Exhibit 4.10
Dated [ ] September 2003
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NORTHERN ROCK PLC
as Administrator
- and -
GRANITE FINANCE TRUSTEES LIMITED
as Mortgages Trustee
- and -
NORTHERN ROCK PLC
as Seller
GRANITE FINANCE FUNDING LIMITED
as Beneficiary
- and -
THE BANK OF NEW YORK
as Security Trustee
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THIRD AMENDED AND RESTATED
ADMINISTRATION AGREEMENT
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SIDLEY AUSTIN BROWN & WOOD
1 THREADNEEDLE STREET
LONDON EC2R 8AW
TELEPHONE 020 7360 3600
FACSIMILE 020 7626 7937
CONTENTS
Clause Page No.
1. Definitions and Interpretation.......................................2
2. Appointment of Administrator.........................................2
3. The Administration Services..........................................3
4. Interest Rates.......................................................6
5. Administration of Mortgages..........................................9
6. No Liability........................................................13
7. New Mortgage Loans..................................................14
8. Product Switching and Further Advances..............................14
9. Redemption of Mortgages.............................................14
10. Powers of Attorney..................................................15
11. Costs and Expenses..................................................15
12. Information.........................................................16
13. Remuneration........................................................18
14. Insurances..........................................................19
15. Title Deeds.........................................................20
16. Data Protection.....................................................21
17. Covenants and Representations and Warranties of Administrator.......22
18. Services Non-exclusive..............................................23
19. Termination.........................................................23
20. Further Assurances..................................................26
21. Miscellaneous.......................................................27
22. Confidentiality.....................................................28
23. No Partnership......................................................29
24. Assignment..........................................................29
25. Security Trustee; Authorised Third Party............................30
26. New Intercompany Loan Agreements....................................30
27. Non Petition Covenant; Limited Recourse.............................30
28. Amendments and Waiver...............................................31
29. Notices.............................................................32
30. Third Party Rights..................................................33
31. Execution in Counterparts; Severability.............................33
32. Governing Law and Submission to Jurisdiction........................33
33. Process Agent.......................................................33
34. Appropriate Forum...................................................33
SCHEDULE 1 THE SERVICES..................................................35
SCHEDULE 2 FORM OF INVESTORS' QUARTERLY REPORT...........................36
SCHEDULE 3 ADMINISTRATOR REPRESENTATIONS AND WARRANTIES..................40
SCHEDULE 4 AUTHORISED THIRD PARTY.......................................42
THIS THIRD AMENDED AND RESTATED ADMINISTRATION AGREEMENT DATED [ ] SEPTEMBER
2003 AMENDS AND RESTATES THE ADMINISTRATION AGREEMENT DATED 26 MARCH 2001
BETWEEN:
(1) NORTHERN ROCK PLC (registered number 3273685), a public limited company
incorporated under the laws of England and Wales whose registered office
is at Northern Rock House, Gosforth, Newcastle upon Tyne NE3 4PL in its
capacity as Administrator;
(2) GRANITE FINANCE TRUSTEES LIMITED (registered number 79309), a private
limited company incorporated under the laws of Jersey whose registered
office is at 22 Grenville Street, St. Helier, Jersey JE4 8PX, Channel
Islands in its capacity as Mortgages Trustee;
(3) NORTHERN ROCK PLC (registered number 3273685), a public limited company
incorporated under the laws of England and Wales whose registered office
is at Northern Rock House, Gosforth, Newcastle upon Tyne NE3 4PL in its
capacity as Seller and its capacity as a Beneficiary;
(4) GRANITE FINANCE FUNDING LIMITED (registered number 79308), a private
limited company incorporated under the laws of Jersey but acting out of
its branch office established in England (registered overseas company
number FC022999 and branch number BR0051916) at 4th Floor, 35 New Bridge
Street, Blackfriars, London EC4V 6BW in its capacity as a Beneficiary;
and
(5) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at One Canada Square, 48th Floor, London E14 5AL, in its
capacity as Security Trustee;
WHEREAS:
(A) The Administrator 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 has agreed to assign the
Mortgage Loans and Related Security comprised in the Initial Mortgage
Portfolio to the Mortgages Trustee. The Mortgages Trustee shall hold the
Initial Mortgage Portfolio together with any New Mortgage Portfolio on
trust for Funding and the Seller pursuant to the terms of the Mortgages
Trust Deed.
(C) The Administrator is willing to administer the Mortgage Loans on behalf
of the Mortgages Trustee and to provide certain other administration and
management services to the Mortgages Trustee, the Seller and Funding on
the terms and subject to the conditions contained in this Agreement in
relation to, inter alia, the Mortgage Loans and Related Security assigned
to the Mortgages Trustee by the Seller.
IT IS HEREBY AGREED as follows:
1. Definitions and Interpretation
1.1 Definitions: The provisions of the Master Definitions Schedule as
amended and restated by (and appearing in Appendix 1 to) the Master
Definitions Schedule Sixth Amendment and Restatement Deed made on [ ]
September 2003 between, among others, the Seller, Funding and the
Mortgages Trustee (as the same have been and may be amended, varied or
supplemented from time to time with the consent of the parties hereto)
are expressly and specifically incorporated into and shall apply to
this Agreement.
1.2 Exercise of Discretion: 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 the
Mortgages Trust Deed.
1.3 Schedules: For the avoidance of doubt, the parties hereto agree that
the Schedules attached to this Agreement shall form a part of this
Agreement, and the provisions of this Agreement shall be construed in
accordance with such Schedules.
2. Appointment of Administrator
2.1 Appointment: Subject to Clause 4.5 herein, and until termination
pursuant to Clause 19 herein (Termination), the Mortgages Trustee
hereby appoints the Administrator to administer the Mortgages Loans on
its behalf, and each of the Mortgage Trustee, the Seller and Funding
(according to their respective estates and interests) each hereby
appoints the Administrator as its lawful agent on their respective
behalves to provide certain other administration and management
services and to exercise their respective rights, powers and
discretions, and to perform their respective duties, under and in
relation to the Mortgage Loans and their Related Security. The
Administrator 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 Administrator on the terms of and
subject to the conditions of this Agreement.
2.2 Power and Authority: For the avoidance of doubt and in connection with
the rights, powers and discretions conferred under Clause 2.1 herein,
during the continuance of its appointment hereunder, the Administrator
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 all things which it reasonably considers necessary,
convenient or incidental to the administration of the Mortgage 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 Administrator may give with respect to the operating and
financial policies of the Mortgages Trustee or Funding and the
Administrator 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
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Funding (and their respective directors) and none of the provisions of
this Agreement shall be construed in a manner inconsistent with this
proviso.
2.3 Appointment Conditional: The appointment pursuant to Clause 2.1 herein
is conditional upon the issue of the First Issuer Notes having taken
place and shall take effect upon and from the Initial Closing Date
automatically without any further action on the part of any person
PROVIDED THAT if the issue of the First Issuer Notes has not occurred
by 30 April 2001, or such later date as the First Issuer and the Lead
Manager may agree, this Agreement shall cease to be of further effect.
3. The Administration Services
3.1 General: The duty of the Administrator shall be to provide the services
set out in this Agreement including Schedule 1 (the "Services").
