Exhibit 4.10
CONFORMED COPY
FOURTH AMENDED AND RESTATED
SERVICING AGREEMENT
28 MARCH 2007
ABBEY NATIONAL PLC
AS SERVICER
AND
XXXXXX TRUSTEES LIMITED
AS MORTGAGES TRUSTEE
AND
ABBEY NATIONAL PLC
AS SELLER
AND
XXXXXX FUNDING LIMITED
AS FUNDING
AND
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
AS SECURITY TRUSTEE
[GRAPHIC OMITTED]
XXXXX & XXXXX LLP
CONTENTS
CLAUSE PAGE
1. Definitions, Interpretation and Amendment and Restatement...............1
2. Appointment of Servicer.................................................2
3. The Administration Services.............................................3
4. Mortgages Trustee SVR and Tracker Loans.................................5
5. Administration of Mortgages.............................................7
6. No Liability...........................................................10
7. New Loans..............................................................10
8. Product Switching and Further Advances.................................11
9. Redemption of Mortgages................................................11
10. Powers of Attorney.....................................................11
11. Costs and Expenses.....................................................12
12. Information............................................................12
13. Remuneration...........................................................14
14. Insurances.............................................................14
15. Abbey Insurance Policies...............................................14
16. Buildings Policies.....................................................15
17. Title Deeds............................................................15
18. Data Protection........................................................16
19. Covenants of Servicer..................................................16
20. Services Non-Exclusive.................................................17
21. Termination............................................................17
22. Further Assurance......................................................20
23. Miscellaneous..........................................................20
24. Confidentiality........................................................21
25. Notices................................................................22
26. Variation and Waiver...................................................23
27. No Partnership.........................................................23
28. Assignment.............................................................23
29. Change of Security Trustee.............................................23
30. New Intercompany Loan Agreements.......................................24
31. Exclusion of Third Party Rights........................................24
32. Counterparts...........................................................24
33. Governing Law..........................................................24
SCHEDULE
1. The services...........................................................25
2. Form of Quarterly Pool Cut.............................................26
3. Form of Periodic Report................................................28
4. Certificate of Beneficial Ownership....................................32
Signatories..................................................................33
THIS FOURTH AMENDED AND RESTATED SERVICING AGREEMENT is made as a deed on 28
March 2007
BETWEEN:
(1) ABBEY NATIONAL PLC (registered number 2294747), a public limited company
incorporated under the laws of England and Wales whose registered office
is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0
0XX in its capacity as servicer of the Loans and the Related Security
(the SERVICER, which expression shall include such other person as may
from time to time be appointed as servicer of the Portfolio pursuant to
this Agreement);
(2) XXXXXX TRUSTEES LIMITED (registered number 3982431), a private limited
company incorporated under the laws of England and Wales whose registered
office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx,
Xxxxxx XX0 0XX (the MORTGAGES TRUSTEE);
(3) ABBEY NATIONAL PLC (registered number 2294747), a public limited company
incorporated under the laws of England and Wales whose registered office
is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0
0XX in its capacity as seller of the Loans (the SELLER);
(4) XXXXXX FUNDING LIMITED (registered number 3982428), a private limited
company incorporated under the laws of England and Wales whose registered
office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx,
Xxxxxx XX0 0XX (FUNDING and together with the Seller, the BENEFICIARIES);
and
(5) JPMORGAN CHASE BANK, N.A., LONDON BRANCH whose registered office is at
Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (the SECURITY
TRUSTEE, which expression shall include such company and all other
persons or companies for the time being acting as the trustee or trustees
under the Funding Deed of Charge).
WHEREAS:
(A) The Servicer carries on the business of, inter alia, administering
mortgage loans secured on residential properties within the United
Kingdom.
(B) By the Mortgage Sale Agreement, the Seller agreed to assign the Loans and
Related Security comprised in the Initial Portfolio to the Mortgages
Trustee. The Mortgages Trustee holds the Initial Portfolio together with
any New Portfolio assigned thereafter on trust for Funding and the Seller
pursuant to the terms of the Mortgages Trust Deed.
(C) The Servicer is willing to provide administration and management services
to the Mortgages Trustee, the Seller, Funding and the Security Trustee on
the terms and subject to the conditions contained in this Agreement in
relation to, inter alia, the Loans and Related Security assigned to the
Mortgages Trustee by the Seller.
(D) Further to requests from Investors, the Servicer has agreed with the
parties hereto to make available to Investors the Monthly Reports (as
defined below) in an electronic format.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS, INTERPRETATION AND AMENDMENT AND RESTATEMENT
1.1 The Further Amended and Restated Master Definitions and Construction
Schedule signed for the purposes of identification by Xxxxx & Overy LLP
and Xxxxxxxxx and May on 28 March 2007 (as the
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same may be amended, varied or supplemented from time to time with the
consent of the parties hereto) is expressly and specifically incorporated
into this Agreement and, accordingly, the expressions defined in the
Further Amended and Restated Master Definitions and Construction Schedule
(as so amended, varied or supplemented) shall, except where the context
otherwise requires and save where otherwise defined herein, have the same
meanings in this Agreement, including the Recitals hereto and this
Agreement shall be construed in accordance with the interpretation
provisions set out in Clause 2 of that Further Amended and Restated Master
Definitions and Construction Schedule.
1.2 Any reference in this Agreement to any discretion, power or right on the
part of the Mortgages Trustee shall be as exercised by the Mortgages
Trustee only as directed by the Beneficiaries but subject in each case to
the provisions of Clause 15.2 of the Mortgages Trust Deed.
1.3 This Agreement further amends and restates the servicing agreement made
on 26 July 2000 (which was previously amended and restated on 29 November
2000, 23 May 2001 and 7 November 2002) between the parties hereto (the
PRINCIPAL AGREEMENT). As of the date of execution of this Agreement, any
future right or obligation (excluding such rights or obligations accrued
at such date) of a party under the Principal Agreement shall be
extinguished and shall instead be governed by this Agreement.
1.4 For the purposes of this Agreement:
COMMISSION means the United States Securities and Exchange Commission;
REGULATION AB means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. {section}{section}229.1100-229.1123, as such
may be amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the adopting
release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70
Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission,
or as may be provided by the Commission or its staff from time to time;
XXXXXXXX-XXXXX CERTIFICATION has the meaning specified in Clause
5.6(a)(iii);
SERVICING CRITERIA means the "servicing criteria" set forth in Item
1122(d) of Regulation AB; and
SUBCONTRACTOR means any vendor, subcontractor or other person that is not
responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of
the Loans and their Related Security but performs one or more discrete
functions identified in Item 1122(d) of Regulation AB with respect to the
Loans and their Related Security under the direction or authority of the
Servicer.
2. APPOINTMENT OF SERVICER
2.1 Subject to Clause 4.3(d), and until termination pursuant to Clause 21, the
Mortgages Trustee, the Seller and Funding (according to their respective
estates and interests) each hereby appoints the Servicer as its lawful
agent on their respective behalves to exercise their respective rights,
powers and discretions, and to perform their respective duties, under and
in relation to the Loans and their Related Security. The Servicer in each
case hereby accepts such appointment on the terms and subject to the
conditions of this Agreement. The Security Trustee consents to the
appointment of the Servicer on the terms of and subject to the conditions
of this Agreement.
2.2 For the avoidance of doubt and in connection with the rights, powers and
discretions conferred under Clause , during the continuance of its
appointment hereunder, the Servicer shall, subject to the terms and
conditions of this Agreement, the Mortgage Conditions, the Mortgage Sale
Agreement and the Mortgages Trust Deed, have the full power, authority
and right to do or cause to be done any and
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all things which it reasonably considers necessary, convenient or
incidental to the administration of the Loans and their Related Security
or the exercise of such rights, powers and discretions, provided however
that neither the Mortgages Trustee nor Funding nor their respective
directors shall be required or obliged at any time to enter into any
transaction or to comply with any directions which the Servicer may give
with respect to the operating and financial policies of the Mortgages
Trustee or Funding and the Servicer hereby acknowledges that all powers to
determine such policies (including the determination of whether or not any
particular policy is for the benefit of the Mortgages Trustee or Funding)
are, and shall at all times remain, vested, as the case may be, in the
Mortgages Trustee and/or Funding (and their respective directors) and none
of the provisions of this Agreement shall be construed in a manner
inconsistent with this proviso.
3. THE ADMINISTRATION SERVICES
3.1 GENERAL
(a) The duty of the Servicer shall be to provide the services set out in this
Agreement including (the SERVICES).
(b) If and when the Servicer is requested to confirm or state the capacity in
which it is administering and servicing the Loans, their Related Security
and related matters pursuant to this Agreement by any Borrower or any
third party not being a party to this Agreement and to whom the Servicer
is obliged by law to disclose such information, the Servicer shall confirm
or state that it is acting in its capacity as servicer of the Loans, their
Related Security and related matters as agent for and on behalf of the
Mortgages Trustee and the Beneficiaries and not on its own behalf.
3.2 SUBCONTRACTS
(a) The Servicer may subcontract or delegate the performance of all or any of
its powers and obligations under this Agreement, provided that (but
subject to Clause 3.2(b)):
(i) the prior written consent of Funding and the Security Trustee to the
proposed arrangement (including, if Funding and the Security Trustee
consider it necessary, approving any contract which sets out the
terms on which such arrangements are to be made) has been obtained
and notification has been given to each of the Rating Agencies;
(ii) where the arrangements involve the custody or control of any
Customer Files and/or Title Deeds relating to the Portfolio for the
purpose of performing any delegated Services the sub-contractor or
delegate has executed an acknowledgement in form and substance
acceptable to Funding and the Security Trustee to the effect that
any such Customer Files and/or Title Deeds are and will be held to
the order of the Mortgages Trustee (as trustee for the
Beneficiaries);
(iii) where the arrangements involve or may involve the receipt by the
sub-contractor or delegate of monies belonging to the Beneficiaries
which, in accordance with this Agreement, are to be paid into the
Mortgages Trustee GIC Account, the Alternative Accounts and/or the
Funding GIC Account, the sub- contractor or delegate has executed a
declaration in form and substance acceptable to the Beneficiaries
that any such monies held by it or to its order are held on trust
for the Beneficiaries and will be paid forthwith into, as
applicable, the Mortgages Trustee GIC Account, the Alternative
Accounts and/or the Funding GIC Account in accordance with the terms
of the Mortgages Trust Deed;
(iv) any such sub-contractor or delegate has executed a written waiver of
any Security Interest arising in connection with such delegated
Services (to the extent that such Security Interest relates to the
Portfolio or any amount referred to in ); and
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(v) neither the Mortgages Trustee nor the Beneficiaries shall have any
liability for any costs, charges or expenses payable to or incurred
by such sub-contractor or delegate or arising from the entering
into, the continuance or the termination of any such arrangement.
