loans, a valid and enforceable Standard
Security over the relevant Mortgaged Property subject only in
certain cases to registration or recording of the relevant Mortgage
Deed in the Registers of Scotland, in either case duly executed by
the Mortgagor named in the relevant Mortgage Deed;
(5) On the date upon which an Advance is made the Borrower (subject only
to registration of legal title at HM Land Registry or the Registers
of Scotland as appropriate) has good title to each Mortgage Loan and
the Collateral Security in respect of each such Mortgage Loan, has
full right and authority to charge and assign the same by way of
security and the same is the absolute property of the Borrower
(subject to any registration or recording in favour of the Borrower
which may be pending at HM Land Registry or the Registers of
Scotland) free and clear of all mortgages, securities, charges,
liens, encumbrances, claims and equities (including, without
limitation, rights of set off or counterclaim, overriding interest
within the meaning of Section 3(xvi) of the Land Registration ▇▇▇
▇▇▇▇ or Section 28(1) of the Land Registration (Scotland) Act 1979
and adverse entries or notices of application therefor against any
title at HM Registry or the Registers of Scotland to any relevant
Mortgaged Property) except any such encumbrances, claims, equities,
overriding interests or entries which rank after the interests of
the Borrower, the Lender in the Mortgaged Loans or which do not have
an adverse effect on the value of the relevant Mortgaged Property as
security for the relevant Mortgage Loan or which are the subject of
a duly completed and signed Postponement Agreement or appropriate
executed MHA Documentation as contemplated in sub-clause 14.3(B)(2)
below;
(6) Each Mortgaged Property is a residential property or mixed
commercial and residential property in the United Kingdom;
(7) The steps necessary to perfect the vesting of full legal and
equitable title to each Mortgage Loan and the Collateral Security in
the Borrower have been duly taken at the appropriate time or are in
the course of being taken with all due diligence;
(8) To the best of its knowledge, each Mortgaged Property is free of
material damage and is in good repair;
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(9) Each Mortgage Loan at origination complied in all material respects
with applicable laws and regulations including, where applicable,
the Consumer Credit ▇▇▇ ▇▇▇▇ and any regulations made thereunder
(and in particular no Mortgage Loan is cancellable thereunder) and
consummation of the transactions contemplated hereby will not
involve the violation of any such laws and regulations;
(10) Neither it nor any prior holder of any Mortgage Loan has; (a)
modified the Mortgage Loan in any material respect, except that a
Mortgage Loan may have been modified by a written instrument in
respect of which any applicable registration(s) have been completed;
(b) satisfied, cancelled or subordinated such Mortgage Loan in whole
or in part; (c) released the related Mortgaged Property in whole or
in part from the security created by the relevant Mortgage Deed; or
(d) executed any instrument of release, cancellation, discharge,
modification or satisfaction with respect thereto;
(11) No sub-mortgage, sub-charge, pledge, lien or right of set off or
counterclaim or other security interest or other adverse right or
interest has been created or has arisen between it and any Mortgagor
which entitles or entitled the Mortgagor to reduce the amount of any
payment otherwise due under the terms of such Mortgagor's Mortgage
Loan (save, in the case of junior mortgages, the relevant prior
ranking legal mortgage or mortgages of or Standard Security over the
relevant Mortgaged Property created by the Mortgagor and any related
security for the loan secured thereby);
(12) Each Mortgage Loan was originated in all material respects in
accordance with the criteria set out in the Underwriting Guidelines;
(13) In relation to each Mortgaged Property:-
(1) in respect of title to property in England or Wales which is
not registered, the relevant Mortgagor had or was acquiring
good and marketable title to the fee simple absolute in
possession (if freehold) or a term of years absolute of not
less than thirty years beyond the term of the Mortgage Loan
(if leasehold) relating to such Mortgaged Property and is free
from any encumbrance which would adversely affect such title;
(2) in relation to title which is registered at HM Registry, it
was so registered with title absolute in the case of freehold
property or absolute leasehold or good leasehold title of the
requisite title aforesaid in the case of leasehold property;
(3) in relation to which title is registered or recorded in the
Registers of Scotland, it was so registered or recorded with
valid and marketable title (whether feudal or long lease),
having in the case of a long lease an
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unexpired term of not less than thirty years beyond the term
of the Mortgage Loan;
(4) no works on the relevant Mortgaged Property were carried out
in violation of any applicable planning law or regulation or
building regulations;
(5) if the relevant Mortgaged Property is leasehold or (in
Scotland) held under long lease, any requisite consent of the
landlord to or notice to the landlord of the creation of the
relevant Mortgage had been obtained or given and no consents
of or notices to such landlord are required to any transfer,
assignation or sub-charge of the relevant Mortgage, and a copy
of any such consent or notice is held with the title deeds to
the relevant Mortgaged Property or held to the order of the
Lender or its Solicitors;
(6) the relevant Mortgaged Property is not subject to any adverse
third party claim or proceeding for compulsory acquisition
thereof;
(14) Each Mortgage relating to a Mortgage Loan (and any other documents
entered into in relation to the relevant Mortgage Loan) is the
legal, valid and binding obligation of the grantor thereof,
enforceable in accordance with its terms and with applicable laws
and parties thereto had legal capacity to execute the same and the
same have been duly and properly executed by such parties;
(15) Either:
(1) the proceeds of the Mortgage Loans have been fully disbursed
and there is no requirement for further advances thereunder;
or
(2) if any retention was recommended by CMC's or the relevant
Approved Affiliate's valuer, the recommendation to make a
retention was implemented and cash was not advanced until CMC
or relevant Approved Affiliate had received a certificate (or
other evidence acceptable to it) of completion of the relevant
repairs or other works.
(16) Each Mortgage Deed is in, or substantially in, the form of the
relevant attachment annexed hereto in Annexure 2.
(17) The origination and underwriting practices used by CMC or relevant
Approved Affiliate or with respect to each Mortgage Loan have been
in all respects legal, proper, prudent and customary in the mortgage
servicing business in the United Kingdom and comply with the
Underwriting Guidelines;
(18) Either:
(1) each Mortgaged Property is insured under the block insurance
policy from time to time maintained by CMC or, as the case may
be, the relevant
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Approved Affiliate to provide, where it is agreed that the
Mortgagor will not insure, cover against such risks and
contingencies as are commonly insured against in a fully
comprehensive buildings insurance for residential properties
to a minimum of the full cost of reinstatement thereof
together with inflation cost over any period that may be
required for obtaining any relevant planning permission and
other approvals and the reinstatement or repair period and
architects and other professional fees; or
(2) where the Mortgagor insures, CMC or, as the case may be, the
relevant Approved Affiliate has established that such
insurance was, at the date of origination of the relevant
Mortgage Loan, in accordance with the foregoing provisions of
this sub-clause, with a reputable insurer, with an
acknowledgement by the insurer that the interest of CMC or
relevant Approved Affiliate has been or will be promptly
following the relevant Advance Date be noted on the relevant
policy. In the case of leasehold property in England and
Wales, the relevant Mortgaged Property is insured under
arrangements effected by the freeholder or any intermediate
leaseholder, on a fully comprehensive basis as aforesaid.
(19) Prior to making the relevant advance the subject of a Mortgage Loan,
CMC or the relevant Approved Affiliate (as originator) carried out
or caused to be carried on its behalf the investigations, searches
(other than local authority searches) and other actions and made or
caused to be made on its behalf the enquiries as to the Mortgagor's
status that were required in accordance with the relevant lending
criteria of CMC or the Approved Affiliate or Relevant Affiliate (as
originator) applicable at the time when the offer of advance was
made and the results thereof were acceptable to CMC or the relevant
Approved Affiliate or Relevant Affiliate (as originator) in
accordance with such lending criteria for the purposes of the
proposed advance;
(20) Any further advances after the date of the Mortgage Deed but made
prior to the Advance Date have been advanced under separate mortgage
documentation (and, accordingly, have not been consolidated with the
outstanding principal amount secured by the Mortgage), and all
ground rents, ground burdens and service charges and other payments
required in relation to leasehold property or heritable property
which previously became due and owing have been paid. Except for
interest accruing from the date of the relevant Mortgage Deed or
date of advance to the relevant Mortgagor, whichever is later, to
the day which precedes by one month the date for payment of the
first instalment of principal and interest, none of CMC, the
Approved Affiliate or Relevant Affiliate (as originator) has
advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount in relation to the
relevant Mortgage Loan save to the extent that the same reduces the
Mortgage Loan;
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(21) Subject to clause 14.3(B), to the best of the Borrower's knowledge
and belief (the Borrower having made all reasonable enquiries of CMC
or relevant Originator) there is no default, breach, violation or
event of acceleration existing under any Mortgage Loan: and neither
CMC nor any Approved Affiliate (as originator) has waived any
default, breach, violation or event of acceleration other than any
waiver which is in accordance with and permitted under the relevant
Manuals;
(22) Each Mortgage File contains a valuation of the relevant Mortgaged
Property undertaken on the instructions of CMC, the relevant
Approved Affiliate or Relevant Affiliate (as originator), or
instructions issued on its behalf or as the case may be by any
predecessor in title in relation to the relevant Mortgage Loan) by
an independent qualified valuer being an associate or fellow of the
Royal Institute of Chartered Surveyors or, as the case may be,
Society of Valuers and Auctioneers, in each case approved by CMC,
the relevant Approved Affiliate or Relevant Affiliate (as
originator) and unless otherwise agreed between the Lender and the
Borrower, the principal amount advanced to the relevant Mortgagor
was not more than the amount permissible under the terms of the
relevant Program;
(23) At the time of the making of the Mortgage Loan, the Mortgaged
Property was not located within a 1 mile radius of any contaminated
land or any land with environmental or hazardous waste risks known
to CMC or the relevant Approved Affiliate or (as originator) or,
where such was the case, an environmental audit was procured by CMC
or the relevant Approved Affiliate or (as originator) or evaluated
in accordance with such relevant originator's established
environmental review procedures, and found to be satisfactory;
(24) In selecting the Mortgage Loans in respect of which Advances are
made hereunder, no selection procedure was employed by the Borrower
which was intended to adversely affect the interests of the Lender;
(25) Prior to the making of the relevant mortgage advance, enquiry was
made of each Mortgagor as to the identity of the persons in actual
occupation of the Mortgaged Property and (i) in the case of English
Mortgage Loans, any person who at the date when the advance was made
had attained the age of 18 and who was identified in writing to CMC,
the relevant Approved Affiliate (as originator) or its Solicitor by
the Mortgagor as residing or being about to reside in the relevant
Mortgaged Property is either named as joint mortgagor on the
relevant Mortgage Deed or has signed a legally binding agreement
postponing (each a "Postponement Agreement") all rights and
entitlements to which such person may be entitled in the Mortgaged
Property to the interests, rights and entitlements of CMC or the
relevant Approved Affiliate (as originator) or such other person as
may have or acquire as mortgagee or chargee of the property from
time to time, such agreement in a form as was satisfactory to such
Solicitor, and (ii) in the case of Scottish Mortgage Loans, prior to
the making of the advance, CMC or the relevant Approved Affiliate
(as originator) or its Solicitor obtained all necessary validly
executed MHA Documentation so as to ensure that neither the
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relevant Mortgage Loan nor the relevant Mortgaged Property was
subject to or affected by any statutory right of occupancy in favour
of a non-entitled spouse;
(26) CMC and each Approved Affiliate have kept, or caused to be kept,
full and proper accounts, books and records showing all transactions
payments, receipts and proceedings relating to that Mortgage and all
such accounts, books and records are up to date and in its
possession or held to its order;
(27) There exists no litigation, dispute or complaint (subsisting or
pending or threatened) calling into question in any way title of CMC
or any Approved Affiliate to any Mortgage Loan or, to the best of
its knowledge, the relevant Mortgagor's title to his Mortgaged
Property;
(28) The Mortgage Loan Documents are held to the order of the Lender by
the relevant Solicitor or have been lodged at H.M. Land Registry or
the Registers of Scotland and in the case of each Mortgaged Property
the title to which is registered or for which application for first
registration has been made the Borrower knows the title number under
which the Mortgaged Property is (or, in the case of first
registration, is to be) registered at H.M. Land Registry or the
Registers of Scotland;
(29) In relation to each Mortgage Deed for Mortgaged Property where
registration is pending at H.M. Land Registry, there is no caution,
notice or other entry which would prevent the registration of the
Mortgage Deed as a charge by way of first or, as the case may be,
second or third subsequent legal mortgage.
(30) None of the Mortgagors which pay interest is a company.
14.4 It is acknowledged, that references in this clause 14 to Mortgage Loans
shall include reference to the relevant Collateral Security, as
appropriate.
15. REMEDIES FOR BREACH OF REPRESENTATIONS AND WARRANTIES
15.1 It is understood and agreed that the representations and warranties set
forth in clauses 14.1 and 14.3 shall survive the charging of Mortgage
Loans to the Lender and shall enure to the benefit of the Lender
notwithstanding the examination by the Lender or failure by the Lender to
examine any Mortgage File.
15.2 With respect to the representations and warranties contained in clauses
14.1 and 14.3 which are made to the best of the Borrower's knowledge,
after reasonable inquiry and investigation, if it is discovered by either
the Borrower or the Lender that the substance of such representation and
warranty is inaccurate and in the case of those in clause 14.3 such
inaccuracy materially and adversely affects the value of the related
Mortgage Loan or the Lender's interest in the Mortgage Loan then,
notwithstanding the Borrower's lack of knowledge with respect to the
inaccuracy at the time the representation or warranty
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was made, the Lender shall have the same rights in respect of the breach
thereof as it would have if the applicable representation or warranty was
breached.
15.3 Upon discovery by either the Borrower or the Lender of a breach of any of
the foregoing representations and warranties
(a) given under clause 14.1; or
(b) given under clause 14.3 which materially and adversely affects
the value of the Mortgage Loans or the interest of the Lender
in the Mortgage Loan (or which materially and adversely
affects the interests of the Lender in or to the related
Mortgage Loan in the case of a representation and warranty
relating to a particular Mortgage Loan)
the party discovering such breach shall give prompt written notice to the
other.
15.4 If following a review undertaken by the Lender within a period of 30 days
after the date of any Advance, a material breach of the warranties in
clause 14.3 shall be discovered, the same shall constitute a breach of
such representation and warranty irrespective of whether the same
materially and adversely affects the value of the relevant Mortgage
Loan(s) provided that notice regarding such breach shall have been
delivered by the Lender to the Borrower promptly following such review.
15.5 Within 90 days of the earlier of either discovery by or notice to the
Borrower of any breach of a representation or warranty given under clause
14.3 which materially and adversely affects the value of any Mortgage
Loan, the Borrower shall use all reasonable endeavours promptly to cure
such breach and, if such breach cannot be cured or is not cured at the end
of such 90 day period or if it is determined at any time following
discovery or notice that such breach cannot be cured, the Borrower shall:-
(1) repay the Advance (or such part thereof) made hereunder to fund the
relevant Mortgage Loan, together with accrued interest thereon, on
demand of the Lender; or
(2) with the Lender's prior consent provide additional collateral of a
type and amount reasonably acceptable to the Lender, charged in
favour of the Lender pursuant to such security documents as shall be
acceptable to the Lender;
and when the Borrower has repaid the Advance (or relevant part thereof)
under sub-clause 15.5(a) or provided additional collateral in accordance
with sub-clause 15.5(b) the Lender shall, at the cost of the Borrower,
release the relevant Mortgage Loan or Mortgage Loans from the security
constituted by the Debenture together with all Collateral Security related
thereto.
15.6 Without prejudice to the Lender's rights under clause 15.5(a), and for
such time as the Borrower's obligations thereunder shall remain
undischarged, the Lender shall be entitled
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to satisfy and discharge any obligation it may have to make an Advance
hereunder through set-off of the Borrower's obligations to it under clause
15.5(a) and if the Lender does so it shall be treated for all purposes as
if it had satisfied its obligation to make the relevant Advance through
remittance of the relevant funds in cash.
15.7 The Borrower shall, at its option, either prepay each Advance (or part
thereof) made to finance any First Pay Default Mortgage Loan or deposit
additional collateral in respect thereof, in the manner described under
clause 15.5 within two Business Days of request by the Lender in respect
of notification by reference to an Interest Payment Date, such request to
be deemed to have automatically been given in respect of each Interest
Payment Date in relation to Mortgage Loans financed hereunder which first
become a First Pay Default Mortgage Loan during the Collection Period in
respect of such Interest Payment Date, and within five Business Days of
request in all other cases of the relevant Mortgage Loan becoming a First
Pay Default Mortgage Loan, and the Lender shall be entitled to discharge
any obligation to make an Advance hereunder by set-off against amounts
owed in respect of any First Pay Default Mortgage Loan in the manner
contemplated under clause 15.6.
16. UNDERTAKINGS AND COVENANTS
16.1 The Borrower and (but only where the covenant or undertaking relates to
CMC) CMC hereby undertake with the Lender that from and after the date
hereof and until all sums due and to become due hereunder have been paid
or repaid in full and the Facility shall no longer exist:
(1) the Borrower shall obtain, comply with the terms of and do all that
is necessary to maintain in full force and effect all
authorisations, approvals, licences and consents required in or by
the laws and regulations of England and of Scotland to enable it
lawfully to enter into and perform its obligations under this
Agreement and each Transaction Document and to ensure the legality,
validity, enforceability or admissibility in evidence in England and
in Scotland of this Agreement and each Transaction Document and
shall ensure that none of the foregoing are revoked or modified;
(2) the Borrower shall promptly inform the Lender of the occurrence of
any Event of Default or Potential Event of Default and, upon receipt
of a written request to that effect from the Lender, confirm to the
Lender that, save as previously notified to the Lender or as
notified in such confirmation, no such event has occurred;
(3) the Borrower shall ensure that at all times the claims of the Lender
against it under this Agreement are secured as provided in the
Security Documents and that the security thereunder will be of the
nature and will rank in the priority it is expressed to have in the
Security Documents;
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(4) the Borrower shall not, without the prior written consent of the
Lender, create or permit to subsist any Security over all or any of
its present or future revenues or assets save for those created (or
permitted) under the Security Documents;
(5) the Borrower shall not, without the prior written consent of the
Lender, make any loans, grant any credit or give any guarantee or
indemnity (except as contemplated in the Transaction Documents) to
or for the benefit of any person or otherwise voluntarily assume any
liability, whether actual or contingent, in respect of any
obligation of any other person;
(6) the Borrower shall not, without the prior written consent of the
Lender, issue any further shares or alter any rights attaching to
its issued shares in existence at the date hereof;
(7) the Borrower shall not, without the prior written consent of the
Lender, sell, lease, transfer or otherwise dispose of, by one or
more transactions or series of transactions (whether related or
not), the whole or any part of its revenues or its assets except as
contemplated in the Transaction Documents;
(8) the Borrower shall not, except as permitted under the Proceeds
Agreement, make or declare any dividend or other distribution;
(9) the Borrower shall not engage in any business other than that
contemplated in the Transaction Documents and shall not have any
employees;
(10) the Borrower shall, at all times, ensure that there is at least one
independent director (approved by the Lender, such approval not to
be unreasonably withheld) on its board and CMC undertakes that it
shall not (as shareholder or otherwise) do (or omit to do) anything
which would prevent compliance with this covenant;
(11) each of the Borrower and CMC undertake that it shall not make or
permit any amendments to be made to the memorandum or articles of
association of the Borrower without prior written consent of the
Lender, such consent not to be unreasonably withheld;
(12) the Borrower will cooperate with CMC in CMC's continued negotiations
with the OFT to settle any matters from time to time outstanding in
relation to Mortgage Loans and CMC undertakes to continue to
endeavour to settle all matters outstanding and pending with the OFT
from time to time as expeditiously as reasonably practicable;
(13) CMC and the Borrower will procure that the origination of all New
Production Mortgage Loans does not violate in any material respect:-
(1) OFT Guidelines and;
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(2) any undertakings or agreements between CMC, any Approved
Affiliate, or the Borrower and the OFT;
(14) the Borrower will procure that the Lender has reasonable access to
▇▇▇▇▇▇▇▇ Chance (or such other solicitors as may be appointed from
time to time in addition to or in place of ▇▇▇▇▇▇▇▇ Chance to
negotiate with the OFT in relation to Mortgage Loans) for one or
more meetings as shall be reasonably necessary to, inter alia,
obtain the views of ▇▇▇▇▇▇▇▇ Chance or such other solicitors
regarding compliance by CMC, each Approved Affiliate and the
Borrower with OFT Guidelines;
(15) the Borrower will procure that the Lender has access (for the
purposes of review and, provided that the Lender has executed a
confidentiality agreement mutually acceptable to the Lender and the
Borrower, copying) to all correspondence between CMC and/or their
solicitors and the OFT prior to the date of the CMC Restructuring
Agreement and will procure that the Lender is promptly provided with
copies of any OFT related correspondence sent or received on or
after the date thereof provided that nothing in this or any other
undertaking shall entitle the Lender to receive access to or copies
of privileged correspondence between CMC, any Approved Affiliate and
its or their respective counsel;
(16) the Borrower shall procure that, upon reasonable request of the
Lender, an opinion of counsel satisfactorily to the Lender is
obtained, addressed to the Lender, in form and substance reasonably
satisfactory to the Lender, such opinion to confirm that New
Production Mortgage Loans comply in all material respects with all
applicable laws and regulations, including without limitation, the
OFT Guidelines and any undertaking in writing given by CMC, the
Borrower or any Approved Affiliate to the OFT or, if, after
discussions between the proposed counsel and the Lender, the Lender
is satisfied (acting reasonably and in good faith) that there are
justifiable legal reasons why such counsel is unable to provide the
legal opinion sought, a memorandum prepared by counsel satisfactory
to the Lender setting out why (and how) the New Production Loans
comply (in all material respects) with the OFT Guidelines and any
undertakings or agreements between CMC, CMS, and Approved Affiliates
or the Borrower and the OFT;
(17) the Borrower will procure that all Mortgage Files are delivered to
▇▇▇▇▇ Business Services Limited or such other ▇▇▇▇▇▇ as the Lender
may have approved from time to time (subject always to clause
3.10(d) of the Debenture) as soon as reasonably practicable
following receipt of the recorded deed and shall use reasonable
endeavours to procure that the Lender has, upon 1 Business Day's
notice, access to the offices of all Solicitors, ▇▇▇▇▇ Business
Services Limited or other storage provider aforesaid) during normal
business hours and shall procure that the Solicitors are instructed
to allow the Lender to take possession of any Mortgage File in
relation to any Mortgage Loan financed or to be financed hereunder;
and
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(18) the Borrower shall deliver to the Lender as soon as the same are
available, and in any event within one hundred and eighty (180) days
after the end of each of its financial years a copy of its audited
annual financial statements;
(19) the Borrower shall provide the Lender promptly upon request with any
information relating to it and/or its financial condition as the
Lender may from time to time reasonably require in connection with
this Agreement;
(20) the Borrower shall ensure that each set of audited annual financial
statements delivered pursuant to sub-clause (r) are prepared in
accordance with generally accepted accounting principles and on the
same basis every year and half year (save as may be required from
time to time as a result of changes in law or regulation or
generally accepted accounting principles);
(21) each of the Borrower and CMC shall, promptly upon receipt of the
same, deliver to the Lender a copy of any independent accountants'
management letters received by it relating to it or any member of
its group;
(22) the Borrower shall procure that:
(1) (at the Lender's expense) the transfer of all Existing
Mortgage Loans to it, pursuant to the Mortgage Transfer
Agreement; and
(2) (at the Borrower's expense) each transfer to it of any New
Production Mortgage Loan financed hereunder,
is registered at HM Land Registry or Registers of Scotland within
three months from the date of application to the relevant registry,
provided that breach by the Borrower of this provision in relation
to any one or more Existing Mortgage Loans or New Production
Mortgage Loans shall not constitute an Event of Default but shall
entitle the Lender to require repayment of the Advance, or part
thereof, (and all interest accrued thereon) which funded the
acquisition of the relevant New Production Mortgage Loan or Existing
Mortgage Loan against release by the Lender of the relevant Mortgage
Loan from the security created by the Debenture;
(23) the Borrower shall procure that where any retention is made in
respect of a Mortgage Loan funded hereunder, the amount retained is,
pending advance of the same against the relevant certificate (or
other evidence) of completion of the relevant works, held either in
the Borrower Funding Account or with the relevant Solicitor under
the terms of the Initial Undertaking;
(24) The Borrower shall deliver to the Lender the Underwriting Guidelines
and the forms of Mortgage Deed within 5 Business Days of the date
hereof.
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16.2 The Borrower shall, within one week of any written request from the Lender
requiring delivery to it of a solvency certificate in respect of any
Approved Affiliate and/or CMC, procure the delivery of such solvency
certificate or certificates to the Lender which shall:-
(1) in the case of an Approved Affiliate each be in or substantially in
the form set out in Schedule 2A; and
(2) in the case of CMC each be in or substantially in the form set out
in Schedule 2(B),
and, in each case, duly executed by:-
(3) a director of the relevant company; and
(4) approved by the board of the relevant company,
together with certified copies of supporting board minutes in form and
substance satisfactory to the Lender, (and any undertakings or assurances
referred to in the relevant solvency certificate), it being acknowledged
that there is no limit on the number of requests which the Lender is
entitled to make for delivery of solvency certificates in respect of any
such company.
16.3 The Borrower undertakes and covenants with the Lender that it shall,
within 30 days from the date hereof, enter into the Substitute Servicing
Agreement provided that, the Borrower shall not be deemed to be in breach
of the undertaking contained in this clause 16.3 in the event that the
failure to enter into the Substitute Servicing Agreement is due solely to
either:-
(1) the refusal of any party ("Third Parties") other than the Borrower,
CMS or CMC to enter into the Substitute Servicing Agreement
(provided that the Borrower shall use reasonable endeavours to
negotiate with Third Parties to obtain their agreement to enter into
such agreement); or
(2) the failure to obtain the consents and permissions referred to in,
and in accordance with, Clause 16.8.
16.4 The Borrower shall, promptly upon request from the Lender (the Lender to
cover the Borrower's out of pocket costs and expenses in respect thereof),
send or procure that the Servicer sends a notice to the Mortgagor of each
Existing Mortgage Loan and each New Production Mortgage Loan financed
under this Agreement, in form and substance satisfactory to the Lender,
informing such Mortgagors, inter alia, that all Mortgage Payments should,
following the receipt by each relevant Mortgagor of such notice, be made
to the credit of the Borrower Collection Account or such other account
identified by the Lender in such request provided always that:-
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(1) until such time as the Lender takes any action, following the
occurrence of any Event of Default under clause 17.1(i), (ii), (iii)
or (iv); and
(2) provided that no Event of Default has occurred which is subsisting
unremedied (to the satisfaction of the Lender) or unwaived,
the Lender shall be obliged, before making any such request, to notify the
Borrower and CMC and to discuss the proposals with them, provided that the
Lender's decision as to the service of such notice (or otherwise) shall be
final and binding.
16.5 The Borrower shall, or shall procure that the Servicer shall, within 21
days of the advance of funds under each New Production Mortgage Loan in
respect of which any Advance to originate or fund the purchase of such New
Production Mortgage Loan is made, forward to the relevant Mortgagor a
notice in the form set out in Schedule 3 to the Interim Servicing
Agreement or, after execution thereof, the equivalent schedule in the
Substitute Servicing Agreement.
16.6 Each of the Borrower and CMC shall, as soon as possible after the date
hereof, take all reasonable steps and do all things necessary to procure
(insofar as they can) that the CMC Collection Account (which is, at the
date hereof, in the name of the Servicer) is transferred into the name of,
and becomes an account of CMC so as to accord with the intention of, inter
alia, CMC and the Servicer, it being acknowledged that the ability of CMC
or the Borrower to do so is dependent upon the agreement of third parties.
16.7 Each of CMC and the Borrower shall take all necessary steps (including the
obtaining of all relevant consents) so as to procure (in so far as they
are able) that supplemental declarations of trust over the Securitisation
Collection Accounts in favour of the Borrower (in respect of Existing
Mortgage Loans and all New Production Mortgage Loans financed and to be
financed at any time under this Agreement) are constituted and that any
necessary amendments to existing Securitisation Collection Account Trusts
and Securitisation Bank Agreements in order to effect the foregoing are
made, all such matters to be approved by and in form and substance
satisfactory to the Lender, it being acknowledged that the ability of CMC
or the Borrower to do so is dependent upon the agreement of third parties.
16.8 CMC will cooperate with the Lender and use reasonable endeavours to
negotiate with the relevant parties so that any intellectual property
rights not owned by it but used by it or by the Servicer in connection
with the performance of its or the Servicer's obligations under this
Agreement or any other Transaction Document and in particular all software
programs used in connection with the Mortgage Loans financed hereunder and
their administration are, or are permitted to be charged, assigned by way
of security, licensed or sub-licensed on a non-exclusive basis to the
Borrower any Standby Servicer or substitute servicer and the Lender so as
to permit the Borrower any Standby Servicer or substitute servicer and the
Lender to use such intellectual property rights only in connection with
the administration of the Mortgage Loans financed hereunder for so long as
any of the Secured Sums (as defined in the Debenture) are paid in full.
CMC will
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provide a report, upon the reasonable request of the Lender from time to
time, on the steps that have been taken by CMC to obtain the consents and
permissions referred to in this clause and shall provide to the Lender
copies of all such consents and permissions upon receipt thereof by CMC.
16.9 In the event that:-
(1) CMS ceases to be affiliated (within the meaning of clause 17.6) with
CMC, any holding company or subsidiary of CMC; and
(2) the Interim Servicing Agreement or, after execution of the same, the
Substitute Servicing Agreement is terminated or becomes capable of
being terminated (after expiration of any applicable grace periods),
the Borrower shall procure that:-
(1) a substitute servicer acceptable to the Lender is appointed,
on terms and conditions acceptable and under documentation in
form and substance satisfactory to the Lender (but which terms
need be no more favourable to the Lender than those under the
Substitute Servicing Agreement), as its agent to service the
Existing Mortgage Loans and all New Production Mortgage Loans
financed hereunder in place of the Servicer within 30 days of
the occurrence of the event specified in (a) or (b) above; and
(2) such substitute servicer assumes its obligations, with
immediate effect, under the substitute servicing agreements
within such 30 day period.
16.10 If the Lender waives (in whole or part) condition precedent 3.1(c) the
Borrower shall provide evidence satisfactory to the Lender, within 14 days
of the date hereof, that each of the Lender and the Borrower are named
(whether through a generic endorsement or otherwise) as additional
assureds in respect of their respective interests, and that the Borrower
is named as loss payee on each Block Buildings Policy and each Block Life
Policy (and any other block buildings or life policies held by CMC or any
Approved Affiliate), in each case subject to breach of warranty and no
liability for premia endorsement.
17. DEFAULT
17.1 In the event of:-
(1) any default by the Borrower in the payment of any amount due for
payment hereunder or under any Transaction Document within two
Business Days after its due date; or
(2) the Borrower:-
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(1) failing to perform its obligations under clause 16.2 (but only
in respect of a requirement to deliver a solvency certificate
in respect of CMC), clause 16.3 or clause 16.9; or
(2) failing to observe or perform any other covenants, obligations
or agreements of the Borrower under this Agreement or any
Transaction Document which, if (in the good faith opinion of
the Lender) capable of remedy shall not have been remedied (to
the satisfaction of the Lender) within ten Business Days of
being required by the Lender to do so; or
(3) any representation or warranty made or repeated by the Borrower
under this Agreement (other than any representation or warranty made
or deemed to be made pursuant to clause 14.3) or under any other
Transaction Document or any representation and warranty made or
repeated by CMC hereunder being or proving to be or have been untrue
or incorrect or misleading in any material respect as at the date at
which it was made or repeated, and in the case of any such breach
which is (in the good faith opinion of the Lender) capable of
remedy, the relevant breach not having been remedied within ten
Business Days of the Lender requiring the Borrower or, as the case
may be, CMC to do so; or
(4) any default by CMC in the payment of any amount due for payment
hereunder or under the Indemnity on the due date therefor; or
(5) CMC failing to observe or perform any other covenant, obligation or
agreement contained hereunder or in the Indemnity which, if (in the
good faith opinion of the Lender) is capable of remedy has not been
remedied (to the satisfaction of the Lender) within 10 Business Days
of the Lender requiring CMC to do so; or
(6) the Interim Servicing Agreement or, after execution of the same the
Substitute Servicing Agreement being terminated, or becoming capable
of being terminated (after expiration of any applicable grace
periods) in accordance with its terms other than by reason of a
Disposal that by its terms is conditional upon a release of
servicing in respect of such Mortgage Loans; or
(7) CMC or CMS failing to observe or perform any material covenant,
obligation or agreement (including any obligation to make any
payment) on its part to be observed or performed under any
Transaction Document (other than, in the case of CMC, this Agreement
or the Indemnity and, in the case of CMS the Interim Servicing
Agreement and, after execution of the same, the Substitute Servicing
Agreement) which if (in the good faith opinion of the Lender)
capable of remedy shall not have been remedied (to the satisfaction
of the Lender) within 10 Business Days (or such shorter or longer
grace period as may apply in respect of the relevant breach under
the relevant Transaction Document) of the Lender requiring remedy of
the same; or
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(8) any representation or warranty made or repeated by CMC or CMS under
any Transaction Document (other than, in the case of CMC, this
Agreement and the Indemnity and in the case of CMS the Interim
Servicing Agreement and, after execution of the same, the substitute
Servicing Agreement) being or becoming untrue or misleading as of
the date on which made or repeated and, in the case of any such
breach which is (in the good faith opinion of the Lender) capable of
remedy, the relevant breach not having been remedied to the
satisfaction of the Lender within 10 Business Days (or such shorter
or longer grace period as may apply in respect of the relevant
breach under the relevant Transaction Document) of the Lender
requiring CMC or CMS, as the case may be, to do so; or
(9) the loss by CMC, the Borrower, CMS or any Approved Affiliate of its
Consumer Credit Act Licence; or
(10) an adverse determination being made by the OFT in respect of any
Minded to Revoke Notice served by the OFT on any of CMC, the
Borrower or any Approved Affiliate in respect of the Consumer Credit
Act Licence of CMC, the Borrower or relevant Approved Affiliate
irrespective of any right to appeal (or other right) which the
Borrower, CMC or Approved Affiliate may have thereafter, a
"determination" being the decision or determination made by the
Director (as defined under the CCA) under section 34(3) CCA in
respect of the relevant Minded to Revoke Notice; or
(11) an injunction or interdict (which relates to its residential
mortgage lending business including, without limitation, Mortgage
Loans financed hereunder) being obtained by (or on behalf of) the
OFT against CMC, the Borrower or any Approved Affiliate which
remains in effect for more than 60 days;
(12) an order being made or an effective resolution being passed for
winding up of the Borrower, CMC or CMS; or
(13) the Borrower, CMC or CMS ceasing or threatening to cease to carry on
business or a substantial part of such business or stopping payment
or threatening to stop payment of its debts or being or becoming
unable to pay its debts within the meaning of Section 123(1)(a),
(b), (c) or (d) of the Insolvency ▇▇▇ ▇▇▇▇, as that section may be
amended, (or as the case may be any analogous provision under any
applicable jurisdiction) or otherwise becoming unable to pay its
debts as they fall due or the value of its assets falling to less
than the amount of its liabilities (taking into account for both
these purposes its contingent and prospective liabilities) or the
Borrower, CMC or CMS otherwise becoming insolvent provided that for
the purposes of determining whether, on any date by reference to
which the same falls to be determined:-
(1) CMC is unable to pay its debts within the meaning of section
123 of the Insolvency ▇▇▇ ▇▇▇▇; or
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(2) the value of CMC's assets are less than its liabilities
(taking into account its contingent and prospective
liabilities); or
(3) (to the extent relevant to the test) CMC is otherwise
insolvent,
the Parent Indebtedness (as defined in Event of Default (q)) shall
be excluded;
(14) proceedings being initiated against the Borrower, CMC or CMS under
any applicable liquidation, insolvency, composition, reorganisation
(other than a reorganisation the terms of which have been approved
by the Lender and where the Borrower, CMC or CMS is solvent) or
other similar laws, or a petition for an administration order being
presented against the Borrower, CMC or CMS or an administrative or
other receiver, administrator or other similar official in any
applicable jurisdiction being appointed in relation to the Borrower,
CMC or CMS or in relation to the whole or any substantial part of
the undertaking of or assets of the Borrower, CMC or CMS or an
encumbrancer taking possession of the whole or any substantial part
of the undertaking or assets of the Borrower, CMC or CMS or a
distress, diligence or execution or other process being levied or
enforced upon or sued out against the whole or any substantial part
of the undertaking or assets of the Borrower, CMC or CMS or the
Borrower, CMC or CMS initiating or consenting to judicial
proceedings relating to itself under any applicable liquidation,
insolvency, composition, reorganisation or other similar laws or
making a conveyance or assignment for the benefit of its creditors
generally; or
(15) any material adverse change in the condition (financial, business,
prospects or otherwise) of any of the Borrower or CMC occurring,
which, in the reasonable judgment of the Lender is reasonably likely
to hinder or prevent the Borrower or CMC, as the case may be, from
performing its respective material obligations under any Transaction
Document or is likely to adversely affect the value (to the Lender)
of its security whether by adversely affecting the value of such
security, the prospects of a sale thereof or otherwise; or
(16) any Indebtedness of the Borrower or CMC in the aggregate in excess
of (pound)300,000 becoming due prior to its due date; or
(17) Cityscape or Cityscape Financial Corporation failing to observe or
taking any steps to amend or revoke in a manner adverse to CMC the
undertakings given in a letter dated 15 January 1998 to CMC, in
respect of the indebtedness outstanding and payable by CMC to
Cityscape or Cityscape Financial Corporation (the "Parent
Indebtedness") or any steps being taken to demand or enforce payment
of all or any part of the Parent Indebtedness by any person entitled
to do so,
(each of the foregoing an "Event of Default"), the Lender may, for so long
as such event is continuing unwaived by the Lender do each or any of the
following:
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(1) declare, by notice in writing to the Borrower, any undrawn
portion of the Revolving Commitment or any of it to be no
longer available to the Borrower; and/or
(2) declare, by written notice to the Borrower, all Advances
outstanding together with all interest accrued thereon and all
other sums then due and outstanding hereunder from the
Borrower to be immediately due and payable, whereupon the same
shall become immediately due and payable; and/or
(3) enforce all or any of its security under the Security
Documents,
whereupon the Lender shall cease to be obliged to make Advances hereunder.
17.2 If any Advance shall be declared immediately due and payable as aforesaid,
the Borrower shall pay to the Lender such amount as the Lender certifies
to be necessary to compensate it for any loss incurred (excluding loss of
Margin) or to be incurred on account of deposits acquired or arranged in
order to fund such Advances as a consequence of such Event of Default.
17.3 The rights conferred on the Lender pursuant to this clause 17 shall be in
addition to whatever rights the Lender may have both at law and in equity.
17.4 The Lender may waive any default by the Borrower in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose
of this Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon except to the extent
expressly so waived.