3.2 Sub-contracts:
(a) The Administrator may sub-contract 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) herein):
(i) the prior written consent of the Mortgages Trustee and
Funding to the proposed arrangement (including, if Funding
considers it necessary after consulting with the Security
Trustee, approving any contract which sets out the terms on
which such arrangements are to be made) has been obtained,
the Security Trustee has been consulted and notification
has been given to each of the Rating Agencies;
(ii) where the arrangements involve the custody or control of
any Mortgage Loan Files and/or Title Deeds relating to the
Mortgage Portfolio for the purpose of performing any
delegated Services, the sub-contractor or delegate has
executed an acknowledgement in writing acceptable to
Funding and the Security Trustee to the effect that any
such Mortgage Loan 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 relevant Collection Account, the
sub-contractor or delegate has executed a declaration in
writing 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 the relevant
Collection 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 Mortgage Portfolio or any amount
referred to in (iii) above); and
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(v) neither the Mortgages Trustee, the Security 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) herein shall not
apply:
(i) to the engagement by the Administrator of:
(1) 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
(2) any locksmith, builder or other contractor acting as
such in relation to a Mortgaged Property, in any such
case being a person or persons whom the Administrator
would be willing to appoint in respect of its own
mortgages in connection with the performance by the
Administrator 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 Administrator to assign to the Mortgages Trustee any
rights which the Administrator 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 Administrator 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 the Administrator's obligations under this
Agreement:
(i) the Administrator shall not thereby be released or
discharged from any liability hereunder;
(ii) the Administrator shall remain responsible for the
performance of the obligations of the Administrator under
this Agreement;
(iii) 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 Administrator's obligations
under this Agreement;
(iv) any breach in the performance of the Services by any
sub-contractor or delegate shall, subject to the
Administrator being entitled for a period of twenty (20)
Business Days from receipt of notice of the breach to
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remedy such breach by any sub-contractor or delegate, be
treated as a breach of this Agreement by the Administrator;
and
(v) the Security Trustee shall have no liability for any act or
omission of the sub-contractor or delegate and shall have
no responsibility for monitoring or investigating the
suitability of any such sub-contractor or delegate.
3.3 Notices etc.
(a) Within fifteen (15) days after the Initial Closing Date, the
Administrator will:
(i) on behalf of the Mortgages Trustee (at the direction of the
Beneficiaries or with their consent), give to third parties
such notices as any of the Beneficiaries are required to
give pursuant to the Mortgage Sale Agreement; and
(ii) submit for registration at the Companies Registry a duly
completed Form 395 and original executed copy of the First
Issuer Deed of Charge pursuant to Chapter 1 of Part XII of
the Companies Act 1985,
and in each case, the Administrator shall take all reasonable
steps to ensure the return by the relevant recipient of the
duplicate notices of assignment by way of acknowledgement thereof.
(b) Promptly upon request by Funding and the Security Trustee, the
Administrator shall procure that any notices permitted to be given
by the Mortgages Trustee under Clause 6.4 (Prior to Perfection) of
the Mortgage Sale Agreement are so given by the Administrator on
the Mortgages Trustee's behalf.
3.4 Liability of Administrator:
(a) The Administrator 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 Administrator in carrying out its functions as Administrator
under this Agreement or the other Transaction Documents or as a
result of a breach by the Administrator of the terms and
provisions of this Agreement or the other Transaction Documents in
relation to such functions.
(b) For the avoidance of doubt, the Administrator 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 Administrator save where such
loss, liability, claim, expense or damage is suffered or incurred
as a result of any negligence or wilful default of the
Administrator or as a result of a breach by the Administrator 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
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in accordance with Clause 8.4 (Adjustments to Trust Property) of
the Mortgages Trust Deed and Schedule 2 to the Cash Management
Agreement.
3.5 Perfection of Mortgages Trustee's and Beneficiaries' Title to the
Mortgage Loans
Subject to Clause 6 of the Mortgage Sale Agreement:
(a) upon the receipt by the Seller of a written request from the
Mortgages Trustee, Funding or the Security Trustee to execute
transfers pursuant to Clause 6.2 of the Mortgage Sale Agreement,
the Administrator shall execute or procure the execution of such
transfers on behalf of the Seller or shall provide sufficient
information to enable the Mortgages Trustee, Funding or the
Security Trustee to do so; and
(b) upon the Seller being required to do so by the Mortgages Trustee,
Funding or the Security Trustee pursuant to Clause 6.1 of the
Mortgage Sale Agreement, the Administrator shall do all or any of
the acts, matters or things referred to in Clauses 6.2 and 6.3 of
the Mortgage Sale Agreement.
4. Interest Rates
4.1 Determination of Interest Rates: Subject to the provisions of
applicable law and regulations and any regulatory undertakings binding
on the Administrator or the Issuer from time to time and subject to the
following provisions of this Clause 4, the Mortgages Trustee and each
of the Beneficiaries each hereby grants the Administrator full right,
liberty and authority from time to time to determine:
(a) in accordance with the applicable Mortgage Conditions, Mortgage
Terms and the Base Rate Pledge, the Standard Variable Rate and any
other discretionary rates and margins applicable to the Mortgage
Loans chargeable to Borrowers from time to time; and
(b) the Existing Borrowers' Re-Fix Rate in accordance with Clause 4.4
herein.
In exercising such right, liberty and authority the Administrator
undertakes to each of the other parties to this Agreement that it shall
not at any time set or maintain the Standard Variable Rate and any
other discretionary rates and margins applicable to the Mortgage Loans
at rates which are higher than the then prevailing equivalent rates
offered by the Seller, unless the Administrator is required to do so
pursuant to Clause 4.3 herein, and, subject to that requirement, that
it shall not change the Standard Variable Rate and any other
discretionary rates and margins applicable to the Mortgage Loans save
for the same reasons as the Seller was entitled, under the Mortgage
Conditions, to change the then prevailing equivalent rates offered by
the Seller prior to the assignment to the Mortgages Trustee of the
Mortgage Loans comprised in the Mortgage Portfolio and their Related
Security. Each of the Issuer and the Security Trustee shall be bound by
any Mortgage Rates (including the Existing Borrowers' Re-Fix Rate)
determined by the Administrator in accordance with this Clause 4.
4.2 Notification to Borrowers: The Administrator shall take all steps
necessary pursuant to the relevant Mortgage Conditions or applicable
law to bring each change in the
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Standard Variable Rate and any other discretionary rate or margin
applicable to the Mortgage Loans and any consequent changes in Monthly
Payments to the attention of the relevant Borrowers and shall, as soon
as reasonably practicable after any change in such rates, provide
details of such changes to each of the Mortgages Trustee, the Security
Trustee and the Beneficiaries, and shall, upon receipt of a request
from any of such parties, notify such requesting party of any changes
in the Monthly Payments in relation to the Mortgage Loans.
4.3 Interest Rate Shortfall:
(a) On each Payment Date the Administrator shall determine, having
regard to:
(i) the income which Funding would expect to receive during the
next succeeding Interest Period;
(ii) the Mortgage Rates in respect of the Mortgage Loans which
the Administrator proposes to set under this Clause 4; and
(iii) the other resources available to Funding including the
Funding Reserve Fund and amounts standing to the credit of
any Issuer Reserve Fund and/or any Issuer Liquidity 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
(1) the amount of interest which will be payable by Funding in
order to fund (whether by payment to a swap provider or otherwise)
the amount of interest payable in respect of the Class A Notes of
the First Issuer (and the highest ranking class of notes of any
New Issuer, if any) and all amounts which rank in priority thereto
on the Payment Date occurring at the end of such Interest Period,
and (2) all other amounts payable by Funding which rank in
priority to or pari passu with interest due on the First Issuer
Intercompany Loan in respect of interest which is payable on the
Class A Notes of the First Issuer (and any New Intercompany Loan,
if any, in respect of interest which is payable by any New Issuer
on the highest rated class of Notes issued by such New Issuer, if
any) (the amount (if any) by which it is less being the "Interest
Rate Shortfall").
(b) If the Administrator determines that there will be an Interest
Rate Shortfall, it will within one (1) London Business Day of such
determination give written notice thereof to the Mortgages
Trustee, Funding and the Security Trustee of such Interest Rate
Shortfall and of the Standard Variable Rate and other
discretionary rates and margins applicable to the Mortgage Loans
which would, in the Administrator's opinion, need to be set in
order for no Interest Rate Shortfall to arise, having regard to
the obligations of Funding under all Intercompany Loans.