(b) The provisos to Clause 3.2(a)(i), (ii) and (iii) and shall not apply:
(i) to the engagement by the Servicer of:
(A) any receiver, solicitor, insurance broker, valuer, surveyor,
accountant, estate agent, insolvency practitioner, auctioneer,
bailiff, debt counsellor, tracing agent, property management
agent, licensed conveyancer or other professional adviser
acting as such; or
(B) any locksmith, builder or other contractor acting as such in
relation to a Property,
in any such case being a person or persons whom the Servicer would
be willing to appoint in respect of its own mortgages in connection
with the performance by the Servicer of any of its obligations or
functions or in connection with the exercise of its powers under
this Agreement; or
(ii) to any delegation to any wholly-owned subsidiary of the Seller
from time to time.
(c) The Mortgages Trustee and/or Funding and the Security Trustee may require
the Servicer to assign to the Mortgages Trustee any rights which the
Servicer may have against any sub-contractor or delegate arising from the
performance of services by such person in association with any matter
contemplated by this Agreement and the Servicer acknowledges that such
rights assigned to the Mortgages Trustee will be exercised by the
Mortgages Trustee as trustee for the Beneficiaries subject to the terms of
the Mortgages Trust Deed.
(d) Notwithstanding any sub-contracting or delegation of the performance of
its obligations under this Agreement, the Servicer shall not thereby be
released or discharged from any liability hereunder and shall remain
responsible for the performance of the obligations of the Servicer under
this Agreement, and the performance or non-performance or the manner of
performance of any sub-contractor or delegate of any of the Services shall
not affect the Servicer's obligations under this Agreement and any breach
in the performance of the Services by such sub-contractor or delegate
shall, subject to the Servicer being entitled for a period of twenty
London Business Days from receipt of notice of the breach to remedy such
breach by any sub-contractor or delegate, be treated as a breach of this
Agreement by the Servicer.
3.3 NOTICES ETC.
Promptly upon request by Funding and the Security Trustee, the Servicer
shall procure that any notices permitted to be given by the Mortgages
Trustee under Clause 6.4 of the Mortgage Sale Agreement are so given by
the Servicer on the Mortgages Trustee's behalf.
3.4 LIABILITY OF SERVICER
(a) The Servicer shall indemnify each of the Mortgages Trustee and the
Beneficiaries on demand on an after tax basis for any loss, liability,
claim, expense or damage suffered or incurred by either of them in respect
of the negligence or wilful default of the Servicer in carrying out its
functions as Servicer under this Agreement or the other Transaction
Documents or as a result of a breach by the Servicer of the terms and
provisions of this Agreement or the other Transaction Documents in
relation to such functions.
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(b) For the avoidance of doubt, the Servicer shall not be liable in respect of
any loss, liability, claim, expense or damage suffered or incurred by the
Mortgages Trustee and/or the Beneficiaries and/or any other person as a
result of the proper performance of the Services by the Servicer save
where such loss, liability, claim, expense or damage is suffered or
incurred as a result of any negligence or wilful default of the Servicer
or as a result of a breach by the Servicer of the terms and provisions of
this Agreement or the other Transaction Documents in relation to such
functions.
(c) Any indemnification under this Clause 3.4 in respect of loss suffered by
the Beneficiaries shall be paid for by reducing the Seller Share of the
Trust Property by an amount equal to the relevant loss incurred by the
Beneficiaries in accordance with Clause 8.4 of the Mortgages Trust Deed
and Schedule 2 to the Cash Management Agreement.
4. MORTGAGES TRUSTEE SVR AND TRACKER LOANS
4.1 The Mortgages Trustee and each of the Beneficiaries each hereby grants
the Servicer full right, liberty and authority from time to time, in
accordance with the relevant Mortgage Terms, to determine and set:
(a) the Mortgages Trustee SVR chargeable to Borrowers from time to time.
In exercising such right, liberty and authority the Servicer
undertakes to each of the other parties to this Agreement that it
shall not at any time set or maintain the Mortgages Trustee SVR at a
rate which is higher than the then prevailing Abbey SVR, unless the
Servicer is required to do so pursuant to Clause 4.3, and, subject
to that requirement, that it shall not change the Mortgages Trustee
SVR save for the same reasons as the Seller was entitled, under the
Mortgage Conditions, to change the Abbey SVR prior to the assignment
to the Mortgages Trustee of the Loans comprised in the Portfolio and
their Related Security. Each of the Mortgages Trustee and the
Beneficiaries shall be bound by the Mortgages Trustee SVR set in
accordance with this Agreement; and
(b) any variable margin in respect of Tracker Loans. In exercising
such right, liberty and authority the Servicer undertakes to each
of the other parties to this Agreement that:
(i) where the Offer Conditions relating to any Tracker Loan
provide that the margin shall be the same as the margin
applicable to all other Loans having the same Offer
Conditions in relation to the setting of the interest rate,
the Servicer shall not at any time set or maintain a margin
which is higher than the margin which is then being set by
the Seller in relation to any loans carrying the same Offer
Conditions relating to interest rate setting which are
beneficially owned by the Seller; and
(ii) in relation to any other Tracker Loan with a variable margin,
the Servicer shall not at any time set or maintain a margin
which is higher than the margin which would then be set in
accordance with the Seller's Policy (or, if the Seller's
Policy is no longer dealing with the setting of such margins,
in accordance with the standards of a reasonable, prudent
mortgage lender) in relation to that Loan,
unless the Servicer is required to do so pursuant to Clause 4.3,
and, subject to that requirement, that it shall not change any
variable margin applicable to any Tracker Loan save for the same
reasons as the Seller was entitled, under the Offer Conditions, to
change such margin prior to the assignment to the Mortgages Trustee
of the Loans comprised in the Portfolio and their Related Security.
Each of the Mortgages Trustee and the Beneficiaries shall be bound
by any margin set in accordance with this Agreement.
4.2 The Servicer shall take the steps rendered necessary by the relevant
Mortgage Terms and applicable law (including, without limitation, the
Guidance Note on Interest Variation Terms issued by the
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Office of Fair Trading in February 2000 and any successor guideline or
applicable additional guidelines) to bring each change in such rate or
rates of interest to the attention of the relevant Borrowers, whether due
to a change in the Mortgages Trustee SVR or as a consequence of any
provisions of the Mortgage Terms. Any change in the Mortgages Trustee SVR
shall be notified to each of the Mortgages Trustee, the Security Trustee
and the Beneficiaries as soon as reasonably practicable. All costs arising
in relation to such a notification of a change in such rate or rates of
interest shall be borne by the Servicer.
4.3 (a) On each Interest Payment Date the Servicer shall determine, having
regard to:
(i) the income which Funding would expect to receive during the
next succeeding Interest Period;
(ii) the Mortgages Trustee SVR in respect of the Loans which the
Servicer proposes to set under this Clause 4;
(iii) the variable margins in respect of Tracker Loans which the
Servicer proposes to set under this Clause 4; and
(iv) the other resources available to Funding including the Funding
Swap Agreements, the First Reserve Fund and the Second Reserve
Fund,
whether Funding would receive an amount of income during that
Interest Period which when aggregated with the funds otherwise
available to it is less than the amount which is the aggregate of
(A) the amount of interest which will be payable in respect of the
Term AAA Advances on the Distribution Date falling at the end of
such Interest Period and (B) the other senior expenses of Funding
which rank in priority thereto or pari passu therewith under the
Funding Pre-Enforcement Revenue Priority of Payments or, as
applicable, the Funding Post-Enforcement Priority of Payments (the
amount (if any) by which it is less being the INTEREST RATE
SHORTFALL).
(b) If the Servicer determines that there will be an Interest Rate
Shortfall, it will within one London Business Day give written
notice thereof to the Mortgages Trustee, Funding and the Security
Trustee of such Interest Rate Shortfall and of the Mortgages
Trustee SVR and any variable margins in relation to Tracker Loans
which would, in the Servicer's opinion, need to be set in order for
no Interest Rate Shortfall to arise, having regard to the date(s)
(which shall be specified in the notice) on which such changes to
the Mortgages Trustee SVR and any variable margins in relation to
Tracker Loans would take effect and at all times acting in
accordance with the standards of a reasonable, prudent mortgage
lender as regards the competing interests of those Borrowers with
Loans in respect of which the rate of interest is determined by
reference to an SVR and those Borrowers with Tracker Loans.
(c) If the Mortgages Trustee, Funding and the Security Trustee notify
the Servicer that, having regard to the obligations of Funding, the
Mortgages Trustee SVR and any variable margins in relation to
Tracker Loans should be increased, the Servicer, as agent for and
on behalf of, inter alia, the Mortgages Trustee and the
Beneficiaries, shall take all steps which are necessary, including
publishing any notice which is required in accordance with the
Mortgage Terms, to effect such change in the Mortgages Trustee SVR
and any variable margins in relation to Tracker Loans on the
date(s) specified in the notice referred to in Clause 4.3(b).
(d) The Mortgages Trustee and/or Funding and the Security Trustee may
terminate the authority of the Servicer under Clause 4.1 and Clause
4.3 to determine the Mortgages Trustee SVR and any variable margins
in relation to Tracker Loans on or after the occurrence of a
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Termination Event, in which case the Mortgages Trustee shall set
the Mortgages Trustee SVR and any variable margins in relation to
Tracker Loans in accordance with this Clause 4, save the Seller
shall be entitled to make representations to the Mortgages Trustee
with respect to any changes in any variable margins in relation to
Tracker Loans.