17.5 The Borrower agrees to indemnify and keep indemnified the Lender from and
against any loss, cost (including any cost of enforcement), liability
(including any tax liability), claim or damage which the Lender incurs or
suffers as a consequence of the occurrence of any Event of Default and the
indemnity may, without limiting the Lender's rights, be claimed as a debt
or liquidated demand.
17.6 With effect from the date upon which CMS ceases to be affiliated with CMC,
any holding company or subsidiary of CMC, no event which would constitute
an Event of Default under clause 17 in respect of CMS alone (other than a
breach of clause 16.9) shall, from that date, be capable of constituting
an Event of Default hereunder and, for such purpose, CMS shall be deemed
to be affiliated with any such company until such time as no such company
holds, directly or indirectly, any shares (or other controlling interests)
in it.
17.7 The Lender acknowledges that the existence of the marketing arrangements
between, inter alia, CMC and the Lender in existence at the date hereof
shall not constitute any breach of Clause 17.1(m) as at the date hereof.
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18. DEFAULT INTEREST
18.1 If any sum due and payable by the Borrower hereunder is not paid on the
due date therefor or if any sum due and payable by the Borrower under any
judgement or decree of any court in connection herewith is not paid on the
date of such judgement or decree, the period beginning on such due date
or, as the case may be, the date of such judgement or decree and ending on
the date upon which the obligation of the Borrower to pay such sum (the
balance thereof for the time being unpaid being herein referred to as an
"unpaid sum") is discharged shall be divided into successive periods, each
of which (other than the first) shall start on the last day of the
preceding such period and the duration of each of which shall (except as
otherwise provided in this clause 18) be selected by the Lender.
18.2 During each such period relating thereto as is mentioned in clause 18.1 an
unpaid sum shall bear interest at the rate per annum which is the sum from
time to time of one per cent and the Margin in respect thereof at such
time and LIBOR on the first day of the relevant period provided that:
(1) if, for any such period, LIBOR cannot be determined, the rate of
interest applicable to such unpaid sum shall be the rate per annum
which is the sum of one per cent and the Margin in respect thereof
at such time and the rate per annum determined by the Lender to be
equal to the rate which express as a percentage rate per annum
equals the cost to it of funding such unpaid sum for such period
from whatever sources it may select; and
(2) if such unpaid sum is all or part of an Advance which became due and
payable on a day other than the Repayment Date therefor, the first
such period applicable thereto shall be of a duration equal to the
unexpired portion of that Term and the rate of interest applicable
thereto from time to time during such period shall be that which
exceeds by one per cent the rate which would have been applicable to
it had it not so fallen due.
18.3 Any interest which shall have accrued under clause 18 in respect of an
unpaid sum shall be due and payable and shall be paid by the Borrower at
the end of the period by reference to which it is calculated or on such
other dates as the Lender may specify by written notice to the Borrower.
19. CURRENCY OF ACCOUNT
19.1 Sterling is the currency of account and payment for each and every sum at
any time due from the Borrower hereunder provided that each payment in
respect of costs and expenses shall be made in the currency in which the
same were incurred.
19.2 If any sum due from the Borrower under this Agreement or any order or
judgement given or made in relation hereto has to be converted from the
currency (the "first currency") in which the same is payable hereunder or
under such order, decree or judgement into
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another currency (the "second currency") for the purpose of (a) making or
filing a claim or proof against the Borrower, (b) obtaining an order,
decree or judgement in any court or other tribunal or (c) enforcing any
order, decree or judgement given or made in relation hereto, the Borrower
shall indemnify and hold harmless each of the persons to whom such sum is
due from and against any loss suffered as a result of any discrepancy
between (i) the rate of exchange used for such purpose to convert the sum
in question from the first currency into the second currency and (ii) the
rate or rates of exchange at which such person may in the ordinary course
of business purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in part, of any
such order, judgement, decree, claim or proof.
20. SET-OFF
20.1 The Borrower authorises the Lender to apply any credit balance to which
the Borrower is entitled on any account of the Borrower with the Lender in
satisfaction of any sum due and payable from the Borrower to the Lender
hereunder but unpaid.
20.2 All payments required to be made by the Borrower hereunder shall be
calculated without reference to any set-off, deduction or counterclaim and
shall be made free and clear of and without any deduction for or on
account of any set-off, deduction or counterclaim.
21. CALCULATION OF INTEREST
Interest shall accrue from day to day and shall be calculated on the basis
of a year of 365 days and the actual number of days elapsed.
22. COSTS AND EXPENSES
22.1 The Borrower shall, save where expressed to the contrary in any other
Transaction Document, from time to time on demand of the Lender, reimburse
the Lender for all reasonable costs and expenses (including legal fees)
together with any VAT thereon (including the legal expenses referred to in
the Fee Letter) incurred by it in connection with the negotiation,
preparation and execution of this Agreement, the Transaction Documents and
the completion of the transactions pursuant to this Agreement or the
Transaction Documents or in connection with the preservation and/or
enforcement of any of the rights of the Lender under this Agreement and
the Transaction Documents.
22.2 The Borrower shall pay all stamp, registration and similar taxes to which
this Agreement or any judgement or decree given in connection herewith is
or at any time may be subject (including in relation to the perfection of
security granted by the Security Documents) and shall, from time to time
on demand of the Lender, indemnify the Lender against any liabilities,
costs, claims and expenses resulting from any failure to pay or any delay
in paying any such tax.
22.3 The Borrower shall, from time to time on demand of the Lender compensate
the Lender at such daily and/or hourly rates as the Lender shall from time
to time reasonably
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56
determine for the time and expenditure, all costs and expenses (including
telephone, fax, copying, travel and personnel costs) incurred by the
Lender in connection with its taking such action as it may deem
appropriate or in complying with any request by the Borrower in connection
with (a) the granting or proposed granting of any waiver or consent
requested hereunder by the Borrower; (b) any actual, potential or
reasonably suspected breach by the Borrower of its obligations hereunder;
(c) the occurrence of any event which is an Event of Default or a
Potential Event of Default; or (d) any amendment or proposed amendment
hereto requested by the Borrower.
23. RELEASE FEES
The Borrower shall pay a fee to the Lender with respect to each Mortgage
Loan financed under this Agreement in an amount equal to 1.0% of the
unpaid principal balance of such Mortgage Loan as of the Interest Payment
Date immediately preceding the date on which such Mortgage Loan is
released from the Debenture for any reason, whether due to a sale or other
disposition of the Mortgage Loan by the Borrower, CMC or the Lender
(including pursuant to liquidation following enforcement of the Lender's
remedies thereunder), prepayment, repayment or otherwise. The fee payable
under this clause with respect to any Mortgage Loan shall be due and
payable on the date of the relevant release from the Debenture.
24. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Lender, any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise thereof or the exercise of any other right
or remedy. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
25. CONFIDENTIALITY
The Borrower shall not, without the prior written consent of the Lender,
disclose to any person the existence or any details concerning the
Transaction Documents except to the extent such disclosure is contemplated
in any Transaction Document, or is required pursuant to the application of
any applicable law or an order of a court of competent jurisdiction, or is
made to the Borrower's auditors or other professional advisors who are
subject to confidentiality restrictions imposed by a professional body
which are substantially similar to those set forth above.
26. NOTICES
26.1 Addresses
Any notice or other communication or document to be made or delivered
under this Agreement shall be made or delivered by fax or otherwise in
writing. Each notice, communication or other document to be delivered to
any party to this Agreement shall
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57
(unless that other person has by fifteen days' written notice to the other
party specified another address or fax number) be made or delivered to
that person at the address(es) or fax number (if any) set out below:-
(a) in the case of the Lender to their branch office in the United
Kingdom, facsimile number: 0171 375 5510, attention ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a simultaneous copy to the office of the General Counsel
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇,
facsimile number: 001 203 629 4571, attention
General Counsel;
(b) in the case of the Borrower, to its offices at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, facsimile number: 01923
426456, attention Company Secretary;
(c) in the case of CMC, to its offices at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, facsimile number: 01923 426456,
attention Company Secretary.
26.2 Deemed Delivery
Any notice, communication or document to be delivered to any person shall
be deemed to have been delivered:-
(1) in the case of personal delivery, at the time of such delivery;
(2) in the case of delivery by post, on the business day following the
day on which it was posted and in proving such delivery it shall be
sufficient to prove that the relevant notice, communication or
document was properly addressed, stamped and posted (by airmail, if
to another country) in the United Kingdom or, in the case of service
to or from an address outside the United Kingdom at 9.00 a.m. on the
fourth day following the day on which it was posted;
(3) in the case of any notice or other communication by fax, (a) on the
business day the same was transmitted so long as there is evidence
that such fax message was received prior to 5.00 p.m. local time of
the recipient on such day and such day is a business day for the
recipient, otherwise (b) on the business day following the day on
which it was transmitted and, in either case, in proving such
delivery it shall be sufficient to prove that the whole of the fax
message was received on any fax machine of the recipient and that
there was no evidence that such transmission had been interrupted.
27. SEVERABILITY
If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction,
that shall not affect or impair:-
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(1) the legality, validity or enforceability in that jurisdiction of any
other provision of this Agreement; or
(2) the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this Agreement.
28. WAIVER
The Lender confirms that, as at the date hereof, it has no actual
knowledge of any breach by the Borrower of any representation and warranty
under clause 14.3(A) relating to any Existing Mortgage Loan other than
those relating to the OFT Affected Loans subject to the waiver under
Clause 3.3 of the Mortgage Transfer Agreement.
29. ASSIGNMENT
29.1 The Lender may at any time:-
(1) sub-participate all or any part of its rights or benefits under this
Agreement; and
(2) assign or transfer all or any part of its rights or benefits under
this Agreement provided that:-
(1) if such assignment or transfer is to any person other than a
subsidiary, holding company of or other member of the Lender's
group such assignment or transfer shall require the prior
consent of the Borrower (such consent not to be unreasonably
withheld); and
(2) if, at the time and as a result of any proposed transfer or
assignment, the Borrower would incur any increased cost or be
liable to make payments in excess of those required to be made
hereunder immediately prior thereto (other than any minimum
liquid asset costs) such assignment or transfer is on terms
that the Borrower is not and will not be liable for any such
increased cost or liability.
29.2 The Borrower shall not be entitled to assign, transfer or otherwise
dispose of all or any of its rights or benefits under this Agreement
without the prior written consent of the Lender.
29.3 The Lender may disclose to a proposed assignee, transferee or
sub-participant information in its possession relating to the provisions
of this Agreement and the Transaction Documents which it considers
necessary or desirable to disclose for the purposes of the proposed
assignment, transfer or sub-participation, notwithstanding the provisions
of clause 24 (Confidentiality).
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29.4 This Agreement shall bind and inure to the benefit of and be enforceable
by the Lender and its respective successors, transferees and assigns and
references to the Lender shall be deemed to include references to each of
the foregoing.
30. RESTRUCTURING AGREEMENT
Save as regards clause 12 (exclusivity) of the Restructuring Agreement
(which shall remain in full force and effect) the Restructuring Agreement
shall, with effect from the date hereof, cease to have effect.
31. FURTHER ASSURANCE
The Borrower shall, from time to time on being required to do so by the
Lender, now or at any time in the future, do or procure the doing of all
such acts and/or execute or procure the execution of all such documents in
a form satisfactory to the Lender as the Lender may consider necessary for
giving full effect to this Agreement and the Transaction Documents and
securing to the Lender the full benefit of the rights, powers and remedies
conferred upon the Lender in this Agreement or any Transaction Documents.
32. GOVERNING LAW
The Agreement shall be governed by and construed in accordance with the
laws of England (other than any terms hereof particular to the laws of
Scotland which shall be construed in accordance therewith) and the parties
hereto hereby submit to the jurisdiction of the courts of England and
Wales.
IN WITNESS WHEREOF, this Agreement is duly executed the date and year first
above written.
................................
for and on behalf of
MORTGAGE MANAGEMENT LIMITED
Witness.........................
Occupation......................
Address.........................
................................
................................
................................
for and on behalf of GREENWICH
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INTERNATIONAL, LTD.
Witness...............................
Occupation............................
Address...............................
......................................
......................................
......................................
for and on behalf of CITY MORTGAGE
CORPORATION LIMITED
Witness...............................
Occupation............................
Address...............................
......................................
......................................
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61
SCHEDULE 1
FORM OF DRAWDOWN REQUEST
(INITIAL ADVANCE)
Date: 27 February 1998
To: Greenwich International, Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Dear Sirs,
We hereby request that you finance the purchase of the Mortgage Loans set forth
in the Mortgage Transfer Agreement of even date (the "Mortgage Loans") pursuant
to the terms of the Loan Facility Agreement (as amended and supplemented from
time to time; "the Agreement") dated February 27, 1998, between Greenwich
International, Ltd. as Lender, Mortgage Management Limited, as Borrower and City
Mortgage Corporation Limited.
The Mortgage Loans and Collateral Security relating thereto will be transferred
to the Borrower pursuant to the Mortgage Transfer Agreement today. In accordance
with the Agreement, we hereby deliver a data tape in computer-readable form in
respect of the Mortgage Loans as required under the terms of the Agreement.
The undersigned hereby certifies to the Lender on behalf of the Borrower that
all conditions precedent to the making of the Initial Advance contained in
Section 4.1 of the Agreement have been satisfied on or prior to the date hereof.
Yours faithfully
....................................
MORTGAGE MANAGEMENT LIMITED
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62
FORM OF DRAWDOWN REQUEST
(REVOLVING ADVANCES)
Date: 19
To: Greenwich International, Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Dear Sirs,
We hereby request that you finance the origination of the Mortgage Loans set
forth in the Preliminary Mortgage Loan Schedule attached hereto ("the Mortgage
Loans") pursuant to the terms of the Loan Facility Agreement (as amended and
supplemented from time to time; "the Agreement") dated February [ ], 1998,
between Greenwich International, Ltd. as Lender, Mortgage Management Limited, as
Borrower and City Mortgage Corporation Limited. The undersigned hereby certifies
that the Advance Date Principal Balance of such Mortgage Loans is (pound)[ ].
The proposed closing date on which funds in respect of which the Advance is
requested hereby will be advanced to the relevant Solicitors (for advance to
relevant Mortgagors) (the "Advance Date").
The Mortgage Loans and Collateral Security relating thereto will be transferred
to the Borrower by [City Mortgage Corporation Limited/name of Approved Affiliate
(as approved by you) on the Advance Date or, if later, the date on which the
funds under the relevant Mortgage Loan are advanced to the Mortgagor and the
Mortgage completed. In accordance with the Agreement, we hereby deliver and
Initial Undertaking in the prescribed format in relation to the Mortgage Loans
and we confirm that we have, on or before the date hereof, delivered a data tape
in computer-readable form in respect of the Mortgage Loans as required under the
terms of the Agreement.
We hereby confirm and undertake to procure that at the time of the relevant
advance each of the Mortgaged Properties will be insured against fire and all
other perils as would be insured against in a home owners comprehensive risk
policy.
The undersigned hereby certifies to the Lender on behalf of the Borrower that
all conditions precedent to the making of Advances contained in Section 4.2 of
the Agreement have been satisfied on or prior to the date hereof.
Yours faithfully
..................................
Director: MORTGAGE MANAGEMENT LIMITED
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63
Mortgage Loans
Mortgage Loan Title Number Address of
Borrower Number Property
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64
SCHEDULE 2A
FORMS OF SOLVENCY CERTIFICATE
61
65
SCHEDULE 2B
62
66
SCHEDULE 3
MORTGAGE LOAN DOCUMENTS
33. Mortgage Deed (incorporating Mortgage Conditions) (and in the case of
loans regulated by the Consumer Credit Act, the relevant Consumer Credit
Agreement)
34. Mortgage Offer (with relevant Customer Care Booklet if such is required)
35. Solicitor's Certificate of Title
36. Postponement Agreement from occupants of the relevant Mortgaged Property
where appropriate or MHA Documentation (if relevant)
37. Copy Notice to Lessor of Charge over Lease (in the case of leasehold
property) where required
38. Copy Notice to Mortgagor of Transfer of Mortgage
39. Title deeds (so far as the same are relevant), searches (other than local
authority searches) and enquiries relating to the relevant Mortgaged
Property and in the case of property being purchased the transfer or
conveyance to the relevant Mortgagor
40. Where applicable Form 53 or vacating receipt or deed of release in
relation to all existing encumbrances affecting the relevant Mortgaged
Property at the time of the making of the relevant advance save for those
encumbrances which, in accordance with the relevant Originator's
instructions, are not to be released
41. Valuer's Report
42. Copy NHBC Insurance Policies and Notices or like documents (if relevant)
67
SCHEDULE OF AGREEMENTS
Proceeds Agreement
Origination and Transfer Agreement
Debenture Creating a Floating Charge
Postponed to All Other Security Interests
Bank Account Assignment
Charge of Shares
CMC Charge
68
EXECUTION COPY
PROCEEDS AGREEMENT
between
MORTGAGE MANAGEMENT LIMITED
and
GREENWICH INTERNATIONAL, LTD.
and
CITY MORTGAGE CORPORATION LIMITED
and
CITY MORTGAGE SERVICING LIMITED
and
CITY MORTGAGE FUNDING 1 LIMITED
SIDLEY & AUSTIN
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇-▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇-▇▇▇ ▇▇▇▇
Ref:JCW/13568/30020
69
CONTENTS
Clause Page No.
1. INTERPRETATION...................................................... 2
2. ACCOUNTS............................................................ 12
3. PAYMENT OF PROCEEDS................................................. 13
4. CALCULATIONS........................................................ 16
5. RELEASES AND AGENCY................................................. 17
6. APPLICATION OF PROCEEDS PRIOR TO AN EVENT OF DEFAULT................ 19
7. APPLICATION FOLLOWING AN EVENT OF DEFAULT BUT PRIOR TO
ACCELERATION OR ENFORCEMENT......................................... 24
8. APPLICATION FOLLOWING ACCELERATION OR ENFORCEMENT................... 25
9. CMR6 SECURITISATION RESIDUALS....................................... 26
10. RELEASED PROCEEDS................................................... 27
11. PAYMENTS TO LENDER.................................................. 27
12. REPRESENTATIONS AND WARRANTIES...................................... 27
13. COSTS AND EXPENSES.................................................. 29
14. REMEDIES AND WAIVERS................................................ 29
15. CONFIDENTIALITY..................................................... 29
16. NOTICES............................................................. 30
17. SEVERABILITY........................................................ 31
18. ASSIGNMENT.......................................................... 31
19. ACCESSION........................................................... 31
20. GOVERNING LAW....................................................... 32
70
THIS AGREEMENT is made on February 1998 between:
(1) MORTGAGE MANAGEMENT LIMITED, a company incorporated under the laws of
England and Wales, registered number 200263 whose registered office is at
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (the "Borrower"); and
(2) GREENWICH INTERNATIONAL LTD., a company incorporated under the laws of
Bermuda, whose registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ branch office is at ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Lender"); and
(3) CITY MORTGAGE CORPORATION LIMITED, a company incorporated under the laws
of England and Wales, registered number 3043775 whose registered office is
at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (the "CMC"); and
(4) CITY MORTGAGE FUNDING 1 LIMITED, a company incorporated under the laws of
England and Wales, registered number 3299937 whose registered office is at
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("CMF"); and
(5) CITY MORTGAGE SERVICING LIMITED, a company incorporated under the laws of
England and Wales, registered number 3043775 whose registered office is at
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Servicer" which
term where the context permits shall include any substitute servicer,
including the Standby Servicer).
WHEREAS:-
(1) CMC and the Lender have entered into the Mortgage Loan Purchase Agreement
and the Commitment Letter pursuant to which Mortgage Loans may be sold by
CMC and its Originating Subsidiaries to the Lender.
(2) CMC and CMF have entered into the Origination and Purchase Agreement and
CMF and the Lender have entered into the Supplemental Agreement pursuant
to which Mortgage Loans may, in lieu of being sold by CMC and its
Originating Subsidiaries to the Lender under the Mortgage Loan Purchase
Agreement and Commitment Letter, be sold by CMC and its Originating
Subsidiaries to CMF and, immediately thereafter, by CMF to the Lender.
(3) Certain of the Mortgage Loans sold to the Lender pursuant to the foregoing
agreements have been subsequently securitised under the Securitisations.
(4) Pursuant to a letter dated 25 February 1998 the Lender issued a letter
stating that it terminated its obligation to purchase Mortgage Loans under
the Commitment Letter and the Mortgage Loan Purchase Agreement.
(5) CMC, CMS and the Lender have agreed to provide the financing arrangements
relating to the Existing Mortgage Loans and the New Production Mortgage
Loans and as part of
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those arrangements the Lender has agreed to make available the Facility to
the Borrower on the terms and subject to the conditions of the Loan
Facility Agreement so as to enable the Borrower to purchase the Existing
Mortgage Loans and to finance the purchase by the Borrower of New
Production Mortgage Loans.
(6) The Borrower has agreed to secure its obligations under, inter alia, the
Loan Facility Agreement pursuant to the Debenture and the Borrower Account
Assignments.
(8) CMC has agreed to indemnify the Lender in respect of, inter alia, the
obligations of the Borrower under the Loan Facility Agreement and has
agreed to secure its obligations under such indemnity and under the other
Transaction Documents pursuant to the CMC Charge, the CMC Floating Charge,
the CMC Proceeds Account Assignment, the Borrower Share Charge and the CMS
Share Charge.
(9) The parties hereto wish to enter into this Agreement to regulate the
manner in which disposals of Existing Mortgage Loans and New Production
Mortgage Loans financed under the Loan Facility Agreement and
Securitisation Residuals will be effected and the manner in which
Securitisation Residual Proceeds, Mortgage Loan Proceeds, Securitisation
Residual Receipts and all interest, principal and other amounts received
or recovered under or in respect of Existing Mortgage Loans and New
Production Mortgage Loans financed under the Loan Facility Agreement will
be distributed amongst themselves.
1. INTERPRETATION
1.1 Definitions
In this Agreement (including the recitals hereto) capitalised terms
defined in the Loan Facility Agreement shall have the same meanings herein
and the following terms shall have the respective meanings set forth
below:-
"Acceleration" means any acceleration of the Advances under the Loan
Facility Agreement following the occurrence of an Event of Default
thereunder.
"Account Bank" means National Westminster Bank Plc or such other bank or
financial institution as may be substituted as account bank pursuant to
one or more the of Securitisations.
"Agreement" means this Proceeds Agreement, including all schedules and
annexures hereto, which expression shall include the same as varied,
supplemented, re-stated, extended or replaced from time to time.
"basis point" means one hundredth of one per. cent (1/100th of 1%).
"Borrower Account Assignments" means the Borrower Funding Account
Assignment and the Borrower Collection Account Assignment.
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"Borrower Entitlement" means, on each Interest Payment Date, an amount
equal to all amounts credited to Borrower Collection Account (before
application on the Relevant Interest Payment Date) which represent
Mortgage Loan Interest (as determined under Clause 4.2) multiplied by one
basis point.
"Breached Mortgage Loan" means any Existing Mortgage Loan or New
Production Mortgage Loan financed under the Loan Facility Agreement in
respect of which the Lender has determined in its sole good faith
judgment, that there exists a subsisting breach of a representation or
warranty under Clause 14.3 of the Loan Facility Agreement in respect of
which either:-
(a) the provisions of Clause 15.3(b) of the Loan Facility Agreement
apply; or
(b) the provisions of Clause 15.4 of the Loan Facility Agreement apply.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are generally open for business in London and New York.
"CMR1 Securitisation" means the Securitisation in respect of which the
Issuer is City Mortgage Receivables 1 Plc.
"CMR2 Securitisation" means the Securitisation in respect of which the
Issuer is City Mortgage Receivables 2 Plc.
"CMR3 Securitisation" means the Securitisation in respect of which the
Issuer is City Mortgage Receivables 3 Plc.
"CMR4 Securitisation" means the Securitisation in respect of which the
Issuer is City Mortgage Receivables 4 Plc.
"CMR5 Securitisation" means the Securitisation in respect of which the
Issuer is City Mortgage Receivables 5 Plc.
"CMR6 Securitisation" means the Securitisation in respect of which the
Issuer is City Mortgage Receivables 6 Plc.
"Collateral Value" means, on any date on which the same falls to be
determined, the sum of:
(a) the fair market value of all Securitisation Residuals as
determined solely by the Lender (acting in good faith)
calculated for the most recent Interest Payment Date, taking
into account the data available to the Lender as of such
calculation date adjusted to reflect the release of any
Securitisation Residuals from the CMC Charge or the Debenture
since such date of calculation; and
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(b) the Loan Value.
"Collateral Value Ratio" means, on any day on which the same falls to be
determined, the ratio (expressed as a percentage) of all Advances
outstanding under the Loan Facility Agreement to Collateral Value.
"Collection Period" means the calendar month immediately prior to the
calendar month in which the relevant Interest Payment Date falls.
"Determination Date" means the last day of each Collection Period.
"Disposal" means:
(a) in respect of any Securitisation Residuals the sale or other
disposition of all or any part thereof by CMC, the Borrower or
the Lender as mortgagee or heritable creditor and which, in
the case of a sale or other disposition prior to an
Acceleration or Enforcement complies with the provisions of
clause 6.7; and
(b) in the case of any Existing Mortgage Loan or any New
Production Mortgage Loan which, in either case, is,
immediately prior to the relevant sale or other disposition,
financed under the Loan Facility Agreement the sale or other
disposition (whether through a securitisation, whole loan sale
or otherwise), by the Borrower or the Lender as mortgagee or
heritable creditor, whether such sale or other disposition is
of both the legal and equitable title or whether the sale or
other disposition is merely of the equitable or other
beneficial interest.
"Distribution Date" means any date (other than an Interest Payment Date or
a Late Interest Payment Distribution Date) on which any Proceeds fall to
be distributed under clause 6 or clause 7 of this Agreement being any
Business Day nominated by either the Lender or the Borrower, acting
reasonably, provided that no less than two Business Days prior written
notice of such nomination shall have been given by the Lender or, as the
case may be, the Borrower to each of the Borrower, the Lender and the
Servicer.
"Enforcement" means any enforcement by the Lender of any of its security
under any Security Document irrespective of whether, at that time, an
Acceleration shall have occurred.
"Enforcement Expenses" shall have the meaning attributed to it in the
Interim Servicing Agreement and, after execution of the same, the
Substitute Servicing Agreement.
"Existing Mortgage Loans" means those Mortgage Loans to be purchased by
the Borrower from, inter alia, the Lender and CMF pursuant to the terms of
the Mortgage Transfer Agreement.
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"First Mortgage Payment" means, in respect of any Existing Mortgage Loan
or New Production Mortgage Loan financed under the Loan Facility
Agreement, the first payment of principal and/or interest due from the
relevant Mortgagor thereunder.
"Insurance Premia" means, in respect of any Existing Mortgage Loan and any
New Production Mortgage Loan financed under the Loan Facility Agreement,
any payment or other recovery of amounts representing any insurance
premium payable by the relevant Mortgagor, including, without limitation
those in respect of any relevant Buildings Policy, which is received or
recovered by or on behalf of the Borrower.
"Insurance Proceeds" means all insurance proceeds paid by any insurer,
including without limitation, under or in respect of any Buildings Policy
in relation to any Existing Mortgage Loan and any New Production Mortgage
Loan financed under the Loan Facility Agreement.
"Issuers" means each of City Mortgage Receivables 1 Plc (Company No.
3126751), City Mortgage Receivables 2 Plc (Company No. 3245450), City
Mortgage Receivables 3 Plc (Company No. 3245445), City Mortgage
Receivables 4 Plc (Company No. 3246090), City Mortgage Receivables 5 Plc
(Company No. 3304205) and City Mortgage Receivables 6 Plc (Company No.
3328209).
"Junior Mortgage Loan" means any Existing Mortgage Loan and New Production
Mortgage Loan financed under the Loan Facility Agreement which is secured
other than by way of first ranking legal mortgage or first ranking
Standard Security.
"Late Interest Payment Distribution Date" means, in relation to any
Interest Payment Date, the first Business Day following such Interest
Payment Date by which the Lender shall have agreed the determinations of
the Servicer under clause 4.2(a) and the computations of Collateral Value
and Loan Value in accordance with clauses 4.2(d) and 4.1(e).
"Loan Value" means, on any date for which the same falls to be determined,
the aggregate value of:
(a) the Existing Mortgage Loans;
(b) all New Production Mortgage Loans financed under the Loan
Facility Agreement; and
(c) all Pending Mortgage Loans,
the value of each such Existing Mortgage Loan and New Production Mortgage
Loan for such purpose being the unpaid principal balance (but excluding
capitalised interest, fees, charges and penalties) of such Mortgage Loan
as at the Relevant Date multiplied by the applicable percentage set out
below (the date by reference to which each such Mortgage Loan is
categorised as being of a type set out below being the Relevant Date) and
the
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value of each Pending Mortgage Loan for such purpose being the amount
which would, if the same were completed on the relevant Interest Payment
Date or Distribution Date, be the unpaid principal balance (excluding
capitalised interest, fees, charges and penalties) thereof on such date
multiplied by the percentage for a Performing Senior Mortgage Loan or
Performing Junior Mortgage Loan, as applicable, set out below:-
Performing Senior Mortgage Loan 100%
Performing Junior Mortgage Loan 95%
Nonperforming Senior Mortgage Loan 70%
Nonperforming Junior Mortgage Loan 30%
First Pay Default Mortgage Loan 0%
Breached Mortgage Loan 0%,
"Relevant Date" for such purpose being:
(a) where Loan Value falls to be determined for any Interest
Payment Date, the immediately preceding Determination Date;
and
(b) where Loan Value falls to be determined for any Distribution
Date other than an Interest Payment Date (which includes for
such purpose a Late Interest Payment Distribution Date), the
immediately preceding Interest Payment Date for which Loan
Value has been determined under this Agreement,
Provided always that where Loan Value falls to be determined for any
Distribution Date which is not an Interest Payment Date, Loan Value shall
be adjusted so as to reflect any disposals of such Mortgage Loans since
the immediately preceding Interest Payment Date.
"Loan Value Ratio" means, on any day on which the same falls to be
determined, the ratio (expressed as a percentage) of all Advances
outstanding under the Loan Facility Agreement to Loan Value.
"Monthly Payment" means in respect of any Existing Mortgage Loan or New
Production Mortgage Loan financed under the Loan Facility Agreement, the
monthly payment due and payable by the relevant Mortgagor on the relevant
Monthly Payment Date.
"Monthly Payment Date" means, in respect of each Existing Mortgage Loan
and each New Production Mortgage Loan financed under the Loan Facility
Agreement, the day in each month on which the relevant Mortgagor is
obliged to make his or her monthly payment of interest and where
applicable, principal.
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"Mortgage Loan Interest" means, with respect to any Existing Mortgage Loan
and any New Production Mortgage Loan financed under the Loan Facility
Agreement, any payment or other recovery of interest (which shall include
all interest payable under the relevant Mortgage Loan including default
interest and any other redemption charges) under or in respect of such
Mortgage Loan, which is received or recovered by or on behalf of the
Borrower.
"Mortgage Loan Proceeds" means, in respect of Existing Mortgage Loans and
New Production Mortgage Loans financed under the Loan Facility Agreement,
the aggregate amount of:-
(a) all cash consideration received by or on behalf of the
Borrower or the Lender by or on behalf of the Borrower or as
mortgagee upon or as a result of the Disposal of some or all
of such Existing Mortgage Loans or New Production Mortgage
Loans; and
(b) any non-refundable deposit or other advance payment paid to or
for the account of the Borrower or the Lender as mortgagee by
any person acquiring or proposing to acquire all or any of
such Existing Mortgage Loans or New Production Mortgage Loans
under a contract or offer to purchase or otherwise acquire the
same which has been withdrawn, terminated, cancelled or has
lapsed,
irrespective of whether the same shall become due upon or at any time
after the relevant Disposal.
"New Production Mortgage Loans" means Mortgage Loans originated by CMC and
any of its Approved Affiliates on or after the date hereof.
"Nonperforming Junior Mortgage Loan" means a Junior Mortgage Loan which is
also a Nonperforming Mortgage Loan.
"Nonperforming Mortgage Loan" means, on any date, any Existing Mortgage
Loan or New Production Mortgage Loan financed under the Loan Facility
Agreement in respect of which all or any part of a Monthly Payment remains
30 days or more past its due date but which is not a First Pay Default
Mortgage Loan.
"Nonperforming Senior Mortgage Loan" means each Existing Mortgage Loan and
New Production Mortgage Loan financed under the Facility Agreement which:
(a) is a Nonperforming Mortgage Loan; and
(b) which is not a Junior Mortgage Loan.
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"Pending Mortgage Loan" means, on any date, each mortgage loan which any
Originator has agreed to advance to a Mortgagor but which has not, at the
relevant date, been advanced and in respect of which:-
(a) the Lender has made an Advance under the Loan Facility
Agreement; and
(b) the Advance so made has been credited to, and remains
deposited in, the Borrower Funding Account or has been
transmitted to and remains with solicitors.
"Performing Junior Mortgage Loan" means a Junior Mortgage Loan which is
not a Nonperforming Mortgage Loan.
"Performing Senior Mortgage Loan" means each Existing Mortgage Loan and
New Production Mortgage Loan financed under the Loan Facility Agreement
which:-
(a) is secured by way of first ranking legal mortgage or first
ranking Standard Security; and
(b) is not a Non-performing Mortgage Loan.
"Permitted Percentage" has the meaning attributed to it in clause 6.6
"Principal" means, with respect to any Existing Mortgage Loan and any New
Production Mortgage Loan financed under the Loan Facility Agreement, any
payment of amounts other than:
(a) Mortgage Loan Interest; and
(b) Insurance Premia,
under or in respect of such Mortgage Loan which is received by or on
behalf of the Borrower other than any such sum which comprises Mortgage
Loan Proceeds (in which event it will be treated, for the purpose of this
Agreement, as Mortgage Loan Proceeds and not Principal).
"Proceeds" means Securitisation Residual Proceeds, Mortgage Loan Proceeds,
Securitisation Residual Receipts, Principal, Mortgage Loan Interest and
all other amounts received or recovered in respect of the assets subject
to the Security Documents (other than any such of CMC's assets are subject
only to the CMC Floating Charge) and other than, from time to time,
amounts credited to the Borrower Working Capital Account.
"Secured Liabilities" means all liabilities and obligations of whatever
nature of the Borrower, CMC or any other person secured under any Security
Document.
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"Securitisation Administration Agreements" means each administration
agreement relating to each Securitisation.
"Securitisation Collection Accounts" means the CMC Collection Account and
each Greyfriars Originator Collection Account and, for the purposes of
Clause 3.1(a) the "relevant Securitisation Collection Account" shall, in
the case of any Mortgage Loan originated by CMC or J&J be the CMC
Collection Account and in the case of each Mortgage Loan originated by any
Greyfriars Originator be the Greyfriars Originator Collection Account in
the name of the relevant Greyfriars Originator.
"Securitisation Documentation" means all documentation executed in
connection with each Securitisation.
"Securitisation Residuals" means all of the right, title and interest of
CMC under and in respect of the CMR1 Securitisation, the CMR2
Securitisation, the CMR3 Securitisation, the CMR4 Securitisation, the CMR5
Securitisation and the CMR6 Securitisation and all of the right title and
interest of the Borrower in and to the CMR6 Securitisation, being:-
(a) all of the right, title and interest of CMC or the Borrower
under the relevant Securitisation Purchase Agreement;
(b) all of the right, title and interest of CMC or the Borrower in
and under each Securitisation Receivables Trust;
(c) all of the right, title and interest of CMC in each
Securitisation Subordinated Loan;
(d) all of the right, title and interest of CMC or the Borrower
under each Securitisation Deed of Charge, and
(e) all of the right, title and interest of CMC or the Borrower
under each Securitisation Administration Agreement,
as such rights, title and interest are, in the case of CMC, assigned in
favour of the Lender under the CMC Charge and as such rights, title and
interest are, in the case of the Borrower, assigned in favour of the
Lender under the Debenture.
"Securitisation Purchase Agreements" means the mortgage sale agreements
under each Securitisation pursuant to which CMC or CMF, as the case may
be, inter alia, sold Mortgage Loans to the relevant Issuer.
"Securitisation Residual Proceeds" means, in respect of Securitisation
Residuals, the aggregate amount of:
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(a) all cash consideration received by or on behalf of CMC, the
Borrower or the Lender as mortgagee or heritable creditor upon
or as a result of the Disposal of all or any part of the
Securitisation Residuals; and
(b) any non-refundable deposit or other advance payment paid to or
for the account of CMC, the Borrower or the Lender as
mortgagee or heritable creditor by a person acquiring or
proposing to acquire all or any part of the Securitisation
Residuals, including without limitation, under a contract or
offer to purchase or otherwise acquire the same which has been
withdrawn, terminated, cancelled or has lapsed,
including all consideration due after the date of the relevant Disposal in
respect thereof.
"Securitisation Residual Receipts" means all amounts received or recovered
by or on behalf of CMC, the Borrower or the Lender as mortgagee in respect
of their respective rights, title and interest in and to any
Securitisation Residual, whether received or recovered under and in
accordance with the Securitisation Documentation or otherwise including,
without limitation, payments under any Securitisation Purchase Agreement,
any Securitisation Subordinated Loan, any Securitisation Receivables Trust
and any Securitisation Administration Agreement but excluding all
Securitisation Residual Proceeds.
"Securitisations" means each of the six securitisations of mortgage loans
originated by CMC and certain of its subsidiaries, effected through sales
of the mortgage loans to the Issuers on 21 March, 1996, 18 October, 1996,
31 October, 1996, 31 January, 1997 and 30 April, 1997 and "Securitisation"
means any one of them..
"Securitisation Receivables Trusts" means the receivables trusts in each
of the CMR1 Securitisation, CMR2 Securitisation and CMR3 Securitisation.
"Securitisation Subordinated Loans" means each subordinated loan made by
CMC to the relevant Issuer under any Securitisation.
"Subordinated Loan Agreement" means the subordinated loan agreement of
even date between, inter alia, CMC and the Borrower.
references to the "Lender", "CMC", "CMF", the "Servicer" and the
"Borrower" shall be construed so as to include its respective and any
subsequent successors and (where the relevant party is permitted to assign
any of its rights hereunder) its respective assigns in accordance with
their respective interests.
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
following calendar month; provided that, where any such period would
otherwise end on a day which is not a Business Day, it shall end on the
following succeeding Business Day, unless that day falls in the calendar
month next following that in which it would otherwise have ended, in which
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case it shall end on the immediately preceding Business Day; and provided
further that, if there is no numerically corresponding day in the next
following calendar month, that period shall end on the last Business Day
in that next following calendar month (and references to "months" shall be
construed accordingly).
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing.
"repay" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "prepay" (or, as the case may be, the
corresponding derivative form thereof).
"tax" shall be construed so as to include any present or future tax, levy,
impost, duty or other charge of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay in
paying any of the same).