(c) If the Mortgages Trustee, Funding and/or the Security Trustee
notify the Administrator that, having regard to the obligations of
Funding, the Standard Variable Rate and other discretionary rates
and margins should be increased (which shall be the same rates as
previously notified to the Mortgages Trustee, Funding and the
Security Trustee in accordance with Clause 4.3(b)), the
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Administrator, as agent for and on behalf of the Mortgages
Trustee, 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 applicable rates on
the date(s) specified in the notice referred to in Clause 4.3(b)
herein.
4.4 Existing Borrowers' Re-Fix Rate:
(a) The Administrator shall, in relation to each Fixed Rate Mortgage
Loan, serve on the Seller as agent for and on behalf of, inter
alia, the Mortgages Trustee and the Beneficiaries the notice
referred to in Clause 8.6(a) of the Mortgage Sale Agreement sixty
(60) days before the expiry of the initial fixed rate period (as
defined in Clause 8.6(a) of the Mortgage Sale Agreement)
applicable to that Fixed Rate Mortgage Loan.
(b) If Clause 8.6(b) of the Mortgage Sale Agreement applies to any
Fixed Rate Mortgage Loan, the Administrator shall take all steps
which are necessary to perform the obligations of the Seller and
exercise the rights under such Clause.
(c) The Administrator shall, whenever Clause 8.6(c) of the Mortgage
Sale Agreement applies to a Fixed Rate Mortgage Loan, determine
(after consultation with the Basis Rate Swap Provider, the
Currency Swap Provider, and any other swap provider the
Administrator (acting reasonably) determines appropriate) the rate
(and terms) upon which the Existing Borrowers' Re-Fix Rate should
be set having regard to the interests of the Basis Rate Swap
Provider and the Currency Swap Provider (except to the extent that
the Administrator believes that the interests of either of the
Basis Rate Swap Provider or the Currency Swap Provider are
materially prejudicial to the interests of the Noteholders). The
Administrator will give written notice of such determination
within one Business Day thereof to the Mortgages Trustee and the
Beneficiaries recommending what the Existing Borrowers' Re-Fix
Rate should be and the terms at which it should be offered, having
regard to the interests of the Basis Rate Swap Provider and the
Currency Swap Provider (except to the extent that the
Administrator believes that the interests of either of the Basis
Rate Swap Provider or the Currency Swap Provider are materially
prejudicial to the interests of the Noteholders). The
Administrator will solicit quotations on rates from each of (i)
the Mortgages Trustee, (ii) Funding, and (iii) other trustees for
re-fixed mortgage loans in relation to other outstanding
securitisations of the Seller (if any), and shall notify the
Mortgages Trustee and the Beneficiaries as to the higher of (x)
any rate provided by any of the parties in (i) through (iii)
herein and (y) current rates for re-fixed mortgage loans (not
included in any Mortgage Portfolio) in relation to other Mortgage
Loans of the Administrator. If the Mortgages Trustee agrees in
writing with such recommendation, or (whether or not it has
received the Administrator's recommendation) requires alternative
rates and/or terms (such agreement or requirement being the "EBRR
Determination") the Administrator shall immediately notify the
Seller and the First Issuer (and any New Issuer) of the EBRR
Determination, and take all steps which are necessary to enable
the First Issuer (and any New Issuer) to enter into the relevant
swap agreement either with the Basis Rate Swap Provider or the
Currency Swap Provider (or other swap provider whose appointment
would not adversely affect the then
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current ratings of the Notes) at the rate (and on the terms)
required in accordance with the EBRR Determination (the "Required
Rate and Terms"). Nothing in this Clause 4.4(c) shall prevent the
Mortgages Trustee from setting the Existing Borrowers' Re-Fix Rate
in accordance with its powers under the Mortgage Sale Agreement.
(d) If Clause 8.6 of the Mortgage Sale Agreement applies to any Fixed
Rate Mortgage Loan, and the Seller fails to set the Existing
Borrowers' Re-Fix Rate immediately upon being required to do so in
accordance with the Required Rate and Terms or otherwise to
perform its obligations under Clause 8.6(c) of the Mortgage Sale
Agreement, the Administrator as attorney for the Mortgages Trustee
and the Beneficiaries shall set the Existing Borrowers' Re-Fix
Rate on the Required Rate and Terms.
4.5 Termination of Authority: The Mortgages Trustee and/or Funding and the
Security Trustee may terminate the authority of the Administrator under
Clauses 4.1 and 4.3 herein to determine either of the Mortgage Rate(s)
or Existing Borrowers' Re-Fix Rate on or after the occurrence of a
Termination Event pursuant to Clause 19 herein, in which case the
Mortgages Trustee shall set the Mortgage Rate(s) or Existing Borrowers'
Re-Fix Rate, as applicable, in accordance with this Clause 4.
5. Administration of Mortgages
5.1 Collection of Payments:
(a) For the purposes of collecting amounts due from any Borrower under
a Mortgage Loan, where such Borrower makes a Monthly Payment by
way of Direct Debit the Administrator will, unless otherwise
agreed in writing with the Beneficiaries:
(i) act as collecting agent for the Beneficiaries under the
Direct Debiting Scheme;
(ii) comply with the obligations on its part set out in the Bank
Account Agreement including, without limitation, the
specific provisions relating to the collection of monies
set out in Clause 4 of the Bank Account Agreement;
(iii) comply in all material respects with the requirements from
time to time of the Direct Debiting Scheme; and
(iv) using its reasonable endeavours, credit any Monthly Payment
made by a Borrower by way of Direct Debit to the relevant
Collection Account within one (1) London Business Day of
receipt (and in any event within three (3) London Business
Days of such receipt) into the relevant Collection Account.
(b) The Administrator may agree with a Borrower that the Direct
Debiting Scheme shall not apply to Monthly Payments to be made by
such Borrower, provided that (i) alternative payment arrangements
are made which are intended to ensure the timely making of Monthly
Payments due from the
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Borrower to the Mortgages Trustee, and (ii) the change in
arrangements was made at the instigation of the Borrower or by the
Administrator in accordance with the procedures which would be
adopted by a reasonable and prudent mortgage lender. The
Administrator shall, using its reasonable endeavours, credit
Monthly Payments made by a Borrower under an alternative payment
arrangement as follows to the relevant Collection Account:
(i) by standing order, by close of business on the second (2nd)
London Business Day following the day on which such amount
is received or credited by the Administrator;
(ii) by payment of cash, transfer payment from another account
of the Seller or check where reference to the relevant
Borrower is provided or payments made by way of paying-in
book, by close of business on the London Business Day which
immediately follows the day on which such amount is
received or credited by the Administrator; and
(iii) in the case of any payment by check where a reference to
the relevant Borrower is not provided, by close of business
on the next London Business Day after notification from the
Operating Banks of the identity of the Borrower;
(c) provided however, that in any event the Administrator shall credit
Monthly Payments made by a Borrower under an alternative payment
arrangement within three (3) London Business Days of such receipt.
(d) The Administrator may, notwithstanding the proviso to Clause
5.2(b) herein, 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 and prudent
mortgage lender.
(e) Where a Borrower permits a Direct Debit to be made to his bank
account, the Administrator 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
Administrator will endeavour to make alternative arrangements
acceptable to a reasonable and prudent mortgage lender so that
such Borrower nevertheless pays each Monthly Payment on the due
date.
(f) In the event that the Bankers Automated Clearing System ceases to
operate for any reason the Administrator 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 as trustee for the Beneficiaries hereby
directs the Administrator to administer the Mortgage Loans
comprised in the Mortgage
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Portfolio and carry out its specific obligations under this
Agreement in accordance with the Administration Procedures.
(b) The Administrator will, in relation to any default by a Borrower
under or in connection with a Mortgage Loan or a Mortgage
comprised in the Mortgage 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 Administrator 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
Administrator may exercise such discretion as would a
reasonable and 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
Mortgage Portfolio is not materially prejudiced; and
(iii) in any case where any of the Insurance Policies requires
exact compliance with certain enforcement procedures, the
Administrator shall procure the prior written consent of
the relevant insurance company for any deviation by it from
such enforcement procedures.