5. ADMINISTRATION OF MORTGAGES
5.1 DIRECT DEBITING SCHEME
(a) For the purposes of collecting amounts due from Borrowers under the Loans
and the Related Security comprised in the Portfolio in accordance with
this Agreement the Servicer will unless otherwise agreed with the
Beneficiaries:
(i) act, or procure that another person approved by the Beneficiaries
(such approval not to be unreasonably withheld) (the THIRD PARTY
COLLECTION AGENT) acts, as collection agent for the Mortgages
Trustee and the Beneficiaries under the Direct Debiting Scheme and
remains a member of the Direct Debiting Scheme or any scheme which
replaces the Direct Debiting Scheme;
(ii) subject to Clause 5.1(b) and 5.1(c), deliver to the Bankers
Automated Clearing System (BACS) or to each Account Bank (as
appropriate) such instructions as may be necessary from time to time
for the debit of the account of each Borrower in respect of which
there is a direct debit mandate (the date of such delivery being the
D.D. DATE) with the Monthly Payment due from such Borrower, and for
the amount of such Monthly Payment to be credited to the Mortgages
Trustee GIC Account or relevant Alternative Account, as the case may
be, on the D.D. Date or, if such is not a London Business Day, the
following London Business Day;
(iii) subject to Clause 5.1(b) and 5.1(c), deliver to each Account Bank or
BACS (as appropriate) not later than ten London Business Days before
the next succeeding Monthly Payment Day after the D.D. Date,
instructions for the debit of the account of each Borrower in
respect of which there is a direct debit mandate and the Monthly
Payment due and owing from such Borrower on the last D.D. Date
remains outstanding to the extent that, on the date of presentation
of such instructions, such Monthly Payment has not been received in
full by the Servicer on behalf of the Mortgages Trustee;
(iv) subject to Clause 5.1(b) and 5.1(c), deliver to each Account Bank or
BACS (as appropriate) such other instructions for the debit of the
account of each Borrower in respect of which there is a direct debit
mandate in accordance with the Direct Debiting Scheme as may be
appropriate for the recovery of sums due by such Borrower;
(v) comply in all material respects with the requirements from time to
time of the Direct Debiting Scheme including "The Originator's Guide
and Rules to the Direct Debiting Scheme" as amended from time to
time; and
(vi) take all such other steps as are reasonably appropriate, including
in particular the preparation and administration of appropriate
computer tapes in connection with BACS, to ensure that all monies
received from Borrowers during banking hours on any particular day
are credited on that day to the Mortgages Trustee GIC Account or
relevant Alternative Account, as the case may be.
(b) The Servicer may agree with a Borrower that the Direct Debiting Scheme
shall not apply to Monthly Payments to be made by such Borrower, provided,
subject to Clause 5.1(d), that (i) alternative payment arrangements are
made which are intended to ensure timely payment of Monthly Payments
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due from the Borrower to the Mortgages Trustee on behalf of the
Beneficiaries, and (ii) the change in arrangements was made at the
instigation of the Borrower or by the Servicer in accordance with the
procedures which would be adopted by a reasonable, prudent mortgage
lender.
(c) The Servicer may, notwithstanding the proviso to Clause 5.1(b), agree such
procedures for the payment by a Borrower of (i) overdue amounts and (ii)
amounts payable on redemption of a Mortgage in whole or in part other than
through the Direct Debiting Scheme as would be agreed by a reasonable,
prudent mortgage lender.
(d) Where a Borrower permits a direct debit to be made to his bank account,
the Servicer will endeavour to procure that such Borrower maintains a
valid and effective mandate relating to such direct debit in relation to
each Monthly Payment due from that Borrower, provided that in any case
where a Borrower will not permit a direct debit to be made to his bank
account the Servicer will endeavour to make alternative arrangements
acceptable to a reasonable, prudent mortgage lender so that such Borrower
nevertheless pays each Monthly Payment on the due date.
(e) In the event that the BACS system ceases to operate for any reason the
Servicer will use reasonable endeavours to make alternative arrangements
for the use of the back up systems available to each Account Bank.
5.2 ADMINISTRATION AND ENFORCEMENT OF MORTGAGES
(a) The Mortgages Trustee and the Beneficiaries hereby direct the Servicer to
administer the Loans comprised in the Portfolio and carry out its specific
obligations under this Agreement in accordance with the Seller's Policy.
(b) The Servicer will, in relation to any default by a Borrower under or in
connection with a Loan or a Mortgage comprised in the Portfolio, comply
with the Enforcement Procedures or, to the extent that the Enforcement
Procedures are not applicable having regard to the nature of the default
in question, take such action as is not materially prejudicial to the
interests of the Mortgages Trustee (as trustee for the Beneficiaries) and
the Beneficiaries under the relevant MIG Policy, provided that:
(i) the Servicer shall only become obliged to comply with the
Enforcement Procedures (to the extent applicable) or to take action
as aforesaid after it has become aware of the default;
(ii) it is acknowledged by the Beneficiaries that mortgage lenders
generally exercise discretion in pursuing their respective
enforcement procedures and that the Servicer may exercise such
discretion as would a reasonable, prudent mortgage lender in
applying the Enforcement Procedures to any particular defaulting
Borrower or taking action as aforesaid, provided that in exercising
such discretion the interest of Funding in the Portfolio is not
materially prejudiced; and
(iii) in any case where any of the Insurance Policies requires exact
compliance with certain enforcement procedures the Servicer shall
procure the prior written consent of the relevant insurance company
for any deviation by it from such enforcement procedures.
5.3 RECORDS
The Servicer shall keep and maintain records in relation to the
Portfolio, on a Loan by Loan basis, for the purposes of identifying
amounts paid by each Borrower, any amount due from a Borrower and the
balance from time to time outstanding on a Borrower's account and such
other records as would be kept by a reasonable, prudent mortgage lender.
The Servicer will provide such information to the Mortgages Trustee
and/or Funding and/or the Security Trustee or to their order at any time
upon reasonable notice subject to the Servicer being reasonably capable
of providing such
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information without significant additional cost and subject to the
provisions of the Data Protection Xxx 0000 and other applicable
legislation from time to time and provided that no duty of confidence and
no industry code of practice will or may be breached thereby.
5.4 TRUST
(a) If the Servicer in carrying out its functions as Servicer under this
Agreement receives (including in its capacity as agent for the Mortgages
Trustee and the Beneficiaries) any money whatsoever arising from the Loans
and their Related Security, which money belongs to the Mortgages Trustee
(as trustee for the Beneficiaries) and is to be paid to the Mortgages
Trustee GIC Account or one of the Alternative Accounts pursuant to this
Agreement or any of the other Transaction Documents or otherwise, it will
hold such monies on trust for the Mortgages Trustee and shall keep such
money separate from all other monies held by the Servicer and shall, as
soon as reasonably practicable and in any event within three London
Business Days of receipt of the same, pay the monies into the Mortgages
Trustee GIC Account or the relevant Alternative Account, as the case may
be.
(b) All other sums received by the Servicer in respect of the Loans and their
Related Security shall be held by the Servicer for itself.
5.5 ANNUAL SERVICER COMPLIANCE STATEMENT
With respect to any Notes issued after 31 December 2005, for so long as
the Mortgages Trustee and/or Funding and/or any Issuer is subject to the
reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the
Servicer shall (and shall cause each other servicer (as defined in Item
1101(j) of Regulation AB) that meets the criteria set out in Item
1108(a)(2)(i) through (iii) of Regulation AB to) deliver to the Mortgages
Trustee and/or Funding and/or such Issuer (as applicable) a statement of
compliance in the form and at a time sufficient to comply with the
requirements of Item 1123 of Regulation AB to the extent applicable.
5.6 REPORT ON ASSESSMENT OF COMPLIANCE WITH SERVICING CRITERIA
(a) For so long as the Mortgages Trustee and/or Funding and/or any Issuer is
subject to the reporting requirements of Section 13(a) or 15(d) of the
Exchange Act, the Servicer shall:
(i) with respect to any Notes issued after 31 December 2005, deliver to
the Mortgages Trustee and/or Funding and/or such Issuer (as
applicable) a report regarding the Servicer's assessment of
compliance with the Servicing Criteria during the immediately
preceding calendar year, in the form and at a time sufficient to
comply with the requirements of Rule 13a- 18 or 15d-18 of the
Exchange Act and Item 1122(a) of Regulation AB, as applicable;
(ii) cause each party determined by the Servicer to be "participating in
the servicing function" within the meaning of Item 1122 of
Regulation AB, to deliver to the Mortgages Trustee and/or Funding
(as applicable) a report on the assessment of compliance with the
applicable servicing criteria, if required by Item 1122 of
Regulation AB, in the form and at a time sufficient to comply with
the requirements of Rule 13a-18 or Rule 15d-18 of the Exchange Act
and Item 1122(a) of Regulation AB, provided, however, that with
regard to any issuance of Notes by any Issuer registered under the
Securities Act prior to 31 December 2005, for so long as such Issuer
is subject to the reporting obligations of Section 13 or 15(d) of
the Exchange Act, the Servicer may, at the sole discretion of
Funding and/or the Mortgages Trustee (as applicable), deliver to
Funding and/or the Mortgages Trustee (as applicable) at a time
specified by Funding and/or the Mortgages Trustee (as applicable),
in lieu of the foregoing, an officer's certificate with respect to
each such Issuer in the form previously filed as Exhibit 15.1 to the
annual report on Form 20-F of such Issuer; and
9
(iii) deliver or cause to be delivered to any person that will be
responsible for signing the certification (a XXXXXXXX-XXXXX
CERTIFICATION) required by Rule 13a-14(d) or Rule 15d-14(d) under
the Exchange Act such certifications or information as such person
deems necessary to give the Xxxxxxxx-Xxxxx Certification.
(b) The Servicer shall cause a registered public accounting firm to furnish an
attestation report with respect to each report on the assessment of
compliance with the Servicing Criteria required under Clause 5.6(a) in the
form and at a time sufficient to comply with the requirements of Rule
13a-18 or Rule 15d-18 of the Exchange Act and Item 1122(b) of Regulation
AB, to the extent applicable; provided, however, that with regard to any
issuance of Notes by an Issuer registered under the Securities Act prior
to 31 December 2005, for so long as such Issuer is subject to the
reporting obligations of Section 13 or 15(d) of the Exchange Act, the
Servicer may, at the sole discretion of Funding and/or the Mortgages
Trustee (as applicable), deliver to Funding and/or the Mortgages Trustee
(as applicable) at a time specified by Funding and/or the Mortgages
Trustee (as applicable), in lieu of the foregoing, a report of independent
accountants with respect to each such previous issuing entity in the form
previously filed as Exhibit 15.2 to the annual report on Form 20-F of such
Issuer.
5.7 USE OF SUBCONTRACTORS
The Servicer shall promptly upon request provide the Mortgages Trustee
and/or Funding (as applicable) a written description (in form and
substance satisfactory to the Mortgages Trustee and/or Funding (as
applicable)) of the role and function of each Subcontractor utilised by
the Servicer, specifying (i) the identity of each such Subcontractor,
(ii) which (if any) of such Subcontractors are "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in
assessments of compliance provided by each Subcontractor identified
pursuant to part (ii) of this Clause 5.7. As a condition to the
utilisation of any Subcontractor determined to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, the
Servicer shall cause any such Subcontractor appointed by the Servicer for
the benefit of Funding and/or the Mortgages Trustee to comply with the
provisions of Clause 5.6 of this Agreement to the same extent as if such
Subcontractor were the Servicer. The Servicer shall be responsible for
obtaining from each Subcontractor and delivering to Funding and/or the
Mortgages Trustee any assessment of compliance and attestation required
to be delivered by such Subcontractor under Clause 5.6, in each case as
and when required to be delivered.