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time.
a "wholly-owned Subsidiary" of a company or corporation shall be construed
as a reference to any company or corporation which has no other members
except that other company or corporation and/or another or others of that
other company's or corporation's wholly-owned Subsidiaries or persons
acting on behalf of that other company or corporation or its wholly-owned
Subsidiaries.
the "winding-up", "dissolution" or "administration" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which such
company or corporation carries on business including the seeking of
liquidation, winding-up, reorganisation, dissolution, administration,
arrangement, adjustment, protection or relief of debtors.
1.2 Interpretation
For the purposes of this Agreement except as otherwise expressly provided
or unless the context otherwise requires:-
(1) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(2) references herein to "clauses", "sub-clauses", "paragraphs", and
other subdivisions without reference to a document are to designated
clauses, sub-clauses paragraphs and other subdivisions of this
Agreement;
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(3) reference to a sub-clause without further reference to a clause is a
reference to such sub-clause as contained in the same clause in
which the reference appears, and this rule shall also apply to
paragraphs and other subdivisions;
(4) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
provision;
(5) headings to clauses and Schedules are for convenience only and do
not affect the interpretation of this Agreement;
(6) references to a "company" shall be construed so as to include any
company, corporation or other body corporate, wherever and however
incorporated or established;
(7) references to times of the day are to London time;
(8) references to any agreement (including without limitation to each
Transaction Document), shall be construed as a reference to such
agreement as the same may be, or may from time to time have been,
amended, modified, supplemented or restated in accordance with the
terms of all Transaction Documents;
(9) "(pound)" and "Sterling" denote the lawful currency of the United
Kingdom;
(10) any reference in this Agreement to a statute shall be construed as a
reference to such statute as the same may have been, or may from
time to time be, amended, modified or re-enacted.
2. ACCOUNTS
2.1 Borrower Accounts
(1) The Borrower shall, before any Advance is made under the Loan
Facility Agreement, open the Borrower Funding Account, the Borrower
Collection Account and the Borrower Working Capital Account.
(2) The Borrower shall not open any other account without the prior
written consent of the Lender.
2.2 CMC Accounts
CMC shall, before the date on which any Advance is made under the Loan
Facility Agreement open the CMC Proceeds Account with the Account Bank.
22.3 Security
All parties hereby agree and acknowledge that:
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(1) all sums credited to the Borrower Funding Account shall be subject
to the Borrower Funding Account Assignment;
(2) all sums credited to the Borrower Collection Account shall be
subject to the Borrower Collection Account Assignment;
(3) all sums credited to the Borrower Working Capital Account shall
stand charged in accordance with the Debenture; and
(4) all sums credited to the CMC Proceeds Account shall be subject to
the CMC Proceeds Account Assignment.
2.4 Initial Deposits
(1) The Borrower shall, on the opening of the Borrower Funding Account
and the Borrower Collection Account, deposit in each such account
the sum of (pound)1 and shall execute the Borrower Funding Account
Assignment and the Borrower Collection Account Assignment.
(2) CMC shall, on the opening of the CMC Proceeds Account, deposit in
such account the sum of (pound)1 and shall execute the CMC Proceeds
Account Assignment.
2.5 Interest
Interest shall accrue on the amounts from time to time standing to the
credit of each such Account at the rate quoted from time to time by the
Account Bank as the rate payable on deposits of the requisite amount. Such
interest shall accrue and be credited to the relevant Account in
accordance with the relevant mandate and from the date on which the same
is credited to the relevant Account shall thereafter form part of the
credit balance thereon.
3. PAYMENT OF PROCEEDS
3.1 Mortgage Loan Interest and Principal
(1) The Borrower shall procure, in so far as it is able to do so, that
all Principal and Mortgage Loan Interest payable under each Existing
Mortgage Loan and New Production Mortgage Loan financed under the
Loan Facility Agreement is, for so long as it is so financed, paid
by the relevant Mortgagor:
(1) to the relevant Securitisation Collection Account until notice
is given in accordance with the Transaction Documents to any
Mortgagor requiring the relevant Mortgagor to pay all amounts
under the relevant Mortgage Loan directly to the Borrower
Collection Account (or such other account as may be specified
in such notice); and
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(2) thereafter directly to the Borrower Collection Account (or
such other account as is specified in the relevant notices).
(2) If the Borrower receives any such Mortgage Loan Interest or
Principal at any time other than by way of credit of the same to the
Borrower Collection Account (or other account specified in any
notice referred to in sub-clause 3.1(a)(ii)), the Borrower shall
forthwith upon receipt thereof pay the same into the Borrower
Collection Account (or such other account specified in the aforesaid
notice).
(3) If CMC, CMF, the Servicer, the Standby Servicer or the Lender
receive any Mortgage Loan Interest or Principal at any time, CMC,
CMF, the Servicer, the Standby Servicer and the Lender, as the case
may be shall, forthwith upon receipt thereof, pay the same into the
Borrower Collection Account (or other account specified in any
notice referred to in sub-clause 3.1(a)(ii)) and, in the case of
CMC, the Servicer and CMF shall hold such money on trust for the
Borrower pending payment of the same into the Borrower Collection
Account (or other account specified in any notice referred to in
sub-clause 3.1(a)(ii)) provided always that:
(1) neither CMC, the Servicer, the Standby Servicer, CMF nor the
Lender shall be obliged to make such transfers or hold moneys
on such trusts if to do so would be contrary to the provisions
of or cause any breach by the relevant party of its
obligations under any Securitisation Documentation including,
without limitation, any Securitisation Bank Agreement;
(2) this sub-clause 3.1(c) shall not apply to moneys which are
Principal or Mortgage Loan Interest if received by the
relevant person by way of a distribution under clauses 6 or 7;
and
(3) the provisions of this sub-clause shall not apply to any
moneys received by the Lender following any Acceleration or
Enforcement.
3.2 Mortgage Loan Proceeds
(1) Mortgage Loan Proceeds received by any party hereto other than the
Lender shall be paid by such party, forthwith upon receipt of the
same, to the Borrower Collection Account and shall be held by the
relevant party on trust for the Borrower pending payment of the same
into the Borrower Collection Account.
(2) If Mortgage Loan Proceeds are paid to the Lender (in its capacity as
mortgagee or heritable creditor) prior to any Acceleration or
Enforcement the Lender shall notify the Borrower and the Servicer
and shall transfer the same to the Borrower Collection Account.
3.3 Securitisation Residual Proceeds
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(1) Securitisation Residual Proceeds received by any party hereto other
than the Lender shall be paid by such party, forthwith upon receipt
of the same:-
(1) in the case of Securitisation Residual Proceeds relating to
the CMR6 Securitisation (other than those received in respect
of a Disposal of all or any part of the rights under the
Securitisation Subordinated Loan (and associated security)
under the CMR6 Securitisation) to the Borrower Collection
Account; and
(2) in the case of all other Securitisation Residual Proceeds to
the CMC Proceeds Account,
and shall be held by the relevant party on trust for the Borrower
or, as the case may be, CMC pending payment of the same into the
relevant account.
(2) If Securitisation Residual Proceeds are paid to the Lender (in its
capacity as mortgagee or heritable creditor) prior to any
Acceleration or Enforcement the Lender shall notify the Borrower or
CMC, as applicable, and shall pay the same:-
(1) in the case of Securitisation Residual Proceeds in respect of
the CMR6 Securitisation (other than those received in respect
of a Disposal of all or any part of the rights under the
Securitisation Subordinated Loan (and associated security)
under the CMR6 Securitisation) to the Borrower Collection
Account; and
(2) in the case of all other Securitisation Residual Proceeds to
the CMC Proceeds Account.
3.4 Securitisation Residual Receipts
(1) For so long as clause 3.4(b) does not apply the Lender shall permit
payment of all Securitisation Residual Receipts by the relevant
debtor:-
(1) to the Borrower Working Capital Account in the case of
Securitisation Residual Receipts relating to the CMR6
Securitisation (other than those receivable under or in
respect of the Securitisation Subordinated Loan relating to
the CMR6 Securitisation); and
(2) to such account of CMC as CMC may notify to the Lender from
time to time in the case of all other Securitisation Residual
Receipts (including those receivable under or in respect of
the Securitisation Subordinated Loan relating to the CMR6
Securitisation).
(2) At any time after:-
(1) any Acceleration or Enforcement has occurred; or
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(2) the Lender has determined in its reasonable good faith
judgement that an Event of Default has occurred and has
notified the Borrower of the facts and circumstances in which
such Event of Default occurred and that the same continues to
subsist unremedied (to the satisfaction of the Lender) and
unwaived,
the Lender may redirect such payments to the Borrower Collection
Account, the CMC Proceeds Account, or (but only after Acceleration
or Enforcement) to such other account as the Lender may specify in
the relevant notice or direction.
4. CALCULATIONS
4.1 Collateral Value and Loan Value
(1) The Servicer shall, for each Interest Payment Date, calculate the
Collateral Value and the Loan Value for that date such calculation
to be done as soon as possible after the applicable Determination
Date and in any event no later than the third Business Day prior to
the Interest Payment Date in question and shall notify the same to
the Lender, the Borrower, CMC and CMF immediately upon calculation
of the same.
(2) The Lender shall, for the purposes of the calculation under clause
4.1(a), notify the Servicer of:-
(1) the fair market value of the Securitisation Residuals as
determined by the Lender in good faith; and
(2) details of all Existing Mortgage Loans and New Production
Mortgage Loans financed under the Loan Facility Agreement
which are, at the relevant time, Breached Mortgage Loans.
(3) The Lender's determination of the matters to be notified to the
Servicer under clause 4.1(b) shall, in the absence of manifest error
or bad faith, be final and binding on the parties hereto.
(4) The Servicer's determination of Collateral Value and Loan Value once
agreed by the Lender under clause 4.1(e) shall, in the absence of
manifest error or bad faith (on the part of either party), be final
and binding on the parties hereto.
(5) The Lender shall use reasonable endeavours to agree the Servicer's
determinations of Collateral Value and Loan Value within three
Business Days of notification of the same to the Lender and the
Servicer shall notify each other party hereto, in writing, of the
Collateral Value and Loan Value agreed by the Lender.
4.2 Account Balances
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(1) The Servicer shall determine, for each Interest Payment Date how
much of the moneys credited to each of the Borrower Collection
Account and the CMC Proceeds Account as at the immediately preceding
Determination Date is attributable to and represents moneys in
respect of:
(1) Mortgage Loan Interest;
(2) Principal;
(3) Securitisation Residual Receipts;
(4) Securitisation Residual Proceeds;
(5) Mortgage Loan Proceeds;
(6) Insurance Premia; and
(7) Insurance Proceeds.
(2) The determination by the Servicer under clause 4.2(a) shall be done
as soon as possible after each Determination Date and in any event
no later than the third Business Day prior to the relevant Interest
Payment Date.
(3) The Servicer shall notify the Lender of its determination
immediately upon calculation of the same.
(4) The Lender shall use reasonable endeavours to agree the Servicer's
determination within three Business Days of notification of the same
to the Lender, and the Servicer shall notify each other party
hereto, in writing, of such determination as agreed by the Lender.
(5) The Servicer's determination of such amounts, as agreed by the
Lender, shall in the absence of manifest error or bad faith (on the
part of either party) be binding on the other parties hereto.
5. RELEASES AND AGENCY
5.1 Transfer Agent Instructions
(1) The Servicer shall, as agent for the Lender, instruct the Account
Bank to make such transfers as are required in order to ensure that
funds standing to the credit of the Borrower Collection Account and
the CMC Proceeds Account are applied on each Interest Payment Date
(or, if later, each Late Interest Payment Distribution Date) and
each other Distribution Date in accordance with the provisions of
clauses 6 and 7.
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(2) CMC shall, as agent for the Lender, instruct the Account Bank to
make such transfers from the Borrower Funding Account as shall be
necessary in order to ensure that Advances made under the Loan
Facility Agreement are:-
(1) remitted to the client accounts of relevant Solicitors in
accordance with agreed procedures;
(2) remitted to the Lender if any Mortgage Loan has not completed
within three Business Days (or such longer or shorter period
as may be agreed from time to time) of the relevant Advance;
and
(3) applied otherwise in accordance with the Transaction
Documents.
5.2 Payment Transfer Agent
(1) The Lender hereby appoints the Servicer as its payment transfer
agent for the purpose of carrying out the matters specified in
clause 5.1(a) and hereby appoints CMC as its payment transfer agent
and for the purpose of operating the Borrower Funding Account in
accordance with the provisions of clause 5.1(b).
(2) The Lender shall be entitled to revoke the authority of the Servicer
and/or the authority of CMC to act as its payment transfer agent
under this clause 5.2 at any time by notice in writing to the
Servicer or, as the case may be, CMC.
(3) In the event that the Account Bank shall have received instruction
to act only on the written instructions of the Lender (at any time
while the Servicer and/or CMC is appointed as agent), the Lender
shall, for so long as no Acceleration or Enforcement shall have
occurred;
(1) in respect of the CMC Proceeds Account and the Borrower
Collection Account instruct the Account Bank to make such
transfers as are required in order that funds credited to the
CMC Proceeds Account and the Borrower Collection Account are
applied in accordance with the provisions of clause 6 or 7
such instructions to be made in a timely manner; and
(2) in respect of the Borrower Funding Account, to make such
transfers as are required in order that the matters set out in
clause 5.1(b) can be effected.
(4) Where funds credited to the Borrower Collection Account are required
to be paid to the Borrower pursuant to clause 6.2(g), 6.3(e) or
6.4(d) the Servicer or, if clause 5.2(c) applies, the Lender shall
instruct the Account Bank to make such payments to the Borrower
Working Capital Account or, provided that to make payment to any
other account would not cause a breach of any Transaction
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Document, such other account as the Borrower shall from time to time
notify to the Lender and the Servicer in writing.
(5) Where funds standing to the credit of the CMC Proceeds Account are
required to be paid to CMC pursuant to clause (6.4)(d) the Servicer
or, if clause 5.2(c) applies, the Lender shall instruct the Account
Bank to make such transfers to such account of CMC as CMC shall from
time to time notify to the Lender and the Servicer in writing.
5.3 Post Acceleration or Enforcement
The provisions of this clause 5 shall not apply at any time after any
Acceleration or Enforcement.
6. APPLICATION OF PROCEEDS PRIOR TO AN EVENT OF DEFAULT
6.1 Principal
(1) On each Interest Payment Date (or if later each Late Interest
Payment Distribution Date) falling prior to the occurrence of an
Event of Default (other than any Event of Default which has
subsequently been cured (to the satisfaction of the Lender) or
waived by the Lender) all amounts standing to the credit of the
Borrower Collection Account which represent Principal (as determined
under clause 4.2) shall be applied in or towards repayment of the
related Advances under the Loan Facility Agreement and all other
amounts due and owing to the Lender under any Transaction Document
other than interest under the Loan Facility Agreement.
(2) If requested in writing by the Borrower the Lender may, in its
absolute discretion, permit amounts standing to the credit of the
Borrower Collection Account on any Interest Payment Date (or if
later each Late Interest Payment Distribution Date) which represent
Principal (as determined under clause 4.2) to be applied in or
towards payment of interest due (on the Interest Payment Date) under
the Loan Facility Agreement or interest accrued at that date under
the Loan Facility Agreement and all other amounts due and owing to
the Lender under any Transaction Document other than interest under
the Loan Facility Agreement.
(3) After repayment in full of all Secured Liabilities any Principal
received or recovered shall be released to the Borrower.
6.2 Mortgage Loan Interest
On each Interest Payment Date (or if later each Late Interest Payment
Distribution Date) falling prior to the occurrence of an Event of Default
(other than any Event of Default which has subsequently been cured (to the
satisfaction of the Lender) or waived by the Lender) all amounts standing
to the credit of the Borrower Collection Account which
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represent Mortgage Loan Interest (as determined under clause 4.2) shall be
applied in or toward satisfaction of obligations of the Borrower in the
following order of priority:-
(1) first, in or toward payment of:
(1) the servicing fee due to the Servicer under the Interim
Servicing Agreement or, after execution of the same, the
Substitute Servicing Agreement on the relevant Interest
Payment Date;
(2) the stand-by servicing fee due to the Standby Servicer under
the Standby Servicing Agreement on the relevant Interest
Payment Date;
(3) all Enforcement Expenses due and payable to the Servicer under
the Interim Servicing Agreement or, after execution of the
same, the Substitute Servicing Agreement on the relevant
Interest Payment Date;
(4) all amounts due and payable to the Standby Servicer under the
Standby Servicing Agreement on the relevant Interest Payment
Date by way of reimbursement in respect of expenses incurred
by the Standby Servicer in relation to enforcement of any
Existing Mortgage Loan and any New Production Mortgage Loan
financed under the Loan Facility Agreement;
(5) any amounts due to the Servicer or Standby Servicer, as the
case may be, under the Interim Servicing Agreement, the
Substitute Servicing Agreement or the Standby Servicing
Agreement as at the relevant Interest Payment Date by way of
reimbursement of payments of insurance premia (unpaid by
relevant Mortgagors) made by the Servicer or Standby Servicer
to the relevant insurance company (to the extent not satisfied
by retention by the Servicer or Standby Servicer of Insurance
Premia subsequently received from the relevant Mortgagor).
(2) second, in or towards payment of all interest falling due to the
Lender under the Loan Facility Agreement on the relevant Interest
Payment Date together with any overdue interest accrued thereon up
to and including the relevant Distribution Date;
(3) third, in or towards repayment of Advances under the Loan Facility
Agreement subject to the limits set out in clause 6.5;
(4) fourth, in or towards payment of all amounts due and owing to the
Lender under all Transaction Documents other than Advances or
interest under the Loan Facility Agreement;
(5) fifth, an amount equal to the Borrowers Entitlement to be retained
by or paid to the Borrower;
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(6) sixth, in or towards payment of any additional fee which may be due
to the Servicer from time to time pursuant to the Substitute
Servicing Agreement; and
(7) the balance to be released to the Borrower.
6.3 Mortgage Loan Proceeds
On each Interest Payment Date and each other Distribution Date falling
prior to the occurrence of an Event of Default (other than any Event of
Default which has subsequently been cured (to the satisfaction of the
Lender) or waived by the Lender) all amounts standing to the credit of the
Borrower Collection Account which represent Mortgage Loan Proceeds (as
determined under clause 4.2) shall be applied in or toward satisfaction of
obligations of the Borrower in the following order of priority:-
(1) first, to the extent such Mortgage Loan Proceeds represent accrued
Mortgage Loan Interest, such Mortgage Loan Proceeds shall be added
to and form part of Mortgage Loan Interest, and be distributed in
accordance with clause 6.2 (or, if the Distribution Date is not an
Interest Payment Date as such amounts would be applied were it an
Interest Payment Date).
(2) second, in or towards repayment of the related Advances under the
Loan Facility Agreement subject to the limits set out in clause 6.5;
(3) third, in or towards payment of all amounts owing and payable to the
Lender under any Transaction Document other than Advances and
interest under the Loan Facility Agreement;
(4) fourth, in or towards payment of any additional fee which may be due
to the Servicer from time to time pursuant to the Substitute
Servicing Agreement; and
(5) the balance to be released to the Borrower.
6.4 Securitisation Residual Proceeds
On each Interest Payment Date and each other Distribution Date falling
prior to the occurrence of an Event of Default (other than any Event of
Default which has subsequently been cured (to the satisfaction of the
Lender) or waived by the Lender) the Permitted Percentage of
Securitisation Residual Proceeds (as determined under clause 6.6) shall be
applied in or toward satisfaction of obligations of the Borrower in the
following order of priority:-
(1) first, in or towards payment of all interest due to the Lender under
the Loan Facility Agreement on the relevant Interest Payment Date
or, if the Distribution Date is not an Interest Payment Date, all
interest accrued under the Loan Facility Agreement during the
relevant Interest Period to the relevant Distribution Date;
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(2) second, in or towards repayment of Advances under the Loan Facility
Agreement subject to the limits set out in clause 6.5;
(3) third, in or towards payment of all amounts owing and payable to the
Lender under any Transaction Document other than Advances and
interest under the Loan Facility Agreement;
(4) fourth, in the case of Securitisation Proceeds from any
Securitisation Residual relating to the CMR6 Securitisation (other
than from the Disposal of the Securitisation Subordinated Loan
relating to the CMR6 Securitisation), the balance to the Borrower
and in the case of all other Securitisation Residual Proceeds the
balance to CMC.
6.5 Limitation on applications in or toward repayment of Advances
(1) On any Interest Payment Date or other Distribution Date the amount
of Mortgage Loan Interest, Mortgage Loan Proceeds and Securitisation
Residual Proceeds (taken together) which may be applied in or toward
repayment of Advances shall be limited to the lesser of:-
(1) such amount as will give (or result in) a Collateral Value
Ratio of 90% and a Loan Value Ratio of 100% (having taken into
account, for such purpose, the application of monies
representing Principal in or toward repayment of Advances on
the relevant Interest Payment Date or other Distribution Date
under clause 6.1); and
(2) all Mortgage Loan Proceeds, Mortgage Loan Interest and
Securitisation Residual Proceeds available after application
of the same to prior ranking interests.
(2) If the amount which may be applied towards repayment of Advances is
that under clause 6.5(a)(i) Advances shall be so repaid first out of
Mortgage Loan Proceeds, then Mortgage Loan Interest and then
Securitisation Residual Proceeds.
6.6 Securitisation Residual Proceeds
(1) On any Interest Payment Date or other Distribution Date only a
percentage of Securitisation Residual Proceeds will be available for
application under clause 6.4. Such percentage is referred to as the
"Permitted Percentage".
(2) The Permitted Percentage of any Securitisation Residual Proceeds
shall be computed in accordance with the table set out below on the
basis that references therein to Securitisation Residuals sold shall
be construed as references to each Disposal of Securitisation
Residuals such that if, during any Interest Period or other period
between Distribution Dates, there has been more than one Disposal
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of Securitisation Residuals each such Disposal shall be treated as a
separate sale and the Permitted Percentage calculated for each
accordingly:
Incremental % of
Securitisation
Residual Proceeds Aggregate % of
available for Securitisation
Incremental % of Aggregate % of application (the Proceeds
Securitisation Securitisation Permitted available for
Residuals sold Residuals sold Percentage) application
0-20 20 10 10
21-40 40 30 20
41-60 60 50 30
61-80 80 70 40
▇▇-▇▇▇ ▇▇▇ 90 50
6.7 Securitisation Residual Sale Criteria
Without prejudice to the Security Documents the Lender shall consent to
the disposal by the Borrower or CMC of any Securitisation Residual if:
(1) the consideration for the Disposal comprises at least 85% in
cash (being immediate payment of cash on the Disposal); or
(2) on the Interest Payment Date or Distribution Date coinciding
with such proposed Disposal and after giving effect to the
application of funds as provided in clause 6.4 hereof
immediately following such Disposal, the Collateral Value
Ratio would be 90% and the Loan Value Ratio would be 100%.
6.8 Mortgage Loan Disposals
Without prejudice to the Security Documents, the Lender shall consent to
the Disposal of any Existing Mortgage Loan or New Production Mortgage Loan
financed under the Loan Facility Agreement provided that:
(1) the cash proceeds of such Disposal are sufficient to repay the
related Advance (together with all interest accrued thereon)
under the Loan Facility Agreement; and
(2) all Disposal proceeds are paid directly to the Borrower
Collection Account.
6.9 Insurance Premia
On each Interest Payment Date (or, if later, Late Interest Payment
Distribution Date) falling prior to the occurrence of an Event of Default
(other than any Event of Default
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which has subsequently been cured (to the satisfaction of the Lender) or
waived by the Lender) all amounts standing to the credit of the Borrower
Collection Account which represent Insurance Premia (as determined under
clause 4.2) shall be applied in or toward satisfaction of obligations of
the Borrower (or other persons) in the following manner:-
(1) in payment to the relevant insurance company, save to the extent
that the insurance company has already been paid, whether by the
Servicer or otherwise;
(2) if the Servicer or, as the case may be, the Standby Servicer has
paid the relevant premium to the insurance company on behalf of the
Borrower unless already reimbursed in respect thereof under Clause
6.2(a), in payment of the same to the Servicer or, as the case may
be, the Standby Servicer under the Interim Servicing Agreement, the
Substitute Servicing Agreement or the Standby Servicing Agreement as
the case may be; and
(3) any balance to be added to Mortgage Loan Interest and applied in
accordance with clause 6.2 save that such balance shall only be
added to (and, accordingly applied together with and as part of)
Mortgage Loan Interest after application of Mortgage Loan Interest
under clause 6.2(a).
6.10 Insurance Proceeds
On each Interest Payment Date (or, of later, Late Interest Payment
Distribution Date) falling prior to the occurrence of an Event of Default
(other than any Event of Default which has subsequently been cured (to the
satisfaction of the Lender) or waived by the Lender) all amounts standing
to the credit of the Borrower Collection Account which represent Insurance
Proceeds (as determined under clause 4.2) shall be applied first, in or
toward payment to the Servicer to enable the Servicer to pay the proceeds
to the relevant Mortgagor or, as the case may be, to apply the same in
making good the damage in respect of which they were paid or, to the
extent that proceeds of any claim are to be applied in or toward
satisfaction of the relevant Mortgagor's obligation to repay the relevant
Mortgage Loan (and not in making good the damage in respect of which the
proceeds were paid), such Insurance Proceeds shall be added to and treated
as Principal and distributed, together with Principal, under and in
accordance with clause 6.1.
7. APPLICATION FOLLOWING AN EVENT OF DEFAULT BUT PRIOR TO ACCELERATION OR
ENFORCEMENT
7.1 Application
On any Interest Payment Date (or, if later, any Late Interest Payment
Distribution Date) and other Distribution Date falling after the
occurrence of an Event of Default and where (and for so long as):-
(1) clause 6 does not apply;
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(2) no Acceleration has occurred; and
(3) no Enforcement has occurred,
all Principal, Mortgage Loan Interest, Mortgage Loan Proceeds,
Securitisation Residual Proceeds, Insurance Premia and Insurance Proceeds
will be applied in the same manner as under clause 6 save as provided
below:-
(1) all Securitisation Residual Proceeds from any Disposal of
Securitisation Residuals (irrespective of the date of such
Disposal) shall be available for application in or toward
repayment of interest under the Loan Facility Agreement and
Advances, such that the provisions relating to Permitted
Percentages shall cease to apply; and
(2) CMC and the Borrower shall cease to be entitled to have any
funds released to them such that sub-clauses 6.2(g), 6.3(e)
and 6.4(d) shall cease to apply; and
(3) Securitisation Residual Receipts shall be treated in the same
way as Securitisation Residual Proceeds under sub-clause (i)
above; and
(4) there shall be no limit on the amount which may be applied
toward repayment of Advances such that the provisions of
clause 6.5 will not apply.
7.2 Acknowledgement
It is acknowledged, for the avoidance of doubt, that application of
Proceeds under and in accordance with clause 7.1 on any Interest Payment
Date (or, if later, any Late Interest Payment Distribution Date) or other
Distribution Date shall not preclude Proceeds being applied on subsequent
Interest Payment Dates or other Distribution Dates under clause 6 if
clause 6 shall, at such subsequent time, apply and if no Acceleration or
Enforcement has at that subsequent time occurred.
8. APPLICATION FOLLOWING ACCELERATION OR ENFORCEMENT
8.1 Application
At all times following the earlier of an Acceleration or an Enforcement
the provisions of clauses 6 and 7 shall cease to apply and all Proceeds
shall be applied by the Lender in or toward satisfaction of the Secured
Liabilities in such order as the Lender in its absolute discretion shall
determine.
8.2 Servicing
(1) If, following any Acceleration or Enforcement, and for so long as:-
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(1) the Interim Servicing Agreement, or, after execution thereof
the Substitute Servicing Agreement continues to subsist and
has not been terminated; or
(2) the Standby Servicer has taken over administration of the
Existing Mortgage Loans and New Production Mortgage Loans
financed under the Loan Facility Agreement pursuant to the
Standby Servicing Agreement,
the obligation of the Borrower to pay the servicing fee (or other
fee which may be due and payable under the relevant agreement) on
any due date shall, as between the Borrower and the Servicer or
Standby Servicer, as the case may be, be discharged if and to the
extent of payment by the Lender of any such servicing fee direct and
the Lender shall be obliged to make any such payment to the Servicer
or Standby Servicer for so long as the relevant Servicing Agreement
continues to subsist but save as provided in the relevant agreement
shall not be liable for any amounts payable to the Servicer or
Standby Servicer upon termination of the same.
Upon payment by the Lender of any amount to the Servicer or Standby
Servicer under clause 8.2 (a) there shall immediately and
automatically fall due for payment by the Borrower to the Lender
under the Loan Facility Agreement an amount equal to the amount paid
by the Lender to the Servicer or Standby Servicer under sub-clause
8.2(a) less, at the date of payment, amounts received representing
Mortgage Loan Interest which would have been available to be applied
under Clause 6.2(a) in or toward satisfaction of the servicing fee
had clause 6 or 7 applied on that date, as determined by the Lender
whose determination shall in the absence of manifest error or bad
faith be final and binding.
8.3 Insurance Premia
The Lender shall use its best endeavours to ensure that any amounts
received or recovered from any Mortgagor which represent Insurance Premia
shall, after Acceleration or Enforcement, be paid to the insurance company
or other third party entitled thereto.
9. CMR6 SECURITISATION RESIDUALS
CMC and CMF hereby agree that in consideration for the absolute assignment
by CMF to the Borrower of all of its right, title and interest under and
in respect of Securitisation Residuals in respect of the CMR6
Securitisation (effected pursuant to the Assignment Agreement) and the
assumption by the Borrower of its obligations in respect of Securitisation
Residual Receipts under, and on the terms of, the Assignment Agreement CMC
hereby irrevocably and unconditionally releases CMF from all of its
obligations (whether actual or contingent) under the Origination and
Purchase Agreement to pay Additional Consideration (as defined under the
Origination and Purchase Agreement) to CMC thereunder and it is further
agreed that the said absolute assignment shall discharge
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any outstanding obligation under the Origination and Purchase Agreement to
pay Additional Consideration.
10. RELEASED PROCEEDS
10.1 Notwithstanding any provision in any Transaction Document to the contrary
the Lender hereby agrees that for so long as no Acceleration or
Enforcement shall have occurred the Borrower shall be entitled to do each
or any of the following:-
(1) declare and pay any dividend to CMC to the extent that available
profits are derived from amounts released to the Borrower under the
provisions of clause 6 of this Agreement;
(2) apply amounts released to the Borrower under clause 6 in or toward
repayment of any indebtedness due to CMC under and in accordance
with the Subordinated Loan Agreement.
10.2 If any dividend permitted under sub-clause 10.1 is received by the Lender
(in its capacity as mortgagee of the shares in the Borrower) the Lender
will pay the same to CMC in accordance with the provisions of the Borrower
Share Charge.
11. PAYMENTS TO LENDER
All amounts to be paid to the Lender hereunder shall be paid to such
account as the Lender may, from time to time, notify to each of the
parties hereto in writing.
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12. REPRESENTATIONS AND WARRANTIES
12.1 Each of the parties hereto other than the Lender (each in relation to
itself) hereby represent, warrant, covenant and undertake to the Lender
that:-
(1) it is a limited liability company duly incorporated under the laws
of England and Wales and is duly authorised and qualified to
transact any and all business contemplated by this Agreement and the
other Transaction Documents to be conducted by it;
(2) it has the full corporate power and authority to execute, deliver
and perform, and to enter into and consummate the transactions
contemplated by this Agreement and the other Transaction Documents
and has duly authorised by all necessary corporate action on its
part the execution, delivery and performance of this Agreement and
the other Transaction Documents; and this Agreement and each
Transaction Document, assuming the due authorisation, execution and
delivery thereof by the Lender, constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its
respective terms, except to the extent that (a) the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights
generally and (b) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable
defences and to the discretion of the court before which any
proceeding therefor may be brought;
(3) its execution and delivery of this Agreement and each Transaction
Document, the consummation of any other of the transactions herein
or therein contemplated on its part and the fulfilment of or
compliance with the terms hereof or thereof will not (i) result in a
material breach of any term or provision of its Memorandum and
Articles of Association and/or its other constitutional documents or
(ii) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under,
the terms of any other material agreement or instrument to which it
is a party or by which it may be bound, or any statute, order or
regulation applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
it;
(4) it is not party to, bound by, or in breach or violation of any
material indenture or other material agreement or instrument, or
subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it, which materially and adversely
affects or, to its knowledge, would in the future materially and
adversely affect,
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(i) its ability to perform its obligations under this Agreement or
the Transaction Documents or (ii) its business, operations,
financial condition, properties or assets taken as a whole;
(5) no litigation is pending or, to the best of its knowledge,
threatened against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or the
Transaction Documents or its ability to perform any of its
obligations hereunder or thereunder in accordance with the terms
hereof or thereof; and
(6) no consent, approval, authorisation or order of any court or
governmental agency or body is required for the execution, delivery
and performance by it of, or compliance by it with, this Agreement
or any Transaction Document or the consummation of the transactions
contemplated hereby or thereby, or if any such consent, approval,
authorisation or order is required, it has obtained or its in the
process of obtaining the same.
The representations and warranties under clause 12.1(a)-(f) inclusive
shall be given on the date of this Agreement and shall be repeated on each
date on which any Advance is outstanding under the Facility Agreement by
reference to the facts and circumstances existing at the relevant time.
13. COSTS AND EXPENSES
13.1 The Borrower shall pay all stamp, registration and other taxes to which
this Agreement or any judgement or decree given in connection herewith is
or at any time may be subject and shall, from time to time on demand of
the Lender, indemnify the Lender against any liabilities, costs, claims
and expenses resulting from any failure to pay or any delay in paying any
such tax.
13.2 The Borrower shall, from time to time on demand of the Lender compensate
the Lender at such daily and/or hourly rates as the Lender shall from time
to time reasonably determine for the time and expenditure, all costs and
expenses (including telephone, fax, copying, travel and personnel costs)
incurred by the Lender in connection with its taking such action as it may
deem appropriate or in complying with any request by the Borrower, the
Servicer, CMC or CMF in connection with (a) the granting or proposed
granting of any waiver or consent requested hereunder by the Borrower, the
Servicer, CMC or CMF; (b) any actual, potential or reasonably suspected
breach by the Borrower or by any of CMC, CMF or the Servicer of their
respective obligations hereunder of its obligations hereunder; (c) any
amendment or proposed amendment hereto requested by the Borrower, CMC, CMF
or the Servicer.
14. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Lender, any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial
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exercise of any right or remedy prevent any further or other exercise
thereof or the exercise of any other right or remedy. The rights and
remedies herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
15. CONFIDENTIALITY
Neither the Borrower, CMC, CMF nor the Servicer shall, without the prior
written consent of the Lender, disclose to any person the existence or any
details concerning this Agreement or the Transaction Documents except to
the extent such disclosure is contemplated in any Transaction Document, or
is required pursuant to the application of any applicable law or an order
of a court of competent jurisdiction, or is made to the auditors or other
professional advisers (who are in each case subject to confidentiality
restrictions imposed by a professional body) of the Borrower, CMC, CMF or
the Servicer.
16. NOTICES
16.1 Addresses
Any notice or other communication or document to be made or delivered
under this Agreement shall be made or delivered by fax or otherwise in
writing. Each notice, communication or other document to be delivered to
any party to this Agreement shall (unless that other person has by fifteen
days' written notice to the other party specified another address or fax
number) be made or delivered to that person at the address(es) or fax
number (if any) set out below:-
(a) in the case of the Lender to their branch office in the United
Kingdom, facsimile number: 0171 375 5510, attention ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a simultaneous copy to the office of the General Counsel
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇,
facsimile number: 001 203 629 4571, attention
General Counsel;
(b) in the case of the Borrower, to its registered office, facsimile
number: 01923 426 456, attention ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇;
(c) in the case of CMC, to its registered office, facsimile number:
01923 426 823, attention the Company Secretary;
(d) in the case of Servicer, to its office at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, facsimile number: 01923 426456,
attention of the Company Secretary;
(e) in the case of CMF, to its registered office, facsimile number:
01923 426 823, attention the Company Secretary;
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16.2 Deemed Delivery
Any notice, communication or document to be delivered to any person shall
be deemed to have been delivered:-
(1) in the case of personal delivery, at the time of such delivery;
(2) in the case of delivery by post, on the business day following the
day on which it was posted and in proving such delivery it shall be
sufficient to prove that the relevant notice, communication or
document was properly addressed, stamped and posted (by airmail, if
to another country) in the United Kingdom or, in the case of service
to or from an address outside the United Kingdom at 9.00 a.m. on the
fourth day following the day on which it was posted;
(3) in the case of any notice or other communication by fax, (a) on the
business day the same was transmitted so long as there is evidence
that such fax message was received prior to 5.00 p.m. local time of
the recipient on such day and such day is a business day for the
recipient, otherwise (b) on the business day following the day on
which it was transmitted and, in either case, in proving such
delivery it shall be sufficient to prove that the whole of the fax
message was received on any fax machine of the recipient and that
there was no evidence that such transmission had been interrupted.
17. SEVERABILITY
If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction,
that shall not affect or impair:-
(1) the legality, validity or enforceability in that jurisdiction of any
other provision of this Agreement; or
(2) the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this Agreement.
18. ASSIGNMENT
18.1 The Lender may at any time assign or transfer all or any part of its
rights or benefits under this Agreement to any person to whom the Lender
transfers all or any part of its rights under the Loan Facility Agreement.
18.2 None of the Borrower, CMC, the Servicer or CMF shall be entitled to
assign, transfer or otherwise dispose of all or any of their respective
rights or benefits under this Agreement save, in the case of the Borrower
and CMC to any person to whom the Borrower or, as
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101
the case may be, CMC transfers its rights and obligations under and in
accordance with the Loan Facility Agreement.
18.3 The Lender may disclose to a proposed assignee or transferee information
in its possession relating to the provisions of this Agreement and the
Transaction Documents which it considers necessary or desirable to
disclose for the purposes of the proposed assignment or transfer.
18.4 This Agreement shall bind and inure to the benefit of and be enforceable
by the Lender and its respective successors, transferees and assigns and
references to the Lender shall be deemed to include references to each of
the foregoing.
19. ACCESSION
Each of the parties hereby agrees to execute an accession agreement with
the Standby Servicer, in form and substance satisfactory to the Lender, at
the time of execution of the Standby Servicing Agreement, pursuant to
which the Standby Servicer accedes to the provisions of this Agreement.
20. GOVERNING LAW
The Agreement shall be construed in accordance with the laws of England
(other than any terms hereof particular to the laws of Scotland which
shall be construed in accordance therewith) and the parties hereto hereby
submit to the jurisdiction of the courts of England and Wales.
...................................
for and on behalf of
MORTGAGE MANAGEMENT LIMITED
Witness ...........................
Organisation ......................
...................................
Address ...........................
...................................
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......................................
for and on behalf of GREENWICH
INTERNATIONAL, LTD.
Witness ..............................
Organisation .........................
......................................
Address ..............................
......................................
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103
...........................................
for and on behalf of CITY MORTGAGE
CORPORATION LIMITED
Witness ................................
Organisation ...........................
........................................
Address ................................
........................................
...........................................
for and on behalf of CITY MORTGAGE
SERVICING LIMITED
Witness ................................