5.3 Records: The Administrator shall keep and maintain records in relation
to the Mortgage Portfolio, on a Mortgage Loan by Mortgage 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 and prudent mortgage lender. Subject always to the
restrictions and conditions set forth in Clause 16, the Administrator
will provide such information to the Mortgages Trustee and/or Funding
and/or the Security Trustee at any time upon reasonable notice, subject
to the Administrator being reasonably capable of providing such
information without significant additional cost and subject to the
provisions of the Data Protection Act 1998 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 Administrator, in carrying out its functions as
Administrator under this Agreement, receives (including in its
capacity as agent for the Mortgages Trustee as trustee for the
Beneficiaries) any money whatsoever arising from the Mortgage
Loans and their Related Security, which money belongs to the
Mortgages Trustee (as trustee for the Beneficiaries) and is to be
paid to the relevant Collection Account pursuant to this Agreement
or any of the other Transaction Documents or otherwise, it will
hold such monies on trust for the
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Mortgages Trustee and shall keep such money separate from all
other monies held by the Administrator and shall, as soon as
reasonably practicable and in any event within three (3) London
Business Days of receipt of the same, pay the monies into the
relevant Collection Account.
(b) All other sums received by the Administrator in respect of the
Mortgage Loans and their Related Security shall be held by the
Administrator for itself.
5.5 Together Connections Mortgage Loans and Connections Mortgage Loans:
(a) The Seller shall, upon request, use its reasonable endeavours to:
(i) provide the Mortgages Trustee, Funding and the
Administrator with such information (including, but not
limited to documentary information) in its possession; and
(ii) do such other acts and things,
that the Mortgages Trustee, Funding and the Administrator may
require in order for such parties to exercise their rights and
comply with their obligations under the Together Connections
Mortgage Loans and the Connections Mortgage Loans and under the
Transaction Documents with respect to the administration of such
Mortgage Loans.
(b) Each of the Mortgages Trustee, Funding and the Administrator
shall, upon request, use their reasonable endeavours to:
(i) provide the Seller with such information (including, but
not limited to documentary information) in its possession;
and
(ii) do such other acts and things,
that the Seller may require in order for the Seller to, exercise
its rights and comply with its obligations under the Together
Connection Conditions and the Connection Conditions (where such
rights and obligations are not required to be administered by the
Mortgages Trustee, Funding or the Administrator under the
Transaction Documents) and in respect of the products linked to
the Together Connections Mortgage Loans and Connections Mortgage
Loans.
(c) Any notice, letter or other communication:
(i) received or given by the Seller under the Together
Connection Conditions or the Connection Conditions shall be
copied by the Seller to the Administrator; and
(ii) received or given by the Mortgages Trustee, Funding or the
Administrator under the Together Connection Conditions or
the Connection Conditions shall be copied by such parties
to the Seller.
(d) The Administrator shall act in accordance with the instructions of
the Seller in any matter where the powers, rights, obligations or
commercial interests of the Seller under the Together Connection
Conditions or the Connection
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Conditions or with respect to the products linked to the
Together Connections Mortgage Loan or the Connections Mortgage
Loan may be affected in a material manner. Such matters may
include, but not limited to, the following:
(i) any request from a Borrower to amend the allocation of the
Together Connections Benefit or the Connections Benefit
that may accrue to such Borrower under the terms of the
relevant Together Connection Conditions or Connection
Conditions;
(ii) any amendment to the Together Connection Conditions or the
Connection Conditions;
(iii) except where the Administrator is required to act in
accordance with Clause 4.3 (Interest Rate Shortfall), the
determination or variation of the Connection Interest Rate
(provided that such rate shall not at any time be set at a
rate which is higher than the equivalent rate offered by
the Seller);
(iv) any change to the availability or amendment to the
eligibility of any product to be linked to a Together
Connections Mortgage Loan or a Connections Mortgage Loan;
and
(v) the termination of the Together Connection Conditions or
the Connection Conditions.
In all other cases where the Administrator, on behalf of the other
parties hereto is required to exercise its judgment or discretion
in the application of the Together Connection Conditions or the
Connection Conditions, the Administrator shall undertake the same
in consultation with the Seller.
(e) The Seller shall not have any right to provide instructions to the
Administrator in respect of any amendment to the Together
Connection Conditions or Connection Conditions where such
amendment will result in a Product Switch in respect of the
applicable Together Connections Mortgage Loans or Connections
Mortgage Loans unless the Seller has given confirmation in
accordance with the terms of the Mortgage Sale Agreement that it
has elected to repurchase such Together Connections Mortgage Loans
or Connections Mortgage Loans.
6. No Liability
6.1 No Guarantee of Mortgage Loan: The Administrator shall have no
liability for any obligation of a Borrower under any Mortgage Loan
comprised in the Mortgage Portfolio or any Related Security and nothing
herein shall constitute a guarantee, or similar obligation, by the
Administrator of any Mortgage Loan, Mortgage or any Borrower.
6.2 No Guarantee to Mortgages Trustee or Beneficiaries: Save as otherwise
provided in this Agreement, the Administrator shall have no liability
for the obligations of the Mortgages Trustee or the Beneficiaries under
any of the Transaction Documents or
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otherwise and nothing herein shall constitute a guarantee, or similar
obligation, by the Administrator of the Mortgages Trustee or the
Beneficiaries in respect of any of them.
7. New Mortgage Loans
7.1 New Mortgage Portfolio: The Mortgage Portfolio may be augmented from
time to time by the assignment to the Mortgages Trustee on any
Distribution Date of a New Mortgage Portfolio by the Seller.
7.2 Assignment subject to Terms: The assignment of each New Mortgage
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 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 Acceptance of Application: The Administrator 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 invited to do so by the Mortgages Trustee, purchase the
relevant Mortgage Loan and its Related Security from the Mortgages
Trustee.
8.2 Notification: Subject to complying with the terms of Clause 8.1 herein,
where the Administrator accepts a Product Switch or a Further Advance,
the Administrator shall then promptly notify the Seller and the
Mortgages Trustee in writing.
8.3 Existing Borrowers Re-Fix Rate: Notwithstanding Clause 8.1 herein,
whenever Clause 8.6 of the Mortgage Sale Agreement applies to a Fixed
Rate Mortgage Loan, the Administrator may accept an application from a
Borrower to set the Existing Borrowers' Re-Fix Rate, subject to the
terms of Clause 4.4 herein.
8.4 Procedures: Subject to complying with the terms of Clauses 8.1 and 8.3
herein, the Administrator may accept requests from Borrowers for
Product Switches and Further Advances provided that the Administrator
acts in accordance with its then procedure which would be acceptable to
a reasonable and prudent mortgage lender.
9. Redemption of Mortgages
9.1 Receipt or Discharge: Upon repayment in full of all sums secured by a
Mortgage and/or other Related Security comprised in the Mortgage
Portfolio, the Administrator shall, and is hereby authorised by the
Mortgages Trustee as trustee for the Beneficiaries to, execute a
receipt or discharge or relevant Form DS1 (of the United Kingdom Land
Registry) 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 Title Deeds: The Administrator undertakes that prior to any actual
release by it of any 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.
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9.3 Payment of Sums Due: The Administrator shall procure that if, upon
completion of the Enforcement Procedures, an amount in excess of all
sums due from the relevant Borrower is recovered or received, the
balance, after discharge of all sums due from the Borrower, is paid to
the person or persons next entitled thereto.
10. Powers of Attorney
10.1 Appointment: The Mortgages Trustee hereby appoints the Administrator 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 Mortgage Portfolio which has been repaid
in full and any Related Security or for the sale of a Mortgaged
Property as Mortgagee;
(b) executing all documents necessary for the purpose of releasing a
Borrower in accordance with Clause 9 herein (Redemption of
Mortgages);
(c) executing all documents and doing all acts and things which in the
reasonable opinion of the Administrator 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 rate of interest payable under the
Mortgage Loans or any related rights (but subject, in relation to
the right to set the interest rate under the Base Rate Pledge and
the Existing Borrowers' Re-Fix Rate, to the limitations,
conditions and qualifications set out in the Mortgage Sale
Agreement and the powers of attorney executed pursuant to it),
provided that, for the avoidance of doubt, these Powers of Attorney
shall not authorise the Administrator to sell any of the Mortgage Loans
and/or their Related Security comprised in the Mortgage 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 Administrator or any failure
by the Administrator to act under or in respect of these Powers of
Attorney.