6. NO LIABILITY
(a) The Servicer shall have no liability for any obligation of a Borrower
under any Loan comprised in the Portfolio or any Related Security and
nothing herein shall constitute a guarantee, or similar obligation, by the
Servicer of any Loan, Mortgage or any Borrower.
(b) Save as otherwise provided in this Agreement, the Servicer shall have no
liability for the obligations of the Mortgages Trustee or the
Beneficiaries under any of the Transaction Documents or otherwise and
nothing herein shall constitute a guarantee, or similar obligation, by the
Servicer of the Mortgages Trustee or the Beneficiaries in respect of any
of them.
7. NEW LOANS
7.1 The Portfolio may be augmented from time to time by the assignment to the
Mortgages Trustee on any Distribution Date of a New Portfolio by the
Seller.
7.2 The assignment of each New Portfolio to the Mortgages Trustee will in all
cases be subject to the terms set out in the Mortgage Sale Agreement
including, without limitation, the conditions set out in
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Clause 4 of the Mortgage Sale Agreement and the representations and
warranties set out in Clause 8 of the Mortgage Sale Agreement.
8. PRODUCT SWITCHING AND FURTHER ADVANCES
8.1 The Servicer shall not accept an application for a Further Advance or a
Product Switch without first having received confirmation in writing from
the Seller that the Seller would, if so offered by the Mortgages Trustee,
purchase the relevant Loan and its Related Security from the Mortgages
Trustee.
8.2 Subject to complying with the terms of Clause 8.1, where the Servicer
accepts a Product Switch or a Further Advance, the Servicer shall then
notify the Seller and the Mortgages Trustee in writing.
8.3 Notwithstanding Clause 8.2, subject to complying with the terms of Clause
8.1, the Servicer may accept requests from Borrowers for Product Switches
and Further Advances provided that the Servicer acts in accordance with
its then procedure which would be acceptable to a reasonable, prudent
mortgage lender.
9. REDEMPTION OF MORTGAGES
9.1 Upon repayment in full of all sums secured by a Mortgage and/or other
Related Security comprised in the Portfolio, the Servicer shall, and is
hereby authorised by the Mortgages Trustee and the Beneficiaries to,
execute a receipt or discharge or relevant Land Registry Form DS1 of the
Mortgage and any such other or further instrument or deed of satisfaction
regarding such Mortgage and/or the Related Security as it considers to be
necessary or advisable and to release the relevant Title Deeds to the
person or persons entitled thereto.
9.2 The Servicer undertakes that prior to any actual release by it of the
relevant Title Deeds it will take reasonable and appropriate steps to
satisfy itself that the relevant Title Deeds are being released to the
person or persons entitled thereto.
9.3 The Servicer shall procure that if, upon completion of the Enforcement
Procedures, an amount in excess of all sums due by the relevant Borrower
is recovered or received, the balance, after discharge of all sums due by
the Borrower, is paid to the person or persons next entitled thereto.
10. POWERS OF ATTORNEY
10.1 Each of the Mortgages Trustee and the Beneficiaries hereby appoints the
Servicer as its attorney on its behalf, and in its own or the attorney's
name, for the following purposes:
(a) executing all documents necessary for the purpose of discharging a
Mortgage comprised in the Portfolio which has been repaid in full
and any Related Security or for the sale of a Property as
Mortgagee;
(b) executing all documents necessary for the purpose of releasing a
Borrower in accordance with Clause 9;
(c) executing all documents and doing all such acts and things which in
the reasonable opinion of the Servicer are necessary or desirable
for the efficient provision of the Services hereunder, and
(d) exercising its rights, powers and discretion under the Mortgages
including the right to fix the Mortgages Trustee SVR or any related
rights,
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provided that, for the avoidance of doubt, these Powers of Attorney shall
not authorise the Servicer to sell any of the Loans and/or their Related
Security comprised in the Portfolio except as specifically authorised in
the Transaction Documents. For the avoidance of doubt, neither the
Mortgages Trustee nor Funding shall be liable or responsible for the acts
of the Servicer or any failure by the Servicer to act under or in respect
of these Powers of Attorney.
10.2 The appointments contained in Clause 10.1 shall be irrevocable unless and
until following a Termination Event the Mortgages Trustee and/or Funding
and the Security Trustee serves notice pursuant to Clause 21 to terminate
the Servicer's appointment under this Agreement upon which the
appointments contained in Clause 10.1 shall be automatically revoked.
11. COSTS AND EXPENSES
The Mortgages Trustee (on behalf of the Beneficiaries) will on each
Distribution Date reimburse, in accordance with Clause 10.2 of the
Mortgages Trust Deed, the Servicer for all out-of-pocket costs, expenses
and charges (together with any amounts in respect of Irrecoverable VAT
due thereon) properly incurred by the Servicer in the performance of the
Services including any such costs, expenses or charges not reimbursed to
the Servicer on any previous Distribution Date and the Servicer shall
supply the Mortgages Trustee with an appropriate VAT invoice issued by
the person making the supply.
12. INFORMATION
12.1 MAINTENANCE OF RECORDS
(a) The Servicer shall keep the Customer Files relating to the Portfolio in
safe custody and shall take appropriate technical and organisational
measures against the unauthorised or unlawful processing of personal data
and against accidental loss or destruction of, or damage to, personal
data. The Servicer shall maintain in an adequate form such records as are
necessary to enforce each Mortgage comprised in the Portfolio and, where
relevant, any other Related Security. The Servicer shall keep the Customer
Files in relation to the Portfolio in such a way that they can be
distinguished from information held by the Servicer for its own behalf as
mortgagee or for other third persons.
(b) A duplicate of any computer records held by the Servicer which contains
information relating to the Loans and the Related Security shall be lodged
by the Servicer on a daily basis with Bletchley Data Centre, Buckingham
House, Buckingham Road, Bletchley, Xxxxxx Keynes, MK3 5LD and/or (in
accordance with operational requirements) with Xxxxx Information
Management at 0 Xxxxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx, XX0 0XX or at
such other locations selected by the Servicer, such records to be held to
the order of the Mortgages Trustee and to be replaced by a revised
duplicate as and when the original records are revised. The Servicer shall
keep the Mortgages Trustee informed of the location of the Customer Files
and duplicate computer records.
12.2 USE OF I.T. SYSTEMS
(a) The Servicer represents and warrants that at the date hereof in respect of
the software which is used by the Servicer in providing the Services, it
shall for the duration of this Agreement:
(i) ensure that it has in place all necessary licences and/or consents
from the respective licensor or licensors (if any) of such software;
and
(ii) except in so far as it would breach any other of its legal
obligations, grant to any person to whom it may subcontract or
delegate the performance of all or any of its powers and obligations
under this Agreement and/or to such person as the Mortgages Trustee
and the Beneficiaries elect as a substitute servicer in accordance
with the terms of this Agreement a
12
licence to use any proprietary software together with any updates
which may be made thereto from time to time.
(b) The Servicer shall use reasonable endeavours to maintain in working order
the information technology systems used by the Servicer in providing the
Services.
(c) The Servicer shall pass to any person to whom it may subcontract or
delegate the performance of all or any of its powers and obligations under
this Agreement and/or to such person as the Mortgages Trustee and the
Beneficiaries elect as a substitute servicer in accordance with the terms
of this Agreement the benefit of any warranties in relation to the
software insofar as the same are capable of assignment.
12.3 ACCESS TO BOOKS AND RECORDS
Subject to all applicable laws, the Servicer shall permit the Mortgages
Trustee and Funding (and their auditors) and the Security Trustee and any
other person nominated by the Beneficiaries (to whom the Servicer has no
reasonable objection) upon reasonable notice during normal office hours
to have access, or procure that such person or persons are granted
access, to all books of record and account (including, for the avoidance
of doubt, the Title Deeds and Customer Files) relating to the
administration of the Loans and the Related Security comprised in the
Portfolio and related matters in accordance with this Agreement.
12.4 INFORMATION COVENANTS
(a) The Servicer shall provide the Mortgages Trustee, the Beneficiaries and
the Rating Agencies (i) monthly with a report in, or substantially in, the
form set out in and (ii) quarterly with a report in, or substantially in,
the form set out in , and shall assist the Cash Manager in the production
of quarterly reports substantially in the forms set out in Schedule 3 of
the Cash Management Agreement.
(b) The Servicer shall notify the Rating Agencies in writing of the details of
(i) any material amendment to the Transaction Documents, (ii) any proposed
material change in the valuation procedures or policies applied or to be
applied in relation to Properties by it in connection with its mortgage
business (details of which change may be included in a report provided
under paragraph ) and (iii) any other information relating to its mortgage
business and financial condition as the Rating Agencies may reasonably
request in connection with the ratings of the First Issuer Notes, Second
Issuer Notes, the Third Issuer Notes, the Fourth Issuer Notes, the Fifth
Issuer Notes, the Sixth Issuer Notes, the Seventh Issuer Notes, the Eighth
Issuer Notes, the Ninth Issuer Notes, the Tenth Issuer Notes, the Master
Issuer Notes and any New Notes and other matters contemplated by the
Transaction, provided that such request does not adversely interfere with
the Servicer's day to day provision of the Services under the other terms
of this Agreement.
(c) The Servicer shall, at the request of Funding and the Security Trustee
(where the Servicer is the Seller) and at the request of the Beneficiaries
(where the Servicer is no longer the Seller), furnish Funding, the
Security Trustee and/or the Beneficiaries (as appropriate) and the Rating
Agencies with such other information relating to the business and
financial condition of the Servicer and/or any person to whom the Servicer
has subcontracted or delegated part of its obligations hereunder, as it
may be reasonable for Funding, the Security Trustee and/or the
Beneficiaries (as appropriate) to request in connection with the ratings
of the First Issuer Notes, Second Issuer Notes, the Third Issuer Notes,
the Fourth Issuer Notes, the Fifth Issuer Notes, the Sixth Issuer Notes,
the Seventh Issuer Notes, the Eighth Issuer Notes, the Ninth Issuer Notes,
the Tenth Issuer Notes, the Master Issuer Notes and any New Notes and
other matters contemplated by the Transaction, provided that Funding, the
Security Trustee or the Beneficiaries (as appropriate) shall not make such
a request more than once every three months unless, in the belief of
Funding, the Security Trustee or the
13
Beneficiaries (as appropriate), an Intercompany Loan Event of Default or a
Termination Event shall have occurred and is continuing or may reasonably
be expected to occur.