Organisation ...........................
........................................
Address ................................
........................................
...........................................
for and on behalf of CITY MORTGAGE
FUNDING 1 LIMITED
Witness ......................................
Organisation .................................
..............................................
Address ......................................
..............................................
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THE ORIGINATORS LISTED HEREIN
and
MORTGAGE MANAGEMENT LIMITED
----------------------------------------------------------
ORIGINATION AND TRANSFER AGREEMENT
----------------------------------------------------------
February 1998
▇▇▇▇▇▇▇▇ Chance
London
105
CONTENTS
Clause Page No.
1 INTERPRETATION..................................................... 2
2 ORIGINATION OF NEW LOANS........................................... 9
3 TRANSFER OF EXISTING LOANS......................................... 9
4 NO EXCLUSIVITY..................................................... 10
5 REQUEST FOR FUNDS.................................................. 10
6 DECLARATION OF TRUST............................................... 10
7 CLOSING DATE....................................................... 11
8 TITLE DEEDS........................................................ 11
9 WARRANTIES AND REPRESENTATIONS .................................... 12
10 CONSEQUENCES OF WARRANTY BREACH ................................... 12
11 RELEASE............................................................ 12
12 EFFECT OF PURCHASE................................................. 12
13 COVENANTS AND UNDERTAKINGS......................................... 13
14 MERGER............................................................. 13
15 NO AGENCY OR PARTNERSHIP........................................... 13
16 PAYMENTS........................................................... 13
17 WAIVERS AND VARIATIONS............................................. 13
18 ENTIRE AGREEMENT................................................... 13
19 NOTICES............................................................ 14
20 ASSIGNMENT......................................................... 15
21 GOVERNING LAW...................................................... 15
SCHEDULE 1............................................................... 17
106
FORM OF ORIGINATOR POWER OF ATTORNEY..................................... 17
SCHEDULE 2............................................................... 22
(FORM OF TRANSFER (REGISTERED LAND))..................................... 22
SCHEDULE 3............................................................... 25
(FORM OF TRANSFER (UNREGISTERED LAND))................................... 25
SCHEDULE 4.............................................................. 28
(FORM OF ASSIGNMENT OF LIFE CHARGES)..................................... 28
SCHEDULE 5............................................................... 30
(FORM OF ASSIGNMENT OF INSURANCE CONTRACTS).............................. 30
SCHEDULE 6............................................................... 31
(FORM OF ASSIGNMENT OF GUARANTEES)....................................... 31
SCHEDULE 7............................................................... 32
(FORM OF SCOTTISH TRANSFER (LAND REGISTER)).............................. 32
SCHEDULE 8............................................................... 34
(FORM OF SCOTTISH TRANSFER (SASINE REGISTER))............................ 34
SCHEDULE 9............................................................... 36
(FORM OF SCOTTISH DECLARATION OF TRUST).................................. 36
SCHEDULE 10.............................................................. 41
(INFORMATION TO BE CONTAINED IN LOAN SCHEDULE)........................... 41
SCHEDULE 11.............................................................. 42
(THE ORIGINATORS)........................................................ 42
SCHEDULE 12.............................................................. 43
(FORM OF ORIGINATOR DECLARATION OF TRUST)................................ 43
107
THIS ORIGINATION AND TRANSFER AGREEMENT is made on the day of
February 1998
BETWEEN:
(1) MORTGAGE MANAGEMENT LIMITED a company incorporated under the laws of
England and Wales registered number 2002263, whose registered office is at
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Company"); and
(2) THE COMPANIES listed in Schedule 11 (the "Originators" and, each, an
"Originator").
WHEREAS
(A) The Originators carry on the business of advancing loans secured by
mortgages and standard securities over properties in England, Wales and
Scotland.
(B) The Company wishes to fund the purchase of or origination and purchase of
such loans.
(C) The parties wish to execute this Agreement for the purpose of establishing
procedures for the origination of such loans by the Originators funded by
the Company or for such loans to be originated and purchased or purchased
by the Company.
NOW THEREFORE the parties HEREBY AGREE as follows:
1 INTERPRETATION
Words and expressions shall, unless otherwise defined herein or in the
Loan Facility Agreement or unless the context otherwise requires, have the
following meanings:
1.1 Definitions
"Accrued Interest" means, in relation to a Loan at any date, interest
which has accrued but is not due;
"Agreed Loan Information" means in respect of any Proposed New Loan, such
information in relation to that Proposed New Loan (whether in computer
readable form or otherwise) as the Company may from time to time notify to
an Originator;
"Approved Solicitor" means any firm of solicitors authorised to practise
law by the Law Society of England and Wales or the Law Society of Scotland
having at least three partners or such other firm approved by the Company;
"Approved Undertaking" means an undertaking from an Approved Solicitor
addressed to the Company or such other person or persons as the Company
may specify relating, inter alia, to the completion and, where relevant,
registration of a Mortgage and its transfer to the Company in a form
acceptable to the Company;
108
"Approved Valuer" means a reputable firm of suitably qualified valuers or
surveyors which has at least 3 partners or such other firm approved by the
Company;
"Assignment of Guarantees" means an assignment and/or assignation of the
Guarantees, substantially in the form of Schedule 6;
"Assignment of Insurance Contracts" means an assignment and/or assignation
of the Insurance Policies, substantially in the form of Schedule 5;
"Assignment of Life Charges" means an assignment and/or assignation of the
Charges of Life Policies, substantially in the form of Schedule 4;
"Assignments" means the Assignment of Guarantees, the Assignment of
Insurance Contracts and the Assignment of Life Charges;
"Block Buildings Policy" shall have the meaning ascribed thereto in the
Loan Facility Agreement;
"Borrower" means, in relation to a Loan, the person named as such in the
relevant Mortgage Deed together with any person from time to time assuming
the obligations of the Borrower under that Loan to repay that Loan or any
part of it;
"Buildings Policy" means each buildings insurance policy over a Property
(including, where applicable, the Block Buildings Policy);
"Business Day" means a day (other than a Saturday or a Sunday) on which
banks are generally open for business in London;
"Call Notice" means the notice to be delivered by the relevant Originator
(or the Administrator on its behalf) to the Company pursuant to clause 10
specifying, in an attached Loan Schedule, Loans in the Portfolio intended
to be purchased by or at the direction of by that Originator on the date
specified in such notice;
"Charge of Life Policy" means a legal or equitable charge or assignation
granted by a Borrower in favour of an Originator in respect of a Life
Policy or Life Policies by way of collateral security for the repayment of
the moneys secured by a Mortgage related to a Loan;
"Closing" means the date upon which the initial drawing under the Loan
Facility Agreement is made;
"Closing Date" means the date upon which Closing occurs;
"CMC" means City Mortgage Corporation Limited;
"Collateral Security" has the meaning set out in the Loan Facility
Agreement;
"Debenture" shall have the meaning ascribed thereto in the Loan Facility
Agreement;
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"Eligibility Criteria" are satisfied in respect of a New Loan in respect
of which, on the date upon which it was advanced, complied with the
Warranties set out in clause 9;
"English Loan" means a Loan secured by an English Mortgage;
"English Mortgage" means a Mortgage secured over a Property situated in
England or Wales;
"Existing Loan" means each loan acquired by the Company under clause 3;
"Guarantee" means each guarantee given in support of the obligations of a
Borrower under a Loan and its related Mortgage;
"Insurance Policies" means the Block Building Policy and the Contingency
Policy and, in each case, any other insurance contracts in replacement,
addition or substitution therefor from time to time and which relate to
the Loans;
"Interest Bearing Balance" means, in respect of any Loan, the aggregate of
(avoiding double counting):
(a) all advances and further advances in respect thereof;
(b) all costs, fees, expenses and interest due and unpaid in respect
thereof
less the aggregate of all repayments or prepayments of the foregoing made
prior to such date;
"Lender" means Greenwich International, Ltd. in its capacity as Lender
under the Loan Facility Agreement;
"Life Policy" means each endowment, mortgage protection, term life or
other life assurance or insurance policies, if any, given as security for
the repayment of any Loan;
"Loan" means an Existing Loan or a New Loan, as the case may be;
"Loan Agreement" means, in relation to any Mortgage, the agreement or
agreements (whether constituted by an accepted Offer Letter or otherwise)
or facility letter or facility letters pursuant to which the moneys
secured by such Mortgage were advanced (as varied from time to time);
"Loan Facility Agreement" means the facility agreement dated the Closing
Date and made between the Company, the Lender and CMC;
"Loan File" means the file containing all correspondence in respect of
each Loan;
"Loan Schedule" means:
(a) in respect of each Existing Loan to be acquired pursuant to
clause 3, a schedule containing the information set out in
Schedule 10;
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(b) in respect of each Proposed New Loan to be originated pursuant
to clause 2, a schedule containing the information set out in
Schedule 10; and
(c) each schedule or list of Loans attached to a Call Notice
served pursuant to clause 10;
"MHA Documentation" means, in relation to any Scottish Loan, any
affidavit, consent or renunciation granted in terms of the Matrimonial
Homes (Family Protection) (Scotland) ▇▇▇ ▇▇▇▇ given in connection with
such Scottish Loan or its Collateral Security;
"Mortgage" means, in relation to a Loan, the charge Standard Security or
mortgage created by the relevant Mortgage Deed to secure repayment of the
sums due under the Loan from the relevant Borrower;
"Mortgage Deed" means, in relation to a Loan, the deed creating the charge
or security by way of legal mortgage or Standard Security over the
Property the subject thereof and any deed of variation or other deed
supplemental thereto;
"Mortgagee" means, in respect of a Mortgage, the person or persons from
time to time entitled to exercise the powers of the mortgagee or heritable
creditor thereunder;
"Mortgagor" means a Borrower or (in relation to any Scottish Loan) the
grantor of the relevant Standard Security;
"New Loan" means each Loan advanced by an Originator pursuant to clause
2.1(c);
"Occupier's Consent" means, in relation to any English Loan, the letter or
other document of consent given in connection with that Loan whereby any
occupier of the relevant Property aged eighteen years or over who is not a
party to the relevant Mortgage Deed has agreed to postpone his interest
(if any) in that Property so that it ranks after that of the Mortgagee;
"Offer" means an offer of a Loan made by an Originator to a Potential
Borrower;
"Offer Letter" means the letter or letters pursuant to which an Offer is
made;
"Origination Funds" means any monies transferred to and held by the
Approved Solicitors acting for the relevant Originator by the Company
pursuant to clause 2.1(b);
"Originator Declaration of Trust" means the declaration of trust of even
date in the form set out in Schedule 12;
"Originator Power of Attorney" means the power of attorney to be given by
each of the Originators in the form set out in Schedule 1;
111
"Portfolio" means, at any time, the Loans which are, at that time,
beneficially owned by the Company;
"Potential Borrower" means any person or persons who have indicated in
writing to an Originator (by completing that Originator's application
form) that they are desirous of borrowing money on the security of a
Mortgage;
"Property" means, in relation to a Loan, the freehold or leasehold
property in England or Wales or the heritable property in Scotland charged
or secured or, as the case may be, to be charged or secured in favour of
the Originator by way of mortgage or Standard Security as security for the
repayment of that Loan;
"Proposed New Loan" means a proposed new loan in respect of which an
application from a Potential Borrower has been received and which is in
the course of being processed by the relevant Originator (or the
Administrator on its behalf);
"Purchase Price" means, in respect of a Loan at any date, the aggregate,
at that date, of:
(a) the Interest Bearing Balance of that Loan; and
(b) the Accrued Interest in respect of that Loan;
"Relevant Rights" means, in respect of a Loan:
(c) all sums of principal, interest and any other sum payable by the
Borrower under such Loan and its related Mortgage and the right to
demand, ▇▇▇ for, recover, receive and give receipts for all
principal moneys payable or to become payable (howsoever and
whensoever arising) under such Loan, the related Loan Agreement and
the related Mortgage or the unpaid part thereof and all interest
payable or to become payable (howsoever and whensoever arising)
thereon; and
(d) the benefit of all securities for such principal moneys and
interest, the benefit of all arrangements with the holders of second
or subsequent or prior mortgages, charges or other Security
Interests over the Property pursuant to which such holder or the
Mortgagee, as applicable, has agreed to postpone its interest under
such mortgage, charge or other Security Interest to the relevant
Mortgage or Mortgage, the benefit of all Occupier's Consents
(including any priority conferred by them) or of any related MHA
Documentation and the benefit of and the right to ▇▇▇ on all
covenants and/or agreements with the Mortgagee in each relevant Loan
Agreement and the relevant Mortgage and the right to exercise all
powers and remedies of the Mortgagee in relation to the relevant
Loan Agreement and the relevant Mortgage; and
(e) all the estate and interest in the relevant Property vested in the
Mortgagee subject to redemption or cesser; and
(f) all causes and rights of action (both present and future) of the
Mortgagee against any valuer, any solicitor, any other person or
H.M. Land Registry or the Registers of Scotland in connection with
any report, valuation, opinion, certificate, consent or
112
other statement of fact or opinion given in connection with any such
Loan, the relevant Loan Agreement or the relevant Mortgage or
affecting the Mortgagee's decision to make the relevant advance
initially; and
(g) the right (if any) of the Mortgagee to receive the proceeds of any
claim under any of the relevant Insurance Policies; and
(h) all causes and rights of action (present and future) against any
solicitor or valuer in connection with the completion of such Loan
and the related mortgage documentation and any advice given in
relation thereto;
"Report on Title" means a report on title in respect of a Property
comprising part of the Standard Mortgage Documentation;
"Repurchase Rights" means, in relation to a Loan at any time, all right,
title, interest, benefit and obligations of the Company in and to the
relevant Loan and its Collateral Security at that time;
"Scottish Loan" means a Loan secured by a Scottish Mortgage;
"Scottish Mortgage" means a Mortgage secured over a Property situated in
Scotland;
"Scottish Transfer" means assignations of the Loans and their related
Mortgages in substantially either of the forms of Schedules 7 and 8 as the
case may be;;
"Security Interest" has the meaning ascribed to "Encumbrance" in the Loan
Facility Agreement;
"Standard Mortgage Documentation" means the documents used by the
Originators in respect of the Loans in connection with their activities as
residential mortgage lenders and shall include such other documents as may
from time to time be substituted therefor or added thereto;
"Standard Security" means a standard security in terms of the Conveyancing
and Feudal Reform (Scotland) ▇▇▇ ▇▇▇▇;
"Supplemental Scottish Declaration of Trust" means any declaration of
trust over Scottish Loans and their related Collateral Security granted by
the Originator in favour of the Company pursuant to, and substantially in
the form set out in Schedule 9;
"Title Deeds" means, in respect of a Loan and the related Property, the
property deeds and the security therefor or thereover;
"Transfer Documents" means, in respect of a Loan and its related
Collateral Security, the relevant Transfer and Assignments;
113
"Transfers" means, in relation to registered land in England and Wales and
such land which is the subject of an application for first registration,
transfers of the Loans and their related Mortgages (there being one for
each District Land Registry) in the form of Schedule 2, in relation to
unregistered land in England and Wales (excluding such land which is the
subject of an application for first registration), transfers of the Loans
and their related Mortgages in the form of Schedule 3 and, in relation to
land in Scotland, Scottish Transfers;
"Trust Event" means:
(i) in any case where clause 2 applies, the transfer of funds to or to
the order of the relevant Originator in accordance with clause
2.1(b) of that clause; and
(ii) in any case where clause 3 applies, the transfer of funds to or to
the order of the relevant Originator in discharge of the
consideration for the purchase of that Loan referred to in that
clause;
"Valuation Report" means a report in respect of a Property made by an
Approved Valuer substantially in the form set out in the Standard Mortgage
Documentation; and
"Warranties" means the representations and warranties on the part the
relevant Originator contained clause 9.
1.2 Any reference in the Agreement to:
"agreed draft" means, in relation to any document, the draft of that
document which has been agreed between the parties thereto and initialled
on their behalf for the purposes of identification;
a "clause" or a "Schedule" shall, unless the context otherwise requires,
to be a clause or schedule of this Agreement;
the "Lender" shall be construed so as to include its and any subsequent
successors and assigns in accordance with their respective interests;
a "month" is a reference to a period starting one day in a calendar month
and ending on the numerically corresponding day in the next following
calendar month provided that, where any such period would otherwise end on
a day which is not a Business Day, it shall end on the following
succeeding Business Day, unless that day falls in the calendar month next
following that in which it would otherwise have ended, in which case it
shall end on the immediately preceding Business Day and provided further
that, if there is no numerically corresponding day in the next following
calendar month, that period shall end on the last Business Day in that
next following calendar month (and references to "months" shall be
construed accordingly);
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
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"(pound)" and "Sterling" shall be to the lawful currency of the United
Kingdom;
"tax" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature imposed or levied in the United Kingdom
(including, without limitation, any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time;
the "winding-up", "dissolution" or "administration" of a company shall be
construed so as to include any equivalent or analogous proceedings under
the law of the jurisdiction in which such company is incorporated or any
jurisdiction in which such company carries on business;
words particular to Scots law shall be construed accordingly.
2 ORIGINATION OF NEW LOANS
2.1 If an Originator intends to make a Proposed New Loan and such Proposed New
Loan, if advanced, would satisfy the Eligibility Criteria, then in each
case subject to and in accordance with this Agreement:
(a) that Originator (or the Administrator on its behalf) may request
that the Company lends to that Originator such funds as that
Originator shall require in order to advance such Proposed New Loan
and shall, in conjunction with such request, supply to the Company
the Agreed Loan Information;
(b) the Company shall, following any such request, notify that
Originator whether, in respect of that Proposed New Loan, it is
willing to fund the origination of that Loan and, if so, will, at
the request of that Originator (or the Administrator on its behalf),
and subject to the prior receipt from the relevant Approved
Solicitors of an Approved Undertaking, transfer such funds to the
Approved Solicitors nominated by that Originator (or the
Administrator on its behalf);
(c) that Originator (or the Approved Solicitor on its behalf) shall, as
soon as possible, complete the New Loan utilising the funds advanced
by the Company for that purpose; and
(d) immediately upon completion of each New Loan pursuant to sub-clause
(c) above, that Originator shall transfer to the Company all its
right, title, interest and benefit in and to that New Loan and
related Mortgage and its related Collateral Security including the
Relevant Rights by executing the Transfer Documents and will procure
that the Approved Solicitor provide an Approved Undertaking in
respect of the relevant New Loan completed.
2.2 The transfer by the relevant Originator of the relevant New Loan shall
constitute the consideration for the repayment of the Loans pursuant to
this Agreement and discharge in full
115
the obligation on the part of the relevant Originator to repay the loan
made by the Company to the relevant Originator in respect of that New Loan
pursuant to clause 2.1(a).
2.3 The Company shall not be obliged to provide funds for New Loans originated
by any of the Originators and the Originators shall not be under any
obligation to originate New Loans.
3 TRANSFER OF EXISTING LOANS
If, following any request made in accordance with clause 2.1(a), the
Company at its sole discretion notifies the relevant Originator that it is
only prepared to purchase a Proposed New Loan after completion thereof by
the relevant Originator, it shall notify the relevant Originator of the
date upon which it is prepared to effect such purchase and, subject to the
prior receipt by the Company from the relevant Approved Solicitors of an
Approved Undertaking, the Company will pay to the relevant Originator the
Purchase Price of that New Loan whereupon the relevant Originator shall
sell and the Company shall purchase from the relevant Originator all the
relevant Originator's right, title, interest and benefit in and to that
New Loan its related Mortgage and its related Collateral Security
including the Relevant Rights upon and subject to the terms set out in
clause 2.1(d) as if the reference therein to completion were a reference
to such purchase.
4 NO EXCLUSIVITY
Nothing herein or in any of the other Transaction Documents shall prevent
or restrict any Originator entering into any other arrangement with any
party other than the Company having similar effect to this Agreement.
5 REQUEST FOR FUNDS
5.1 In the case of the origination of a Proposed New Loan pursuant to clause
2.1, the relevant Originator shall instruct or shall procure that the
Administrator instructs the relevant Approved Solicitor to procure that
any request for transfer of funds to complete that Proposed New Loan (the
"Funds Transfer Request") is made and a copy provided to the Company no
later than the close of business of the Business Day before the day set
for completion of the relevant Proposed New Loan.
5.2 The Company's obligation to transfer the funds in order to complete any
Proposed New Loan shall arise only upon the date referred to as the
"Completion Date" in the Funds Transfer Request and the relevant monies
shall be transferred on that date by the Company (or the Administrator on
its behalf) from the Borrower Funding Account (as defined in the Loan
Facility Agreement) to the relevant client account of the relevant
Approved Solicitors.
5.3 In the case of a purchase of a New Loan pursuant to clause 3, the Company
(or the Administrator on its behalf) shall, subject as set out in clause
3, procure the transfer from the Borrower Funding Account on the relevant
date of the consideration referred to therein.
5.4 If any Proposed New Loan has not been completed within five Business Days
following the
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date upon which the Company transfers funds to the relevant Approved
Solicitors (in this sub-clause, the "relevant date") the relevant
Originator (or the Administrator on its behalf) shall procure that such
funds are re-transferred to the Company to such account as the Company
shall from time to time specify no later than the Business Day following
the relevant date.
6 DECLARATION OF TRUST
In consideration of the Company agreeing to enter into this Agreement:
(a) each Originator agrees to execute the Originator Declaration of
Trust;
(b) each Originator hereby agrees to grant and execute a Supplemental
Scottish Declaration of Trust in relation to each Loan which is a
Scottish Loan forthwith upon the relevant Trust Event in respect
thereof; and
(c) each Originator hereby agrees to grant and execute a.Scottish
Transfer in relation to each New Loan which is a Scottish Loan
forthwith upon the relevant Trust Event in respect thereof.
7 CLOSING DATE
On the Closing Date, the Originators shall deliver to the Company or as it
may direct duly executed by each Originator:
(a) the Originator Declaration of Trust; and
(b) the Originator Power of Attorney.
8 TITLE DEEDS
8.1 Each Originator shall hold or procure that there are held all of the Title
Deeds and Loan Files relating to each of the Loans comprised in the
Portfolio for the benefit of, and to the order of, the Company or such
other person or persons as the Company shall specify with effect from the
occurrence of the relevant Trust Event in respect thereto until delivery
to or at the direction of the Company. Each Originator shall hold such of
the Title Deeds and Loan Files as it does not have in its possession for
the benefit of, and to the order of, and upon trust for, the Company or
such other person or persons as the Company shall specify from the date
upon which it obtains possession of the same until delivery to or at the
direction of the Company. Each Originator shall, at the request of the
Company, deliver to any third party specified by the Company, a written
acknowledgement that the Title Deeds and/or Loan files and/or Relevant
Right received by or, as the case may be, in the possession of that
Originator are held to the order of that third party, such acknowledgement
to be in a form satisfactory to the Company.
8.2 To the extent that any of the documents referred to in clause 8.1 are held
to the order of an Originator by H.M. Land Registry or the Registers of
Scotland or by solicitors acting for an
117
Originator or any Borrower, that Originator will, with effect from the
Closing Date, treat all of such documents as if held to the order of the
Company.
8.3 If at (or at any time after) the Closing Date, an Originator holds, or
there is held to its order, or it receives, or there is received to its
order, any of the Relevant Rights in respect of any of the Loans comprised
in the Portfolio, that Originator undertakes with the Company that it will
hold such Relevant Rights upon trust for the Company as the trustee
thereof pursuant to the Originator Declaration of Trust or for such other
person or persons as the Company shall specify.
8.4 To give effect to the provisions of this clause 8, the relevant Originator
shall procure that the relevant Approved Solicitor shall, upon completion
of a New Loan, or, as the case may be, the purchase of an Existing Loan in
accordance with this Agreement, provides an Approved Undertaking.
9 WARRANTIES AND REPRESENTATIONS
Each Originator, in respect of Trust Property comprising Loans originated
or, as applicable, sold by it, severally represents and warrants to the
Company as at the time of the relevant Trust Event in the same terms,
mutatis mutandis, as those representations and warranties given on the
part of the Company set out in clause 14.3(B) of the Loan Facility
Agreement.
10 CONSEQUENCES OF WARRANTY BREACH
10.1 In the event of there being a breach of the Warranties the effect of which
is to entitle the Lender to reduce the Loan Value (as defined in the
Proceeds Agreement) in respect of any Loan to 0%, the relevant Originator
shall, within 28 days after receipt of written notice of such breach from
the Company, be entitled to attempt to remedy the matter giving rise to
such breach of Warranty. If such matter is capable of remedy or, if such
matter is not capable of remedy, or, if capable of remedy, is not so
remedied within the said period of 28 days, the relevant Originator shall
be entitled to serve a notice (a "Call Notice") requiring the Company to
sell to that Originator or to such other person as that Originator may
direct its Repurchase Rights in relation to such Loan free from any right
or interest created thereover by the Company.
10.2 Completion of any sale under clause 10.1 shall take place immediately
following expiry of the 28 day period referred to therein, or at the
relevant Originator's earlier election, when the relevant Originator shall
pay or procure the payment to the Company or as the Company shall direct,
an amount equal to the Purchase Price. Any sale of a Loan by the Company
pursuant to the foregoing provisions of this clause shall be free from
encumbrances created by the Company but otherwise the relevant Originator
or other relevant purchaser shall have no recourse to the Company in
respect thereof.
11 RELEASE
The Company shall within a reasonable period after receipt of notice of
such proposed sale, execute and deliver a deed of assignment, assignation,
transfer or release, as applicable, at the request and cost of the
relevant Originator or other relevant purchaser of any such Loan and
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its Collateral Security against payment therefor in accordance with
clauses 10.2.
12 EFFECT OF PURCHASE
Any purchase of a Loan and its Collateral Security in accordance with
clause 10 shall constitute a discharge and release of the relevant
Originator from any claims which the Company may have against that
Originator arising from breach of any Warranty in relation to that Loan
but shall not affect any rights arising from a breach of Warranty in
relation to any other Loan.
13 COVENANTS AND UNDERTAKINGS
13.1 Each Originator undertakes, severally in respect of the Loans originated
or sold by it hereunder, with the Company that:
(a) if any legal or regulatory proceedings are raised against it, it
will immediately notify the Company thereof;
(b) if the Company so requires in writing, each of the Originators shall
join in any legal proceedings brought by the Company against any
person relating to the Loan and the related Mortgage agreed to be
sold thereby, subject always to that Originator being fully
indemnified to its reasonable satisfaction for its costs by the
Company;
(c) it will not sell, transfer or dispose of or purport to sell,
transfer or dispose of any interest in or otherwise deal in any Loan
or the related Collateral Security sold by it other than as
contemplated by this Agreement or any of the other Transaction
Documents; and
(d) it will notify the Company of all material breaches of Warranties.
14 MERGER
Any term of this Agreement to which effect is not given on the Closing
Date shall not merge and shall remain in full force and effect
notwithstanding Closing.
15 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 any of the
parties and that in fulfilling its obligations hereunder, each party shall
be acting entirely for its own account.
16 PAYMENTS
All payments to be made pursuant to this Agreement shall be made, without
set-off or counterclaim, in sterling in immediately available funds and
shall be deemed to be made when they are received by the payee and shall
be accounted for accordingly.
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17 WAIVERS AND VARIATIONS
17.1 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.
17.2 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.
18 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the parties in relation to the subject matter hereof and cancels and
replaces any other agreement or understanding in relation thereto.
19 NOTICES
19.1 Giving of notices
All notices or other communications under or in connection with the
Transaction Documents shall be given in writing or by facsimile. Any such
notice will be deemed to be given as follows:
(a) if in writing and sent by hand, when delivered;
(b) if in writing and sent by post, 48 hours after posting; and
(c) if by facsimile, when satisfactorily transmitted.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
19.2 Address for notices
(a) The address, telephone and facsimile number of the Lender is:
Greenwich International, Ltd., ▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
Tel No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
120
Offices of the General Counsel, located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Tel No: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax No: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: General Counsel
or such other address, telephone or facsimile number as the Lender
may notify to the other parties by not less than 5 Business Days'
notice.
(b) The address and facsimile number of the Company are:
Mortgage Management Limited, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Tel No: ▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax No: ▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Company Secretary
or such other address, telephone or facsimile number as the Company
may notify to the other parties by not less than 5 Business Days'
notice.
(c) The address, telephone and facsimile number of the Originators is:
c/o City Mortgage Corporation Limited, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Tel No: ▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax No: ▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Company Secretary
or such other address, telephone or facsimile number as CMC may
notify to the other parties by not less than 5 Business Days'
notice.
20 ASSIGNMENT
Neither the Originators nor the Company may assign or create any Security
Interest over its rights or interest and/or transfer its obligations under
this Agreement, save that (i) the Company may assign its rights under this
Agreement pursuant to the Debenture or otherwise with the prior written
consent of the Lender provided that nothing herein shall prevent the
Company from exercising such rights as it may have over or in respect of
the Portfolio, as provided in the Transaction Documents. The Originators
nominate and authorise CMC to receive and acknowledge receipt of any
notices or intimations in respect of such assignations, charges or
security granted by the Company in favour of the Lender, on their behalf.
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21 GOVERNING LAW
This document shall be governed by and construed in accordance with
English law, provided that any terms hereof which are particular to the
law of Scotland shall be governed by and construed in accordance with
Scots law.
IN WITNESS whereof the Originators and the Company have executed these presents
as a Deed at London on the day and year first before written.
Executed as a deed )
by CITY MORTGAGE )
CORPORATION LIMITED )
acting as attorney: )
Executed as a deed )
by J & J SECURITIES LIMITED )
acting as attorney: )
Executed as a deed )
by HOME MORTGAGES )
CORPORATION LIMITED )
acting as attorney: )
Executed as a deed )
by HOME FUNDING )
CORPORATION LIMITED )
acting as attorney: )
Executed as a deed )
by ASSURED FUNDING )
COPORATION LIMITED )
acting as attorney: )
122
Executed as a deed )
by MORTGAGE MANAGEMENT )
LIMITED )
acting as attorney: )
123
SCHEDULE 1
FORM OF ORIGINATOR POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on [ ]
BY
(1) CITY MORTGAGE CORPORATION LIMITED (registered number 3043776) whose
registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ("CMC");
(2) J&J SECURITIES LIMITED (registered number 1335672) whose registered office
is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ("J&J");
(3) HOME MORTGAGE CORPORATION LIMITED (registered number 2000967) whose
registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ("HMC");
(4) HOME FUNDING CORPORATION LIMITED (registered number 1967932) whose
registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ("HFC");
(5) ASSURED FUNDING CORPORATION LIMITED (registered number 2102520) whose
registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ("AFC");
(each, a "Donor" and, together, the "Donors") in favour of each of the
following two parties (identified at (6) and (7)) (each a "Donee" and
together the "Donees")
(6) MORTGAGE MANAGEMENT LIMITED (registered number 2002263) whose registered
office is at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ("MML");
and
(7) GREENWICH INTERNATIONAL, LTD. a company incorporated in Bermuda whose
registered office is at Cedar House, 41 Cedar Avenue, ▇▇▇▇▇▇▇▇, Bermuda
and whose branch in the United Kingdom is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("GIL").
WHEREAS
(A) By an agreement of even date between the parties hereto (the "Origination
and Transfer Agreement"), the Donors agreed to transfer to the Company the
Loans and their Collateral Security.
(B) By or pursuant to the Originator Declaration of Trust and any Scottish
Declaration of Trust executed pursuant to the Origination and Transfer
Agreement, the Donors are to hold the benefit of the legal title or
proprietorship, as the case may be, to or of the Loans and their
Collateral Security on trust for the Company absolutely.
(C) The Donors have agreed to enter into these presents for the purposes
hereinafter appearing.
(D) Words and expressions defined in the Origination and Transfer Agreement
shall, unless
124
otherwise defined herein or unless the context otherwise requires, have
the same meanings in this Agreement.
NOW THIS DEED WITNESSETH THAT EACH DONOR HEREBY APPOINTS each of the Donees
severally to be its true and lawful attorney (with power to sub-delegate) for it
and in its name to do the following acts and things or any of them:
1. to exercise its rights, powers and discretion under the Mortgage Loans and
their Collateral Security including the right to determine and set, in its
absolute discretion, the rate or rates of interest chargeable to the
relevant borrowers under the Mortgage Loans and Mortgages in accordance
with the relevant Mortgage Conditions referred to therein (including,
without limitation, the right, in its absolute discretion, to set and to
calculate the Monthly Payments);
2. to exercise all powers exercisable by the Donor by reason of its remaining
for the time being the legal mortgagee or registered or recorded heritable
creditors in respect of any of the Mortgages or, as the case may be, the
registered proprietor at HM Land Registry or the registered or recorded
heritable creditor in the Registers of Scotland of any of the Mortgages;
3. to demand ▇▇▇ for and receive all moneys due or payable under the Mortgage
Loans and their related Mortgages or any such Collateral Security or
related rights;
4. upon payment of such moneys or of any part thereof to give good receipts
and discharges for the same and to execute such receipts, releases,
re-assignments, surrenders, instruments and deeds as may be requisite or
advisable.
5. without prejudice to any of the foregoing, to execute and deliver in the
case of English Mortgages of Property which relate to registered land
(including any Property which is the subject of an application for first
registration) such legal transfers in the form set out in Schedule 2 to
the Origination and Transfer Agreement and, in the case of English
mortgages of Property which relate to unregistered land, legal transfers
in the form set out in Schedule 3 to the Origination and Transfer
Agreement and, in the case of Scottish Mortgages, assignations in either
of the forms (as appropriate) set out in Schedule 7 and 8 to the
Origination and Transfer Agreement as a Donee considers necessary (with,
in either case, such amendments as may reasonably be required to such
transfers and assignations) together with such further transfers,
assignments and assignations of the other Collateral Security and related
rights sold by that Donor under the Origination and Transfer Agreement or,
as the case may be, held on trust pursuant to any Scottish Declarations of
Trust and notices of all such transfers, assignments and assignations, in
each case in such form as a Donee may require including, without
limitation, assignments and assignations in the respective forms set out
in the schedules to the Origination and Transfer Agreement (or such other
forms as a Donee may reasonably require) in order to perfect the Company's
interest therein by means of a transfer or assignation of the legal estate
and title; and
6. from time to time to substitute and appoint severally one or more attorney
or attorneys for all or any of the purposes aforesaid.
AND each Donor hereby agrees at all time hereafter to ratify and confirm
whatsoever any act matter or deed any attorney or substitute shall lawfully do
or cause to be done under or concerning these presents.
125
AND each Donor hereby declares that these presents having been given for
security purposes and to secure a continuing obligation the powers hereby
created shall be irrevocable within the meaning of Section 4 of the Powers of
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
This Power of Attorney shall be governed by English law.
DULY DELIVERED as a deed on the day and year first before written.
Executed and delivered as a deed )
by CITY MORTGAGE )
CORPORATION LIMITED )
in the presence of: )
Director
Director
Executed and delivered as a deed )
by J&J SECURITIES LIMITED )
in the presence of: )
Director
Director
126
Executed and delivered as a deed )
by HOME MORTGAGES )
CORPORATION LIMITED )
in the presence of: )
Director
Director
Executed and delivered as a deed )
by HOME FUNDING )
CORPORATION LIMITED )
in the presence of: )
Director
Director
Executed and delivered as a deed )
by ASSURED FUNDING )
CORPORATION LIMITED )
in the presence of: )
Director
Director
127
ANNEXURE
(List of Donors)
City Mortgage Corporation Limited
(Registered No. 3043776)
J&J Securities Limited
(Registered No. 1335672)
Home Mortgages Corporation Limited
(Registered No. 2000967)
Home Funding Corporation Limited
(Registered No. 1967932)
Assured Funding Corporation Limited
(Registered No. 2102520)
128
SCHEDULE 2
(FORM OF TRANSFER (REGISTERED LAND))
HMLR FORM 54
H.M. LAND REGISTRY
LAND REGISTRATION ACTS 1925 TO 1988
TRANSFER OF CHARGES
District Land Registry :
Title No :
Properties :
Date :
[ ] (registered number ) whose registered office is
at [ ](the "Transferor") with full title guarantee hereby transfers
to MORTGAGE MANAGEMENT LIMITED (registered number ) whose registered office
is at [ ] (the "Transferee") all right, title, interest and benefit (both
present and future) of the Transferor in the several charges (the "Charges")
particulars whereof are set out in the Annexure hereto of which it is or is
entitled to be the registered proprietor including for the avoidance of doubt:
(a) the right to demand, ▇▇▇ for, recover and give receipts for all principal
monies under the Charges or the unpaid part thereof and the interest to
become due thereon; and
(b) the benefit of all securities for such principal monies and interest and
the benefit of and the right to ▇▇▇ on all covenants with the Transferor
in each Charge and the right to exercise all powers of the Transferor in
relation to each Charge; and
(c) all the estate and interest in the properties brief particulars of which
are set out in the Annexure hereto vested in the Transferor subject to
redemption or cesser; and
(d) all causes of action of the Transferor against any person in connection
with any report, valuation, opinion, certificate or other statement of
fact or opinion given in connection with any Charge or effecting the
Transferor's decision to make the relevant advance; and
(e) the benefit of any deeds given in respect of any Charge by any occupier of
the property the subject of such Charge and aged eighteen years or over,
postponing his interest in such property, if any, so that it ranks after
that of the Transferor; and
(f) the benefit of any deeds given in respect of any Charge whereby any person
holding the benefit of any mortgage, sub-mortgage, charge, sub-charge,
pledge, lien, right of set-off or other security interest affecting the
property the Charge agrees to postpone such interest in favour of any
similar interest of the Transferor.
129
but excluding (i) the legal charges on the life assurance policies (if any)
charged as collateral security therefor; (ii) the Transferor's right, title,
interest and benefit in certain other insurance contracts and certain guarantees
each comprised in separate assignments of even date herewith between the parties
hereto.
Duly delivered as a Deed on the date inserted above.
THE COMMON SEAL OF )
[ ] LIMITED )
was hereunto affixed in )
the presence of: )
Director
Director
130
ANNEXURE
Title No. Address of Name of Mortgage Loan Date of Charge
Property Borrowers Number
131
SCHEDULE 3
(FORM OF TRANSFER (UNREGISTERED LAND))
THIS TRANSFER OF MORTGAGES is made the day of 1998 BETWEEN [ ]
(registered number) whose registered office is at [ ] (the "Transferor")
of the one part and MORTGAGE MANAGEMENT LIMITED (registered number ) whose
registered office is at [ ] (hereinafter called the "Transferee") of the
other part.
WHEREAS
(A) By the mortgages ("Mortgages") brief particulars of which are contained in
the Annexure hereto, the properties (brief particulars of which are set
out therein) (the "Properties") because security for the repayment of the
monies therein mentioned.
(B) The aggregate principal sum of (pound)[ ] ([ ] pounds) secured by the
Mortgages remains due and owing together with interest thereon and the
Transferor has agreed to transfer to the Transferee all right, title,
interest and benefit of the Transferor (both present and future) in and
under the Mortgages for the consideration hereinafter mentioned.