10.2 Appointments Irrevocable: The appointments contained in Clause 10.1
herein shall be irrevocable unless and until following a Termination
Event pursuant to Clause 19 herein (Termination) the Mortgages Trustee
and/or Funding and the Security Trustee serves notice pursuant to
Clause 19 herein (Termination) to terminate the Administrator's
appointment under this Agreement upon which the appointments contained
in Clause 10.1 herein shall be automatically revoked.
11. Costs and Expenses
The Mortgages Trustee will on each Distribution Date reimburse, in
accordance with Clause 10.2(b) of the Mortgages Trust Deed, the
Administrator for all out-of-pocket costs, expenses and charges
(inclusive of any amounts in respect of Irrecoverable VAT due thereon)
properly incurred by the Administrator in the performance of the
Services including any such costs, expenses or charges not reimbursed
to the Administrator on any previous Distribution Date and the
Administrator shall supply
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the Mortgages Trustee with an appropriate VAT invoice issued by the
person making the supply.
12. Information
12.1 Maintenance of Records:
(a) The Administrator shall keep the Mortgage Loan Files relating to
the Mortgage 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 Administrator
shall maintain in an adequate form such records as are necessary
to enforce each Mortgage comprised in the Mortgage Portfolio and,
where relevant, any other Related Security. The Administrator
shall keep the Mortgage Loan Files in relation to the Mortgage
Portfolio in such a way that they can be distinguished from
information held by the Administrator for its own behalf as
mortgagee or for other third persons.
(b) A duplicate of any computer records held by the Administrator
which contains information relating to the Mortgage Loans and the
Related Security shall be lodged by the Administrator on a
quarterly basis in a location separate from that in which the
original computer records are stored and in an environment
conducive to the safe storage of electronic media and which allows
the information to be stored in an incorruptible form, 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 Administrator shall keep the Mortgages Trustee
informed of the location of the Mortgage Loan Files and duplicate
computer records.
12.2 Use of information technology systems:
(a) The Administrator will use all reasonable endeavours to negotiate
with the relevant parties so that any intellectual property rights
not owned by it but used by it in connection with the performance
of its obligations under this Agreement and in particular all
software programmes used in connection with the Mortgage Loans and
the Related Security therefor and their administration are
licensed or sub-licensed to the Mortgages Trustee as trustee for
the Beneficiaries so as to permit the Mortgages Trustee as trustee
for the Beneficiaries to use such intellectual property rights
only in connection with the administration of the Mortgage Loans
free of charge for so long as any of the Mortgage Loans are
outstanding. For the avoidance of doubt, the Administrator shall
not be in breach of its obligations under this Agreement if such
rights and/or software programmes are not so licensed or
sub-licensed to the Mortgages Trustee as trustee for the
Beneficiaries at any time after it has ceased to be the
Administrator.
(b) If this Agreement is terminated, then for a period of six months
following such termination (or such shorter period as may be
necessary to allow the administration of the Mortgage Loans to be
transferred to another person) the Administrator shall use
reasonable endeavours to assist the Mortgages Trustee and/or the
Beneficiaries and/or any substitute or successor Administrator to:
16
(i) establish and implement a computer system for administering
the Mortgage Loans; and
(ii) load the data held by the Administrator in relation to
Borrowers and the Mortgage Loans on to such computer
system,
and, prior to (i) and (ii) having taken place, the Administrator
will provide all necessary access and assistance to the Mortgages
Trustee and/or the Beneficiaries and/or the substitute
Administrator in respect of its own intellectual property rights
in relation to the administration of the Mortgage Loans.
(c) Subject always to the restrictions and conditions set forth in
Clause 16, upon termination of the appointment of the
Administrator under this Agreement, the Administrator shall
forthwith deliver to the Mortgages Trustee and/or the
Beneficiaries and/or the substitute Administrator all computer and
data records in its possession or under its control relating to
the affairs of or belonging to the Mortgages Trustee and the
Beneficiaries and/or relating to the Mortgage Loans and the
Related Security in a form agreeable to each of the Administrator,
the Mortgages Trustee and/or the Beneficiaries and/or the
substitute Administrator which accords with the standard practice
of the electronic data processing industry at the time the event
occurs.
(d) The Administrator covenants that it will take no action, nor omit
to take any action, the effect or likely effect of such action or
omission will be to terminate any existing licence agreement in
relation to any such intellectual property rights, provided that a
licence agreement may be terminated if it is replaced by a
substitute arrangement under which the intellectual property
rights, including rights to computer software, are such that the
services resulting therefrom are equivalent to the previous
arrangement.
12.3 Access to Books and Records: Subject to all applicable laws, and
subject always to the restrictions and conditions set forth in Clause
16, the Administrator 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 Administrator 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 Mortgage Loan Files) relating
to the administration of the Mortgage Loans and the Related Security
comprised in the Mortgage Portfolio and related matters in accordance
with this Agreement.
12.4 Information Covenants:
(a) The Administrator shall, within ten (10) Business Days following
each Payment Date, provide the Mortgages Trustee, the
Beneficiaries, the Rating Agencies, the Lead Manager, Bloomberg,
L.P. (unless otherwise prohibited by law) and any other party as
the Mortgages Trustee may direct with a report in, or
substantially in, the form set out in Schedule 2 hereto (or such
other form reasonably requested by the Mortgages Trustee and
approved by the Beneficiaries and the Rating Agencies) and shall
assist the Cash Manager in
17
the production of quarterly reports substantially in the forms set
out in Schedule 3 of the Cash Management Agreement.
(b) The Administrator 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
Mortgaged Properties by it in connection with its mortgage
business (details of which change may be included in a report
provided under subparagraph (a) above) 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 and any New
Notes and other matters contemplated by the Transaction, provided
that such request does not adversely interfere with the
Administrator's day to day provision of the Services under the
other terms of this Agreement.
(c) The Administrator shall, at the request of Funding and the
Security Trustee (where the Administrator is the Seller) and at
the request of the Beneficiaries (where the Administrator 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 its business and financial
condition 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 and any New
Notes and other matters contemplated by the Transaction, provided
that Funding, the Security Trustee or the Beneficiaries (as is
appropriate) shall not make such a request more than once every
three months unless, in the belief of Funding, the Security
Trustee or the Beneficiaries (as appropriate), an Intercompany
Loan Event of Default or a Termination Event pursuant to Clause 19
herein shall have occurred and is continuing or may reasonably be
expected to occur.
13. Remuneration
13.1 Administration Fee: The Mortgages Trustee shall pay to the
Administrator for its Services hereunder an administration fee (the
"Administration Fee") (inclusive of VAT) which:
(a) shall be calculated in relation to each Trust Calculation Period
on the basis of the number of days elapsed and a 365 day year (or,
in the case of a Trust Calculation Period ending in a leap year, a
366 day year) at the Administration Fee Rate, inclusive of VAT, on
the aggregate amount of the Funding Share of the Trust Property as
at close of business of such Trust Calculation Period; and
(b) shall be paid to the Administrator on each Distribution Date in
the manner contemplated by and in accordance with the provisions
of Clause 10 of the Mortgages Trust Deed.
13.2 Substitute or Successor Administrator: If a substitute or successor
administrator shall be appointed under this Agreement with respect to
any of the Mortgage Loans, the Mortgages Trustee shall set the
Administration Fee Rate with such substitute or successor administrator
at the time such substitute or successor administrator enters into an
administration agreement.
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14. Insurances
14.1 Administration: The Administrator will administer the arrangements for
insurance to which the Mortgages Trustee is a party or in which either
the Seller or the Mortgages Trustee has an interest and which relate to
the Mortgage Loans and the Mortgages comprised in the Mortgage
Portfolio or the business of the Mortgages Trustee.