(d) Subject to any applicable law or contrary instruction from the
Beneficiaries, the Servicer shall furnish to each beneficial owner of any
Notes (an INVESTOR) monthly reports on the Portfolio in, or substantially
in, the form of (the MONTHLY REPORTS). The Servicer, upon request by an
Investor, shall also furnish previous Monthly Reports to such Investor.
(e) For the purposes of Clause 12.4(d), the Servicer is entitled to assume
that any person who has delivered to the Servicer a certificate in the
form of is an Investor, and that any other person is not an Investor.
(f) Subject to any applicable law or contrary instruction from both (and, for
the avoidance of doubt, not one only) of the Beneficiaries acting
together, the Servicer will make reasonable efforts to make available to
Investors Monthly Reports (including previous Monthly Reports) in an
electronic format acceptable to the Security Trustee such as "Bloomberg".
13. REMUNERATION
The Mortgages Trustee (on behalf of the Beneficiaries) shall pay to the
Servicer for its Services hereunder an administration fee (the
ADMINISTRATION FEE) (inclusive of any amounts in respect of VAT) which:
(a) shall be calculated in relation to each Distribution Period on the
basis of the number of days elapsed and a 365 day year (or, in the
case of a Distribution Period ending in a leap year, a 366 day
year) at the rate of 0.12% per annum, inclusive of any amounts in
respect of VAT, on the aggregate amount of the Funding Share of the
Trust Property as at close of business on the preceding Interest
Payment Date (or, as applicable, the Initial Closing Date); and
(b) shall be paid to the Servicer in arrear on each Distribution
Payment Date in the manner contemplated by and in accordance with
the provisions of Clause 10.2 of the Mortgages Trust Deed.
14. INSURANCES
The Servicer will administer the arrangements for insurance to which the
Mortgages Trustee is a party or in which either the Seller or the
Mortgages Trustee (on behalf of the Beneficiaries) has an interest and
which relate to the Loans and the Mortgages comprised in the Portfolio or
the business of the Mortgages Trustee. In particular, but without
limitation, the Servicer shall promptly notify the Mortgages Trustee and
the Beneficiaries and the Trustee of the existence of any insurance
policies to which the Seller is a party or in which it has an interest in
addition to those specifically referred to in the definition of "Abbey
Insurance Policies" in the Master Definitions Schedule.
15. ABBEY INSURANCE POLICIES
15.1 The Servicer shall not knowingly take or omit to take any action which
would:
(a) result in the avoidance or termination of any of the Abbey
Insurance Policies in relation to any Loans and Mortgages to which
any Abbey Insurance Policy applies; or
(b) reduce the amount payable on any claim made on behalf of the
Mortgages Trustee (as trustee for the Beneficiaries) under any
Abbey Insurance Policy; or
(c) invalidate any Abbey Insurance Policy.
14
15.2 The Servicer shall prepare and submit any claim under the Abbey Insurance
Policies in accordance with the requirements of the relevant Abbey
Insurance Policy and otherwise with the usual procedures undertaken by a
reasonable, prudent mortgage lender on behalf of the Mortgages Trustee
and the Beneficiaries and shall comply with the other requirements of the
insurer under the relevant Abbey Insurance Policy.
15.3 If the Seller's Policy requires the Servicer to make a claim under the
relevant MIG Policy and the Servicer has failed to make such a claim,
then the Beneficiaries may direct the Mortgages Trustee on their behalf
to direct the Servicer to make a claim or, in default thereof by the
Servicer, the Beneficiaries may direct the Mortgages Trustee to itself
make a claim under such policy and the Servicer shall, within ten London
Business Days of receiving a written request from the Mortgages Trustee
(as trustee for the Beneficiaries), provide the Mortgages Trustee with
such information as the Mortgages Trustee may require to enable it to
make a claim under the relevant MIG Policy.
16. BUILDINGS POLICIES
16.1 The Servicer shall not knowingly take any action or omit to take any
action which would result in the avoidance or termination of any
applicable Buildings Policy or would reduce the amount payable on any
claim thereunder.
16.2 Upon receipt of notice that any Borrower whose Loan is secured by a
mortgage of a leasehold Property has failed to make a payment when due of
any sums due under the relevant lease in respect of the insurance of the
property the Servicer may debit that Borrower's account with the relevant
amount which shall then be paid to the landlord.
16.3 If the Servicer becomes aware that a Borrower has failed to pay premiums
due under any Buildings Policy, the Servicer shall take such action as
would a reasonable, prudent mortgage lender with a view to ensuring that
the relevant Property continues to be insured in accordance with the
applicable Mortgage Terms or the Alternative Insurance Recommendations.
17. TITLE DEEDS
17.1 The Servicer shall keep the Title Deeds relating to the Portfolio in safe
custody and shall not without the prior written consent of the Mortgages
Trustee and the Beneficiaries part with possession, custody or control of
them otherwise than to a sub-contractor or delegate appointed pursuant to
Clause 3.2 or to a solicitor, licensed conveyancer or authorised
practitioner, subject to the usual undertaking to hold them to the order
of the Seller (who in turn will hold them to the order of the Mortgages
Trustee (as trustee for the Beneficiaries)) or to H.M. Land Registry or,
upon redemption of the relevant Loan, to the order of the Borrower.
17.2 The Title Deeds relating to the Portfolio shall be kept in such manner so
that a computer record is maintained of their location and they are
identifiable and retrievable by reference to an account number and pool
identifier and identifiable and distinguishable from the title deeds
relating to other properties and mortgages in respect of which the
Servicer is mortgagee or servicer. In the event of receipt by the
Servicer of notice that the short-term, unsecured, unsubordinated and
unguaranteed debt of the Servicer is rated less than A-1 by S&P and P-1
by Xxxxx'x and F-1 by Fitch, the Servicer shall use reasonable endeavours
to ensure that the Title Deeds (and the Customer Files) are located
separately from the title deeds and customer files of other properties
and mortgages which do not form part of the Portfolio.
17.3 The Servicer shall provide access or procure that access is provided to
the Title Deeds relating to the Portfolio to the Mortgages Trustee, the
Beneficiaries and their respective agents at all reasonable times and
upon reasonable notice. The Servicer acknowledges that the Title Deeds
and Customer Files relating to the Portfolio in its possession, custody
or control will be held to the order of the
15
Mortgages Trustee (as trustee for the Beneficiaries) and that it has, in
its capacity as Servicer, no beneficial interest therein and the Servicer
(in its capacity as such but not in its capacity as a Beneficiary)
irrevocably waives any rights or any Security Interest which it might have
therein or to which it might at any time be entitled.
17.4 The Servicer shall, forthwith on the termination of the appointment of the
Servicer pursuant to Clause 21, deliver the Title Deeds and Customer Files
to or to the order of the Mortgages Trustee or to such person as the
Mortgages Trustee elects as a substitute servicer in accordance with the
terms of this Agreement upon written request by the Mortgages Trustee made
at any time on or after notice of, or on or after, termination of the
appointment of the Servicer pursuant to Clause 21.
17.5 The Servicer undertakes that it will use all reasonable efforts to
obtain, as soon as practicable and, in any event, in the case of the
Mortgages in the Initial Portfolio, on or prior to the Distribution Date
falling in July 2001, and in the case of Mortgages which relate to New
Loans, on or prior to the first Distribution Date falling after the first
anniversary of the date on which the New Loans are purchased from the
Seller, details of the title numbers applicable to Properties comprising
registered land or land which is the subject of an application for first
registration. The Servicer shall include in the quarterly report to be
delivered in relation to the Distribution Date falling in July 2001
details of such title numbers relating to the Initial Portfolio as are
then known to the Servicer at the time of such report together with such
other information relating thereto as the Mortgages Trustee may
reasonably request.
18. DATA PROTECTION
The Servicer represents that as at the date hereof the Servicer has and
hereafter it will maintain on behalf of itself and on behalf of the
Mortgages Trustee (as trustee for the Beneficiaries) all appropriate
registrations, licences and authorities (if any) required under the Data
Protection Xxx 0000 to enable each of them to perform their respective
obligations under this Agreement.
19. COVENANTS OF SERVICER
19.1 The Servicer hereby covenants with and undertakes to each of the
Mortgages Trustee, the Beneficiaries and the Security Trustee that
without prejudice to any of its specific obligations hereunder it will:
(a) administer the Loans and their Related Security as if the same had
not been assigned to the Mortgages Trustee but had remained on the
books of the Seller;
(b) provide the Services in such manner and with the same level of
skill, care and diligence as would a reasonable, prudent mortgage
lender;
(c) comply with any proper directions, orders and instructions which
the Mortgages Trustee or the Beneficiaries may from time to time
give to it in accordance with the provisions of this Agreement and,
in the event of any conflict, those of the Mortgages Trustee shall
prevail;
(d) keep in force all licences, approvals, authorisations and consents
which may be necessary in connection with the performance of the
Services and prepare and submit all necessary applications and
requests for any further approval, authorisation, consent or
licence required in connection with the performance of the Services
and in particular any necessary registrations under the Data
Protection Xxx 0000;
(e) save as otherwise agreed with the Mortgages Trustee and each of the
Beneficiaries, provide free of charge to the Mortgages Trustee and
the Beneficiaries, office space, facilities,
16
equipment and staff sufficient to fulfil the obligations of the
Mortgages Trustee and the Beneficiaries under this Agreement;
(f) not knowingly fail to comply with any legal requirements in the
performance of the Services;
(g) ensure that at all times the Loans (including the Flexible Loans)
comply with the terms of the Consumer Credit Act 1974 (to the
extent that such Loans are regulated by that Act);
(h) make all payments required to be made by it pursuant to this
Agreement on the due date for payment thereof in sterling for value
on such day without set-off (including, without limitation, in
respect of any fees owed to it) or counterclaim;
(i) not without the prior written consent of the Mortgages Trustee
amend or terminate any of the Transaction Documents save in
accordance with their terms; and
(j) forthwith upon becoming aware of any event which may reasonably
give rise to an obligation of the Seller to repurchase any Loan
pursuant to Clause 8 of the Mortgage Sale Agreement, notify the
Mortgages Trustee and the Beneficiaries in writing of such event.