NOW THIS DEED WITNESSETH as follows:
the Transferor will full title guarantee hereby transfers unto the Transferee
all right, title, interest and benefit of the Transferor in the Mortgages
including for the avoidance of doubt:
(a) the right to demand, ▇▇▇ for, recover and give receipts for all principal
monies under the Mortgages or the unpaid part thereof and the interest to
become due thereon; and
(b) the benefit of all securities for such principal monies and interest and
the benefit of and the right to ▇▇▇ on all covenants with the Transferor
in each Mortgage and the right to exercise all powers of the Transferor in
relation to each Mortgage; and
(c) all the estate and interest in the properties brief particulars of which
are set out in the Annexure hereto vested in the Transferor subject to
redemption or cesser; and
(d) all causes of action of the Transferor against any person in connection
with any report, valuation, opinion, certificate or other statement of
fact or opinion given in connection with any Mortgage or effecting the
Transferor's decision to make the relevant advance; and
(e) the benefit of any deeds given in respect of any Mortgage by any occupier
of the property the subject of such Mortgage and aged eighteen years or
over, postponing his interest in such property, if any, so that it ranks
after that of the Transferor; and
132
(f) the benefit of any deeds given in respect of any Mortgage whereby any
person holding the benefit of any mortgage, sub-mortgage, charge,
sub-charge, pledge, lien, right of set-off or other security interest
affecting the property the subject of the Mortgage agrees to postpone such
interest in favour of any similar interest of the Transferor.
but excluding (i) the legal charges on the life assurance policies (if any)
charged as collateral security therefor; (ii) the Transferor's right, title,
interest and benefit in certain other insurance contracts and certain guarantees
each comprised in separate assignments of even date herewith between the parties
hereto
TO HOLD the same unto the Transferee absolutely.
Duly delivered as a Deed on the date inserted above.
THE COMMON SEAL of )
[ ] )
was hereunto affixed in the presence of: )
Director
Director
133
ANNEXURE
Address of Name of Mortgage Loan
Title No. Property Borrowers Number Date of Charge
134
SCHEDULE 4
(FORM OF ASSIGNMENT OF LIFE CHARGES)
THIS ASSIGNMENT is made the day of 1997 BETWEEN
(1) [ ] (registered number ) whose registered
office is at [ ] ("the Assignor"); and
(2) MORTGAGE MANAGEMENT LIMITED (registered number ) whose registered
office is at [ ] (the "Assignee").
WHEREAS
(A) By several transfers and assignations of even date herewith and made
between the Assignor and the Assignee, the Assignor has entered into
transfers and assignations of title to certain Loans and their related
Mortgages to the Assignee.
(B) By several assignments, assignations or charges ("Life Charges") certain
life assurance policies (the "Life Policies") are assigned or charged by
way of security to the Assignor as collateral security for the sums
secured by some of the said Loans.
(C) This Assignment is supplemental to the said several transfers and
assignations.
NOW THIS DEED WITNESSETH as follows:
The Assignor with full title guarantee (or, in the case of Life Charges relative
to Scottish Loans, with absolute warrandice) hereby transfers and assigns unto
the Assignee all right, title, interest and benefit of the Assignor (both
present and future) in the Life Charges including for the avoidance of doubt:
(i) the benefit of and the right to ▇▇▇ on all covenants with and undertakings
to the Assignor in each Life Charge and the right to exercise all powers
of the Assignor in relation to each Life Charge; and
(ii) all the estate, title and interest in the Life Policies vested in the
Assignor.
TO HOLD the same unto the Assignee absolutely.
IN WITNESS WHEREOF the Assignor has caused this Assignment to be executed as a
Deed on its behalf the day and year first before written.
135
THE COMMON SEAL of )
[ ] )
was hereunto affixed in the presence of: )
Director
Director
136
SCHEDULE 5
(FORM OF ASSIGNMENT OF INSURANCE CONTRACTS)
THIS AGREEMENT is made the day of 1998
BETWEEN
(1) [ ] (registered number ) whose registered office
is at [ ] ("the Assignor"); and
(2) MORTGAGE MANAGEMENT LIMITED (registered number 2002263) whose registered
office is at [ ] (the "Assignee").
WHEREAS
(A) By several transfers and assignations of even date herewith and made
between the Assignor and the Assignee, the Assignor has entered into
transfers and assignations of title to certain Loans and their related
Mortgages to the Assignee.
(B) The Assignor has an interest in certain contracts of insurance (the
"Insurance Contracts") which relate to those Mortgages and the Properties
upon which they are secured ("Properties");
(C) This Assignment is supplemental to the said several transfers and
assignations.
NOW THIS DEED WITNESSETH as follows:
IN further consideration of the sums referred to in the said several transfers
and assignations the Assignor with full title guarantee hereby assigns unto the
Assignee absolutely all rights, title, interest and benefit of the Assignor (if
any) (whether present or future) in relation to the Insurance Contracts
including the rights to receive the proceeds of any claim
TO HOLD the same unto the Assignee absolutely.
IN WITNESS WHEREOF the Assignor has caused this Assignment to be executed as a
Deed on its behalf the day and year first before written.
THE COMMON SEAL of )
[ ] )
was hereunto affixed in the presence of: )
Director
Director
137
SCHEDULE 6
(FORM OF ASSIGNMENT OF GUARANTEES)
THIS ASSIGNMENT is made the day of 1998
BETWEEN
(1) [ ] (registered number ) whose registered office
is at [ ] ("the Assignor"); and
(2) MORTGAGE MANAGEMENT LIMITED (registered number 2002263) whose registered
office is at [ ] (the "Assignee").
WHEREAS
(A) By several transfers and assignations of even date herewith and made
between the Assignor and the Assignee, the Assignor has entered into
transfers and assignations of title to certain Loans and their related
Mortgages to the Assignee.
(B) The Assignor has the benefit of certain guarantees the ("Guarantees") as
security for the obligations of borrowers in relation to the Loans.
(C) This Assignment is supplemental to the said several transfers and
assignations.
NOW THIS DEED WITNESSETH as follows:
In further consideration of the sums referred to in the said several transfers
and assignations the Assignor with full title guarantee (or, in the case of
Guarantees relative to Scottish Loans, with absolute warrandice) hereby assigns
unto the Assignee all right, title, interest and benefit of the Assignor
(whether present or future, legal or equitable) in and under all Guarantees
taken by it in respect of the obligations of any of the borrowers in respect of
the obligations of any of the borrowers in relation to the Loans
TO HOLD the same unto the Assignee absolutely.
IN WITNESS WHEREOF the Assignor has caused this Assignment to be executed as a
Deed on its behalf the day and year first before written.
THE COMMON SEAL of )
[ ] )
was hereunto affixed in the presence of: )
Director
Director
138
SCHEDULE 7
(FORM OF SCOTTISH TRANSFER (LAND REGISTER))
WE, [insert name of Originator], incorporated under the Companies Acts in
England (Number [ ]) and having our Registered Office at [ ] (the
"Assignor"), in implement pro tanto of an Origination and Transfer Agreement
among us the Assignor, Mortgage Management Limited (registered number 2002263)
and having its registered office at [ ] (the "Company") and others
dated [ ](the "Mortgage Transfer Agreement") and for the consideration
set out therein HEREBY ASSIGN to the Company the Standard Securities granted
by the respective parties whose names are specified in Column 1 of the Schedule
annexed and executed as relative hereto in favour of us the Assignor for all
sums due and to become due, to the extent of the respective sums specified in
the relative entry in Column 2 of the said Schedule being the amounts now due
under the said respective Standard Securities, registered said respective
Standard Securities in the Land Register under the Title Number specified in the
relative entry in Column 3 of the said Schedule on the date specified in the
relative entry in Column 4 of the said Schedule: With interest and arrears and
accumulations of interest and charges from [ ]: And we the Assignor further
ASSIGN to and in favour of the Company our whole right title and interest in all
and any credit agreements or agreements for loan entered into between us the
Assignor and the said respective parties whose names are specified in Column 1
of the said Schedule and secured by the said Standard Securities:
IN WITNESS WHEREOF these presents typewritten on this page are together with the
Schedule annexed hereto executed as follows:-
SUBSCRIBED for and on behalf of the
said [insert name of Originator]
at
.................................
on
.................................
by
.................................
.................................
.................................
.................................
139
This is the Schedule referred to in the foregoing Assignation of Standard
Securities by [insert details of Originator] in favour of the Company
dated [insert date].
1 2 3 4
[Parties] [Loan Outstanding] [Title No.] [Registration Date]
140
SCHEDULE 8
(FORM OF SCOTTISH TRANSFER (SASINE REGISTER))
WE, [insert name of Originator], incorporated under the Companies Acts in
England (Number [ ]) and having our Registered Office at [ ]
(the "Assignor"), in implement pro tanto of an Origination and Transfer
Agreement among us the Assignor, Mortgage Management Limited (registered number
2002263) and having its registered office at [ ] (the "Company") and others
dated [ ] (the "Mortgage Transfer Agreement") and for the consideration
set out therein HEREBY ASSIGN to the Company the Standard Securities granted by
the respective parties whose names are specified in Column 1 of the Schedule
annexed and executed as relative hereto in favour of us the Assignor for all
sums due and to become due, to the extent of the respective sums specified in
the relative entry in Column 2 of the said Schedule being the amounts now due
under the said respective Standard Securities, recorded said respective Standard
Securities in the Register for the County specified in the relative entry in
Column 3 of the said Schedule on the date specified in the relative entry in
Column 4 of the said Schedule: With interest and arrears and accumulations of
interest and charges from [ ]: And we the Assignor further ASSIGN to and in
favour of the Company our whole right title and interest in all and any credit
agreements or agreements for loan entered into between us the Assignor and the
said respective parties whose names are specified in Column 1 of the said
Schedule and secured by the said Standard Securities:
IN WITNESS WHEREOF these presents typewritten on this page are together with the
Schedule annexed hereto executed as follows:-
SUBSCRIBED for and on behalf of the
said [insert name of Originator]
at
.................................................
on
.................................................
by
.................................................
.................................................
.................................................
.................................................
REGISTER on behalf of the within named Mortgage Management Limited in the
REGISTERS of the COUNTIES of [ ]
Agents
141
This is the Schedule referred to in the foregoing Assignation of Standard
Securities by [insert details of Originator] in favour of the Company
dated [insert date].
1 2 3 4
[Parties] [Loan Outstanding] [County] [Recording Date]
142
SCHEDULE 9
(FORM OF SCOTTISH DECLARATION OF TRUST)
DECLARATION OF TRUST
between
[Insert name of Originator] LIMITED, incorporated under the Companies Acts in
England (Registered Number ) and having its registered office at [ ]
(the "Originator")
and
MORTGAGE MANAGEMENT LIMITED incorporated under the Companies Acts in England
(registered number 2002263) and having its registered office at [ ] (the
"Company")
WHEREAS:
(A) Legal title to the Further Scottish Trust Property aftermentioned is held
by and vested in the Originator;
(B) In terms of an Origination and Transfer Agreement made between the
Originator, the Company and others dated [ ] Nineteen hundred and
Ninety eight (the "Origination and Transfer Agreement") the Originator has
agreed to sell the said Further Scottish Trust Property to the Company;
and
(C) In implement of the Origination and Transfer Agreement and pending the
taking of legal title to the said Further Scottish Trust Property by the
Company, the Originator has undertaken to grant this deed:
NOW THEREFORE the parties HEREBY AGREE AND DECLARE as follows:
1 Interpretation
In this deed (which expression shall include the Schedule and Recitals
hereto):
1.1 words and expressions defined in the Origination and Transfer Agreement
shall, unless the context otherwise requires, have the same meanings in
this deed;
1.2 Further Scottish Trust Property shall mean the Scottish Loans and the
whole Collateral Security (including without limitation the Scottish
Mortgages) relative thereto, brief particulars of which Loans, Scottish
Mortgages are detailed in the schedule annexed and executed as relative
hereto), and (a) all principal sums, including any further advances,
present or future, interest and expenses comprised therein and secured
thereby, (b) all monies, rights, interests, benefits and others pertaining
thereto or deriving therefrom (including without limitation all
143
MHA Documentation) including Related Rights and (c) all powers and
remedies for enforcing the same and (d) all proceeds resulting from the
enforcement of any of the Loans their related Mortgages and their
Collateral Security; and
1.3 words importing the singular number include the plural and vice versa.
2 Declaration of Trust
The Originator hereby DECLARES that from and after the date hereof it
holds and, subject to Clause 6 hereof, shall henceforth hold the Further
Scottish Trust Property and its whole right, title and interest, present
and future, therein and thereto in trust absolutely for the Company and
its assignees (whether absolutely or in security) whomsoever.
3 Intimation
The Originator hereby intimates to the Company the coming into effect of
the trust hereby declared and created and the Company by its execution
hereof immediately subsequent to the execution of this deed by the
Originator acknowledges such intimation.
4 Dealings with Trust Property and Negative Pledge
The Originator 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 Further
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 Further Scottish Trust Property or
otherwise dispose of the same at any time when such Further Scottish Trust
Property or part thereof remains subject to the trust hereby created; and
4.3 it shall deal with the Further Scottish Trust Property (including without
prejudice to said generality the calculation and setting of any interest
rate applicable thereto) in accordance with the provisions of the
Transaction Documents and the specific written instructions (if any) of
the Company and 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 Further
Scottish Trust Property but only in accordance with the specific written
instructions (if any) of the Company and its foresaids.
5 Transfer of Title
The provisions of the Origination and Transfer Agreement shall be deemed
to be incorporated herein insofar as the same pertain to the Further
Scottish Trust Property and during the continuance of the trust hereby
declared and created the Company as beneficiary hereunder shall have the
benefit of all rights and powers conferred, including without limitation
the right to perfect legal title to the Further Scottish Trust Property or
any part thereof and to call upon
144
the Originator to undertake all acts and things and execute all deeds and
documents as may be required to effect the same, and notwithstanding the
winding up of the Originator or the making of any administration order in
respect of the Originator or the appointment of a receiver to all or any
part of the Further Scottish Trust Property, and for further assuring the
said rights and powers the Originator has executed and delivered to the
Company the Originator Power of Attorney.
6 Termination of Trust
If legal title to any part or parts of the Further Scottish Trust Property
is taken by the Company in accordance with the provisions of Clause [ ] of
the Origination and Transfer Agreement (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 any part of parts of the
Further Scottish Trust Property forms the subject of a purchase or
repurchase in accordance with the terms of the Origination and Transfer
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 Further Scottish Trust Property but shall
continue in full force and effect in respect of the sole remainder (if
any) of the Further Scottish Trust Property.
7 Assignation
The Company shall be entitled to assign (whether absolutely or in
security) its rights and interests under this deed and the trust hereby
declared and created. [In the event of such assignation being made by the
Company, the Originator hereby appoints and authorises City Mortgage
Corporation Limited as agent of the Originator for the purposes of
acknowledging intimation of such assignation. [This paragraph is to be
deleted where CMC is the Originator]
8 Variation
For so long as any of the Secured Amounts remain outstanding, this deed
and the trust hereby declared and created shall not be varied in any
respect without the consent in writing of the Company and GIL.
9 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.
145
10 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 Originator and the Company at [ ] on [ ] 1998
as follows:
SUBSCRIBED for and on behalf of the
said [insert name of Originator]
LIMITED
by
..................................... .................................
and
..................................... .................................
SUBSCRIBED for and on behalf of the
said MORTGAGE MANAGEMENT
LIMITED by
..................................... .................................
and
..................................... .................................
146
Schedule referred to in the foregoing Scottish Declaration of Trust by City
Mortgage Corporation Limited in favour of Mortgage Management Limited
1 2 3 4
Account No. Borrowers full Address of secured Sums Due
names property
147
SCHEDULE 10
INFORMATION TO BE CONTAINED IN LOAN SCHEDULE
For each capital repayment loan and each interest only loan (loans of each type
to be shown separately) the following information shall be contained in the Loan
Schedule:
(i) the Loan reference number;
(ii) the charge priority of the Loan;
(iii) the name of the Mortgagor;
(iv) the identity of the Originator;
(v) the address of the mortgaged Property including the postcode;
(vi) the open market value of the Property;
(vii) the date of maturity of the Loan;
(viii) the first payment date of the Loan;
(ix) the principal amount of the Loan;
(x) the cut-off date balance of the Loan;
(xi) the scheduled payment amount of principal and interest;
(xii) the rate of interest applicable to the Loan;
(xiii) the loan to value ratio at the open market value of the
Property; and
(xiv) the Property type.
148
SCHEDULE 11
(THE ORIGINATORS)
City Mortgage Corporation Limited
(Registered No. 3043776)
J&J Securities Limited
(Registered No. 1335672)
Home Mortgages Corporation Limited
(Registered No. 2000967)
Home Funding Corporation Limited
(Registered No. 1967932)
Assured Funding Corporation Limited
(Registered No. 2102520)
149
SCHEDULE 12
(FORM OF ORIGINATOR DECLARATION OF TRUST)
THIS DECLARATION OF TRUST is made the [ ] day of [ ] 1998 by:
(1) THE COMPANIES listed in the Annexure hereto (the "Originators" and, each,
an "Originator")
IN FAVOUR OF:
(2) MORTGAGE MANAGEMENT LIMITED, incorporated under the Companies Acts in
England (registered number [ ]) and having its registered office at
[ ] (the "Company").
NOW THIS DEED WITNESSETH:
1. Interpretation and definitions
1.1 In this deed, unless the context otherwise requires:
(a) words and expressions shall have the same meanings as are
respectively ascribed to them in an agreement (the "Origination and
Transfer Agreement") of even date between the Originators and the
Company;
(b) "Trust Property" means:
(i) in respect of each Proposed New Loan, prior to the completion
of that Proposed New Loan, the relevant Origination Funds; and
(ii) in respect of each Loan, all of the Relevant Rights; and
(c) "Trust Event" has the meaning ascribed thereto in the Origination
and Transfer Agreement.
2. Declaration of Trust
2.1 Each Originator hereby agrees and declares that it will hold upon trust
for the Company absolutely with effect from each relevant Trust Event the
relevant Trust Property.
2.2 Each Originator hereby agrees with the Company that it will not assign,
transfer or otherwise dispose of any Trust Property vested in it other
than in accordance with the Origination and Transfer Agreement.
3. Governing Law
This deed shall be governed by and construed in accordance with English
law.
IN WITNESS whereof this deed has been executed by each of the Originators for
delivery on the date and year first before written.
150
ANNEXURE
(List of Originators)
City Mortgage Corporation Limited
(Registered No. 3043776)
J&J Securities Limited
(Registered No. 1335672)
Home Mortgages Corporation Limited
(Registered No. 2000967)
Home Funding Corporation Limited
(Registered No. 1967932)
Assured Funding Corporation Limited
(Registered No. 2102520)
151
EXECUTION COPY
DEBENTURE CREATING A FLOATING CHARGE
POSTPONED TO ALL OTHER SECURITY INTERESTS
between
CITY MORTGAGE CORPORATION LIMITED
(as the Chargor)
and
GREENWICH INTERNATIONAL LIMITED
(as the Chargee)
SIDLEY & AUSTIN
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇-▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇-▇▇▇ ▇▇▇▇
THIS DEBENTURE dated February 1998 is made as a deed
152
BETWEEN:
(1) CITY MORTGAGE CORPORATION LIMITED, a company incorporated under the laws
of England and Wales, (registered number 304377) whose registered office
is at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (the "Chargor")
(2) GREENWICH INTERNATIONAL, LTD., a company incorporated under the laws of
Bermuda, whose registered office is at Cedar House, 41 Cedar Avenue,
▇▇▇▇▇▇▇▇, Bermuda (the "Chargee").
WHEREAS:-
(A) The Chargor and the Chargee have entered into the Mortgage Loan Purchase
Agreement and the Commitment Letter pursuant to which Mortgage Loans may
be sold by the Chargor and its Originating Subsidiaries to the Chargee.
(B) The Chargor and CMF have entered into the Origination and Purchase
Agreement and CMF and the Lender have entered into the Supplemental
Agreement pursuant to which Mortgage Loans may, in lieu of being sold by
the Chargor and its Originating Subsidiaries to the Chargee under the
Mortgage Loan Purchase Agreement and Commitment Letter, be sold by the
Chargor and its Originating Subsidiaries to CMF and, immediately
thereafter, by CMF to the Chargee.
(C) Certain of the Mortgage Loans sold to the Chargee pursuant to the
foregoing agreements have been subsequently securitised under the
Securitisations.
(D) Pursuant to a letter dated 25 February 1998, the Chargee issued a letter
stating that it terminated its obligation to purchase Mortgage Loans under
the Commitment Letter and Mortgage Loan Purchase Agreement.
(E) The Chargor, CMS and the Chargee have agreed to provide the financing
arrangements relating to the Existing Mortgage Loans and New Production
Mortgage Loans and as part of those arrangements the Chargee has agreed to
make available the Facility to the Borrower on the terms and subject to
the conditions of the Loan Facility Agreement of even date between the
Borrower, the Chargor and the Chargee so as to enable the Borrower to
purchase the Existing Mortgage Loans and to finance the purchase by the
Borrower of New Production Mortgage Loans.
(F) The Chargor has agreed to indemnify, the Chargee in accordance with the
terms of the Indemnity.
(G) It is a condition precedent to drawings under the Loan Facility Agreement
that the Chargor execute this deed.
1. In this Debenture unless expressly defined herein capitalised terms
defined in the Loan Facility Agreement shall have the same meaning herein
and the following terms shall
2
153
have the respective meanings set forth below:-
"the CMC Charge" means the charge executed by the Chargor and the Chargee
of even date creating, inter alia, first fixed security over, inter alia,
the Securitisation Residuals.
"the Obligations" means all moneys and liabilities (whether actual or
contingent) which are now or may be or become due, owing or payable or
expressed to be due, owing or payable to the Chargee from the Chargor
under or in connection with the Indemnity or any other Transaction
Document, together with all legal and other costs, charges and expenses
which the Chargee may incur in enforcing or obtaining or attempting to
enforce or obtain payment of such monies and liabilities;
"the Undertaking" means the whole of the Chargor's undertaking, property
and assets whatsoever and wheresoever both present and future;
"Security Interest" means a mortgage or charge (whether fixed or floating)
and any lien, hypothecation or other security interest of any kind
whatsoever and howsoever created;
"Receiver" includes receiver and manager.
2. (a) The Chargor, subject to Clause 2(b), with full title guarantee
hereby charges each and every part of the Undertaking with the
payment and discharge of the Obligations, to the intent that the
charge hereby created shall be a floating charge ranking in point of
security after all Security Interests now or at any time hereafter
subsisting over the Undertaking or any part thereof.
(b) The maximum amount recoverable under this charge from the Chargor is
(pound)1000 provided that such amount shall only be recoverable
after every other form of Security Interest granted by the Chargor
to the Chargee, except this charge, has been exercised and realised.
3. For the avoidance of doubt, no other Security Interest at any time
affecting the Undertaking or any part thereof shall rank or come to rank
in point of security after the floating charge hereby created (nor shall
any moneys or liabilities thereby secured rank or come to rank after any
of the Obligations). In particular (a) any fluctuation in, or repayment or
discharge of, any moneys and liabilities secured by such other Security
Interest or (b) any advance of money or other event whereby the amount of
the Obligations is increased or any of the Obligations are incurred shall
not cause any Security Interest to rank or come to rank in point of
security after the floating charge hereby created (nor shall any moneys or
liabilities thereby secured rank or come to rank after any of the
obligations).
4. The Chargor shall not be prohibited or restricted by virtue of the
floating charge hereby created or any provision hereof from (a) creating
other Security Interests affecting any part of the Undertaking or (b)
leaving any such other Security Interests outstanding or (c) selling or
factoring any book debts or other debts PROVIDED THAT the Chargor shall
3
154
not be entitled to create or create any other Security Interest or leave
any such other Security Interest outstanding or sell or factor any book
debts or other debts if to do so would be contrary to or constitute any
breach of any provision of the CMC Charge.
5. If at any time an application to the Court for an administration order in
relation to the Chargor shall have been made by the Chargor itself by or
any other person under Part II of the Insolvency ▇▇▇ ▇▇▇▇ (or any
statutory modification or re-enactment thereof), the Chargee shall be
entitled by deed or instrument under the hand of any of its managers or
other officer to appoint one or more individuals as a Receiver of the
Undertaking or of any part thereof.
6. A Receiver appointed hereunder shall have all the powers specified in
Schedule 1 to the Insolvency ▇▇▇ ▇▇▇▇. Two or more individuals holding
office as Receivers of the same property simultaneously by virtue of one
or more such appointments shall be entitled to exercise all their powers
and separately as well as jointly.
7. All monies received by any Receiver appointed hereunder shall (subject to
the rights and claims of any person, inclusive of the Chargee, entitled to
any other Security Interest affecting the Undertaking or any part thereof)
be applied in the following order: (1) in the payment of the costs,
charges and expenses of and incidental to the Receiver's appointment and
the payment of his remuneration; (2) in the payment and discharge of any
liabilities incurred by the Receiver on the Chargor's behalf in the
exercise of any of the powers of the Receiver; (3) in providing for the
matters (other than the remuneration of the Receiver) specified in the
first three paragraphs of Section 109(8) of the Law of Property ▇▇▇ ▇▇▇▇;
(4) in or towards payment of any debts or claims which are by statute
payable in preference to the Obligations but only to the extent to which
such debts or claims have such preference; (5) in or towards the
satisfaction of the Obligations; and any surplus shall be paid to the
Chargor or other person entitled thereto. The provisions of this Clause
and Clause 9 below shall take effect as and by way of variation and
extension to the provisions of the said Section 109, which provisions as
so varied and extended shall be deemed incorporated herein.
8. Every Receiver so appointed shall be deemed at all times and for all
purposes to be the agent of the Chargor which shall be solely responsible
for his acts and defaults and for the payment of his remuneration.
9. Every Receiver so appointed shall be entitled to remuneration for his
services at a rate to be fixed by agreement between him and the Chargee
(or, failing such agreement, to be fixed by the Chargee) as being
appropriate to the work and responsibilities involved upon the basis of
charging from time to time adopted in accordance with this current
practice or the current practice of his firm and without being limited to
the maximum rate specified in Section 109(6) of the Law of Property ▇▇▇
▇▇▇▇.
This Debenture is to be governed by and construed in accordance with English
law.
Signed as a deed by
CITY MORTGAGE CORPORATION LIMITED
4
155
acting by its duly appointed attorney in
the presence of:-
......................
Witness: ..........................
Occupation: ..........................
Address: ..........................
..........................
..........................
Signed as a deed by
GREENWICH INTERNATIONAL, LTD.
acting by its duly appointed attorney
in the presence of:- .....................
Witness: ..........................
Occupation: ..........................
Address: ..........................
..........................
..........................
5
156
EXECUTION COPY
BANK ACCOUNT ASSIGNMENT
between
MORTGAGE MANAGEMENT LIMITED
as Assignor
and
GREENWICH INTERNATIONAL LTD.
as Assignee
SIDLEY & AUSTIN
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Ref: JCW/PSP
157
Table of Contents
1. INTERPRETATION.......................................................3
2. COVENANT TO PAY......................................................5
3. ASSIGNMENT BY WAY OF SECURITY........................................5
4. NOTICE OF ASSIGNMENT.................................................6
5. NOTICE OF REASSIGNMENT...............................................6
6. REPRESENTATIONS AND WARRANTIES.......................................6
7. COVENANTS............................................................7
8. FURTHER ASSURANCES...................................................7
9. ENFORCEMENT..........................................................8
10. NEW ACCOUNT..........................................................8
11. CONTINUING SECURITY..................................................8
12. OTHER SECURITY.......................................................8
13. ASSIGNMENT NOT TO BE AFFECTED........................................9
14. RETENTION OF DEED....................................................9
15. POWER OF ATTORNEY...................................................10
16. CERTIFICATE TO BE CONCLUSIVE EVIDENCE...............................10
17. STAMP DUTY..........................................................10
18. NOTICES.............................................................11
19. RIGHTS AND WAIVERS..................................................12
20. INVALIDITY..........................................................12
21. ASSIGNMENT..........................................................12
22. GOVERNING LAW.......................................................12
SCHEDULE 1................................................................13
SCHEDULE 2................................................................14
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THIS BANK ACCOUNT ASSIGNMENT dated February 1998 is made as a deed
BETWEEN
1. MORTGAGE MANAGEMENT LIMITED, a company incorporated under the laws of
England and Wales, registered no. 2002263 whose registered office is at
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Assignor")
AND
2. GREENWICH INTERNATIONAL LTD., a company incorporated under the laws of
Bermuda, registered no. FC 15168 whose registered office is at ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (▇▇▇ "Assignee")
WHEREAS:-
(1) CMC and the Assignee have entered into the Mortgage Loan Purchase
Agreement and the Commitment Letter pursuant to which Mortgage Loans are
sold by CMC and its Originating Subsidiaries to the Assignee.
(2) CMC and CMF have entered into the Origination and Purchase Agreement and
CMF and the Assignee have entered into the Supplemental Agreement pursuant
to which Mortgage Loans may, in lieu of being sold by CMC and its
Originating Subsidiaries to the Assignee under the Mortgage Loan Purchase
Agreement and Commitment Letter, be sold by CMC and its Originating
Subsidiaries to CMF and, immediately thereafter, from CMF to the Assignee.
(3) Certain of the Mortgage Loans sold to the Assignee pursuant to the
foregoing agreements have been subsequently securitised under the
Securitisations.
(4) The Assignor is a wholly owned subsidiary of CMC.
(5) Pursuant to a letter dated 25 February 1998, the Assignee issued a letter
stating that it terminated its obligation to purchase Mortgage Loans under
the Mortgage Loan Purchase Agreement and the Commitment Letter.
(6) CMC, CMS and the Assignee have agreed to provide the financing
arrangements relating to the Existing Mortgage Loans and New Production
Mortgage Loans and as part of those arrangements, the Assignee has agreed
to make available the Facility to the Assignor on the terms and subject to
the conditions of the Loan Facility Agreement so as to enable the Assignor
to purchase the Existing Mortgage Loans and to finance the purchase by the
Assignor of New Production Mortgage Loans.
(7) In order to secure its rights under the Loan Facility Agreement, the
Assignee has required, among other things that the Assignor assign to it
under and pursuant to the terms of this deed, the Deposit.
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NOW THIS DEED WITNESSES as follows:-
1. INTERPRETATION
1.1 Definitions
In this deed unless otherwise defined herein, capitalised terms have the
meaning given to them in the Loan Facility Agreement and the following
terms have the meanings set forth below:
"Account" means the Funding Account account number ▇▇▇▇▇▇▇▇ of the
Assignor with the Deposit Bank, and includes any renewal or re-designation
thereof;
"Assignment" means the absolute assignment by way of security effected by
Clause 3 of this deed;
"Business Day" means a day (other than a Saturday or a Sunday) on which
banks are open for business in London;
"CMC" means City Mortgage Corporation Limited, a company incorporated
under the laws of England and Wales, number 3043776 whose registered
office is at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"Commitment Letter" means the letter agreement dated 28 March 1996 between
CMC and the Assignee;
"CMF" means City Mortgage Funding 1 Limited, incorporated under the laws
of England and Wales, number 3299937, whose registered office is at
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"CMS" means City Mortgage Servicing Limited, incorporated under the laws
of England and Wales, number 3043775, whose registered office is at
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
"Deposit" means all sums from time to time standing to the credit of the
Account, and all entitlements to interest and other Rights from time to
time accruing to or arising in connection with such sums, and the debt
represented thereby;
"Deposit Bank" means National Westminster Bank Plc at its office at ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"Facility" means the facility granted by the Assignee to the Assignor
under and pursuant to the terms of the Loan Facility Agreement for the
purpose of financing the Existing Mortgage Loans and the New Production
Mortgage Loans;
"Indemnity" means the indemnity of even date given by CMC, indemnifying
the Assignee in respect of losses it suffers in relation to, inter alia,
the Loan Facility Agreement;
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"Loan Facility Agreement" means the agreement dated February 1998
between the Assignor, the Assignee and CMC for the provision of the
Facility;
"Mortgage Loan Purchase Agreement" means the agreement dated 14 June 1996
between the Assignee (1) and CMC (2) whereby the Assignee agreed to
purchase and CMC agreed to sell Mortgage Loans originated by CMC and its
Approved Affiliates;
"Origination and Purchase Agreement" means the origination and purchase
agreement dated 27 March between CMC, CMF and certain Subsidiaries of CMC
pursuant to which Mortgage Loans are sold by CMC and the Subsidiaries to
CMF;
"Proceedings" means any proceeding, suit or action arising out of or in
connection with this deed;
"Restructuring Agreement" means the agreement dated 15 January 1998
between the Assignee and CMC;
"Rights" means rights, benefits, powers, privileges, authorities,
discretions and remedies (in each case, of any nature whatsoever);
"Secured Sums" means all moneys and liabilities (whether actual or
contingent) which are now or may at any time hereafter be due, owning or
payable, or expressed to be due, owning or payable, to the Assignee from
or by the Assignor under or in connection with the Loan Facility
Agreement, each other Transaction Document or this deed, together with all
legal and other costs, charges and expenses which the Assignee may incur
in enforcing or obtaining, or attempting to enforce or obtain, payment of
any such moneys and liabilities;
"Security" means (a) a mortgage, Standard Security, assignation in
security, charge, pledge, lien, execution, diligence or other encumbrance
securing any obligation of any person, (b) any arrangement under which
money or claims to, or the benefit of, a bank or other account may be
applied, set-off or made subject to a combination of accounts so as to
effect payment of sums owed or payable to any person or (c) any other type
of preferential arrangement (including title transfer and retention
arrangements) having a similar effect;
"Standard Security" means a standard security in terms of the conveyancing
and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇) ▇▇▇ ▇▇▇▇;
"Supplemental Agreement" means the agreement dated 27 March 1997 between
CMC, CMF, the Assignee and certain Subsidiaries of CMC pursuant to which
Mortgage Loans purchased by CMF under the Origination and Purchase
Agreement are sold by CMF to the Assignee;
"Working Hours" means 9:30 a.m. to 5:30 p.m. on a Business Day.
1.2 References and construction
(1) In this deed, unless otherwise specified:-
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(1) references to clauses and schedules are to clauses of and
schedules to this deed;
(2) headings to clauses are for convenience only and are to be
ignored in construing this deed;
(3) references to a "person" are to be construed so as to include
any individual, firm, company, government, state or agency of
a state, local or municipal authority, or any joint venture,
association or partnership (whether or not having separate
legal personality);
(4) references to a "company" are to be construed so as to include
any company, corporation or other body corporate, wherever and
however incorporated or established;
(5) references to any statute or statutory provision are to be
construed as a reference to the same as it may have been, or
may from time to time be, amended, modified or re-enacted, and
include references to all bye-laws, instruments, orders and
regulations for the time being made thereunder or deriving
validity therefrom; and
(6) references to times of the day are to London time.
(2) Except to the extent that the context otherwise requires, any
reference in this deed to "this deed" or any other deed, agreement
or instrument is a reference to this deed or, as the case may be,
the relevant deed, agreement or instrument as amended, supplemented,
replaced or novated from time to time and includes a reference to
any document which amends, supplements, replaces, novates or is
entered into, made or given pursuant to or in accordance with any of
the terms of this deed or, as the case may be, the relevant deed,
agreement or instrument.
2. COVENANT TO PAY
The Assignor covenants with the Assignee to pay and discharge all Secured Sums
at the time or times when, and in the currency or currencies in which, the same
are expressed to be payable under the relevant Transaction Documents.
3. ASSIGNMENT BY WAY OF SECURITY
The Assignor, as continuing security for the payment and discharge of all
Secured Sums, assigns to the Assignee absolutely all its Rights, title and
interest in and to the Deposit, PROVIDED THAT if all Secured Sums have been paid
or discharged in full and the Loan Facility Agreement and all other relevant
Transaction Documents have been terminated the Assignee shall, subject as
provided in this deed and to the Rights of any person for the time being
entitled thereto in priority to the Assignor, at the request and cost of the
Assignor reassign to the Assignor so much of the Deposit as has not been applied
by the Assignee in or towards satisfaction of the Secured Sums.
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4. NOTICE OF ASSIGNMENT
The Assignor shall immediately upon execution of this deed give the Deposit Bank
a notice of assignment substantially in the form of Schedule 1 hereto and shall
procure that the Deposit Bank shall give the Assignee a letter in the form of
Schedule 2 hereto.
5. NOTICE OF REASSIGNMENT
Upon effecting a reassignment pursuant to Clause 3, the Assignee shall deliver
to the Deposit Bank a notice of such reassignment in terms substantially similar
to the form set out in Schedule 1 hereto.
6. REPRESENTATIONS AND WARRANTIES
The Assignor hereby represents, warrants, covenants and undertakes to the
Assignee that:-
(1) it is a limited liability company duly incorporated under the laws
of England and Wales and is duly authorised and qualified to
transact any and all business contemplated by this deed to be
conducted by it and it is in compliance with such laws to the extent
necessary to ensure its ability to enforce its Rights.
(2) it has the full corporate power and authority to execute, deliver
and perform, and to enter into and consummate the transactions
contemplated by this deed and has duly authorised by all necessary
corporate action on its part the execution, delivery and performance
of this deed; and this deed, assuming the due authorisation,
execution and delivery thereof by the Assignor, constitutes its
legal, valid and binding obligation, enforceable against it in
accordance with its respective terms and the Assignment constitutes
a security interest over the Deposit ranking in priority to the
interests of any liquidator, administrator or creditor of the
Assignor;
(3) its execution and delivery of this deed, the consummation of any
other of the transactions herein contemplated on its part and the
fulfilment of or compliance with the terms hereof or thereof will
not (i) result in a material breach of any term or provision of its
Memorandum and Articles of Association and/or its other
constitutional documents or (ii) materially conflict with, result in
a material breach, violation or acceleration of, or result in a
material default under, the terms of any other material agreement or
instrument to which it is a party or by which it may be bound, or
any statute, order or regulation applicable to it of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it;
(4) it is not party to, bound by, or in breach or violation of any
material indenture or other material agreement or instrument, or
subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental
body having jurisdiction over it, which materially and adversely
affects or, to its knowledge, would in the future materially and
adversely affect, (i) its ability to perform its obligations under
this deed or (ii) its business, operations, financial condition,
properties or assets taken as a whole;
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(5) no consent, approval, authorisation or order of any court or
governmental agency or body is required for the execution, delivery
and performance by it of, or compliance by it with, this deed or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorisation or order is required, it has
obtained or in the process of obtaining the same;
(6) it is the legal and beneficial owner of the Deposit and no Security
(other than as created by this deed) exists on, over or with respect
to the Deposit or any part thereof;
(7) it has not sold, transferred, assigned, charged or otherwise
disposed of or dealt with its Rights, title and interest in and to
the Account or the Deposit or any part thereof, or agreed to do any
of the foregoing (otherwise than pursuant to this deed).