14.2 Action of Administrator: The Administrator shall not knowingly take or
omit to take any action which would:
(a) result in the avoidance or termination of any of the Insurance
Policies in relation to any Mortgage Loans and Mortgages to which
any Insurance Policy applies;
(b) reduce the amount payable on any claim made on behalf of the
Mortgages Trustee (as trustee for the Beneficiaries) under any
Insurance Policy; or
(c) invalidate any Insurance Policy.
14.3 Submission of Claims: The Administrator shall prepare and submit any
claim under the Insurance Policies in accordance with the requirements
of the relevant Insurance Policy and otherwise with the usual
procedures undertaken by a reasonable and prudent mortgage lender on
behalf of the Mortgages Trustee as trustee for the Beneficiaries and
shall comply with the other requirements of the insurer under the
relevant Insurance Policy.
14.4 Proceeds: The Administrator shall use its reasonable endeavours to
credit to the relevant Collection Account all proceeds received from
any claim made under each Insurance Policy in relation to any Mortgage
Loan by close of business on the London Business Day which immediately
follows the day on which such amounts are received or credited by the
Administrator (and in any event within three (3) London Business Days
of such receipt) and which is applied either in whole or in part in
repayment of a Mortgage Loan.
14.5 MIG Policies:
(a) Without prejudice to Clause 3 herein, the Mortgages Trustee as
trustee for the Beneficiaries acknowledges that the Administrator
may settle or compromise claims on a Mortgage Loan by Mortgage
Loan basis in respect of any MIG Policy in a manner consistent
with its normal practice in respect of mortgage indemnity polices,
provided that the Administrator shall not, without the prior
written consent of the Mortgages Trustee, settle any claims or
initiate any legal proceedings or other legal process in respect
of a group of class of mortgages or in respect of the MIG Policies
as a whole and provided further that each such MIG Policy and all
proceeds thereof remains subject to the Funding Deed of Charge.
(b) If the Enforcement Procedures requires the Administrator to make a
claim under the relevant MIG Policy and the Administrator has
failed to make such a claim, then the Beneficiaries may direct the
Mortgages Trustee on their behalf to direct the Administrator to
make a claim or, in default thereof by the
19
Administrator, the Beneficiaries may direct the Mortgages Trustee
to make a claim itself under such policy and the Administrator
shall, within ten (10) 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.
(c) Without prejudice to the rights of the Administrator under Clause
14.5(b) herein, the Administrator shall, in administering the
Mortgage Loans, ensure that the cover under any MIG Policy
relating to any Mortgage is not adversely affected.
14.6 Buildings Policies:
(a) Upon receipt of notice that any Borrower whose Mortgage Loan is
secured by a mortgage of a leasehold Mortgaged 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
Administrator may debit such Borrower's account with the relevant
amount which shall then be paid to the relevant landlord.
(b) If the Administrator becomes aware that a Borrower has failed to
pay premiums due under any Buildings Policy, the Administrator
shall take such action as would a reasonable and prudent mortgage
lender with a view to ensuring that the relevant Mortgaged
Property continues to be insured in accordance with the applicable
Mortgage Terms or the Alternative Insurance Requirements.
14.7 Life Policies:
(a) The Administrator shall use its reasonable endeavours to ensure
that upon maturity of a Life Policy or on the death of a Borrower,
if earlier, all sums which it is agreed between the Seller and the
relevant Borrower are due to be paid under the Life Policy are
paid by the relevant insurance company in repayment of the
Mortgage for which such Life Policy is collateral security and
credited to the relevant Collection Account.
(b) If so requested by a Borrower the Administrator may, on behalf of
the Beneficiaries, exercise its discretion as a reasonable and
prudent mortgage lender to agree to the release of a Life Policy
from the relevant legal or equitable charge granted by the related
Borrower in favour of the Seller.
15. Title Deeds
15.1 Custody: The Administrator shall keep the Title Deeds relating to the
Mortgage 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 herein
(Sub-Contracts) 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
20
Beneficiaries)) or to H.M. Land Registry or, upon redemption of the
relevant Mortgage Loan, to the order of the Borrower.
15.2 Identification: The Title Deeds relating to the Mortgage Portfolio
shall be kept in a manner such 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 Administrator is mortgagee or
administrator.
15.3 Access: The Administrator shall provide access, or procure that access
is provided to, the Title Deeds relating to the Mortgage Portfolio to
the Mortgages Trustee, the Beneficiaries and their respective agents at
all reasonable times and upon reasonable notice. The Administrator
acknowledges that the Title Deeds and Mortgage Loan Files relating to
the Mortgage Portfolio in its possession, custody or control will be
held to the order of the Mortgages Trustee (as trustee for the
Beneficiaries) and that it has, in its capacity as Administrator, no
beneficial interest therein and the Administrator (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.
15.4 Delivery upon Termination: The Administrator shall, forthwith on the
termination of the appointment of the Administrator pursuant to Clause
19 herein (Termination), deliver the Title Deeds and Mortgage Loan
Files to or to the order of the Mortgages Trustee or to such person as
the Mortgages Trustee elects as a substitute administrator 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 Administrator pursuant to
Clause 19 herein (Termination).
16. Data Protection
The Administrator represents that as at the date hereof the
Administrator 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 Act 1998 to enable each of
them to perform their respective obligations under this Agreement. In
addition to the foregoing and notwithstanding any of the other
provisions of this Agreement, each of the Administrator and the
Mortgages Trustee hereby agree and covenant as follows:
(a) that only non-"personal data" (as described in the Data Protection
Act 1998) may be transferred by the Administrator to the Mortgages
Trustee or any other entity located in Jersey (unless Jersey is
declared an "approved state" by the European Commission, in which
case the Administrator may transfer such personal data to the
Mortgages Trustee in Jersey);
(b) that, to the extent that circumstances enable the Mortgages
Trustee to exercise its right to demand that the Administrator
transfer inter alia personal data to the Mortgages Trustee, the
Administrator shall only transfer such personal data to an agent
of the Mortgages Trustee that is located in the United Kingdom and
maintains all appropriate registrations, licences and authorities
(if any) required under the Data Protection Act 1998 (unless
Jersey is declared an "approved state" by the European Commission,
in which case the
21
Administrator may transfer such personal data to the Mortgages
Trustee in Jersey);
(c) that, to the extent that circumstances enable the Mortgages
Trustee to exercise its right to demand that the Administrator
transfer inter alia personal data to the Mortgages Trustee, the
Administrator notify each Borrower that the Mortgages Trustee is a
"data controller" (as defined in the Data Protection Act 1998) and
provide each such Borrower with the address of the Mortgages
Trustee;
(d) that the Administrator and the Mortgages Trustee will only use any
data in relation to the Mortgage Loans and the related Borrowers
for the purposes of administering and/or managing the Mortgage
Portfolio, and will not sell such data to any third party or allow
any third party to use such data other than in compliance with the
conditions stated in this Clause 16 and for the sole purpose of
administering and/or managing the Mortgage Portfolio;
(e) that the Mortgages Trustee will comply with the provisions of the
Data Protection (Jersey) Law 1987 (as amended) and (so long as the
provisions of the Data Protection Act 1998 do not conflict with
the provisions of the Data Protection (Jersey) Law 1987) with the
provisions of the Data Protection Act 1998 (as amended);
(f) that, upon the request of a Borrower, the Administrator will
inform such Borrower that both the Administrator and the Mortgages
Trustee are "data controllers" as described in the Data Protection
Act 1998; and
(g) that both the Administrator and the Mortgages Trustee shall
maintain a written record of their reasons for applying the Data
Protection Order 2000 (as set forth under the Conditions under
paragraph 3 of Part II of Schedule I of such Order).