19.2 The covenants of the Servicer in Clause 19.1 shall remain in force until
this Agreement is terminated but without prejudice to any right or remedy
of the Mortgages Trustee and/or the Seller and/or Funding arising from
breach of any such covenant prior to the date of termination of this
Agreement.
20. SERVICES NON-EXCLUSIVE
Nothing in this Agreement shall prevent the Servicer from rendering or
performing services similar to those provided for in this Agreement to or
for itself or other persons, firms or companies or from carrying on
business similar to or in competition with the business of the Mortgages
Trustee and the Beneficiaries.
21. TERMINATION
21.1 If any of the following events (TERMINATION EVENTS) shall occur:
(a) default is made by the Servicer in the payment on the due date of
any payment due and payable by it under this Agreement and such
default continues unremedied for a period of three London Business
Days after the earlier of the Servicer becoming aware of such
default and receipt by the Servicer of written notice from Funding,
the Security Trustee and the Mortgages Trustee requiring the same
to be remedied;
(b) default is made by the Servicer in the performance or observance of
any of its other covenants and obligations under this Agreement,
which in the reasonable opinion of Funding and the Security Trustee
is materially prejudicial to the interests of the Issuers under the
Intercompany Loans and/or the interests of the holders of the First
Issuer Notes, the Second Issuer Notes, the Third Issuer Notes, the
Fourth Issuer Notes, the Fifth Issuer Notes, the Sixth Issuer
Notes, the Seventh Issuer Notes, the Eighth Issuer Notes, the Ninth
Issuer Notes, the Tenth Issuer Notes, the Master Issuer Notes and
any New Notes from time to time and such default continues
unremedied for a period of twenty days after the earlier of the
Servicer becoming aware of such default and receipt by the Servicer
of written notice from Funding and the Security Trustee requiring
the same to be remedied, provided however that where the relevant
default occurs as a result of a default by any person to whom the
Servicer has subcontracted or delegated part of its obligations
hereunder, such default shall not constitute a Termination Event
if, within such period of ten London Business Days, the
17
Servicer terminates the relevant subcontracting or delegation
arrangements and takes such steps as Funding and the Security
Trustee may specify to remedy such default or to indemnify the
Mortgages Trustee and the Beneficiaries against the consequences of
such default;
(c) an order is made or an effective resolution passed for winding up
the Servicer;
(d) the Servicer ceases or threatens to cease to carry on its business
or a substantial part of its business or stops payment or threatens
to stop payment of its debts or the Servicer is deemed unable to
pay its debts within the meaning of section 123(1)(a), (b), (c) or
(d) of the Insolvency Xxx 0000 (as that section may be amended) or
becomes unable to pay its debts as they fall due or the value of
its assets falls to less than the amount of its liabilities (taking
into account for both these purposes its contingent and prospective
liabilities) or otherwise becomes insolvent;
(e) proceedings are initiated against the Servicer under any applicable
liquidation, administration, insolvency, composition,
reorganisation (other than a reorganisation where the Servicer is
solvent) or other similar laws, save where such proceedings are
being contested in good faith by the Servicer, or an administrative
or other receiver, administrator or other similar official is
appointed in relation to the Servicer or in relation to the whole
or any substantial part of the undertaking or assets of the
Servicer or an encumbrancer takes possession of the whole or any
substantial part of the undertaking or assets of the Servicer, or a
distress, execution or diligence or other process is levied or
enforced upon or sued out against the whole or any substantial part
of the undertaking or assets of the Servicer and in any of the
foregoing cases it is not discharged within fifteen London Business
Days; or if the Servicer initiates or consents to judicial
proceedings relating to itself under any applicable liquidation,
administration, insolvency, composition, reorganisation or other
similar laws or makes a conveyance or assignment for the benefit of
its creditors generally;
(f) neither the Servicer nor a directly or indirectly wholly-owned
subsidiary of the Servicer is servicing the Portfolio pursuant to
this Agreement; or
(g) the Servicer has not terminated the subcontracting and delegation
within ten London Business Days if required by Clause 21.6,
then the Mortgages Trustee and/or Funding and the Security Trustee may at
once or at any time thereafter while such default continues by notice in
writing to the Servicer terminate its appointment as Servicer under this
Agreement with effect from a date (not earlier than the date of the
notice) specified in the notice.
21.1 The appointment of the Servicer under this Agreement may be terminated
upon the expiry of not less than 12 months' notice of termination given
by the Servicer to the Mortgages Trustee and the Beneficiaries provided
that:
(a) the Mortgages Trustee and the Beneficiaries consent in writing to
such termination;
(b) a substitute servicer shall be appointed, such appointment to be
effective not later than the date of such termination;
(c) such substitute servicer has experience of administering mortgages
of residential property in the United Kingdom and is approved by
the Mortgages Trustee and the Beneficiaries;
(d) such substitute servicer enters into an agreement substantially on
the same terms as the relevant provisions of this Agreement and the
Servicer shall not be released from its
18
obligations under the relevant provisions of this Agreement until
such substitute servicer has entered into such new agreement; and
(e) the then current ratings (if any) of the First Issuer Notes, the
Second Issuer Notes, the Third Issuer Notes, the Fourth Issuer
Notes, the Fifth Issuer Notes, the Sixth Issuer Notes, the Seventh
Issuer Notes, the Eighth Issuer Notes, the Ninth Issuer Notes, the
Tenth Issuer Notes, the Master Issuer Notes or any New Notes are
not adversely affected as a result thereof, unless otherwise agreed
by an Extraordinary Resolution (as defined in the relevant Trust
Deed) of the holders of the relevant class of Notes.
21.3 On and after termination of the appointment of the Servicer under this
Agreement pursuant to this Clause 21, all authority and power of the
Servicer under this Agreement shall be terminated and be of no further
effect and the Servicer shall not thereafter hold itself out in any way as
the agent of the Mortgages Trustee and/or the Beneficiaries pursuant to
this Agreement.
21.4 Upon termination of the appointment of the Servicer under this Agreement
pursuant to this Clause 21, the Servicer shall:
(a) forthwith deliver (and in the meantime hold on trust for, and to
the order of, the Mortgages Trustee) to the Mortgages Trustee or as
it shall direct the Customer Files, the Title Deeds, all books of
account, papers, records, registers, correspondence and documents
in its possession or under its control relating to the affairs of
or belonging to the Mortgages Trustee (as trustee for the
Beneficiaries) and the Mortgages in the Portfolio and any other
Related Security, (if practicable, on the date of receipt) any
monies then held by the Servicer on behalf of the Mortgages Trustee
and any other assets of the Mortgages Trustee and the
Beneficiaries;
(b) take such further action as the Mortgages Trustee, Funding and the
Security Trustee may reasonably direct at the expense of the
Beneficiaries (including in relation to the appointment of a
substitute servicer) provided that the Mortgages Trustee shall not
be required to take or direct to be taken such further action
unless it has been indemnified to its satisfaction;
(c) provide all relevant information contained on computer records in
the form of magnetic tape, together with details of the layout of
the files encoded on such magnetic tapes;
(d) co-operate and consult with and assist the Mortgages Trustee,
Funding, the Security Trustee and their nominees (which shall, for
the avoidance of doubt, include any new servicer appointed by any
of them) for the purposes of explaining the file layouts and the
format of the magnetic tapes generally containing such computer
records on the computer system of the Mortgages Trustee or such
nominee; and
(e) permit the Mortgages Trustee, Funding and the Security Trustee to
have access at reasonable times to the Abbey Insurance Policies.
21.5 The Servicer shall deliver to the Mortgages Trustee and the Beneficiaries
as soon as reasonably practicable but in any event within five days of
becoming aware thereof a notice of any Termination Event or any event
which with the giving of notice or lapse of time or certification would
constitute the same.
21.6 If any of the events set out in Clauses 21.1 (c), (d) and (e) occur in
relation to any person to whom the Servicer has subcontracted or delegated
part of its obligations hereunder, the Servicer shall notify the Security
Trustee and the Servicer shall within ten London Business Days of such an
event occurring, terminate the relevant subcontracting or delegation
arrangements.
19
21.7 Termination of this Agreement or the appointment of the Servicer under
this Agreement shall be without prejudice to the liabilities of the
Mortgages Trustee and the Beneficiaries to the Servicer or vice versa
incurred before the date of such termination. The Servicer shall have no
right of set-off or any lien in respect of such amounts against amounts
held by it on behalf of the Mortgages Trustee.
21.8 This Agreement shall terminate at such time as the Mortgages Trustee has
no further interest in any of the Loans or the Mortgages which have been
comprised in the Portfolio.
21.9 On termination of the appointment of the Servicer under the provisions of
this Clause 21, the Servicer shall be entitled to receive all fees and
other monies accrued up to the date of termination but shall not be
entitled to any other or further compensation. Such monies so receivable
by the Servicer shall be paid by the Mortgages Trustee on the dates on
which they would otherwise have fallen due hereunder. For the avoidance of
doubt, such termination shall not affect the Servicer's rights to receive
payment of all amounts (if any) due to it from the Mortgages Trustee other
than under this Agreement.
21.10 Prior to termination of this Agreement, the Servicer, the Seller, the
Security Trustee, the Mortgages Trustee and Funding shall co-operate to
obtain the agreement of the Borrowers to a new bank mandate permitting
the Mortgages Trustee to operate the Direct Debiting Scheme.
21.11 Any provision of this Agreement which is stated to continue after
termination of the Agreement shall remain in full force and effect
notwithstanding termination.
22. FURTHER ASSURANCE
22.1 The parties hereto agree that they will co-operate fully to do all such
further acts and things and execute any further documents as may be
necessary or desirable to give full effect to the arrangements
contemplated by this Agreement.
22.2 Without prejudice to the generality of Clause 22.1, the Mortgages Trustee
and the Beneficiaries shall upon request by the Servicer forthwith give to
the Servicer such further powers of attorney or other written
authorisations, mandates or instruments as are necessary to enable the
Servicer to perform the Services.
22.3 In the event that there is any change in the identity of the Mortgages
Trustee or an additional Mortgages Trustee is appointed, the remaining
Mortgages Trustee and/or the retiring Mortgages Trustee, as the case may
be, shall execute such documents with any other parties to this Agreement
and take such actions as such new Mortgages Trustee may reasonably
require for the purposes of vesting in such new Mortgages Trustee the
rights of the Mortgages Trustee under this Agreement and releasing the
retiring Mortgages Trustee from further obligations thereunder and while
any Note remains outstanding shall give notice thereof to the Rating
Agencies.