7. COVENANTS
The Assignor undertakes with the Assignee that from and after the date hereof
and until all Secured Sums have been repaid in full:
(1) the Assignor shall obtain, comply with the terms of and do all that
is necessary to maintain in full force and effect all
authorisations, approvals, licences and consents required in or by
the laws and regulations of England and of Scotland to enable it
lawfully to enter into and perform its obligations under this deed
and to ensure the legality, validity, enforceability or
admissibility in evidence in England and of Scotland of this deed
and shall ensure that none of the foregoing are revoked or modified;
(2) the Assignor shall not create, attempt to create or permit to
subsist any Security (other than the Assignment) on, over or with
respect to the Deposit or any part thereof;
(3) the Assignor shall not sell, transfer, assign, close or otherwise
dispose of or deal with its Rights, title and interest in and to the
Account or the Deposit or any part thereof, or agree to do any of
the foregoing (otherwise than pursuant to this deed);
(4) the Assignor shall ensure that the Assignment will at all times
constitute a legally valid and binding security interest over the
Deposit ranking in priority to the interests of any liquidator,
administrator or creditor of the Assignor.
8. FURTHER ASSURANCES
The Assignor shall, at its own cost, promptly execute and do all such
assurances, acts and things in such form as the Assignee may from time to time
reasonably require:
8.1 for perfecting, preserving or protecting the Assignment or the priority of
the Assignment; and
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8.2 for facilitating the application of the Deposit or the exercise of any
other Rights vested in the Assignee.
9. ENFORCEMENT
9.1 Application of Deposit
Upon (and at any time after) the occurrence of an Event of Default which
is subsisting, unremedied (to the satisfaction of the Assignee) or
unwaived, the Assignee shall be entitled, and is hereby irrevocably and
unconditionally authorised, without giving prior notice to the Assignor or
obtaining the consent of the Assignor but at the cost of the Assignor, to
apply the whole or any part of the Deposit in or towards satisfaction of
the Secured Sums or any part thereof.
9.2 Fixed period
Clause 9.1 shall apply notwithstanding that the Deposit or any part of it
may have been made or deposited for a fixed period and that period may not
have expired.
9.3 Section 93 Law of Property ▇▇▇ ▇▇▇▇
Section 93 of the Law of Property Act 1925 shall not apply to this deed.
10. NEW ACCOUNT
At any time following (i) the Assignee receiving notice (either actual or
constructive) of any subsequent Security affecting the Deposit or (ii) the
occurrence of any Event of Default under Clause 17 of the Loan Facility
Agreement in relation to the Assignor, the Assignee may open a new account in
the name of the Assignor (whether or not it permits any existing account to
continue). If the Assignee does not open such a new account, it shall
nevertheless be treated as if it had done so at the time when the notice was
received or was deemed to have been received or, as the case may be, the Event
of Default occurred, unless the Assignor elects otherwise. Thereafter, all
payments made by the Assignor to the Assignee or received by the Assignee for
the account of the Assignor shall be credited or treated as having been credited
to the new account and shall not operate to reduce the amount secured by this
deed at the time when the Assignee received or was deemed to have received such
notice or, as the case may be, the Event of Default occurred.
11. CONTINUING SECURITY
The Assignment shall be a continuing security for the Secured Sums and shall not
be satisfied, discharged or affected by any intermediate payment or settlement
of account (whether or not any Secured Sums remain outstanding thereafter) or
any other matter or thing whatsoever provided that if all secured sums have been
paid or discharged in full then, the Assignee shall at the request and cost of
the Assignor execute such deeds and so all such thing to reassign the Deposit to
the Assignor.
12. OTHER SECURITY
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The Assignment shall be in addition to and shall not prejudice nor be prejudiced
by any other Security or any guarantee or indemnity or other document which the
Assignee may at any time hold for the payment of the Secured Sums.
13. ASSIGNMENT NOT TO BE AFFECTED
Without prejudice to Clauses 11 and 12, neither the Assignment nor the liability
of the Assignor for the Secured Sums shall be prejudiced or affected by:-
13.1 any variation or amendment of, or waiver or release granted under or in
connection with, any other Security or any guarantee or indemnity or other
document; or
13.2 time being given, or any other indulgence or concession being granted, by
the Assignee to the Assignor or any other person; or
13.3 the taking, holding, failure to take or hold, varying, realisation,
non-enforcement, non-perfection or release by the Assignor or any other
person of any other Security or any guarantee or indemnity or other
document; or
13.4 the occurrence of any Event of Default in relation to the Assignor or any
other person; or
13.5 any change in the constitution of the Assignor; or
13.6 any amalgamation, merger or reconstruction that may be effected by the
Assignee with any other person or any sale or transfer of the whole or any
part of the undertaking, property and assets of the Assignee to any other
person; or
13.7 the existence of any claim, set-off or other right which the Assignor may
have at any time against the Assignee or any other person; or
13.8 the making or absence of any demand for payment of any Secured Sums on the
Assignor or any other person, whether by the Assignee or any other person;
or
13.9 any arrangement or compromise entered into by the Assignee with the
Assignor or any other person; or
13.10 any other thing done or omitted or neglected to be done by the Assignee or
any other person or any other dealing, fact, matter or thing which but for
this provision, might operate to prejudice or affect the liability of the
Assignor for the Secured Sums.
14. RETENTION OF DEED
14.1 Retention of deed
If the Assignor requests the Assignee to reassign the Deposit to the
Assignor following any payment or discharge made in relation to the
Secured Sums by a person other than the Assignor (a "Relevant
Transaction"), the Assignee shall be entitled to retain this deed and
shall not be obliged to reassign the Deposit until the expiry of the
Retention
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Period in relation to that Relevant Transaction. If at any time before the
expiry of that Retention Period the insolvency, winding up, liquidation,
administration or occurrence of any analogous event in respect of such
other person shall have commenced, the Assignee may continue to retain
this deed and shall not be obliged to reassign the Deposit for such
further period as the Assignee may determine.
14.2 Retention Period
For the purpose of Clause 14.1, "Retention Period" means, in relation to
any Relevant Transaction, the period which commences on the date when that
Relevant Transaction was made or given, and which ends on the date falling
one month after the expiration of the maximum period within which that
Relevant Transaction can be avoided, reduced or invalidated by virtue of
any applicable law.
15. POWER OF ATTORNEY
15.1 Appointment
The Assignor appoints, irrevocably and by way of security, the Assignee
and any person nominated in writing by the Assignee as attorney of the
Assignor severally to be the attorney of the Assignor (with full powers of
substitution and delegation), on its behalf and in its name or otherwise,
at such time and in such manner as the attorney may think fit:-
(1) to do anything which the Assignor is or may be obliged to do (but
has not done) under this deed; and
(2) generally to exercise all or any of the Rights conferred on the
Assignee in relation to the Account and the Deposit or under or in
connection with this deed or the Law of Property ▇▇▇ ▇▇▇▇.
15.2 Ratification
The Assignor covenants to ratify and confirm whatever any attorney shall
do or purport to do in the exercise or purported exercise of the power of
attorney in Clause 15.1.
16. CERTIFICATE TO BE CONCLUSIVE EVIDENCE
For all purposes, including any Proceedings, a copy of a certificate signed by
an officer of the Assignee as to the amount of any indebtedness comprised in the
Secured Sums for the time being shall, in the absence of manifest error, be
conclusive evidence against the Assignor as to the amount thereof.
17. STAMP DUTY
The Assignor shall pay promptly, and in any event before any penalty becomes
payable, all stamp, documentary and similar taxes, if any, payable in connection
with the entry into, performance, enforcement or admissibility in evidence of
this deed or any other document
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referred to in this deed, and shall indemnify the Assignee against any liability
with respect to, or resulting from any delay in paying or omission to pay, any
such tax.
18. NOTICES
18.1 Addresses
Any notice or other communication or document to be made or delivered
under this Agreement shall be made or delivered by fax or otherwise in
writing. Each notice, communication or other document to be delivered to
any party to this Agreement shall (unless that other person has by fifteen
days' written notice to the other party specified another address or fax
number) be made or delivered to that person at the address(es) or fax
number (if any) set out below:-
(a) in the case of the Assignee to their branch office in the United
Kingdom, facsimile number: 0171 375 5510, attention ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a simultaneous copy to the office of the General Counsel,
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
facsimile number: 001 203 629 4571, attention General Counsel;
(b) in the case of the Assignor, to its office at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, facsimile
number: 01923 426 823, attention Company Secretary.
18.2 Deemed Delivery
Any notice, communication or document to be delivered to any person shall
be deemed to have been delivered:-
(1) in the case of personal delivery, at the time of such
delivery;
(2) in the case of delivery by post, on the business day following
the day on which it was posted and in proving such delivery it
shall be sufficient to prove that the relevant notice,
communication or document was properly addressed, stamped and
posted (by airmail, if to another country) in the United
Kingdom or, in the case of service to or from an address
outside the United Kingdom at 9.00 a.m. on the fourth day
following the day on which it was posted;
(3) in the case of any notice or other communication by fax, (a)
on the business day the same was transmitted so long as there
is evidence that such fax message was received prior to 5.00
p.m. local time of the recipient on such day and such day is a
business day for the recipient, otherwise (b) on the business
day following the day on which it was transmitted and, in
either case, in proving such delivery it shall be sufficient
to prove that the whole of the fax message was received on any
fax machine of the recipient and that there was no evidence
that such transmission had been interrupted.
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19. RIGHTS AND WAIVERS
19.1 Delay
No delay or omission on the part of the Assignee in exercising any Right
provided by law or under this deed shall impair such Right or operate as a
waiver thereof or of any other right.
19.2 Single or partial exercise
The single or partial exercise by the Assignee of any Right provided by
law or under this deed shall not preclude any other or further exercise
thereof or the exercise of any other Right.
19.3 Rights to be cumulative
The Rights provided in this deed are cumulative with, and not exclusive
of, any Rights provided by law.
20. INVALIDITY
If at any time any provision of this deed is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither:-
20.1 the legality, validity or enforceability in that jurisdiction of any other
provision of this deed; nor
20.2 the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this deed, shall be
affected or impaired.
21. ASSIGNMENT
The Assignee may at any time, without the consent of the Assignor, assign or
transfer the whole or, as the case may be, any part of the Assignee's Rights
under this deed and/or in respect of the Deposit to any person to whom the whole
or any part of the Assignee's Rights under the Loan Facility Agreement shall be
assigned or transferred.
22. GOVERNING LAW
This deed shall be governed by and construed in accordance with English law.
IN WITNESS WHEREOF the Assignor and the Assignee have executed this document as
a deed the day and year first before written.
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SCHEDULE 1
[On letterhead of Assignor]
To: [Deposit Bank]
[Address]
[Date]
Dear Sirs,
We refer to our account (number [ ] designated " ")
(the "Account") with you.
We give you notice that we have assigned to Greenwich International, Ltd. (the
"Assignee") all our rights, title and interest in and to all sums from time to
time standing to the credit of the Account, and all entitlements to interest and
other rights from time to time accruing to or arising in connection with such
sums, and the debt represented thereby (the "Deposit").
We request that you acknowledge that you now shall act in relation to the
Deposit and the Account in accordance with the Assignee's instructions only to
the exclusion of us until such time as the Assignee notifies you in writing that
the Deposit has been re-assigned to us. The names and specimen signatures of the
persons authorised to operate the Accounts shall be notified to you in writing
by the Assignee. This letter varies the signing instructions of any and all
mandates which we have issued to you ("the Mandates") in connection with the
Account.
We confirm that as soon as the Assignee notifies us in writing of the
re-assignment of the Deposit to you, you may operate the Account in accordance
with the signing instructions set out in the Mandate.
This letter shall be governed by and construed in accordance with English law.
Would you please acknowledge receipt of this letter by sending a letter
addressed to the Assignee and copied to us in the form set out in the attached
draft.
Yours faithfully,
Mortgage Management Limited
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SCHEDULE 2
[On letterhead of Deposit Bank]
To: [Greenwich International, Ltd.]
[Address]
With a copy to: [Assignor]
[Address] [Date]
Dear Sirs,
We acknowledge receipt of a letter dated [ ] addressed to us by City
Mortgage Corporation Limited (the "Assignor") (of which the attached is a copy).
The expressions defined in that letter shall have the same respective meanings
in this letter.
We confirm that until the Assignee gives us notice in writing that the Deposit
has been re-assigned to the Assignee (the "Notice of Re-assignment") we shall
act in relation to the Deposit and the Account in accordance with the Assignee's
instructions to the exclusion of the Assignor and we represent and undertake to
the Assignee that:-
(a) no mortgage, fixed or floating charge, encumbrance or assignment by way of
security, or any agreement or arrangement having substantially the same
economic effect or financial effect as any of the foregoing (including any
"hold back" or "flawed asset" arrangement), exists in our favour on, over
or with respect to the Account or the Deposit or any part thereof;
(b) no rights of counter-claim, rights of set-off or combination of accounts
or any other enquiries whatsoever have arisen in our favour against the
Assignor in respect of the Account or the Deposit or any part thereof, and
until we receive the Notice of Re-assignment we shall not assert or seek
to exercise any such rights or equities; and
(c) we have not, as at the date hereof, received any notice that any third
party has or will have any right or interest whatsoever in, or has made or
will be making any claim or demand or taking any action whatsoever
against, the Account or the Deposit or any part thereof.
By entering into this acknowledgement, we do not make any representations as to
the enforceability or validity of the assignment of the Deposit by the Assignor
to the Assignee. The Assignee shall indemnify us against any losses, damages,
costs and liabilities which we may incur in connection with this acknowledgement
including, without limitation:
(i) the notice dated [ ] addressed to us by City Mortgage Corporation
Limited;
(ii) the assignment of the Deposit by the Assignor to the Assignee; and
(iii) the operation of the Account in accordance with the Assignee's
instructions.
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Yours faithfully,
[Name of Deposit Bank]
We confirm and agree to the terms of this letter.
...............................
Greenwich International Ltd.
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Signed as a deed by
MORTGAGE MANAGEMENT LIMITED
acting by its duly appointed attorney
in the presence of:-
.....................
Witness: .........................
Occupation: .........................
Address: .........................
.........................
.........................
Signed as a deed by
GREENWICH INTERNATIONAL, LTD.
acting by its duly appointed attorney
.....................
in the presence of:
Witness: .........................
Occupation: .........................
Address: .........................
.........................
.........................
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EXECUTION COPY
CHARGE OF SHARES
between
CITY MORTGAGE CORPORATION LIMITED
and
GREENWICH INTERNATIONAL LIMITED
SIDLEY & AUSTIN
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇-▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇-▇▇▇ ▇▇▇▇
Ref: JCW/RA
174
CONTENTS
Clause Page No.
------ --------
1. INTERPRETATION........................................................2
2. COVENANT TO PAY.......................................................4
3. CHARGE................................................................4
4. OTHER SECURITY........................................................4
5. COVENANT TO DEPOSIT AND FURTHER ASSURANCES............................4
6. REPRESENTATION AND WARRANTIES ........................................5
7. COVENANTS.............................................................6
8. CHARGOR'S RIGHTS BEFORE ENFORCEMENT...................................7
9. ENFORCEMENT OF SECURITY...............................................8
10. DEALINGS WITH CHARGED PROPERTY ON ENFORCEMENT.........................8
11. APPLICATION OF PROCEEDS...............................................9
12. GENERAL RIGHTS OF THE LENDER..........................................9
13. LIABILITY OF LENDER, DELEGATES AND NOMINEES..........................10
14. PROTECTION OF THIRD PARTIES..........................................11
15. CONTINUING SECURITY..................................................11
16. OTHER SECURITY.......................................................12
17. CHARGE NOT TO BE AFFECTED............................................12
18. RELEASE OF CHARGED PROPERTY..........................................13
19. POWER OF ATTORNEY....................................................13
20. WAIVERS; REMEDIES CUMULATIVE.........................................14
21. COSTS AND EXPENSES...................................................14
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22. MISCELLANEOUS........................................................14
23. NOTICES AND RECEIPTS.................................................15
24. GOVERNING LAW AND JURISDICTION.......................................16
SCHEDULE 1 [The Original Shares].........................................18
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THIS CHARGE OF SHARES is made as a deed on February 1998 BETWEEN:
(1) CITY MORTGAGE CORPORATION LIMITED a company incorporated under the laws of
England and Wales registered number 3043776 whose registered office is at
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Chargor"); and
(2) GREENWICH INTERNATIONAL, LTD. a company incorporated under the laws of
Bermuda, whose registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇ "Lender").
WHEREAS:
(A) The Chargor and the Lender have entered into the Mortgage Loan Purchase
Agreement and the Commitment Letter pursuant to which Mortgage Loans may
be sold by the Chargor and its Originating Subsidiaries to the Lender.
(B) The Chargor and CMF have entered into the Origination and Purchase
Agreement and CMF and the Lender have entered into the Supplemental
Agreement pursuant to which Mortgage Loans may, in lieu of being sold by
the Chargor and its Originating Subsidiaries to the Lender under the
Mortgage Loan Purchase Agreement and Commitment Letter, be sold by the
Chargor and its Originating Subsidiaries to CMF and, immediately
thereafter, by CMF to the Lender.
(C) Mortgage Loans originated by Originating Subsidiaries and by third parties
(subsequently sold to the Chargor) have, from time to time, been sold by
the Chargor or such Originating Subsidiaries to the Lender pursuant to the
Sale and Purchase Agreements.
(D) Certain of the Mortgage Loans sold to the Lender pursuant to the foregoing
agreements have been subsequently securitised under the Securitisations.
(E) The Borrower is a wholly owned subsidiary of the Chargor.
(F) Pursuant to a letter dated 25 February 1998, the Lender issued a letter
stating that it terminated its obligation to purchase Mortgage Loans under
the Commitment Letter and the Mortgage Loan Purchase Agreement.
(G) The Chargor, CMS and the Lender have agreed to provide the financing
arrangements relating to the Existing Mortgage Loans and New Production
Mortgage Loans and as part of those arrangements the Lender has agreed to
make available the Facility to the Borrower on the terms and subject to
the conditions of the Loan Facility Agreement of even date between the
Lender, the Borrower and the Chargor so as to enable the Borrower to
purchase the Existing Mortgage Loans and to finance the purchase by the
Borrower of New Production Mortgage Loans.
(H) The Chargor has agreed to indemnify the Lender in respect of the all
obligations of the Borrower under the Loan Facility Agreement and the
other Transaction Documents pursuant to the Indemnity.
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It is a condition precedent to drawings under the Loan Facility Agreement that
the Chargor shall have entered into this deed.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this charge (including the recitals) the following terms shall have the
respective meanings set out below and all other capitalised terms shall
have the meaning ascribed to them in the Loan Facility Agreement:
"Borrower" means Mortgage Management Limited.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for business in London.
"Charge" means all or any of the Security created, or which may at any
time be created, by or pursuant to this deed.
"Charged Property" means the Original Shares, any Further Shares, any
Derived Assets and any Dividends.
"CMS" means City Mortgage Servicing Limited.
"Debenture" means the debenture of even date hereto entered into between
(1) the Chargor, (2) the Lender and (3) CMC.
"Derived Assets" means all shares, rights or property of a capital nature
which accrue or are offered, issued or paid at any time (by way of bonus,
rights, redemption, conversion, exchange, substitution, consolidation,
subdivision, preference, warrant, option, purchase or otherwise) in
respect of:-
(a) the Original Shares; or
(b) any Further Shares; or
(c) any Shares, rights or other property previously accruing, offered,
issued or paid as mentioned in this definition.
"Dividends" means all dividends, interest and other income paid or payable
in respect of the Original Shares, any Further Shares or any Derived
Assets.
"Event of Default" means any of the events set out in clause 17 of the
Loan Facility Agreement.
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"Further Shares" means all Shares (other than the Original Shares and any
Shares comprised in any Derived Assets) which the Chargor and the Lender
may at any time agree shall be subject to the Charge.
"LPA" means Law of Property ▇▇▇ ▇▇▇▇.
"Original Shares" means the Shares listed in Schedule 1.
"Rights" means rights, benefits, powers, privileges, authorities,
discretions and remedies (in each case, of any nature whatsoever).
"Secured Liabilities" means all moneys and liabilities (whether actual or
contingent) which are now or may be or become due, owing or payable or
expressed to be due, owing or payable to the Lender from the Chargor under
or in connection with the Indemnity or any other Transaction Document,
together with all legal and other costs, charges and expenses which the
Lender may incur in enforcing or obtaining or attempting to enforce or
obtain payment of such moneys and liabilities.
"Security" includes any charge, fixed or floating charge, encumbrance,
lien, pledge, hypothecation, assignment by way of security, or title
retention arrangement (other than in respect of goods purchased in the
ordinary course of trading), and any agreement or arrangement having
substantially the same economic or financial effect as any of the
foregoing (including any "hold back" or "flawed asset" arrangement).
"Shares" means stocks, shares and other securities of any kind.
"Subsidiary" and "Subsidiary Undertaking" have the meanings respectively
given to them for the purposes of the UK Companies ▇▇▇ ▇▇▇▇.
1.2 Any reference, express or implied, to an enactment includes references to:
(1) that enactment as amended, extended or applied by or under any other
enactment before or after this agreement;
(2) any enactment which that enactment re-enacts (with or without
modification); and
(3) any subordinate legislation made (before or after this agreement)
under any enactment, including one within (a) or (b).
1.3 A person shall be deemed to be connected with another if that person is
connected with another within the meaning of section 839 of the Taxes ▇▇▇
▇▇▇▇.
1.4 Subclauses (1) to (3) above apply unless the contrary intention appears.
1.5 The headings in this charge do not affect its interpretation.
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1.6 Any reference to a document is a reference to that document as amended,
novated or supplemented.
1.7 References to clauses and schedules are to clauses of and schedules to
this Deed.
1.8 References to a "person" are to be construed so as to include any
individual, firm, company, government, state or agency of a State, local
or municipal authority, or any joint venture, association or partnership
(whether or not having separate legal personality).
1.9 References to a "company" are to be construed so as to include any
company, corporation or other body corporate, wherever and however
incorporated or established.
2. COVENANT TO PAY
The Chargor covenants with the Lender to pay and discharge all of the
Secured Liabilities at the time or times when, and in the currency or
currencies in which, the same are expressed to be payable under the
Indemnity or, as the case may be, any of the Transaction Documents.
3. CHARGE
The Chargor, as continuing security for the payment and discharge of all
Secured Liabilities, charges all its Rights, title and interest in and to
the Charged Property by way of first fixed charge in favour of the Lender.
4. OTHER SECURITY
The Charge shall be in addition to and shall not be prejudiced by any
other security or any guarantee or indemnity or other document which the
Lender may at any time hold for the payment of the Secured Liabilities.
5. COVENANT TO DEPOSIT AND FURTHER ASSURANCES
5.1 Original Shares and Further Shares
The Chargor shall, immediately after the execution of this deed in the
case of the Original Shares, and within two Business Days of each
occasion, if any, on which the Lender and the Chargor agree that any
Shares shall become Further Shares, deposit with the Lender:-
(1) all share certificates, documents of title and other documentary
evidence of ownership in relation to such Shares; and
(2) transfers of such Shares duly executed (but undated) by the Chargor
or its nominee with the name of the transferee left blank or, if the
Lender so requires, duly executed by the Chargor or its nominee in
favour of the Lender (or the
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Lender's nominee) and stamped, and such other documents as the Lender may
require to enable the Lender (or the Lender's nominee) or, after the
occurrence of an Event of Default, any purchaser to be registered as the
owner of, or otherwise to obtain legal title to, such Shares.
5.2 Derived Assets
The Chargor shall, within two Business Days of the accrual, offer, issue
or payment of any Derived Assets, deliver or pay to the Lender or procure
the delivery or payment to the Lender of:
(1) all such Derived Assets or the share certificates, renounceable
certificates, letters of allotment, documents of title and other
documentary evidence of ownership in relation to them; and
(2) transfers of any Shares comprised in such Derived Assets duly
executed (but undated) by the Chargor or its nominee with the name
of the transferee left blank, or if the Lender so requires, duly
executed by the Chargor or its nominee in favour of the Lender (or
the Lender's nominee) and stamped, and such other documents as the
Lender may require to enable the Lender (or the Lender's nominee)
or, after the occurrence of an Event of Default, any purchaser to be
registered as the owner of, or otherwise to obtain legal title to,
the Shares comprised in such Derived Assets.
5.3 Further Assurances
In addition to and without prejudice to anything else contained in this
deed, the Chargor shall, at its own cost, promptly execute and do all such
deeds, instruments, transfers, renunciations, proxies, notices, documents,
assurances, acts and things in such form as the Lender may from time to
time require:-
(1) for perfecting, preserving or protecting the Charge or the priority
of the Charge; and
(2) for facilitating the realisation of the Charge or the exercise of
any Rights vested in the Lender.
6. REPRESENTATION AND WARRANTIES REPRESENTATION AND WARRANTIES AND WARRANTIES
The Chargor represents and warrants to the Lender that:-
(1) it is the sole beneficial owner of the Charged Property;
(2) no Security (other than the Charge) exists on, over or with respect
to any of the Charged Property;
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(3) it has not sold, transferred, lent, assigned, parted with its
interest in, disposed of, granted any option in respect of or
otherwise dealt with any of its Rights, title and interest in and to
the Charged Property, or agreed to do any of the foregoing
(otherwise than pursuant to this deed);
(4) the Original Shares, any Further Shares and any Shares comprised in
any Derived Assets are fully paid and there are no moneys or
liabilities outstanding in respect of any of the Charged Property;
(5) the Original Shares, any Further Shares and any Shares comprised in
any Derived Assets have been duly authorised and validly issued and
are free from any restrictions on transfer or rights of pre-emption;
(6) it has the power to enter into, and perform and comply with its
obligations under, this deed, and to create the Charge;
(7) all actions, conditions and things required to be taken, fulfilled
and done (including the obtaining of any necessary consents) in
order to (i) enable it lawfully to enter into, and perform and
comply with its obligations under, this deed, (ii) ensure that those
obligations are valid, legal, binding and enforceable, (iii) permit
the creation of the Charge and ensure that (subject to all necessary
registrations thereof being made) the Charge is a valid, legal,
binding and enforceable first fixed security interest over the
Charged Property ranking in priority to the interests of any
liquidator, administrator or creditor of the Chargor, and (iv) make
this deed admissible in evidence in the courts of England, have been
taken, fulfilled and done;
(8) the obligations of the Chargor under this deed and (subject to all
necessary registrations thereof being made) the Charge is and will
be until fully discharged valid, legal, binding and enforceable and
the Charge constitutes a first fixed charge over the Charged
Property ranking in priority to the interests of any liquidator,
administrator or creditor of the Chargor; and
(9) each of the above representations and warranties will be correct and
complied with in all respects at all times during the continuance of
the Charge as if repeated then by reference to the then existing
circumstances.
7. COVENANTS
The Chargor shall:-
(1) not create, attempt to create or permit to subsist any Security
(other than the Charge) on, over or with respect to any of the
Charged Property;
(2) not sell, transfer, lend, assign, part with its interest in, dispose
of, grant any option in respect of or otherwise deal with any of its
Rights, title and interest in and to
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the Charged Property, or agree to do any of the foregoing (otherwise
than pursuant to this deed);
(3) not take or omit to take any action which act or omission could
adversely affect or diminish the value of any of the Charged
Property;
(4) ensure that there are no moneys or liabilities outstanding in
respect of any of the Charged Property;
(5) ensure that the Original Shares, any Further Shares and any Shares
comprised in any Derived Assets are free from any restriction on
transfer or rights of pre-emption;
(6) take all action within its powers to procure, maintain in effect and
comply with all the terms and conditions of all approvals,
authorisations, consents and registrations necessary or appropriate
for anything provided for on its part in this deed;
(7) ensure that the Charge will at all times be a legally valid and
binding first fixed charge over the Charged property ranking in
priority to the interests of any liquidator, administrator or
creditor of the Chargor;
(8) without prejudice to Clause 6(d), punctually pay all calls,
subscription moneys and other moneys payable on or in respect of any
of the Charged Property and indemnify and keep indemnified the
Lender (and the Lender's nominees) against any cost, liabilities or
expenses which it or they may suffer or incur as a result of any
failure by the Chargor to pay the same;
(9) deliver to the Lender a copy of every circular, notice, report, set
of accounts or other document received by the Chargor in respect of
or in connection with any of the Charged Property forthwith upon
receipt by the Chargor of such document; and
(10) promptly deliver to the Lender all such information concerning the
Charged Property as the Lender may reasonably request from time to
time.
8. CHARGOR'S RIGHTS BEFORE ENFORCEMENT
Until the Charge shall become enforceable, the Chargor shall be entitled
to:-
(1) receive all dividends, interest and income from the Charged Assets;
and
(2) exercise any voting right attached to any of the Charged Assets but
only in a manner consistent with the terms of the Charge and all
other Transaction Documents.
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9. ENFORCEMENT OF SECURITY
9.1 Upon (and at any time after) the occurrence of an Event of Default which
is subsisting, unremedied (to the satisfaction of the Lender) or unwaived,
the Charge shall become enforceable, and the powers conferred by Section
101 of the Law of Property ▇▇▇ ▇▇▇▇ as varied and extended by this deed
shall be exercisable, upon and at any time after the occurrence of an
Event of Default.
9.2 The powers conferred by Section 101 of the Law of Property ▇▇▇ ▇▇▇▇, as
varied and extended by this deed, shall be deemed to have arisen
immediately on the execution of this deed.
9.3 Sections 93 and 103 of the Law of Property Act 1925 shall not apply to
this deed.
10. DEALINGS WITH CHARGED PROPERTY ON ENFORCEMENT
10.1 Rights of Lender
At any time after the Charge has become enforceable, the Lender shall have
the right, without any notice to or consent of the Chargor:-
(1) Possession
to take possession of, collect and get in the Charged Property, and
in particular to take any steps necessary to vest all or any of the
Charged Property in the name of the Lender or its nominee (including
completing any transfers of any Shares comprised in the Charged
Property) and to receive and retain any Dividends;
(2) Sell
to sell, exchange, convert into money or otherwise dispose of or
realise the Charged Property (whether by public offer or private
contract) to any person and for such consideration (whether
comprising cash, debentures or other obligations, Shares or other
valuable consideration of any kind) and on such terms (whether
payable or deliverable in a lump sum or by instalments) as it may
think fit, and for this purpose to complete any transfers of the
Charged Property;
(3) Voting Rights
for the purpose of preserving the value of the Charge or realising
the same, to exercise or direct the exercise of all voting and other
Rights relating to the Charged Property in such manner as it may
think fit;
(4) Claims
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to settle, adjust, refer to arbitration, compromise and arrange any
claims, accounts, disputes, questions and demands relating in any
way to the Charged Property;
(5) Legal actions
to bring, prosecute, enforce, defend and abandon actions, suits and
proceedings in relation to the Charged Property; and
(6) Other Rights
to do all such other acts and things it may consider necessary or
expedient for the realisation of the Charged Property or incidental
to the exercise of any of the Rights conferred on it under or in
connection with this deed or the LPA and to concur in the doing of
anything which it has the Right to do and to do any such thing
jointly with any other person.
10.2 Obligations of Chargor
After the Charge has become enforceable:-
(1) all Dividends shall be paid to and retained by the Lender, and any
such moneys which may be received by the Chargor shall, pending such
payment, be segregated from any other property of the Chargor and
held in trust for the Lender; and
(2) the Chargor shall procure that all voting and other Rights relating
to the Charged Property are exercised in accordance with such
instructions (if any) as may from time to time be given to the
Chargor by the Lender, and the Chargor shall deliver to the Lender
such forms of proxy or other appropriate forms of authorisation to
enable the Lender to exercise such voting and other Rights.
11. APPLICATION OF PROCEEDS
All moneys received by the Lender in respect of the Charged Property after
this security has become enforceable shall be applied by the Lender in or
towards payment of the Secured Liabilities in such manner as the Lender
sees fit but without prejudice to the right of the Lender to recover any
shortfall from the Chargor.
12. GENERAL RIGHTS OF THE LENDER
12.1 Redemption of Security
The Lender may at any time redeem any Security over the Charged Property
having priority to the Charge or procure the transfer to the Lender and
may settle the accounts of encumbrancers. Any accounts so settled shall be
conclusive and binding on the
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Chargor. The Chargor shall on demand pay to the Lender all principal
moneys, interest, costs, charges, losses, liabilities and expenses of and
incidental to any such redemption or transfer.
12.2 New Account
At any time following the occurrence of an Event of Default, the Lender
may open a new account in the name of the Chargor (whether or not it
permits any existing account to continue). If the Lender does not open
such a new account, it shall nevertheless be treated as if it had done so
at the time when the Event of Default occurred. Thereafter, all payments
made by the Chargor to the Lender or received by the Lender for the
account of the Chargor shall be credited or treated as having been
credited to the new account and shall not operate to reduce the amount
secured by this deed at the time when the Event of Default occurred.
12.3 Delegation
The Lender may delegate in any manner to any person any of the Rights
which are for the time being exercisable by the Lender under this deed.
Any such delegation may be made upon such terms and conditions (including
power to sub-delegate) as the Lender may think fit.
12.4 Set-off by Lender
The Lender may at any time, without notice to the Chargor and without
prejudice to any of the Lender's other Rights, set off any Secured
Liabilities which are due and unpaid against any obligation (whether or
not matured) owed by the Lender to the Chargor, regardless of the place of
payment or booking branch, and for that purpose the Lender may convert one
currency into another at the rate of exchange determined by the Lender in
its absolute discretion to be prevailing at the date of set-off.
13. LIABILITY OF LENDER, DELEGATES AND NOMINEES
13.1 Possession
If the Lender or any Delegate shall take possession of the Charged
Property, it may at any time relinquish such possession.
13.2 Lender's Liability
The Lender shall not in any circumstances (whether by reason of taking
possession of the Charged Property or for any other reason whatsoever and
whether as mortgagee in possession or on any other basis whatsoever):-
(1) be liable to account to the Chargor or any other person for anything
except the Lender's own actual receipts; or
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(2) be liable to the Chargor or any other person for any costs, charges,
losses, damages, liabilities or expenses arising from any
realisation of the Charged Property or from any exercise or
non-exercise by the Lender of any Right conferred upon it in
relation to the Charged Property or from any act, default, omission
or misconduct of the Lender, its officers, employees or agents in
relation to the Charged Property except to the extent that they
shall be caused by the Lender's own fraud, negligence or wilful
misconduct or that of its officers or employees.
13.3 Delegate's and Nominee's Liability
All the provisions of Clause 13.2 shall apply, mutatis mutandis, in
respect of the liability of any Delegate or nominee of the Lender or any
officer, employee or agent of the Lender, any Delegate or any nominee of
the Lender.
13.4 Indemnity
The Lender and every Delegate, attorney, manager, agent or other person
appointed by the Lender hereunder shall be entitled to be indemnified out
of the Charged Property in respect of all liabilities and expenses
incurred by any of them in the execution or purported execution of any of
its Rights and against all actions, proceedings, costs, claims and demands
in respect of any matter or thing done or omitted in anyway relating to
the Charged Property, and the Lender and any such Delegate, attorney,
manager, agent or other person appointed by the Lender hereunder may
retain and pay all sums in respect of the same out of any moneys received.
14. PROTECTION OF THIRD PARTIES
No person dealing with the Lender or any Delegate shall be concerned to
enquire whether any event has happened upon which any of the Rights
conferred under or in connection with this deed or the LPA are or may be
exercisable, whether any consents, regulations, restrictions or directions
relating to such Rights have been obtained or complied with or otherwise
as to the propriety or regularity of acts purporting or intended to be in
exercise of any such Rights or as to the application of any money borrowed
or raised or other proceeds of enforcement. All the protections to
purchasers contained in sections 104 and 107 of the LPA or in any other
legislation for the time being in force shall apply to any person
purchasing from or dealing with the Lender or any Delegate.
15. CONTINUING SECURITY
The Charge shall be a continuing security for the Secured Liabilities and
shall not be satisfied, discharged or affected by any intermediate payment
or settlement of account (whether or not any Secured Liabilities remain
outstanding thereafter) or any other matter or thing whatsoever.
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16. OTHER SECURITY
The Charge shall be in addition to and shall not be prejudiced by any
other Security or any guarantee or indemnity or other document which the
Lender may at any time hold for the payment of the Secured Liabilities.
17. CHARGE NOT TO BE AFFECTED
Without prejudice to Clauses 15 and 16, neither the Charge nor the
liability of the Chargor for the Secured Liabilities shall be prejudiced
or affected by:-
(1) any variation or amendment of, or waiver or release granted under or
in connection with, any other Security or any guarantee or indemnity
or other document; or
(2) time being given, or any other indulgence or concession being
granted, by the Lender to the Chargor or any other person; or
(3) the taking, holding, failure to take or hold, varying, realisation,
non-enforcement, non-perfection or release by the Lender or any
other person of any other Security, or any guarantee or indemnity or
other document; or
(4) the insolvency, winding up, liquidation, administration or
occurrence of any analogous event in respect of the Chargor or any
other person; or
(5) any change in the constitution of the Chargor; or
(6) any amalgamation, merger or reconstruction that may be effected by
the Lender with any other person or any sale or transfer of the
whole or any part of the undertaking, property and assets of the
Lender to any other person; or
(7) the existence of any claim, set-off or other right which the Chargor
may have at any time against the Lender or any other person; or
(8) the making or absence of any demand for payment of any Secured
Liabilities on the Chargor or any other person, whether by the
Lender or any other person; or
(9) any arrangement or compromise entered into by the Lender with the
Chargor or any other person; or
(10) any other thing done or omitted or neglected to be done by the
Lender or any other person or any other dealing, fact, matter or
thing which, but for this provision, might operate to prejudice or
affect the liability of the Chargor for the Secured Liabilities.
18. RELEASE OF CHARGED PROPERTY
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18.1 Release of Charged Property
If all Secured Liabilities have been paid or discharged in full and the
Loan Facility Agreement has been terminated, the Lender shall at the
request and cost of the Chargor execute such deeds and do all such acts
and things as may be necessary to release the Charged Property from the
Charge.
18.2 Retention of Deed
If the Chargor requests the Lender to release the Charged Property from
the Charge following any payment or discharge made or Security or
guarantee given in relation to the Secured Liabilities by a person other
than the Chargor (a "Relevant Transaction"), the Lender shall be entitled
to retain this deed (and all stock and share certificates, documents of
title and other documentary evidence of ownership in relation to the
Charged Property deposited with the Lender pursuant to clause 5) and shall
not be obliged to release the Charged Property from the Charge until the
expiry of the Retention Period in relation to that Relevant Transaction.
If at any time before the expiry of the retention period the insolvency,
winding up, liquidation, administration, or any analogous event in respect
of such other person shall have occurred, the Lender may continue to
retain this deed (and all such stock and share certificates, documents of
title and documentary evidence) and shall not be obliged to release the
Charged Property from the Charge for such further period as the Lender may
determine.
18.3 Retention Period
For the purpose of Clause 18.2 "Retention Period" means, in relation to
any Relevant Transaction, the period which commences on the date when that
Relevant Transaction was made or given, and which ends on the date falling
one month after the expiration of the maximum period within which the
Relevant Transaction can be avoided, reduced or invalidated by virtue of
any applicable law.