17. Covenants and Representations and Warranties of Administrator
17.1 Covenants: The Administrator 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 Mortgage 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 and prudent
mortgage lender;
(c) comply with any reasonable 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
22
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 Act 1998;
(e) not knowingly fail to comply with any legal requirements in the
performance of the Services;
(f) make all payments required to be made by it pursuant to this
Agreement on the due date for payment thereof in pounds sterling
(or as otherwise required under the Transaction Documents) in
immediately available funds for value on such day without set-off
(including, without limitation, any fees owed to it) or
counterclaim, but subject to any deductions required by law;
(g) not without the prior written consent of the Mortgages Trustee
amend or terminate any of the Transaction Documents save in
accordance with their terms;
(h) forthwith upon becoming aware of any event which may reasonably
give rise to an obligation of the Seller to repurchase any
Mortgage Loan pursuant to Clause 8 of the Mortgage Sale Agreement,
notify the Mortgages Trustee and the Beneficiaries in writing of
such event.
17.2 Covenants to Survive: The covenants of the Administrator in Clause 17.1
herein 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.
17.3 Representations and Warranties: The Administrator hereby makes the
representations and warranties to each of the Mortgages Trustee,
Funding and the Security Trustee that are specified on Schedule 3
hereto.
18. Services Non-exclusive
Nothing in this Agreement shall prevent the Administrator from
rendering or performing services similar to those provided for in this
Agreement to or for itself or other persons or from carrying on
business similar to or in competition with the business of the
Mortgages Trustee and the Beneficiaries.
19. Termination
19.1 Termination Event: If any of the following events (each a "Termination
Event") shall occur:
(a) default is made by the Administrator 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 five London
Business Days after the Administrator becoming aware of such
default;
(b) default is made by the Administrator in the performance or
observance of any of its other covenants and material obligations
under this Agreement or any of the other Transaction Documents,
which, the Security Trustee having been
23
informed thereof as specified below in this sub-clause, is
materially prejudicial to the interests of the holders of the
First Issuer Notes and any New Notes from time to time and such
default continues unremedied for a period of twenty (20) days
after the Administrator becoming aware of such default, provided
however that where the relevant default occurs as a result of a
default by any person to whom the Administrator has sub-contracted
or delegated part of its obligations hereunder, such default shall
not constitute a Termination Event if within such twenty (20) day
period the Administrator replaces the relevant sub-contractor or
delegate with an entity capable of remedying such default or
alternatively indemnifies the Mortgages Trustee and the
Beneficiaries against the consequences of such default;
(c) the Administrator at any time fails to obtain the necessary
license or regulatory approval required by any UK mortgage
regulatory regime which would be required in order to enable it to
continue administering the Mortgage Loans; or
(d) the Administrator becomes subject to an Insolvency Event,
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 Administrator, terminate its appointment as
Administrator under this Agreement with effect from a date (not earlier
than the date of the notice) specified in such notice. Upon termination
of the Administrator, the Security Trustee shall use its reasonable
endeavours to appoint a substitute Administrator that satisfies the
conditions set forth in Clause 19.2(c), (d) and (e), provided that in
the event the Security Trustee has not, having used reasonable
endeavours, appointed a substitute Administrator, the Security Trustee
shall have no liability to any person and, notwithstanding any other
provision of the Transaction Documents, shall not itself be required to
perform any duties of the Administrator.
19.2 Resignation: The Administrator may resign under this Agreement at any
time following the expiry of not less than 12 months' notice of
resignation given by the Administrator 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 administrator is appointed by the Mortgages Trustee,
Funding and the Security Trustee (and in the event of failure to
agree, by the Security Trustee), such appointment to be effective
not later than the date of such termination (and the Administrator
shall notify the Rating Agencies in writing of the identity of
such substitute administrator);
(c) if possible, such substitute administrator has experience of
administering mortgages of residential property in England and
Wales and is approved by the Mortgages Trustee and the
Beneficiaries;
(d) such substitute administrator enters into an agreement on
substantially the same terms as the relevant provisions of this
Agreement and the Administrator shall not be released from its
obligations under the relevant provisions of this
24
Agreement until such substitute administrator has entered into
such new agreement; and
(e) the then current ratings (if any) of the First 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
Note Trust Deed) of the holders of the relevant class of Notes.
19.3 Termination of Authority: On and after resignation by, or termination
of the appointment of, the Administrator under this Agreement pursuant
to this Clause 19, all authority and power of the Administrator under
this Agreement shall be terminated and be of no further effect and the
Administrator shall not thereafter hold itself out in any way as the
agent of the Mortgages Trustee and/or the Beneficiaries pursuant to
this Agreement.
19.4 Delivery of Files: Upon resignation by, or termination of the
appointment of, the Administrator under this Agreement pursuant to this
Clause 19, the Administrator shall:
(a) forthwith deliver to (and in the meantime hold on trust for, and
to the order of) the Mortgages Trustee or as it shall direct the
Mortgage Loan 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 Mortgage Portfolio and any
other Related Security, (if practicable, on the date of receipt)
any monies then held by the Administrator on behalf of the
Mortgages Trustee and any other assets of the Mortgages Trustee as
trustee for 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 administrator) provided that neither the Mortgages
Trustee nor the Security Trustee shall 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; and
(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 administrator 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.
19.5 Notification of Termination Event: The Administrator shall notify the
Mortgages Trustee, the Security Trustee and the Beneficiaries as soon
as reasonably practicable but in any event within five (5) days of
becoming aware of any Termination Event or any event which with the
giving of notice or lapse of time or certification would
25
constitute the same. Such notification shall specify which event in
Clause 19 occurred and was the cause of such Termination Event (or any
event which with the giving of notice or lapse of time or certification
would constitute a Termination Event), a description of the details of
such Termination Event, and a reference to the provision in this
Agreement or the other Transaction Documents which the Administrator
has breached.
19.6 No Prejudice: Termination of this Agreement or the appointment of the
Administrator under this Agreement shall be without prejudice to the
liabilities of the Mortgages Trustee as trustee for the Beneficiaries
to the Administrator or vice versa incurred before the date of such
termination. The Administrator 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.
19.7 Automatic Termination: This Agreement shall terminate at such time as
the Mortgages Trustee has no further interest in any of the Mortgage
Loans or the Mortgages which have been comprised in the Mortgage
Portfolio.
19.8 Further Compensation: Upon resignation by, or termination of the
appointment of, the Administrator under the provisions of this Clause
19, the Administrator shall be entitled to receive all fees and other
monies accrued up to the date of resignation or termination, as the
case may be, but shall not be entitled to any other or further
compensation. Such monies so receivable by the Administrator 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
resignation or termination shall not affect the Administrator's rights
to receive payment of all amounts (if any) due to it from the Mortgages
Trustee other than under this Agreement.
19.9 Co-operation: Prior to termination of this Agreement, the
Administrator, the Seller, 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.
19.10 Survival of Terms: Any provision of this Agreement which is stated to
continue after termination of the Agreement shall remain in full force
and effect notwithstanding termination.
19.11 No Supervision: The Security Trustee shall not be obliged to monitor or
supervise the performance by any substitute Administrator of its duties
hereunder or in relation to the other Transaction Documents, nor shall
the Security Trustee be responsible or liable for any act or omission
of such substitute Administrator or for any loss caused thereby.
20. Further Assurances
20.1 Co-operation: 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.
20.2 Powers of Attorney: Without prejudice to the generality of Clause 20.1
herein, the Mortgages Trustee as trustee for the Beneficiaries shall
upon request by the
26
Administrator forthwith give to the Administrator such further powers
of attorney or other written authorisations, mandates or instruments as
are necessary to enable the Administrator to perform the Services.
20.3 Notice to Rating Agencies: 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.
20.4 No Obligations: Nothing herein contained shall impose any obligation or
liability on the Mortgages Trustee to assume or perform any of the
obligations of the Administrator hereunder or render it liable for any
breach hereof.