22.4 Nothing herein contained shall impose any obligation or liability on the
Mortgages Trustee to assume or perform any of the obligations of the
Servicer hereunder or render it liable for any breach thereof.
23. MISCELLANEOUS
23.1 Subject to Clause 23.2, in the event that the funds available to the
Mortgages Trustee on any Interest Payment Date are not sufficient to
satisfy in full the aggregate amount payable to the Servicer by the
Mortgages Trustee on such Interest Payment Date then the amount payable to
the Servicer on such Interest Payment Date shall be reduced by the amount
of the shortfall and such shortfall shall (subject always to the
provisions of this Clause 23) be payable on the immediately succeeding
Interest Payment Date.
20
23.2 In the event that:
(a) after redemption in full of the Intercompany Loans; or
(b) after service of an Intercompany Loan Enforcement Notice and
payment of all other prior claims,
the remaining sums available to the Mortgages Trustee or remaining
proceeds of enforcement are insufficient to satisfy in full the
outstanding fees or other claims of the Servicer, such fees shall be
reduced by the amount of the deficiency.
23.3 Each of the Seller and the Servicer agrees that it will not:
(a) set off or purport to set off any amount which the Mortgages
Trustee, Funding or each Issuer is or will become obliged to pay to
it under any of the Transaction Documents against any amount from
time to time standing to the credit of or to be credited to the
Mortgages Trustee GIC Account, any Alternative Account, the Funding
GIC Account, the Funding Transaction Account or any Issuer Account
or in any other account prior to transfer to the Mortgages Trustee
GIC Account, the relevant Alternative Account, the Funding GIC
Account, the Funding Transaction Account or the relevant Issuer
Account, as appropriate; or
(b) make or exercise any claims or demands, any rights of counterclaim
or any other equities against or withhold payment of any and all
sums of money which may at any time and from time to time be
standing to the credit of the Mortgages Trustee GIC Account, the
relevant Alternative Account, the Funding GIC Account, the Funding
Transaction Account or the relevant Issuer Account.
23.4 The Servicer agrees that for so long as any First Issuer Notes, Second
Issuer Notes, Third Issuer Notes, Fourth Issuer Notes, Fifth Issuer
Notes, Sixth Issuer Notes, the Seventh Issuer Notes, the Eighth Issuer
Notes, the Ninth Issuer Notes, the Tenth Issuer Notes, the Master Issuer
Notes and New Notes are outstanding it will not petition nor commence
proceedings for the administration or winding up of the Mortgages Trustee
or Funding or any Issuer nor participate in any ex parte proceedings with
regard thereto.
23.5 In relation to all sums due and payable by the Mortgages Trustee to the
Servicer, the Servicer agrees that it shall have recourse only to sums
paid to or received by (or on behalf of) the Mortgages Trustee pursuant
to the provisions of the Mortgage Sale Agreement, the other Transaction
Documents and in relation to the Mortgages.
23.6 For the avoidance of doubt, neither Beneficiary shall be liable to pay any
amounts due under Clauses 11 and 13 without prejudice to the obligations
of the Mortgages Trustee in respect of such amounts.
23.7 Notwithstanding any other provisions of this Agreement, all obligations
to, and rights of, Funding under or in connection with this Agreement
(other than its obligations under Clause 24) shall automatically terminate
upon the discharge in full of all amounts owing by it under any
Intercompany Loan Agreement, provided that this shall be without prejudice
to any claims in respect of such obligations and rights arising on or
prior to such date.
24. CONFIDENTIALITY
During the continuance of this Agreement or after its termination, each
of the Mortgages Trustee and the Beneficiaries shall use its best
endeavours not to disclose to any person, firm or company whatsoever any
information relating to the business, finances or other matters of a
confidential
21
nature of any other party hereto of which it may exclusively by virtue of
being party to the Transaction Documents have become possessed and shall
use all reasonable endeavours to prevent any such disclosure as aforesaid,
provided however that the provisions of this Clause 24 shall not apply:
(a) to any information already known to the Mortgages Trustee or the
Beneficiaries otherwise than as a result of entering into any of
the Transaction Documents;
(b) to any information subsequently received by the Mortgages Trustee
or the Beneficiaries which it would otherwise be free to disclose;
(c) to any information which is or becomes public knowledge otherwise
than as a result of the conduct of the Mortgages Trustee or the
Beneficiaries;
(d) to any extent that the Mortgages Trustee or the Beneficiaries is
required to disclose the same pursuant to any law or order of any
court or pursuant to any direction, request or requirement (whether
or not having the force of law) of any central bank or any
governmental or other authority (including, without limitation, any
official bank examiners or regulators);
(e) to the extent that the Mortgages Trustee or the Beneficiaries needs
to disclose the same for determining the existence of, or
declaring, an Intercompany Loan Event of Default or a Termination
Event, the protection or enforcement of any of its rights under any
of the Transaction Documents or in connection herewith or therewith
or for the purpose of discharging, in such manner as it thinks fit,
its duties under or in connection with such agreements in each case
to such persons as require to be informed of such information for
such purposes; or
(f) in relation to any information disclosed to the professional
advisers of the Mortgages Trustee or the Beneficiaries or (in
connection with the review of current ratings of the First Issuer
Notes, the Second Issuer Notes, the Third Issuer Notes, the Fourth
Issuer Notes, the Fifth Issuer Notes, the Sixth Issuer Notes, the
Seventh Issuer Notes, the Eighth Issuer Notes, the Ninth Issuer
Notes, the Tenth Issuer Notes, the Master Issuer Notes or any New
Notes or with a prospective rating of any debt to be issued by an
Issuer) to any credit rating agency or any prospective new Servicer
or Mortgages Trustee.
25. NOTICES
Any notices to be given pursuant to this Agreement to any of the parties
hereto shall be sufficiently served if sent by prepaid first class post,
by hand or facsimile transmission and shall be deemed to be given (in the
case of facsimile transmission) when despatched, (where delivered by
hand) on the day of delivery if delivered before 17.00 hours on a London
Business Day or on the next London Business Day if delivered thereafter
or (in the case of first class post) when it would be received in the
ordinary course of the post and shall be sent:
(a) in the case of the Servicer, to Abbey National plc, Abbey National
House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (facsimile
number x00 00 0000 0000) for the attention of the Company Secretary
with a copy to Abbey National plc, c/o Abbey House (AAM 129), 000
Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile number +44 1908
343 019) for the attention of Securitisation Team, Retail Credit
Risk;
(b) in the case of the Mortgages Trustee, to Xxxxxx Trustees Limited
c/o Abbey House (AAM 129), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0
0XX (facsimile number x00 0000 000 000) for the attention of
Securitisation Team, Retail Credit Risk;
22
(c) in the case of the Seller, to Abbey National plc, Abbey National
House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (facsimile
number x00 00 0000 0000) for the attention of the Company Secretary
with a copy to Abbey National plc, c/o Abbey House (AAM 129), 000
Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile number +44 1908
343 019) for the attention of Securitisation Team, Retail Credit
Risk;
(d) in the case of Funding, to Xxxxxx Funding Limited c/o Abbey House
(AAM 129), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile
number x00 0000 000 000) for the attention of Securitisation Team,
Retail Credit Risk;
(e) in the case of the Security Trustee, to JPMorgan Chase Bank, N.A.,
London Branch at Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx, X0X
0XX (facsimile number x(00) 00 0000 0000) for the attention of
Corporate Trust Administrator,
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party
to the others by written notice in accordance with the provisions of this
Clause 25. All notices served under this Agreement shall be simultaneously
copied to the Security Trustee by the person serving the same.
26. VARIATION AND WAIVER
No variation or waiver 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. No single or partial exercise of, or failure or delay in
exercising, any right under this Agreement shall constitute a waiver or
preclude any other or further exercise of that or any other right.
27. NO PARTNERSHIP
It is hereby acknowledged and agreed by the parties that nothing in this
Agreement shall be construed as giving rise to any partnership between
any of the parties.
28. ASSIGNMENT
28.1 The Mortgages Trustee may not assign or transfer any of its rights and
obligations under this Agreement without the prior written consent of
each of the Beneficiaries.
28.2 The Servicer may not assign or transfer any of its rights and obligations
under this Agreement without the prior written consent of the Mortgages
Trustee (as trustee for the Beneficiaries) and each of the Beneficiaries.
28.3 The Servicer acknowledges that Funding has assigned its rights under this
Agreement to the Security Trustee pursuant to the Funding Deed of Charge
and acknowledges that pursuant to the terms of the Funding Deed of
Charge, Funding has, inter alios, authorised the Security Trustee, prior
to the Funding Security becoming enforceable, to exercise, or refrain
from exercising, all rights, powers, authorities, discretions and
remedies under or in respect of the Transaction Documents, including this
Agreement, in such manner as in its absolute discretion it shall think
fit.
29. CHANGE OF SECURITY TRUSTEE
29.1 If there is any change in the identity of the Security Trustee in
accordance with the Funding Deed of Charge, the Servicer, the Seller,
Funding and the Mortgages Trustee shall execute such documents and take
such action as the successor Security Trustee and the outgoing Security
Trustee may reasonably require for the purpose of vesting in the successor
Security Trustee the rights and
23
obligations of the outgoing Security Trustee under this Agreement and
releasing the outgoing Security Trustee from its future obligations under
this Agreement.
29.2 It is hereby acknowledged and agreed that by its execution of this
Agreement the Security Trustee shall not assume or have any of the
obligations or liabilities of the Servicer, the Seller, Funding or the
Mortgages Trustee under this Agreement.
30. NEW INTERCOMPANY LOAN AGREEMENTS
If Funding enters into a New Intercompany Loan Agreement, then the
Servicer, the Seller, Funding, the Security Trustee and the Mortgages
Trustee shall execute such documents and take such action as may be
necessary or required by the Rating Agencies for the purpose of including
the New Issuer, any New Funding Swap Provider, any New Start-up Loan
Provider and any other person who has executed an Accession Undertaking
or any New Intercompany Loan Agreement in the Transaction Documents.
31. EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Agreement do not intend that any term of this
Agreement should be enforced, by virtue of the Contracts (Rights of Third
Parties) Xxx 0000, by any person who is not a party to this Agreement.
32. COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually or
by facsimile) and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all
of which when taken together shall constitute one and the same
instrument.
33. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed as a
deed the day and year first before written.