19. POWER OF ATTORNEY
19.1 The Chargor by way of security (for the Secured Liabilities) irrevocably
appoints the Lender the attorney of the Chargor on its behalf and in the
name of the Chargor or the Lender (as the attorney may decide) to do all
acts and things and execute all documents which the Chargor is or may be
obliged to do (but has not done) hereunder and in relation to any of the
Charged Property or in connection with any of the matters provided for in
this charge, including (but without limitation) to execute and date any
transfer of Shares and to exercise all Rights conferred on the Lender in
relation to the Charged Property or under this deed or the LPA 1925.
19.2 The Chargor shall ratify and confirm whatever the attorney shall do in
exercise of its powers as attorney under the power of attorney in Clause
19.1.
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20. WAIVERS; REMEDIES CUMULATIVE
The Rights of the Lender under this Charge
(1) may be exercised as often as necessary;
(2) are cumulative and are not exclusive of its rights under the general
law; and
(3) may be waived only in writing and specifically and may be on such
terms as the Lender sees fit.
21. COSTS AND EXPENSESCOSTS AND EXPENSESAND EXPENSES
The Chargor shall indemnify the Lender on demand against all costs,
charges, losses, liabilities, expenses and other sums (including legal,
accountants' and other professional fees) and any Taxes thereon expended,
paid, incurred or debited on account by the Lender in relation to this
deed, and/or any other document referred to in this deed, including,
without prejudice to the generality of the foregoing:-
(1) in connection with the negotiation, preparation, execution,
stamping, filing, registration and perfection of this deed;
(2) in connection with the granting of any waiver or consent sought by
the Chargor or in connection with any variation, amendment,
extension or modification of, or supplement to, this deed;
(3) in enforcing, protecting, preserving or realising, or attempting to
enforce, protect, preserve or realise, the Lender's Rights under
this deed; and
(4) in connection with or contemplation of any Proceedings or the
recovery or attempted recovery of any Secured Liabilities.
22. MISCELLANEOUS
22.1 The Chargor may not assign any of its Rights under this charge. The Lender
may assign all or any part of its Rights hereunder. References to the
Lender include assigns of the Lender.
22.2 If a provision of this Charge is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(1) the validity or enforceability in that jurisdiction or any other
provision of this Charge; or
(2) the validity or enforceability in other jurisdictions of that or any
other provision of this Charge.
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190
22.3 This Charge may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and either
party may enter into this Charge by executing a counterpart.
22.4 Each party acknowledges that in agreeing to enter into this Charge, it has
not relied on any representation, warranty or other assurance, except
those set out in this agreement.
23. NOTICES AND RECEIPTS
23.1 Any notice or other communication or document to be made or delivered
under this Charge shall be made or delivered by fax or otherwise in
writing. Each notice, communication or other document to be delivered to
any party to this Charge shall (unless that other person has by fifteen
days' written notice to the other party specified another address or fax
number) be made or delivered to that person at the address(es) or fax
numbers below:-
(1) in the case of the Lender, to their branch office in the United
Kingdom, facsimile number : 0171 375 5510 attention ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a simultaneous copy to the office of the General Counsel,
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇,
facsimile number 00 1 203 629 4571, attention General Counsel;
(2) in the case of the Chargor, to its registered office, facsimile
number : 01923 426 823, attention Company Secretary.
23.2 Any notice or document shall be deemed to have been served:
(1) if delivered, at the time or delivery; or
(2) if posted, at 10.00 a.m. on the fifth business day after it was put
into the post;
(3) in the case of any notice or other communication by fax, (a) on the
business day the same was transmitted so long as there is evidence
that such fax message was received prior to 5pm local time of the
recipient on such day and such day is a business day for the
recipient, otherwise (b) on the business day following the day on
which it was transmitted and, in either case, in proving such
delivery it shall be sufficient to prove that the whole of the fax
message was received on any fax machine of the recipient and that
there was no evidence that such transmission had been interrupted.
23.3 In proving service of a notice or document it shall be sufficient to prove
that delivery was made or that the envelope containing the notice or
document was properly addressed and posted as a prepaid first class
recorded delivery letter or registered airmail letter (as appropriate).
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24. GOVERNING LAW AND JURISDICTION
24.1 This charge is governed by and shall be construed in accordance with
English law.
24.2 The parties hereto submit to the non-exclusive jurisdiction of the English
courts for all purposes relating to this Charge.
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Signed as a deed by
CITY MORTGAGE CORPORATION LIMITED
acting by its duly appointed attorney
in the presence of:-
....................
Witness:
------------------------------
Occupation:
------------------------------
Address:
------------------------------
SIGNED as a deed by
GREENWICH INTERNATIONAL, LTD
acting by its duly appointed attorney
in the presence of:- ....................
Witness:
------------------------------
Occupation:
------------------------------
Address:
------------------------------
17
193
SCHEDULE 1
[The Original Shares]
Two shares of Mortgage Management Limited owned by the Chargor.
18
194
To:
Greenwich International, Ltd.
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Dear Sirs
Indemnity
We refer to a number of agreements (each an "Agreement" and together the
"Agreements") which you have entered into with, amongst others, Mortgage
Management Limited ("MML"), particulars of which are set out in the schedule to
this letter of indemnity (this "Indemnity").
In consideration for your entering into a loan facility agreement dated February
1998 (the "Loan Facility Agreement") with MML and us, we hereby undertake and
agree :
(i) to indemnify you and keep you indemnified against any and all losses
suffered by you resulting from or arising out of any and all of the
Agreements and to pay to you the amounts of such losses immediately on
your demand therefor whether or not at the time you make such demand you
have exercised all or any other remedies in respect of such losses, such
losses to include, without limitation, all amounts payable but unpaid by
MML under the Loan Facility Agreement, and all actions, claims, damages,
costs (including legal costs), expenses, demands, liabilities and
proceedings;
(ii) that Clauses 10.2 to 10.9 (tax gross-up and indemnity) and 18 (default
interest) of the Loan Facility Agreement shall apply to any payment to be
made by us to you under (i) above as those clauses apply to any payment to
be made by MML to you under the Loan Facility Agreement; and
(iii) not to recover from MML any part of the amount we pay to you under this
Indemnity except in accordance with the terms of a counter - indemnity
dated February 1998 granted to us by MML, in the form attached hereto and
signed by us for identification.
195
For the avoidance of doubt, we hereby acknowledge that our obligations under
this Indemnity are independent of the obligations of any party to any of the
Agreements.
We hereby represent and warrant that we have all necessary corporate powers and
have taken all necessary corporate action to grant this Indemnity and that our
obligations under this Indemnity constitute our legal, valid and binding
obligations enforceable in accordance with its terms.
This Indemnity shall be governed by and construed in accordance with English
law.
Yours faithfully
---------------------------------------------------------
for and on behalf of City Mortgage Corporation Limited
196
Schedule
1. The Loan Facility Agreement
2. The Debenture Creating Fixed and Floating Charges
3. The Proceeds Agreement
4. The Interim Servicing Agreement
5. The Charge over CMC's shares in CMS
6. The Assignment Agreement
7. The Subordinated Loan Agreement
8. Assignment of CMC Residuals Account
9. Debenture Creating a Floating Charge Postponed to all other Security
Interests
10. The Indemnity, Counter Indemnity and the Undertaking
11. The CMC Charge
12. The Charge over CMC's shares in MML
13. The Assignments of the Collection Account and the Funding Account
14. The New Production Purchase Agreement
15. The Mortgage Transfer Agreement
16. Any amendments to any of the above and any other Transaction Document (as
defined in the Loan Facility Agreement) and any amendments thereto.
197
[ON THE LETTERHEAD OF MORTGAGE MANAGEMENT LIMITED]
To:
City Mortgage Corporation Limited
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ February 1998
Dear Sirs
Counter Indemnity
We refer to an indemnity given by you to Greenwich International, Ltd. ("GIL")
dated February 1998 (the "Indemnity") in the form attached hereto and
signed by us for identification.
In consideration for your having given the Indemnity, we hereby undertake and
agree:
(i) to indemnify you and keep you indemnified against any and all losses
suffered by you resulting from or arising out of the Indemnity, such
losses to include, without limitation, all losses, actions, claims,
damages, costs (including legal costs), expenses, demands,
liabilities and proceedings (the "Counter Indemnity"), provided that
prior to so indemnifying you, we have received from GIL a
certificate of permission (the "Certificate of Permission") in the
form attached hereto and signed by us for identification, such
certificate to be granted by GIL at its sole discretion;
(ii) that you are herby irrevocably authorised and directed to pay
forthwith on any demand appearing or purporting to be made by or on
behalf of GIL any sums which may be demanded from you from time to
time without any reference to or any necessity for confirmation or
verification by us, it being expressly agreed that any such demand
shall, as between us and you, be conclusive evidence that the sum
stated therein is properly due and payable.
We hereby represent and warrant that we have all necessary corporate powers and
have taken all necessary corporate action to grant this Counter Indemnity and
that all our obligations under this Counter Indemnity constitute our legal,
valid and binding obligations enforceable in accordance with its terms.
198
This Counter Indemnity shall be governed by and construed in accordance with
English law.
Yours faithfully
-----------------------------------------------------
for and on behalf of Mortgage Management Limited
199
Schedule
[FORM OF CERTIFICATE OF PERMISSION]
[ON LETTERHEAD OF GIL]
To: Mortgage Management Limited
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Dear Sirs
Certificate of Permission
In accordance with the terms of the counter indemnity dated February 1998
granted by you to City Mortgage Corporation Limited ("CMC"), we hereby grant you
permission to pay to CMC the sum of [ ].
This Certificate of Permission shall be governed by and construed in accordance
with English law.
Yours faithfully
Greenwich International, Ltd.
200
EXECUTION COPY
CMC CHARGE
between
CITY MORTGAGE CORPORATION LIMITED
(as Obligor)
and
GREENWICH INTERNATIONAL LTD.
(as Lender)
SIDLEY & AUSTIN
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇-▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇-▇▇▇ ▇▇▇▇
Ref: JCW/DMB/13568/30020
201
CONTENTS
Clause Page No.
------ --------
1. INTERPRETATION...........................................................4
2. COVENANT TO PAY..........................................................6
3. SECURITY.................................................................6
4. OTHER SECURITY...........................................................7
5. REPRESENTATION AND WARRANTIES ...........................................7
6. COVENANTS................................................................8
7. ENFORCEMENT OF SECURITY..................................................9
8. DEALINGS WITH ASSIGNED PROPERTY ON
ENFORCEMENT AND APPOINTMENT OF RECEIVERS................................9
9. APPOINTMENT AND RIGHTS OF RECEIVERS.....................................10
10. APPLICATION OF PROCEEDS.................................................12
11. PRESERVATION OF SECURITY................................................12
12. GENERAL RIGHTS OF THE LENDER............................................13
13. POWER OF ATTORNEY.......................................................13
14. PROTECTION OF PURCHASER.................................................13
15. DELEGATION..............................................................14
16. INDEMNITY...............................................................14
17. WAIVERS; REMEDIES CUMULATIVE............................................14
18. FURTHER ASSURANCE.......................................................14
19. REASSIGNMENT OF ASSIGNED ASSETS.........................................15
20. MISCELLANEOUS...........................................................15
202
22. CURRENCY INDEMNITY......................................................16
23. NOTICES AND RECEIPTS....................................................16
24. GOVERNING LAW AND JURISDICTION..........................................17
SCHEDULE 1 Notice of Assignment.............................................19
203
THIS ASSIGNMENT is made as a deed on February 1998 BETWEEN:
(1) CITY MORTGAGE CORPORATION LIMITED Company Number (3043776) of ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Obligor"); and
(2) GREENWICH INTERNATIONAL LTD a company incorporated under the laws of
Bermuda, whose branch office in the United Kingdom is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ (▇▇▇ "Lender").
WHEREAS:
(A) The Obligor and the Lender have entered into the Mortgage Loan Purchase
Agreement and the Commitment Letter pursuant to which Mortgage Loans may
be sold by the Obligor and its Originating Subsidiaries to the Lender.
(B) The Obligor and CMF have entered into the Origination and Purchase
Agreement and CMF and the Lender have entered into the Supplemental
Agreement pursuant to which Mortgage Loans may, in lieu of being sold by
the Obligor and its Originating Subsidiaries to the Lender under the
Mortgage Loan Purchase Agreement and Commitment Letter, be sold by the
Obligor and its Originating Subsidiaries to CMF and, immediately
thereafter, by CMF to the Lender.
(C) Certain of the Mortgage Loans sold to the Lender pursuant to the foregoing
agreements have been subsequently securitised under the Securitisations.
(D) The Borrower is a wholly owned Subsidiary of the Obligor.
(E) Pursuant to a letter dated 25 February 1998, the Lender issued a letter
stating that it terminated its obligation to purchase Mortgage Loans under
the Commitment Letter and the Mortgage Loan Purchase Agreement.
(F) The Obligor, CMS and the Lender have agreed to provide the financing
arrangements relating to the Existing Mortgage Loans and New Production
Mortgage Loans and as part of those arrangements the Lender has agreed to
make available to the Borrower a facility on the terms and subject to the
conditions of a facility agreement of even date between the Lender, the
Borrower and the Obligor (the "Loan Facility Agreement") so as to enable
the Borrower to purchase the Existing Mortgage Loans and to finance
purchase and origination of New Production Mortgage Loans.
(H) The Obligor has agreed to indemnify the Lender in respect of the all
obligations of the Borrower under the Loan Facility Agreement and the
other Transaction Documents pursuant to the Indemnity.
(H) It is a condition precedent to drawings under the Loan Facility Agreement
that the Obligor shall have entered into this Deed.
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204
IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Deed (including the recitals) the following terms shall have the
respective meanings set out below:
"Acceleration" has the meaning attributed to it in the Proceeds Agreement;
"Administration Agreements" means the administration agreements dated 21
March 1996, 18 October 1996, 31 October 1996 and 31 January 1997 in
relation to the Securitisations.
"Assets" means the Securitisation Residuals.
"Assigned Assets" means Assets from time to time subject, or expressed to
be subject, to the security created hereunder or any part of those Assets
or any proceeds arising out of the disposition of those Assets.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for business in London.
"Deeds of Charge and Assignment" means the deeds of charge and assignment
dated 21 March 1996, 18 October 1996, 31 October 1996, 31 January 1997 and
30 April 1997 in relation to the Securitisations.
"Enforcement" has the meaning attributed to it in the Proceeds Agreement.
"Event of Default" means any of the events set out in clause 17 of the
Loan Facility Agreement.
"Mortgage Sale Agreements" means the mortgage sale agreements dated 21
March 1996, 18 October 1996, 31 October 1996 and 31 January 1997 in
relation to the Securitisations pursuant to which mortgage loans were sold
to the relevant Issuers.
"Mortgages Trust Deeds" means the mortgages trust deeds dated 21 March
1996, 18 October 1996 and 31 October 1996 in relation to the
Securitisations.
"Receiver" means an administrative receiver, receiver and manager, or
other receiver appointed in respect of all or any of the Assigned Assets
(whether appointed pursuant to this deed, pursuant to any statute, by
court or otherwise).
"Retention Period" means in any relation to any Relevant Transaction (as
defined in clause 19.2), the period which commences on the date when the
Relevant Transaction was made or given, and which continues for one month
plus the maximum period within
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205
which that Relevant Transaction can be avoided, reduced or invalidated by
virtue of any applicable law or for any other reason whatsoever.
"Rights" means rights, benefits, powers, privileges, authorities,
discretions and remedies (in each case, of any nature whatsoever).
"Secured Liabilities" means all moneys and liabilities (whether actual or
contingent) which are now or may be or become due, owing or payable or
expressed to be due, owing or payable to the Lender from the Obligor under
or in connection with the Indemnity or any other Transaction Document,
together with all legal and other costs, charges and expenses which the
Lender may incur in enforcing or obtaining or attempting to enforce or
obtain payment of such moneys and liabilities.
"Securitisation Residuals" means all of the Obligor's rights, title and
interest in and to the Administration Agreements, the Subordinated Loan
Agreements, the Mortgage Sale Agreements, the Mortgages Trust Deeds and
the Deeds of Charge and Assignment.
"Securitisation Agreements" means the Administration Agreements, the
Subordinated Loan Agreements, the Mortgage Sale Agreements, the Mortgages
Trust Deeds and the Deeds of Charge and Assignments.
"Security" includes any mortgage, fixed or floating charge, encumbrance,
lien, pledge, hypothecation, assignment or assignation by way of security,
or title retention arrangement (other than in respect of goods purchased
in the ordinary course of trading), and any agreement or arrangement
having substantially the same economic or financial effect as any of the
foregoing (including any "hold back" or "flawed asset" arrangement).
"Subordinated Loan Agreements" means the subordinated loan agreements
dated 21 March 1996, 18 October 1996, 31 October 1996, 31 January 1997 and
30 April 1997 in relation to the Securitisations.
"Subsidiary" has the meanings given to it by Section 736 of the Companies
▇▇▇ ▇▇▇▇.
1.2 Any reference, express or implied, to an enactment includes references to:
(1) that enactment as amended, extended or applied by or under any other
enactment before or after this agreement;
(2) any enactment which that enactment re-enacts (with or without
modification); and
(3) any subordinate legislation made (before or after this agreement)
under any enactment, including one within (a) or (b).
1.3 The headings in this Deed do not affect its interpretation.
6
206
1.4 References to any agreement (including without limitation to each
Transaction Document) shall be construed as a reference to such agreement
as the same may be, or may from time to time have been amended, modified,
supplemented or restated in accordance, where the agreement is itself a
Transaction Document, with the terms of the Transaction Documents.
1.5 Capitalised terms defined in the Loan Facility Agreement have, unless
expressly defined in this Deed, the same meaning in this Deed.
1.6 References to clauses and schedules are to clauses of and schedules to
this Deed.
1.7 References to a "person" are to be construed so as to include any
individual, firm, company, government, state or agency of a State, local
or municipal authority, or any joint venture, association or partnership
(whether or not having separate legal personality).
1.8 References to a "company" are to be construed so as to include any
company, corporation or other body corporate, wherever and however
incorporated or established.
1.9 References to the "Lender" shall be construed so as to include its and any
subsequent successors and assigns in accordance with their respective
interests.
2. COVENANT TO PAYTO PAY
The Obligor covenants and undertakes with the Lender to pay and discharge
all of the Secured Liabilities at the time or times when, and in the
currency or currencies in which, the same are expressed to be payable
under the Indemnity or, as the case may be, the other relevant Transaction
Documents.
3. SECURITY
3.1 For good and valuable consideration, receipt of which is acknowledged, the
Obligor as sole beneficial owner assigns absolutely to the Lender all of
its Rights, title and interest in and to:
(1) The Administration Agreements;
(2) The Subordinated Loan Agreements;
(3) The Mortgage Sale Agreements;
(4) The Mortgages Trust Deeds; and
(5) The Deeds of Charge and Assignment,
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207
provided that upon payment in full of all Secured Liabilities, at the
request and expense of the Obligor, the Lender will reassign to the
Obligor all the right, title and interest of the Lender in or to the
Assigned Assets pursuant to this Sub-clause 3.1 and gives notices of such
re-assignment to all parties to each of the Assigned Agreements at the
time of re-assignment.
3.2 The Obligor shall, forthwith give notice of the assignments effected under
Clause 3.1 to each other party to the Securitisation Agreements, such
notices to be in or substantially in the form set out in Schedule 1 and
shall use best endeavours to procure that each person to whom such notice
is given acknowledges the relevant assignment in writing, such
acknowledgement to be in or substantially in the form of the
acknowledgement annexed to the relevant notice as set out in Schedule 1.
3.3 The Lender hereby undertakes to comply with the provisions of Clause 6 of
the Subordinated Loan Agreements, Clauses 5, 7 and 9 of the Deeds of
Charge and Assignment and Clause 12.2 of the Mortgages Trust Deeds as if
it were named as an original party thereto in place of the Obligor.
4. OTHER SECURITY
The security created hereunder shall be in addition to and shall not be
prejudiced by any other security or any guarantee or indemnity or other
document which the Lender may at any time hold for the payment of the
Secured Liabilities.
5. REPRESENTATION AND WARRANTIES
5.1 The Obligor represents and warrants to the Lender that:-
(1) it is the sole beneficial owner of the Assigned Assets;
(2) no Security (other than the security created hereunder or, to the
extent that it has not been released or discharged, the security
created under the floating charge dated 21.3.96 in favour of City
Mortgage Receivables 1 Plc or (to the extent, if at all, that the
same constitutes security over any of the Assigned Assets) the
security created under charges and assignment dated 28.3.98, 23.4.96
and 14.6.96 in favour of the Lender over the "Seller Net Cash Flow"
(as defined therein)) exists on, over or with respect to any of the
Assigned Assets;
(3) it has not sold, transferred, lent, assigned, parted with its
interest in, disposed of, granted any option in respect of or
otherwise dealt with any of its Rights, title and interest in and to
the Assigned Assets, or agreed to do any of the foregoing (otherwise
than pursuant to this Deed);
(4) it has the power to enter into, and perform and comply with its
obligations under, this Deed, and to create the security created
hereunder;
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208
(5) all actions, conditions and things required to be taken, fulfilled
and done (including the obtaining of any necessary consents) in
order to (i) enable it lawfully to enter into, and perform and
comply with its obligations under, this Deed, (ii) ensure that those
obligations are valid, legal, binding and enforceable, (iii) permit
the creation of the security created hereunder and ensure that
(subject to all necessary registrations thereof being made) the
security created hereunder is a valid, legal, binding and
enforceable first fixed security interest over the Assigned Assets
ranking in priority to the interests of any liquidator,
administrator or creditor of the Obligor, and (iv) make this Deed
admissible in evidence in the courts of England, have been taken,
fulfilled and done;
(6) the obligations of the Obligor under this Deed and (subject to all
necessary registrations thereof being made) the security created
hereunder are and will be until fully discharged valid, legal,
binding and enforceable and the security created hereunder
constitutes a first fixed security interest over the Assigned Assets
ranking in priority to the interests of any liquidator,
administrator or creditor of the Obligor; and
(7) each of the above representations and warranties will be correct and
complied with in all respects at all times during the continuance of
the security created hereunder as if repeated then by reference to
the then existing circumstances.
6. COVENANTS
6.1 The Obligor shall:-
(1) not create, attempt to create or permit to subsist any Security
(other than the security created hereunder) on, over or with respect
to any of the Assigned Assets;
(2) not sell, transfer, lend, assign, part with its interest in, dispose
of, grant any option in respect of or otherwise deal with any of its
Rights, title and interest in and to the Assigned Assets, or agree
to do any of the foregoing (otherwise than pursuant to this Deed);
(3) not take or omit to take any action which act or omission could
adversely affect or diminish the value of any of the Assigned
Assets;
(4) ensure that there are no moneys or liabilities outstanding in
respect of any of the Assigned Assets;
(5) ensure that the Assigned Assets are free from any restriction on
transfer or sale;
(6) take all action within its powers to procure, maintain in effect and
comply with all the terms and conditions of all approvals,
authorisations, consents and
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registrations necessary or appropriate for anything provided for on
its part in this Deed;
(7) ensure that the security created hereunder will at all times be a
legally valid and binding first fixed security interest over the
Assigned Assets ranking in priority to the interests of any
liquidator, administrator or creditor of the Obligor;
(8) deliver to the Lender a copy of every circular, notice, report, set
of accounts or other document received by the Obligor in respect of
or in connection with any of the Assigned Assets promptly following
receipt by the Obligor of such document; and
(9) promptly deliver to the Lender all such information concerning the
Assigned Assets as the Lender may reasonably request from time to
time.
7. ENFORCEMENT OF SECURITY
7.1 The security created hereunder shall become enforceable, and the powers
conferred by Section 101 of the Law of Property ▇▇▇ ▇▇▇▇ as varied and
extended by this Deed shall be exercisable, upon and at any time after the
occurrence of an Event of Default which is subsisting unremedied (to the
satisfaction of the Lender) or unwaived.
7.2 The powers conferred by Section 101 of the Law of Property ▇▇▇ ▇▇▇▇, as
varied and extended by this Deed, shall be deemed to have arisen
immediately on the execution of this Deed.
7.3 Sections 93 and 103 of the Law of Property Act 1925 shall not apply to
this Deed.
8. DEALINGS WITH ASSIGNED PROPERTY ON ENFORCEMENT AND APPOINTMENT OF
RECEIVERS
At any time after the security created hereunder has become enforceable,
the Lender shall have the right, without any notice to or consent of the
Obligor:-
(1) to sell, exchange, convert into money or otherwise dispose of or
release the Assigned Assets to any person and for such consideration
and on such terms (whether payable or deliverable in a lump sum or
by instalments) as it may think fit;
(2) for the purpose of preserving the value of the security created
hereunder or realising the same, to exercise (or cause to permit the
Lender's nominee to exercise) the Rights relating to the Assigned
Assets in such manner as it may think fit;
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(3) to settle, adjust, refer to arbitration, compromise and arrange any
claims, accounts, disputes, questions and demands relating in any
way to the Assigned Assets;
(4) to bring, prosecute, enforce, defend and abandon actions, suits and
proceedings in relation to the Assigned Assets; and
(5) to do all such other acts and things it may consider necessary or
expedient for the realisation of the Assigned Assets or incidental
to the exercise of any of the Rights conferred on it under or in
connection with this Deed or the Law of Property ▇▇▇ ▇▇▇▇ and to
concur in the doing of anything which it has the right to do and to
do any such thing jointly with any other person.
(6) at its sole discretion by deed, or writing signed by any person
authorised for this purpose by the Lender, appoint any person to be
Receiver, and may similarly at its sole discretion remove any
Receiver whether or not it appoints any person in his place, and the
Lender may at its sole discretion appoint more than one person as
Receiver and if the Lender appoints more than one person, the Lender
may give the relevant persons power to act either jointly or
severally.
9. APPOINTMENT AND RIGHTS OF RECEIVERSAND RIGHTS OF RECEIVERS
9.1 Any Receiver may be appointed either Receiver of all the Assigned Assets
or Receiver of such part of the Assigned Assets as may be specified in the
appointment. In the latter case, the Rights conferred on a Receiver by
this clause shall have effect as though every reference in that clause to
the "Assigned Assets" were a reference to the part of such Assigned Assets
so specified or any part thereof.
9.2 Any Receiver appointed under this deed shall (subject to any contrary
provision specified in his appointment) have the Right, either in his own
name or in the name of the Obligor or otherwise and in such manner and
upon such terms and conditions as the Receiver thinks fit:-
(1) to collect, get in or otherwise take control of any or all of
the Assigned Assets;
(2) to sell, transfer, assign, redeem, exchange and lend any or
all of the Assigned Assets and otherwise dispose of or realise
any or all of the Assigned Assets to any person (including the
Lender) for any form of consideration;
(3) for the purpose of exercising any of the Rights conferred on
him by or pursuant to this deed or of defraying any costs,
charges, losses, liabilities or expenses (including his
remuneration) incurred by or due to him in the exercise
thereof or for any other purpose, to borrow or raise money
either unsecured or on the security of the Assigned Assets
(either in priority to
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the security created hereunder or otherwise) and generally on
such terms and conditions as he may think fit;
(4) to enter into bonds, covenants, commitments, guarantees,
indemnities and like matters and to make all payments needed
to effect, maintain or satisfy the same;
(5) to manage and use the Assigned Assets and to exercise and do
(or permit the Obligor or its nominee to exercise and do) all
such Rights and things as the Receiver would be capable of
exercising or doing if he were the absolute beneficial owner
of the Assigned Assets and in particular, but without
limitation, to exercise any Rights of enforcing any Security
and to arrange for or provide all services which he may deem
proper for the efficient management or use of the Assigned
Assets or the exercise of such Rights;
(6) to settle, adjust, refer to arbitration, compromise and
arrange any claims, accounts, disputes, questions and demands
with or by any person who is or claims to be a creditor of the
Obligor in relation to the Assigned Assets;
(7) to bring, prosecute, enforce, defend and abandon actions,
suits and proceedings in relation to the Assigned Assets;
(8) to exercise all the powers set out in Schedule 1 to the
Insolvency ▇▇▇ ▇▇▇▇ force at the date of this deed (whether or
not in force at the date of exercise and whether or not the
Receiver is an administrative receiver); and
(9) to do all such other acts and things he may consider necessary
or expedient for the realisation of the Assigned Assets or
incidental to the exercise of any of the Rights conferred on
the Receiver under or in connection with this deed, the Law of
Property ▇▇▇ ▇▇▇▇ or the Insolvency Act and to concur in the
doing of anything which he has the Right to do and to do any
such thing jointly with any other person.
9.3 Any Receiver shall be the agent of the Obligor for all purposes and the
Obligor shall be solely responsible for his contracts, engagements, acts,
omissions, defaults and losses and for all liabilities incurred by him.
9.4 Subject to section 36 of the Insolvency ▇▇▇ ▇▇▇▇ Lender may from time to
time determine the remuneration of any Receiver (without being limited to
the maximum rate specified in section 109(6) of the Law of Property Act
1925) and may direct payment of such remuneration out of moneys accruing
to him as Receiver but the Obligor alone shall be liable for the payment
of such remuneration and for all other costs, charges and expenses of the
Receiver.
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10. APPLICATION OF PROCEEDS
All moneys received by the Lender in respect of the Assigned Assets after
this security has become enforceable shall (subject to any contrary
provision in the Proceeds Agreement) be applied by the Lender in or
towards payment of the Secured Liabilities in such order as the Lender
shall at its discretion determine but without prejudice to the right of
the Lender to recover any shortfall from the Obligor.
11. PRESERVATION OF SECURITY
11.1 The security constituted by this deed:
(1) shall be a continuing security and shall not be satisfied by any
intermediate payment or satisfaction of the whole or any part of the
Secured Liabilities but shall secure the ultimate balance of the
Secured Liabilities; and
(2) shall be in addition to and shall not be affected by any other
Security now or subsequently held by the Lender for all or any of
the Secured Liabilities.
11.2 The Obligor waives any right it may have of first requiring the Lender to
proceed against or claim payment from or enforce any other guarantee or
security before enforcing the security created hereunder.
11.3 Until all the Secured Liabilities have been irrevocably paid in full to
the satisfaction of the Lender the Obligor shall not:
(1) be entitled or claim to rank as creditor in the bankruptcy,
liquidation or dissolution of the Borrower in competition with the
Lender; or
(2) save as otherwise permitted under the Transaction Documents receive,
claim or have the benefit of any payment or distribution from the
Borrower or exercise any right of set-off as against the Borrower or
claim the benefit of any security or moneys held by or for the
account of the Lender in respect of the obligations of the Borrower
and the Lender shall be entitled to apply such security and moneys
as it sees fit.
11.4 Where any discharge (whether in respect of the security created hereunder,
any other security or otherwise) is made in whole or in part or any
arrangement is made on the faith of any payment, security or other
disposition which is avoided or must be repaid on bankruptcy, liquidation
or otherwise without limitation, this security and the liability of the
Obligor under this Deed shall continue as if there had been no such
discharge or arrangement.
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12. GENERAL RIGHTS OF THE LENDER
12.1 At any time following:
(1) the Lender receiving notice of any subsequent Security affecting the
Assigned Assets; or
(2) the occurrence of any Event of Default,
the Lender may open a new account in the name of the Obligor (whether or
not it permits any existing account to continue). If the Lender does not
open such a new account, it shall nevertheless be treated as if it had
done so upon the earlier of Acceleration or Enforcement. Thereafter, all
payments made by the Obligor to the Lender or received by the Lender for
the account of the Obligor shall be credited or treated as having been
credited to the new account and shall not operate to reduce the amount
secured by this deed.
12.2 The Lender may at any time, without notice to the Obligor and without
prejudice to any of the Lender's other Rights, set off or otherwise deduct
any Secured Liabilities which are due and unpaid against any obligation
(whether or not matured) owed by the Lender to the Obligor.
13. POWER OF ATTORNEY
13.1 The Obligor by way of security (for the Secured Liabilities) irrevocably
appoints the Lender the attorney of the Obligor on its behalf and in the
name of the Obligor or the Lender (as the attorney may decide) to do all
acts and things and execute all documents which the Obligor is or may be
obliged to do (but has not done) hereunder and in relation to any of the
Assigned Assets or in connection with any of the matters provided for in
this Deed, including (but without limitation) to exercise all Rights
conferred on the Lender in relation to the Assigned Assets under this Deed
or the Law of Property ▇▇▇ ▇▇▇▇.
13.2 The Obligor shall ratify and confirm whatever the attorney shall do in
exercise of its powers as attorney under the power of attorney in clause
13.1.
14. PROTECTION OF PURCHASER
No purchaser or other person dealing with the Lender or with its attorney
or agent shall be concerned to enquire:
(1) whether any power exercised or purported to be exercised by it or
him has become exercisable;
(2) whether any money remains due on this security;
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(3) as to the propriety or regularity of any of its or his actions; or
(4) as to the application of any money paid to it or him.
15. DELEGATION
15.1 The Lender may at any time or times:
(1) delegate to any person(s) all or any of its rights, powers and
discretions under this Deed on such terms (including power to
subdelegate) as the Lender sees fit; and
(2) employ agents, managers, employees, advisers and others on such
terms as the Lender sees fit for any of the purposes set out in this
Deed.
16. INDEMNITY
16.1 The Obligor shall indemnify the Lender and every attorney appointed by it
in respect of all liabilities and expenses incurred by it or him in good
faith in the execution or purported execution of any Rights in accordance
with this Deed.
16.2 The Lender shall not be liable for any losses arising in connection with
the exercise or purported exercise of any of its Rights, in good faith
under this Deed and in particular (but without limitation) the Lender in
possession shall not be liable to account as chargee in possession or for
anything except actual receipts.
17. WAIVERS; REMEDIES CUMULATIVE
17.1 The Rights of the Lender under this Deed.
(1) may be exercised as often as necessary;
(2) are cumulative and are not exclusive of its rights under the general
law; and
(3) may be waived only in writing and specifically and may be on such
terms as the Lender sees fit.
18. FURTHER ASSURANCE
18.1 The Obligor shall from time to time upon the request of the Lender
promptly and duly execute and deliver any and all such further instruments
and documents as the Lender may deem reasonable and desirable for the
purpose of obtaining the full benefit of the security created hereunder
and of the Rights granted under it.
18.2 Without prejudice to the generality of Clause 181, the Obligor shall, at
all times until the Secured Liabilities have been fully repaid by it, at
its own cost, promptly execute and
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deliver to the Lender in such form as the Lender shall require such other
Security over such of the Assets of the Obligor as shall be required by
the Lender.
19. REASSIGNMENT OF ASSIGNED ASSETS
19.1 Upon Payment of all Secured Liabilities in full then, subject to Clause
19.2, the Lender shall at the request and cost of the Obligor execute such
Deeds and do all such things as may be necessary to reassign the Assigned
Assets.
19.2 If the Obligor requests the Lender to reassign the Assigned Assets
following any payment, discharge, Security or guarantee made or given in
relation to the Secured Liabilities by a person other than the Obligor (a
"Relevant Transaction"), the Lender shall be entitled to retain this Deed
and shall not be obliged to reassign the Assigned Assets until the expiry
of the Retention Period in relation to that Relevant Transaction. If at
any time before the expiry of that Retention Period such other person
shall have become unable to pay its debts (within the meaning of the
Insolvency ▇▇▇ ▇▇▇▇ or other applicable insolvency legislation), the
Lender may continue to retain this Deed and shall not be obliged to
release the Assigned Assets from the security created hereunder for such
further period as the Lender may determine.
20. MISCELLANEOUS
20.1 The Obligor may not assign any of its Rights hereunder. The Lender may
assign all or any part of its Rights hereunder.
20.2 If a provision of this Deed is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(1) the validity or enforceability in that jurisdiction of any other
provision of this Deed; or
(2) the validity or enforceability in other jurisdictions of that or any
other provision of this Deed;
20.3 Each party acknowledges that in agreeing to enter into this Deed, it has
not relied on any representation, warranty or other assurance, except
those set out in this Deed.
21. STAMP DUTY
The Obligor shall pay promptly, and in any event before any penalty
becomes payable, all stamp, documentary and similar taxes, if any, payable
in connection with the entry into, performance, enforcement or
admissibility in evidence of this Deed or any other document referred to
in this Deed, and shall indemnify the Lender against any liability with
respect to, or resulting from any delay in paying or omission to pay, any
such tax.
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22. CURRENCY INDEMNITY
22.1 If, under any applicable law, whether pursuant to a judgment against the
Obligor or for any other reason, any payment under or in connection with
this Deed is made or recovered in a currency (the "Other Currency") other
than the currency in which the relevant payment is expressed to be payable
(the "Required Currency"), then, to the extent that the payment actually
received by the Lender (when converted into the Required Currency at the
rate of exchange on the date of payment or, if it is not practicable for
the Lender to make the conversion on that date, at the rate of exchange as
soon afterwards as it is practicable for the Lender to do so or, in the
case of a liquidation, administration or analogous event at the rate of
exchange on the latest date permitted by applicable law for the
determination of liabilities in such a liquidation, administration or
analogous event) falls short of the amount expressed to be due or payable
under or in connection with this Deed, the Obligor shall, as an original
and independent obligation under this Deed, indemnify and hold the Lender
harmless against the amount of such shortfall.
22.2 For the purpose of clause 21.1, "rate of exchange" means the rate at which
the Lender is able on the relevant date to purchase the Required Currency
with the Other Currency and shall take into account any commission,
premium and other costs of exchange and taxes payable in connection with
such purchase.
23. NOTICES AND RECEIPTSAND RECEIPTS
23.1 Any notice or other document to be served under this Deed shall be
delivered or sent by first class recorded delivery post (if inland) or
registered airmail (if overseas) to the party to be served at its address
set out below or at such other address as it may have notified to the
other party in accordance with this clause:
23.2
(1) to the Obligor at:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile No: 01923 426823
marked for the attention of the Company Secretary; and
(2) to the Lender at:
Greenwich International Limited
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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Facsimile No: 0171 375 5510
marked for the attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇ and with a copy to the
Lender's registered office Facsimile No. 001 203 629 4571 marked for
the attention of General Counsel.
23.3 Any notice or document shall be deemed to have been served:
(1) if delivered, at the time or delivery; or
(2) if posted, at 10.00 a.m. on the fifth business day after it was put
into the post.
23.4 In proving service of a notice or document it shall be sufficient to prove
that delivery was made or that the envelope containing the notice or
document was properly addressed and posted as a prepaid first class
recorded delivery letter or registered airmail letter (as appropriate).
24. GOVERNING LAW AND JURISDICTION
24.1 This Deed is governed by and shall be construed in accordance with English
law.
24.2 The parties hereto submit to the non-exclusive jurisdiction of the English
courts for all purposes relating to this Deed.
IN WITNESS of which this document has been executed as a deed and has been
delivered on the date first before written.
Signed as a deed by )
CITY MORTGAGE )
CORPORATION LIMITED )
acting by its duly appointed )
attorney in the presence of: ) ................