24
SCHEDULE 1
THE SERVICES
In addition to the Services set out in the body of the Servicing Agreement, the
Servicer shall:
(a) keep records and books of account for the Mortgages Trustee in relation
to the Loans comprised in the Portfolio;
(b) keep records for all taxation purposes and VAT;
(c) notify relevant Borrowers of any change in their Monthly Payments;
(d) assist the auditors of the Mortgages Trustee and provide information to
them upon reasonable request;
(e) provide a redemption statement upon the request of a Borrower or the
Borrower's solicitor or licensed conveyancer;
(f) notify relevant Borrowers of any other matter or thing which the
applicable Mortgage Conditions or Offer Conditions require them to be
notified of in the manner and at the time required by the relevant
Mortgage Terms;
(g) subject to the provisions of this Agreement (including without limitation
Clause 5.2) take all reasonable steps to recover all sums due to the
Mortgages Trustee including without limitation by the institution of
proceedings and/or the enforcement of any Loan comprised in the Portfolio
or any New Portfolio or any Related Security;
(h) take all other action and do all other things which it would be
reasonable to expect a reasonable, prudent mortgage lender to do in
administering its mortgages;
(i) act as collection agent for the Mortgages Trustee under the Direct
Debiting Scheme in accordance with the provisions of this Agreement; and
(j) assist the Cash Manager in the preparation of a quarterly report
substantially in the form set out in the Cash Management Agreement.
25
SCHEDULE 1
FORM OF QUARTERLY POOL CUT
FIELD DESCRIPTION
Year/Month Processing year and month in YYYYMM format
Account Number Unique Mortgage Account Identifier
Original Advance
Original Property Valuation The valuation details for the property
Current Loan balance Includes Capital, Interest, Arrears and Unpaid Charges
Current Property Valuation Most recent valuation. It will be equal to original
valuation if no further valuation was done
Completion Date The date the advance was completed
Maturity Date The expected Loan maturity date
Method of Repayment Code to signify types of Loans: e.g. Endowment, Interest Only, Repayment, Pension,
Investment Linked
First Income First applicant's primary income
Second Income Second applicant's primary income
Post Code Property postcode
MIG Cover Amount Amount of MIG Policy cover
Current Arrears Balance Includes unpaid interest, unpaid capital, unpaid charges
Arrears Multiplier (Current) Arrears (current month) divided by payment due (current month)
Arrears (Current - 1) Arrears at the end of previous month divided by previous months payment due
Arrears Multiplier (Current - 2) Arrears at the end of 2 months prior to current month, divided by payment due for
that month
Arrears Multiplier (Current - 3) As above, but for 3 months prior to current month
Arrears Multiplier (Current - 4) As above, but for 4 months prior to current month
Arrears Multiplier (Current - 5) As above, but for 5 months prior to current month
Arrears Multiplier (Current - 6) As above, but for 6 months prior to current month
Arrears Multiplier (Current - 7) As above, but for 7 months prior to current month
Arrears Multiplier (Current - 8) As above, but for 8 months prior to current month
Arrears Multiplier (Current - 9) As above, but for 9 months prior to current month
Arrears Multiplier (Current - 10) As above, but for 10 months prior to current month
Arrears Multiplier (Current - 11) As above, but for 11 months prior to current month
Arrears Multiplier (Current - 12) As above, but for 12 months prior to current month
Property type House, flat, etc.
Loan Use House purchase or remortgage
Property Use Owner occupied, rental, etc
Product code Code identifier for the product
MAR Monthly amount repayable
Arrangement start date Where an arrangement exists for the primary account the field is populated with the
arrangement start date
26
Arrangement term Where an arrangement exists for the primary account the field is populated with the
arrangement is to apply
Arrangement amount Amount dependent on the arrangement type below
Arrangement type Code for the arrangement type
27
SCHEDULE 2
FORM OF PERIODIC REPORT
XXXXXX [{circle}] PLC
PERIODIC REPORT
FOR PERIOD {circle} TO {circle}
MORTGAGE ASSET ANALYSIS
ANALYSIS OF MORTGAGE TRUST MOVEMENTS
---------------------------------------------- ------------------------------------------
CURRENT PERIOD CUMULATIVE
NUMBER VALUE {pound-sterling}000'S NUMBER VALUE {pound-sterling}000'S
---------------------------------------------- ------------------------------------------
Brought Forward
Replenishment
Repurchased
Redemptions
Other Movements
---------------------------------------------- ------------------------------------------
Carried Forward
---------------------------------------------- ------------------------------------------
--------------
Annualised 1 month CPR % (including redemptions and repurchases)
--------------
Annualised 3 month CPR %
--------------
Annualised 12 month CPR %
--------------
ASSET PROFILES
--------------
Weighted Average Seasoning months
--------------
Weighted Average Loan size
--------------
Weighted Average LTV % *(see definition below)
--------------
Weighted Average Remaining Term years
--------------
PRODUCT TYPE ANALYSIS VALUE {pound-sterling}000'S PERCENTAGE
--------------------------- ----------
Variable Rate %
Fixed Rate %
Tracker Rate %
Flexible Mortgages %
--------------------------- ----------
100.00%
--------------------------- ----------
MORTGAGE STANDARD VARIABLE RATE
---------------
Rate %
---------------
Effective Date
---------------
28
GEOGRAPHIC ANALYSIS
--------------------------------------------------------------
REGION NUMBER BALANCE PERCENTAGE
--------------------------------------------------------------
East Anglia %
East Midlands %
Greater London %
North West %
North %
South East %
South West %
Wales %
West Midlands %
Yorkshire and Humberside %
Unknown %
-------------------------------------------------------------
Total 100.00%
-------------------------------------------------------------
Abbey National has reallocated a number of
Post Codes to different Geographical regions from
those used in the prospectus and therefore some
minor changes to distribution may be seen.
ORIGINAL LTV BANDS
RANGE NUMBER BALANCE PERCENTAGE
---------------------------------------
0.00 - 25.00 %
25.01 - 50.00 %
50.01 - 75.00 %
75.01 - 80.00 %
80.01 - 85.00 %
85.01 - 90.00 %
90.01 - 95.00 %
---------------------------------------
Total 100.00%
---------------------------------------
* The balance is the current outstanding balance on the
account including accrued interest.
The LTV is that at origination and excludes any
capitalised high loan to value fees, valuation fees
or booking fees.
29
ARREARS
------------------------------------------------------------------------------------
BAND NUMBER PRINCIPAL OVERDUE {pound-sterling}000'S PERCENTAGE
CURRENT {pound-sterling}000'S
------------------------------------------------------------------------------------
%
1.00 - 1.99 months %
2.00 - 2.99 months %
3.00 - 3.99 months %
4.00 - 4.99 months %
5.00 - 5.99 months %
6.00 - 11.99 months %
12 months and over %
------------------------------------------------------------------------------------
Properties in Possession %
Total 100.00%
------------------------------------------------------------------------------------
DEFINITION OF ARREARS This arrears multiplier is calculated as the arrears
amount (which is the difference between the expected
monthly repayments and the amount that has actually
been paid, i.e. a total of under and/or over
payments) divided by the monthly amount repayable.
It is recalculated every time the arrears amount
changes, i.e. on the date when a payment is due.
SHARES OF TRUST LAST DISTRIBUTION DATE ({circle})
---------------------------------------------
VALUE {pound-sterling}000'S PERCENTAGE
---------------------------------------------
Funding Share %
Seller Share %
----------------------------------------------
100.00000%
----------------------------------------------
----------------------------------------------
Minimum Seller Share %
----------------------------------------------
CASH ACCUMULATION LEDGER
VALUE {pound-sterling}000'S
-----------------------------
Brought Forward
Additional Amounts
Accumulated
Payment of Notes
----------------------------
Carried Forward
-----------------------------
EXCESS SPREAD
-----------------------------
Current month %
Rolling 3 month average %
-----------------------------
30
PROPERTIES IN POSSESSION
STOCK
CURRENT PERIOD CUMULATIVE
NUMBER VALUE {pound-sterling}000'S NUMBER VALUE {pound-sterling}000'S
---------------------------------------------- ------------------------------------------
Brought Forward
Repossessed in Period
Sold in Period
Carried Forward
---------------------------------------------- ------------------------------------------
REPOSSESSION SALES INFORMATION
-----------------------
Average time Possession to Sale days
Average arrears at time of Sale
------------------------
MIG CLAIM STATUS
---------------------------------------
NUMBER VALUE {pound-sterling}000'S
---------------------------------------
MIG Claims made
MIG Claims outstanding
---------------------------------------
---------------------------------------
Average time claim to payment days
---------------------------------------
31
SCHEDULE 1
CERTIFICATE OF BENEFICIAL OWNERSHIP
......................... (the INVESTOR), hereby certifies that it is the
beneficial owner of notes issued by Xxxxxx {circle} PLC (the ISSUER).
Unless otherwise defined herein, terms used herein shall have the same meaning
as used in the Fourth Amended and Restated Servicing Agreement dated 28 March
2007. Pursuant to clause 12.4(D) of the Fourth Amended and Restated Servicing
Agreement, the Investor requests that the Servicer deliver to it by e-mail the
Monthly Reports [(including all previous Monthly Reports)].
The Investor shall promptly notify the Servicer if it ceases to be a beneficial
owner of the notes.
Upon ceasing to be a beneficial owner of the notes, the Investor acknowledges
that the Servicer shall have no further obligation to deliver Monthly Reports
to it.
The notice details for the Servicer and the Investor are as follows:
SERVICER
Address: Abbey National plc, Abbey House (AAM 129),
000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx, XX0 0XX
Facsimile number: (00) 00000 000000
For the attention of: Securitisation Team, Retail Credit Risk
INVESTOR
E-mail address: [ ]
Signed by [ ] as authorised representative on behalf of
the Investor.
.........................
Dated [ ]
32
SIGNATORIES
EXECUTED as a DEED by ) /S/ XXXXX XXXXXXXX
ABBEY NATIONAL PLC )
acting by its attorney in the )
presence of: )
EXECUTED as a DEED by ) /S/ XXXX XXXXXX
XXXXXX TRUSTEES LIMITED acting)
by two directors ) /S/ XXXXXX XXXXXXXXX
EXECUTED as a DEED by ) /S/ XXXXX XXXXXXXX
ABBEY NATIONAL PLC in its )
acting by its attorney in the )
presence of: )
EXECUTED as a DEED by ) /S/ XXXX XXXXXX
XXXXXX FUNDING LIMITED acting )
by two directors ) /S/ XXXXXX XXXXXXXXX
EXECUTED as a DEED by ) /S/ XXXX DANHAIVE
JPMORGAN CHASE BANK, N.A., )
LONDON BRANCH acting by its )
attorney in the presence of: )
/S/ XXXXXX XXXXXX
33