Witness:
------------------------------
Name:
------------------------------
Address:
------------------------------
------------------------------
------------------------------
Occupation:
------------------------------
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Signed as a deed by )
GREENWICH INTERNATIONAL, LTD. )
acting by its duly appointed attorney )
...................
in the presence of:
Witness:
------------------------------
Name:
------------------------------
Address:
------------------------------
------------------------------
------------------------------
Occupation:
------------------------------
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SCHEDULE 1
Notice of Assignment
To: Chase Manhattan Trustees Limited
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee")
We hereby give you notice that pursuant to the above mentioned Assignment, we
have assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Subordinated Loan Agreements dated; (a) 21 March 1996 between City
Mortgage Corporation Limited, City Mortgage Receivables 1 Plc, City
Mortgage Servicing Limited and Chemical Bank; (b) 18 October 1996 between
City Mortgage Corporation Limited, City Mortgage Receivables 2 Plc, City
Mortgage Servicing Limited and Chase Manhattan Trustees Limited; (c) 31
October 1996 between City Mortgage Corporation Limited, City Mortgage
Receivables 3 Plc, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited; (d) 31 January 1997 between City Mortgage Corporation
Limited, City Mortgage Receivables 4 Plc, City Mortgage Servicing Limited
and Chase Manhattan Trustees Limited; (e) 31 January 1997 between City
Mortgage Corporation Limited, City Mortgage Receivables 5 Plc, City
Mortgage Servicing Limited and Chase Manhattan Trustees Limited and; (f)
30 April 1997 between City Mortgage Corporation Limited, Chase Manhattan
Trustees Limited, City Mortgage Servicing Limited and City Mortgage
Receivables 6 Plc.
2. Mortgage Sale Agreements dated; (a) 21 March 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 1 Plc, City Mortgage
Trustees 1 Limited, City Mortgage Servicing Limited and Chemical Bank; (b)
18 October 1996 between City Mortgage Corporation Limited, City Mortgage
Receivables 2 Plc, City Mortgage Trustees 2 Limited, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited; (c) 31 October
1996 between City Mortgage Corporation Limited, City Mortgage Receivables
3 Plc, City Mortgage Trustees 3 Limited, City Mortgage Servicing Limited
and Chase Manhattan Trustees Limited; (d) 31 January 1997 between City
Mortgage Corporation Limited, City Mortgage Receivables 4 Plc, City
Mortgage Servicing Limited and Chase Manhattan Trustees Limited and; (e)
31 January 1997
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between City Mortgage Corporation Limited, City Mortgage Receivables 5
Plc, City Mortgage Servicing Limited and Chase Manhattan Trustees Limited.
3. Administration Agreements dated; (a) 21 March 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 1 Plc, City Mortgage
Trustees 1 Limited, City Mortgage Servicing Limited, City Mortgage
Holdings Limited and Chemical Bank; (b) 18 October 1996 between City
Mortgage Corporation Limited, City Mortgage Receivables 2 Plc, City
Mortgage Trustees 2 Limited, City Mortgage Servicing Limited and Chase
Manhattan Trustees Limited; (c) 31 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 3 Plc, City Mortgage
Servicing Limited, City Mortgage Trustees 3 Limited and Chase Manhattan
Trustees Limited; (d) 31 January 1997 between City Mortgage Corporation
Limited, City Mortgage Receivables 4 Plc, City Mortgage Servicing Limited
and Chase Manhattan Trustees Limited; and (e) 31 January 1997 between City
Mortgage Corporation Limited, Chase Manhattan Trustees Limited, City
Mortgage Servicing Limited and City Mortgage Receivables 5 Plc.
4. Deed of Charge and Assignments dated; (a) 21 March 1996 between City
Mortgage Receivables 1 Plc, City Mortgage Trustees 1 Limited, Chemical
Bank, City Mortgage Corporation Limited, City Mortgage Servicing Limited
and Guardian Mortgage Services Limited; (b) 18 October 1996 between Chase
Manhattan Trustees Limited, City Mortgage Receivables 2 Plc, City Mortgage
Trustees 2 Limited, City Mortgage Corporation Limited, City Mortgage
Servicing Limited and Guardian Mortgage Services Limited; (c) 31 October
1996 between Chase Manhattan Trustees Limited, City Mortgage Trustees 3
Limited, City Mortgage Receivables 3 Plc, City Mortgage Corporation
Limited, City Mortgage Servicing Limited and Guardian Mortgage Services
Limited; (d) 31 January 1997 between City Mortgage Receivables 4 Plc,
Chase Manhattan Trustees Limited, City Mortgage Corporation Limited, City
Mortgage Servicing Limited and Guardian Mortgage Services Limited; (e) 31
January 1997 between City Mortgage Receivables 5 Plc, Chase Manhattan
Trustees Limited, City Mortgage Corporation Limited, City Mortgage
Servicing Limited and Guardian Mortgage Services Limited and (f) 30 April
1997 between City Mortgage Receivables 6 Plc, Chase Manhattan Trustees
Limited, City Mortgage Funding 1 Limited, City Mortgage Services Limited,
Guardian Mortgage Services Limited and City Mortgage Corporation Limited.
5. Mortgages Trust Deeds dated: (a) 21 March 1996 between City Mortgage
Corporation Limited, City Mortgages Receivables 1 Plc, City Mortgage
Trustees 1 Limited, City Mortgage Servicing Limited and Chemical Bank; (b)
18 October 1996 between City Mortgage Corporate Limited, City Mortgage
Receivables 2 plc, City Mortgage Trustees 2 Limited, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited; (c) 31 October
1996 between City Mortgage Corporation Limited, City Mortgages Receivables
3 plc, City Mortgage Trustees 3 Limited, City Mortgage Servicing Limited
and Chase Manhattan Trustees Limited.
(together, the documents referred to above being herein the "Assigned
Agreements")
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Pursuant to the terms of the Subordinated Loan Agreements, the Deeds of Charge
and Assignments and the Mortgages Trust Deeds, an assignee and any subsequent
assignee thereafter of our rights, title and interest under such agreements is
required to agree, in writing, to be bound by specific provisions thereof. The
Transferee therefore hereby agrees as follows:
25. in relation to the Mortgages Trust Deeds, to be bound by the provisions of
Clause 12.2 thereof as if it were an original party thereto in place of
City Mortgage Corporation Limited;
26. in relation to the Subordinated Loan Agreements, to be bound by the
provisions of Clause 6 thereof as if it were an original party thereto in
place of City Mortgage Corporation Limited; and
27. in relation to the Deeds of Charge and Assignments, to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it were an original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
1. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights in respect of Assigned
Agreements, to the exclusion of ourselves; and
2. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
-----------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
-----------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
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Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
28. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 12.2 of the Mortgages Trust Deeds,
Clause 6 of the Subordinated Loan Agreements and Clauses 5, 7 and 9 of the
Deeds of Charge and Assignment and confirm that we have not received
notice of any previous assignments or charges of or over any of the
Rights.
29. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
-------------------------------------
for and on behalf of
Chase Manhattan Trustees Limited
February, 1998
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To: Chase Manhattan Trustees Limited February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until we notify you otherwise we hereby instruct you to pay all amounts from
time to time due and payable by you under the Assigned Agreements (and which
would, but for the Assignment have been payable to City Mortgage Corporation
Limited) to the account of City Mortgage Corporation Limited, number 76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
-----------------------------------
for and on behalf of
Greenwich International Ltd.
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Notice of Assignment
To: City Mortgage Receivables 1 Plc
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee")
We hereby give you notice that pursuant to the above mentioned Assignment, we
have assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Subordinated Loan Agreement dated 21 March 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 1 Plc, City Mortgage
Servicing Limited and Chemical Bank;
2. Mortgage Sale Agreement dated 21 March 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 1 Plc, City Mortgage
Trustees 1 Limited, City Mortgage Servicing Limited and Chemical Bank;
3. Administration Agreement dated 21 March 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 1 Plc, City Mortgage
Trustees 1 Limited, City Mortgage Servicing Limited, City Mortgage
Holdings Limited and Chemical Bank;
4. Deed of Charge and Assignment dated 21 March 1996 between City Mortgage
Receivables 1 Plc, City Mortgage Trustees 1 Limited, Chemical Bank, City
Mortgage Corporation Limited, City Mortgage Servicing Limited and Guardian
Mortgage Services Limited;
5. Mortgages Trust Deed dated 21 March 1996 between City Mortgage Corporation
Limited, City Mortgage Receivables 1 Plc, City Mortgage Trustees 1
Limited, City Mortgage Servicing Limited and Chemical Bank.
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Subordinated Loan Agreement, the Deed of Charge and
Assignment and the Mortgages Trust Deed, an assignee and any subsequent assignee
thereafter of our rights, title and interest under such agreements is required
to agree, in writing, to be bound by specific provisions thereof. The Transferee
therefore hereby agrees as follows:
25
225
30. in relation to the Mortgages Trust Deed, to be bound by the provisions of
Clause 12.2 thereof as if it were an original party thereto in place of
City Mortgage Corporation Limited;
31. in relation to the Subordinated Loan Agreement, to be bound by the
provisions of Clause 6 thereof as if it were an original party thereto in
place of City Mortgage Corporation Limited; and
32. in relation to the Deed of Charge and Assignment, to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it were an original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
33. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights in respect of the Assigned
Agreements, to the exclusion of ourselves; and
34. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
26
226
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
35. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 12.2 of the Mortgages Trust Deed,
Clause 6 of the Subordinated Loan Agreement and Clauses 5, 7 and 9 of the
Deed of Charge and Assignment and confirm that we have not received notice
of any previous assignments or charges of or over any of the Rights.
36. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person, and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
------------------------------------
for and on behalf of
City Mortgage Receivables 1 Plc
February, 1998
27
227
To: City Mortgage Receivables 1 Plc February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until we notify you otherwise we hereby instruct you to pay all amounts from
time to time due and payable by you under the Assigned Agreements (and which
would, but for the Assignment have been payable to City Mortgage Corporation
Limited) to the account of City Mortgage Corporation Limited, number 76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
--------------------------------------------------------
for and on behalf of
Greenwich International Ltd.
28
228
Notice of Assignment
To: City Mortgage Receivables 2 Plc
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee")
We hereby give you notice that pursuant to the above mentioned Assignment, we
have assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Subordinated Loan Agreement dated 18 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 2 Plc, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited;
2. Mortgage Sale Agreement dated 18 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 2 Plc, City Mortgage
Trustees 2 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited;
3. Administration Agreement dated 18 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 2 Plc, City Mortgage
Trustees 2 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited;
4. Deed of Charge and Assignment dated 18 October 1996 between City Mortgage
Receivables 2 Plc, City Mortgage Trustees 2 Limited, Chase Manhattan
Trustees Limited, City Mortgage Corporation Limited, City Mortgage
Servicing Limited and Guardian Mortgage Services Limited;
5. Mortgages Trust Deed dated 18 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 2 Plc, City Mortgage
Trustees 2 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited.
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Subordinated Loan Agreement, the Deed of Charge and
Assignment and the Mortgages Trust Deed, an assignee and any subsequent assignee
thereafter of our rights, title and interest under such agreements is required
to agree, in writing, to be bound by specific provisions thereof. The Transferee
therefore hereby agrees as follows:
29
229
37. in relation to the Mortgages Trust Deed, to be bound by the provisions of
Clause 12.2 thereof as if it were an original party thereto in place of
City Mortgage Corporation Limited;
38. in relation to the Subordinated Loan Agreement, to be bound by the
provisions of Clause 6 thereof as if it were an original party thereto in
place of City Mortgage Corporation Limited; and
39. in relation to the Deed of Charge and Assignment, to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it were an original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
40. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights in respect of the Assigned
Agreements, to the exclusion of ourselves; and
41. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
30
230
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
42. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 12.2 of the Mortgages Trust Deed,
Clause 6 of the Subordinated Loan Agreement and Clauses 5, 7 and 9 of the
Deed of Charge and Assignment and confirm that we have not received notice
of any previous assignments or charges of or over any of the Rights.
43. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
--------------------------------------------------------
for and on behalf of
City Mortgage Receivables 2 Plc
February, 1998
31
231
To: City Mortgage Receivables 2 Plc February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until we notify you otherwise we hereby instruct you to pay all amounts from
time to time due and payable by you under the Assigned Agreements (and which
would, but for the Assignment have been payable to City Mortgage Corporation
Limited) to the account of City Mortgage Corporation Limited, number 76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
--------------------------------------------------------
for and on behalf of
Greenwich International Ltd.
32
232
Notice of Assignment
To: City Mortgage Receivables 3 Plc
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee") We
hereby give you notice that pursuant to the above mentioned Assignment, we have
assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Subordinated Loan Agreement dated 31 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 3 Plc, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited;
2. Mortgage Sale Agreement dated 31 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 3 Plc, City Mortgage
Trustees 3 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited;
3. Administration Agreement dated 31 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 3 Plc, City Mortgage
Trustees 3 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited;
4. Deed of Charge and Assignment dated 31 October 1996 between City Mortgage
Receivables 3 Plc, City Mortgage Trustees 3 Limited, City Mortgage
Corporation Limited, Chase Manhattan Trustees Limited, City Mortgage
Servicing Limited and Guardian Mortgage Services Limited;
5. Mortgages Trust Deed dated 31 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 3 Plc, City Mortgage
Trustees 3 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited,
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Subordinated Loan Agreement, the Deed of Charge and
Assignment and the Mortgages Trust Deed, an assignee and any subsequent assignee
thereafter of our rights,
33
233
title and interest under such agreements is required to agree, in writing, to be
bound by specific provisions thereof. The Transferee therefore hereby agrees as
follows:
44. in relation to the Mortgages Trust Deed, to be bound by the provisions of
Clause 12.2 thereof as if it were an original party thereto in place of
City Mortgage Corporation Limited;
45. in relation to the Subordinated Loan Agreement, to be bound by the
provisions of Clause 6 thereof as if it were an original party thereto in
place of City Mortgage Corporation Limited; and
46. in relation to the Deed of Charge and Assignment, to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it were an original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
47. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights in respect of the Assigned
Agreements, to the exclusion of ourselves; and
48. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
34
234
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
49. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 12.2 of the Mortgages Trust Deed,
Clause 6 of the Subordinated Loan Agreement and Clauses 5, 7 and 9 of the
Deed of Charge and Assignment and confirm that we have not received notice
of any previous assignments or charges of or over any of the Rights.
50. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person, and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
------------------------------------
for and on behalf of
City Mortgage Receivables 3 Plc
February, 1998
35
235
To: City Mortgage Receivables 3 Plc February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until we notify you otherwise we hereby instruct you to pay all amounts from
time to time due and payable by you under the Assigned Agreements (and which
would, but for the Assignment have been payable to City Mortgage Corporation
Limited) to the account of City Mortgage Corporation Limited, number 76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
--------------------------------------------------------
for and on behalf of
Greenwich International Ltd.
36
236
Notice of Assignment
To: City Mortgage Receivables 4 Plc
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee") We
hereby give you notice that pursuant to the above mentioned Assignment, we have
assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Subordinated Loan Agreement dated 31 January 1997 between City Mortgage
Corporation Limited, City Mortgage Receivables 4 Plc, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited;
2. Mortgage Sale Agreement dated 31 January 1997 between City Mortgage
Corporation Limited, City Mortgage Receivables 4 Plc, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited;
3. Administration Agreement dated 31 January 1997 between City Mortgage
Corporation Limited, City Mortgage Receivables 4 Plc, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited;
4. Deed of Charge and Assignment dated 31 January 1997 between City Mortgage
Receivables 4 Plc, Chase Manhattan Trustees Limited, City Mortgage
Corporation Limited, City Mortgage Servicing Limited and Guardian Mortgage
Services Limited;
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Subordinated Loan Agreement and the Deed of Charge
and Assignment, an assignee and any subsequent assignee thereafter of our
rights, title and interest under such agreements is required to agree, in
writing, to be bound by specific provisions thereof. The Transferee therefore
hereby agrees as follows:
51. in relation to the Subordinated Loan Agreement, to be bound by the
provisions of Clause 6 thereof as if it were an original party thereto in
place of City Mortgage Corporation Limited; and
37
237
52. in relation to the Deed of Charge and Assignment, to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it were an original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
53. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights in respect of the Assigned
Agreements, to the exclusion of ourselves; and
54. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
38
238
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
55. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 6 of the Subordinated Loan Agreement
and Clauses 5, 7 and 9 of the Deed of Charge and Assignment and confirm
that we have not received notice of any previous assignments or charges of
or over any of the Rights.
56. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person, and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
--------------------------------------------------------
for and on behalf of
City Mortgage Receivables 4 Plc
February, 1998
39
239
To: City Mortgage Receivables 4 Plc February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until you receive further notice from us we hereby instruct you to pay all
amounts from time to time due and payable by you under the Assigned Agreements
(and which would, but for the Assignment have been payable to City Mortgage
Corporation Limited) to the account of City Mortgage Corporation Limited, number
76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
--------------------------------------------------------
for and on behalf of
Greenwich International Ltd.
40
240
Notice of Assignment
To: City Mortgage Receivables 5 Plc
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee")
We hereby give you notice that pursuant to the above mentioned Assignment, we
have assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Subordinated Loan Agreement dated 31 January 1997 between City Mortgage
Corporation Limited, City Mortgage Receivables 5 Plc, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited;
2. Mortgage Sale Agreement dated 31 January 1997 between City Mortgage
Corporation Limited, City Mortgage Receivables 5 Plc, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited;
3. Administration Agreement dated 31 January 1997 between City Mortgage
Corporation Limited, City Mortgage Receivables 5 Plc, City Mortgage
Servicing Limited, Chase Manhattan Trustees Limited;
4. Deed of Charge and Assignment dated 31 January 1997 between City Mortgage
Receivables 5 Plc, Chase Manhattan Trustees Limited, City Mortgage
Corporation Limited, City Mortgage Servicing Limited and Guardian Mortgage
Services Limited;
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Subordinated Loan Agreement and the Deed of Charge
and Assignment, an assignee and any subsequent assignee thereafter of our
rights, title and interest under such agreements is required to agree, in
writing, to be bound by specific provisions thereof. The Transferee therefore
hereby agrees as follows:
57. in relation to the Subordinated Loan Agreement, to be bound by the
provisions of Clause 6 thereof as if it were an original party thereto in
place of City Mortgage Corporation Limited; and
41
241
58. in relation to the Deed of Charge and Assignment, to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it were an original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
59. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights in respect of Assigned
Agreements, to the exclusion of ourselves; and
60. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
42
242
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
61. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 6 of the Subordinated Loan Agreement
and Clauses 5, 7 and 9 of the Deed of Charge and Assignment and confirm
that we have not received notice of any previous assignments or charges of
or over any of the Rights.
62. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person, and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
--------------------------------------------------------
for and on behalf of
City Mortgage Receivables 5 Plc
February, 1998
43
243
To: City Mortgage Receivables 5 Plc February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until you receive further notice from us we hereby instruct you to pay all
amounts from time to time due and payable by you under the Assigned Agreements
(and which would, but for the Assignment have been payable to City Mortgage
Corporation Limited) to the account of City Mortgage Corporation Limited, number
76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
--------------------------------------------------------
for and on behalf of
Greenwich International Ltd.
44
244
Notice of Assignment
To: City Mortgage Receivables 6 Plc
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee")
We hereby give you notice that pursuant to the above mentioned Assignment, we
have assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
in and to the following:
1. Subordinated Loan Agreement dated 30 April 1997 between City Mortgage
Corporation Limited, City Mortgage Receivables 6 Plc, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited;
2. Deed of Charge and Assignment dated 30 April 1997 between City Mortgage
Receivables 6 Plc, Chase Manhattan Trustees Limited, City Mortgage Funding
1 Limited, City Mortgage Services Limited, Guardian Mortgage Services
Limited and City Mortgage Corporation Limited.
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Assigned Agreements, an assignee and any subsequent
assignee thereafter of our rights, title and interest under such agreements is
required to agree, in writing, to be bound by specific provisions thereof. The
Transferee therefore hereby agrees as follows:
63. in relation to the Subordinated Loan Agreement, to be bound by the
provisions of Clause 6 thereof as if were an original party thereto in
place of City Mortgage Corporation Limited; and
64. in relation to the Deed of Charge and Assignment to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it were an original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
65. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Assigned Agreements, to the
exclusion of ourselves; and
45
245
66. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
46
246
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
67. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 6 of the Subordinated Loan Agreement
and Clauses 5, 7 and 9 of the Deed of Charge and Assignment and confirm
that we have not received notice of any previous assignments or charges of
or over any of the Rights.
68. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person, and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning hereunder.
Yours faithfully
-----------------------------------------------
for and on behalf of
City Mortgage Receivables 6 Plc
February 1998
47
247
To: City Mortgage Receivables 6 Plc February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until further notice we hereby instruct you to pay all amounts from time to time
due and payable by you under the Assigned Agreements (and which would, but for
the Assignment have been payable to City Mortgage Corporation Limited) to the
account of City Mortgage Corporation Limited, number 76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
-------------------------------------
for and on behalf of
Greenwich International Ltd.
48
248
Notice of Assignment
To: City Mortgage Trustees 1 Limited
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee") We
hereby give you notice that pursuant to the above mentioned Assignment, we have
assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Administration Agreement dated 21 March 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 1 Plc, City Mortgage
Trustees 1 Limited, City Mortgage Servicing Limited, City Mortgage
Holdings Limited and Chemical Bank;
2. Deed of Charge and Assignment dated 21 March 1996 between City Mortgage
Trustees 1 Limited, City Mortgage Receivables 1 Plc, Chemical Bank, City
Mortgage Corporation Limited, City Mortgage Servicing Limited and Guardian
Mortgage Services Limited;
3. Mortgages Trust Deed dated 21 March 1996 between City Mortgage Corporation
Limited, City Mortgage Receivables 1 Plc, City Mortgage Trustees 1
Limited, City Mortgage Servicing Limited and Chemical Bank.
4. Mortgage Sale Agreement dated 21 March 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 1 Plc, City Mortgage
Trustees 1 Limited, City Mortgage Servicing Limited and Chemical Bank;
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Deed of Charge and Assignment and the Mortgages
Trust Deed, an assignee and any subsequent assignee thereafter of our rights,
title and interest under such agreements is required to agree, in writing, to be
bound by specific provisions thereof. The Transferee therefore hereby agrees as
follows:
69. in relation to the Mortgages Trust Deed, to be bound by the provisions of
Clause 12.2 thereof as if it was the original party thereto in place of
City Mortgage Corporation Limited; and
49
249
70. in relation to the Deed of Charge and Assignment, to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it was the original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
71. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights under the Assigned
Agreements, to the exclusion of ourselves; and
72. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
50
250
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
73. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 12.2 of the Mortgages Trust Deed and
Clauses 5, 7 and 9 of the Deed of Charge and Assignment and confirm that
we have not received notice of any previous assignments or charges of or
over any of the Rights.
74. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person, and we shall make
all payments due to be made by us under the Assigned Agreement (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
--------------------------------------------------------
for and on behalf of
City Mortgage Trustees 1 Limited
February, 1998
51
251
To: City Mortgage Trustees Limited February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until further notice from us we hereby instruct you to pay all amounts from time
to time due and payable by you under the Assigned Agreements (and which would,
but for the Assignment have been payable to City Mortgage Corporation Limited)
to the account of City Mortgage Corporation Limited, number 76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
--------------------------------------------------------
for and on behalf of
Greenwich International Ltd.
52
252
Notice of Assignment
To: City Mortgage Trustees 2 Limited
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee") We
hereby give you notice that pursuant to the above mentioned Assignment, we have
assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Administration Agreement dated 18 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 2 Plc, City Mortgage
Trustees 2 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited;
2. Deed of Charge and Assignment dated 18 October 1996 between City Mortgage
Trustees 1 Limited, City Mortgage Receivables 2 Plc, Chase Manhattan
Trustees Limited, City Mortgage Corporation Limited, City Mortgage
Servicing Limited and Guardian Mortgage Services Limited;
3. Mortgages Trust Deed dated 18 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 2 Plc, City Mortgage
Trustees 2 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited;
4. Mortgage Sale Agreement dated 18 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 2 Plc, City Mortgage
Trustees 2 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited;
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Deed of Charge and Assignment and the Mortgages
Trust Deed, an assignee and any subsequent assignee thereafter of our rights,
title and interest under such agreements is required to agree, in writing, to be
bound by specific provisions thereof. The Transferee therefore hereby agrees as
follows:
75. in relation to the Mortgages Trust Deed, to be bound by the provisions of
Clause 12.2 thereof as if it were an original party thereto in place of
City Mortgage Corporation Limited; and
53
253
76. in relation to the Deed of Charge and Assignment, to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it were an original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
77. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights in respect of the Assigned
Agreements, to the exclusion of ourselves; and
78. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
54
254
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
79. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 12.2 of the Mortgages Trust Deed and
Clauses 5, 7 and 9 of the Deed of Charge and Assignment and confirm that
we have not received notice of any previous assignments or charges of or
over any of the Rights.
80. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person, and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
--------------------------------------------
for and on behalf of
City Mortgage Trustees 2 Limited
February, 1998
55
255
To: City Mortgage Trustees 2 Limited February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until further notice from us we hereby instruct you to pay all amounts from time
to time due and payable by you under the Assigned Agreements (and which would,
but for the Assignment have been payable to City Mortgage Corporation Limited)
to the account of City Mortgage Corporation Limited, number 76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
------------------------------------------
for and on behalf of
Greenwich International Ltd.
56
256
Notice of Assignment
To: City Mortgage Trustees 3 Limited
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee") We
hereby give you notice that pursuant to the above mentioned Assignment, we have
assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Administration Agreement dated 31 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 3 Plc, City Mortgage
Trustees 3 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited;
2. Mortgages Trust Deed dated 31 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 3 Plc, City Mortgage
Trustees 3 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited;
3. Mortgage Sale Agreement dated 31 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 3 Plc, City Mortgage
Trustees 3 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited;
4. Deed of Charge and Assignment dated 31 October 1996 between Chase
Manhattan Trustees Limited, City Mortgage Trustees 3 Limited, City
Mortgage Receivables 3 Plc, City Mortgage Corporation Limited, City
Mortgage Servicing Limited and Guardian Mortgage Services Limited.
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Deed of Charge and Assignment and the Mortgages
Trust Deed, an assignee and any subsequent assignee thereafter of our rights,
title and interest under such agreements is required to agree, in writing, to be
bound by specific provisions thereof. The Transferee therefore hereby agrees as
follows:
57
257
81. in relation to the Mortgages Trust Deed, to be bound by the provisions of
Clause 12.2 thereof as if it were an original party thereto in place of
City Mortgage Corporation Limited; and
82. in relation to the Deed of Charge and Assignment, to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it were an original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
83. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights in respect of the Assigned
Agreements, to the exclusion of ourselves; and
84. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
58
258
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
85. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 12.2 of the Mortgages Trust Deed and
Clauses 5, 7 and 9 of the Deed of Charge and Assignment and confirm that
we have not received notice of any previous assignments or charges of or
over any of the Rights.
86. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person, and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
------------------------------------------
for and on behalf of
City Mortgage Trustees 3 Limited
February, 1998
59
259
To: City Mortgage Trustees 3 Limited February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until further notice from us we hereby instruct you to pay all amounts from time
to time due and payable by you under the Assigned Agreements (and which would,
but for the Assignment have been payable to City Mortgage Corporation Limited)
to the account of City Mortgage Corporation Limited, number 76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
--------------------------------------------------------
for and on behalf of
Greenwich International Ltd.
60
260
Notice of Assignment
To: Guardian Mortgage Services Limited
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee") We
hereby give you notice that pursuant to the above mentioned Assignment, we have
assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Deed of Charge and Assignments dated; (a) 21 March 1996 between City
Mortgage Receivables 1 Plc, City Mortgage Trustees 1 Limited, Chemical
Bank, City Mortgage Corporation Limited, City Mortgage Servicing Limited
and Guardian Mortgage Services Limited; (b) 18 October 1996 between Chase
Manhattan Trustees Limited, City Mortgage Receivables 2 Plc, City Mortgage
Trustees 2 Limited, City Mortgage Corporation Limited, City Mortgage
Servicing Limited and Guardian Mortgage Services Limited; (c) 31 October
1996 between Chase Manhattan Trustees Limited, City Mortgage Trustees 3
Limited, City Mortgage Receivables 3 Plc, City Mortgage Corporation
Limited, City Mortgage Servicing Limited and Guardian Mortgage Services
Limited; (d) 31 January 1997 between City Mortgage Receivables 4 Plc,
Chase Manhattan Trustees Limited, City Mortgage Corporation Limited, City
Mortgage Servicing Limited and Guardian Mortgage Services Limited; (e) 31
January 1997 between City Mortgage Receivables 5 Plc, Chase Manhattan
Trustees Limited, City Mortgage Corporation Limited, City Mortgage
Servicing Limited and Guardian Mortgage Services Limited and (f) 30 April
1997 between City Mortgage Receivables 6 Plc, Chase Manhattan Trustees
Limited, City Mortgage Funding 1 Limited, City Mortgage Services Limited,
Guardian Mortgage Services Limited and City Mortgage Corporation Limited.
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Assigned Agreements, an assignee and any subsequent
assignee thereafter of our rights, title and interest under such agreements is
required to agree, in writing, to be bound by specific provisions thereof. The
Transferee therefore hereby agrees to be bound by the provisions of Clauses 5, 7
and 9 of the Assigned Agreements as if it were an original party thereto in
place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you :
61
261
87. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights in respect of the Assigned
Agreements, to the exclusion of ourselves; and
88. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
62
262
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
89. We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clauses 5, 7 and 9 of the Assigned
Agreements and confirm that we have not received notice of any previous
assignments or charges of or over any of the Rights.
90. We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
-------------------------------------------
for and on behalf of
Guardian Mortgage Services Limited
February, 1998
63
263
To: Guardian Mortgage Services Limited February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until we notify you otherwise we hereby instruct you to pay all amounts from
time to time due and payable by you under the Assigned Agreements (and which
would, but for the Assignment have been payable to City Mortgage Corporation
Limited) to the account of City Mortgage Corporation Limited, number 76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
-------------------------------------------
for and on behalf of
Greenwich International Ltd.
64
264
Notice of Assignment
To: City Mortgage Servicing Limited
February 1998
Dear Sirs,
CMC Charge dated February 1998 (the "Assignment") between CITY MORTGAGE
CORPORATION LIMITED and GREENWICH INTERNATIONAL LTD. (the "Transferee") We
hereby give you notice that pursuant to the above mentioned Assignment, we have
assigned absolutely to GREENWICH INTERNATIONAL LTD. a Bermuda Company whose
branch office is at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ all our rights, title and interest
(the "Rights") in and to the following:
1. Administration Agreements dated; (a) 21 March 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 1 Plc, City Mortgage
Trustees 1 Limited, City Mortgage Servicing Limited, City Mortgage
Holdings Limited and Chemical Bank; (b) 18 October 1996 between City
Mortgage Corporation Limited, City Mortgage Servicing Limited, City
Mortgage Receivables 2 Plc, City Mortgage Trustees 2 Limited and Chase
Manhattan Trustees Limited; (c) 31 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 3 Plc, City Mortgage
Trustees 3 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited; (d) 31 January 1997 between City Mortgage Corporation
Limited, City Mortgage Receivables 4 Plc, City Mortgage Servicing Limited
and Chase Manhattan Trustees Limited; and (e) 31 January 1997 between City
Mortgage Corporation Limited, City Mortgage Servicing Limited, City
Mortgage Receivables 5 Plc and Chase Manhattan Trustees Limited.
2. Subordinated Loan Agreements dated; (a) 21 March 1996 between City
Mortgage Corporation Limited, City Mortgage Receivables 1 Plc, City
Mortgage Servicing Limited and Chemical Bank; (b) 18 October 1996 between
City Mortgage Corporation Limited, City Mortgage Receivables 2 Plc, City
Mortgage Servicing Limited and Chase Manhattan Trustees Limited; (c) 31
October 1996 between City Mortgage Corporation Limited, City Mortgage
Receivables 3 Plc, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited; (d) 31 January 1997 between City Mortgage Corporation
Limited, City Mortgage Receivables 4 Plc, City Mortgage Servicing Limited
and Chase Manhattan Trustees Limited; (e) 31 January 1997 between City
Mortgage Corporation Limited, City Mortgage Receivables 5 Plc, City
Mortgage Servicing Limited and Chase Manhattan Trustees Limited and; (f)
30 April 1997 between City Mortgage Corporation Limited, Chase Manhattan
Trustees Limited, City Mortgage Servicing Limited and City Mortgage
Receivables 6 Plc.
3. Mortgage Sale Agreements dated; (a) 21 March 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 1 Plc, City Mortgage
Trustees 1 Limited, City
65
265
Mortgage Servicing Limited and Chemical Bank; (b) 18 October 1996 between
City Mortgage Corporation Limited, City Mortgage Receivables 2 Plc, City
Mortgage Trustees 2 Limited, City Mortgage Servicing Limited and Chase
Manhattan Trustees Limited; (c) 31 October 1996 between City Mortgage
Corporation Limited, City Mortgage Receivables 3 Plc, City Mortgage
Trustees 3 Limited, City Mortgage Servicing Limited and Chase Manhattan
Trustees Limited; (d) 31 January 1997 between City Mortgage Corporation
Limited, City Mortgage Receivables 4 Plc, City Mortgage Servicing Limited
and Chase Manhattan Trustees Limited and; (e) 31 January 1997 between City
Mortgage Corporation Limited, City Mortgage Receivables 5 Plc, City
Mortgage Servicing Limited and Chase Manhattan Trustees Limited.
4. Deed of Charge and Assignments dated; (a) 21 March 1996 between City
Mortgage Receivables 1 Plc, City Mortgage Trustees 1 Limited, Chemical
Bank, City Mortgage Corporation Limited, City Mortgage Servicing Limited
and Guardian Mortgage Services Limited; (b) 18 October 1996 between Chase
Manhattan Trustees Limited, City Mortgage Receivables 2 Plc, City Mortgage
Trustees 2 Limited, City Mortgage Corporation Limited, City Mortgage
Servicing Limited and Guardian Mortgage Services Limited; (c) 31 October
1996 between Chase Manhattan Trustees Limited, City Mortgage Trustees 3
Limited, City Mortgage Receivables 3 Plc, City Mortgage Corporation
Limited, City Mortgage Servicing Limited and Guardian Mortgage Services
Limited; (d) 31 January 1997 between City Mortgage Receivables 4 Plc,
Chase Manhattan Trustees Limited, City Mortgage Corporation Limited, City
Mortgage Servicing Limited and Guardian Mortgage Services Limited; (e) 31
January 1997 between City Mortgage Receivables 5 Plc, Chase Manhattan
Trustees Limited, City Mortgage Corporation Limited, City Mortgage
Servicing Limited and Guardian Mortgage Services Limited and (f) 30 April
1997 between City Mortgage Receivables 6 Plc, Chase Manhattan Trustees
Limited, City Mortgage Funding 1 Limited, City Mortgage Services Limited,
Guardian Mortgage Services Limited and City Mortgage Corporation Limited.
5. Mortgages Trust Deeds dated: (a) 21 March 1996 between City Mortgage
Corporation Limited, City Mortgages Receivables 1 Plc, City Mortgage
Trustees 1 Limited, City Mortgage Servicing Limited and Chemical Bank; (b)
18 October 1996 between City Mortgage Corporate Limited, City Mortgage
Receivables 2 plc, City Mortgage Trustees 2 Limited, City Mortgage
Servicing Limited and Chase Manhattan Trustees Limited; (c) 31 October
1996 between City Mortgage Corporation Limited, City Mortgages Receivables
3 plc, City Mortgage Trustees 3 Limited, City Mortgage Servicing Limited
and Chase Manhattan Trustees Limited.
(together, the documents referred to above being herein the "Assigned
Agreements")
Pursuant to the terms of the Assigned Agreements, an assignee and any subsequent
assignee thereafter of our rights, title and interest under such agreements is
required to agree, in writing, to be bound by specific provisions thereof. The
Transferee therefore hereby agrees as follows:
66
266
91. in relation to the Mortgages Trust Deeds, to be bound by the provisions of
Clause 12.2 thereof as if it were an original party thereto in place of
City Mortgage Corporation Limited;
92. in relation to the Subordinated Loan Agreements, to be bound by the
provisions of Clause 6 thereof as if it were an original party thereto in
place of City Mortgage Corporation Limited; and
93. in relation to the Deeds of Charge and Assignments, to be bound by the
provisions of Clauses 5, 7 and 9 thereof as if it were an original party
thereto in place of City Mortgage Corporation Limited.
We hereby irrevocably instruct and authorise you:
94. until notified to the contrary, in writing, by the Transferee to deal only
with the Transferee in relation to the Rights in respect of the Assigned
Agreements, to the exclusion of ourselves; and
95. until notified to the contrary, in writing, by the Transferee to pay all
amounts from time to time due and payable by you under the Assigned
Agreements (and which would, but for the Assignment have been payable to
City Mortgage Corporation Limited) to the Transferee or to such account of
such other person as the Transferee shall, from time to time by notice in
writing, specify.
This letter is governed by English law.
Please acknowledge receipt of this letter by sending a letter addressed to the
Transferee and copied to us in the form attached.
Yours faithfully
--------------------------------------------------------
CITY MORTGAGE CORPORATION LIMITED
Acknowledged and Agreed by
--------------------------------------------------------
For and on behalf of
GREENWICH INTERNATIONAL, LTD.
67
267
Acknowledgement
To: Greenwich International Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: City Mortgage Corporation Limited
Dear Sirs,
We refer to the letter from City Mortgage Corporation Limited ("CMC") to
ourselves dated February, 1998 (the "Notice") a copy of which is attached, in
which CMC gave us notice of the assignment absolutely to yourselves of its
rights, title and interest (the "Rights") in the Assigned Agreements.
(a) We acknowledge receipt of the Notice and in particular your agreement to
be bound by the provisions of Clause 12.2 of the Mortgages Trust Deeds,
Clause 6 of the Subordinated Loan Agreements and Clauses 5, 7 and 9 of the
Deeds of Charge and Assignment and confirm that we have not received
notice of any previous assignments or charges of or over any of the
Rights.
(b) We further confirm that we shall at all times deal with you in relation to
the Rights, to the exclusion of CMC or any other person and we shall make
all payments due to be made by us under the Assigned Agreements (and which
would, but for the Assignment, have been due to City Mortgage Corporation
Limited) in accordance with your written instructions.
Terms defined in the Notice have the same meaning herein.
Yours faithfully
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for and on behalf of
City Mortgage Servicing Limited
February, 1998
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To: City Mortgage Servicing Limited February 1998
Dear Sirs,
We refer to the notice of assignment of all of the right, title and interest of
City Mortgage Corporation Limited in the Assigned Agreements to Greenwich
International Ltd., a copy of which we attach.
Until we notify you otherwise we hereby instruct you to pay all amounts from
time to time due and payable by you under the Assigned Agreements (and which
would, but for the Assignment have been payable to City Mortgage Corporation
Limited) to the account of City Mortgage Corporation Limited, number 76697673.
Terms defined in the attached notice have the same meanings herein.
Yours faithfully,
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for and on behalf of
Greenwich International Ltd.
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