21. Miscellaneous
21.1 Insufficient Funds: Subject to Clause 21.2 herein, in the event that
the funds available to the Mortgages Trustee on any Payment Date are
not sufficient to satisfy in full the aggregate amount payable to the
Administrator by the Mortgages Trustee on such Payment Date then the
amount payable to the Administrator on such Payment Date shall be
reduced by the amount of the shortfall and such shortfall shall
(subject always to the provisions of this Clause 21) be payable on the
immediately succeeding Payment Date.
21.2 Reduction of Fees: 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 Administrator, such fees shall
be reduced by the amount of the deficiency.
21.3 Set-Off: Each of the Seller and the Administrator 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
any Collection Account, the Mortgages Trustee Transaction Account,
the Mortgages Trustee GIC Account, the Funding Transaction
Account, the Funding GIC Account, any Funding (Issuer) GIC
Account, any Issuer Transaction Account in any other account prior
to transfer to any Collection Account, the Mortgages Trustee
Transaction Account, the Mortgages Trustee GIC Account, the
Funding Transaction Account, the
27
Funding GIC Account, any Funding (Issuer) GIC Account or any
Issuer Transaction 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 any Collection Account, the Mortgages
Trustee Transaction Account, the Mortgages Trustee GIC Account,
the Funding Transaction Account, the Funding GIC Account, any
Funding (Issuer) GIC Account or any Issuer Transaction Account.
21.4 No Petition: The Administrator agrees that for so long as any First
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.
21.5 Limited Recourse: In relation to all sums due and payable by the
Mortgages Trustee to the Administrator, the Administrator 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.
21.6 No Prejudice: For the avoidance of doubt, neither Beneficiary shall be
liable to pay any amounts due under Clauses 11 or 13 herein without
prejudice to the obligations of the Mortgages Trustee in respect of
such amounts.
21.7 Termination: 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 22 herein
(Confidentiality)) 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.
22. Confidentiality
From the date of this Agreement and notwithstanding its termination,
each of the Mortgages Trustee and the Beneficiaries shall use its best
endeavours not to disclose to any person whatsoever any information
relating to the business, finances or other matters of a confidential
nature of any other party hereto of which it may 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 22 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;
28
(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 Transaction
Document, 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 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 Administrator or Mortgages Trustee.
23. 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.
24. Assignment
24.1 Consent: 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.
24.2 Agreement: The Administrator may not assign or transfer any of its
rights or obligations under this Agreement (a) without the prior
written consent of the Mortgages Trustee (as trustee for the
Beneficiaries) and each of the Beneficiaries and (b) other than to a
person who agrees to be bound by the provisions contained in Clause 5
of the Funding Deed of Charge as if such person had been named as an
original party thereto in place of Northern Rock but without prejudice
to their obligations under such Clause.
24.3 Assignment of Rights to Security Trustee: The Administrator
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 alia, authorised the Security Trustee, following the
Funding Security becoming enforceable, to exercise, or refrain from
exercising, all of Funding's rights, powers, authorities, discretions
and remedies under or in respect of the Funding Transaction Documents,
including this Agreement, in such manner as in the Security Trustee's
absolute discretion it shall think fit.
29
25. Security Trustee; Authorised Third Party
25.1 Vesting of Rights: If there is any change in the identity of the
security trustee in accordance with the Funding Deed of Charge, the
Administrator, 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
obligations of the outgoing security trustee under this Agreement and
releasing the outgoing security trustee from its future obligations
under this Agreement.
25.2 No Assumption: 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 Administrator, the
Seller, Funding or the Mortgages Trustee under this Agreement.
Furthermore, any liberty or power which may be exercised or any
determination which may be made hereunder by the Security Trustee may
be exercised or made in the Security Trustee's absolute discretion
without any obligation to give reasons therefor, but in any event must
be exercised or made in accordance with the provisions of the Funding
Deed of Charge and Schedule 4 hereto.
25.3 Delegation: The Security Trustee may delegate the performance of all or
any of its powers and obligations under all or any of the Operating
Agreements pursuant to the terms of Schedule 4 of this Agreement and
subject always to the provisions of the Funding Deed of Charge.
26. New Intercompany Loan Agreements
If Funding enters into a New Intercompany Loan Agreement, then the
Administrator, 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 Basis Rate Swap Provider, any Currency
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.
27. Non Petition Covenant; Limited Recourse
27.1 Non Petition Covenant: Each of the parties hereto hereby agrees that it
shall not institute against either Funding or the Mortgages Trustee any
winding-up, administration, insolvency or similar proceedings so long
as any sum is outstanding under any Intercompany Loan Agreement of any
Issuer or for two years plus one day since the last day on which any
such sum was outstanding.
27.2 Limited Recourse: Each of the parties hereto agrees that:
(a) in relation to the Mortgages Trustee, any amount payable by the
Mortgages Trustee to any other party to this Agreement under this
Agreement not being an amount payable out of the Trust Property in
accordance with the terms of the Mortgages Trust Deed shall only
be payable to the extent that on that date the Mortgages Trustee
has sufficient funds to pay such amount out of fees paid to it
under the Mortgages Trust Deed; and
(b) in relation to Funding:
30
(i) only the Security Trustee may enforce the security created
in favour of the Security Trustee under the Funding Deed of
Charge in accordance with the provisions thereof;
(ii) notwithstanding any other provision of this Agreement or
any other Transaction Document, no sum due or owing to any
party to this Agreement from or by Funding under this
Agreement shall be payable by Funding except to the extent
that Funding has sufficient funds available or (following
enforcement of the Funding Security) the Security Trustee
has realised sufficient funds from the Funding Security to
pay such sum subject to and in accordance with the relevant
Funding Priority of Payments and provided that all
liabilities of Funding required to be paid in priority
thereto or pari passu therewith pursuant to such Funding
Priority of Payments have been paid, discharged and/or
otherwise provided for in full; and
(iii) it shall not take any steps for the purpose of recovering
any amount payable by Funding or enforcing any rights
arising out of this Agreement against Funding otherwise
than in accordance with the Funding Deed of Charge.
27.3 Corporate Obligations: To the extent permitted by law, no recourse
under any obligation, covenant, or agreement of any person contained in
this Agreement shall be had against any shareholder, officer or
director of such person as such, by the enforcement of any assessment
or by any legal proceeding, by virtue of any statute or otherwise; it
being expressly agreed and understood that this Agreement is a
corporate obligation of each person expressed to be a party hereto and
no personal liability shall attach to or be incurred by the
shareholders, officers, agents or directors of such person as such, or
any of them, under or by reason of any of the obligations, covenants or
agreements of such person contained in this Agreement, or implied
therefrom, and that any and all personal liability for breaches by such
person of any of such obligations, covenants or agreements, either
under any applicable law or by statute or constitution, of every such
shareholder, officer, agent or director is hereby expressly waived by
each person expressed to be a party hereto as a condition of and
consideration for the execution of this Agreement.
28. Amendments and Waiver
28.1 Entire Agreement: This Agreement sets out the entire agreement and
understanding between the parties with respect to the subject matter of
this Agreement superseding all prior oral or written understandings
other than the other Transaction Documents.
28.2 Amendments and Waiver: No amendment or waiver of any provision of this
Agreement nor consent to any departure by any of the parties therefrom
shall in any event be effective unless the same shall be in writing and
signed by each of the parties hereto. In the case of a waiver or
consent, such waiver or consent shall be effective only in the specific
instance and as against the party or parties giving it for the specific
purpose for which it is given.
28.3 Rights Cumulative: The respective rights of each of the parties to this
Agreement are cumulative and may be exercised as often as they consider
appropriate. No failure on
31
the part of any party to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies in
this Agreement are cumulative and not exclusive of any remedies
provided by law.
28.4 Variation or Waiver: No variation or waiver of this Agreement shall be
made if the same would adversely affect the then current ratings of
any of the Notes.
29. Notices
Any notices or other communication or document to be given or delivered
pursuant to this Agreement to any of the parties hereto shall be
sufficiently served if sent by prepaid first class post, by hand or by
facsimile transmission and shall be deemed to be given (in the case of
facsimile transmission) when despatched or (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 Administrator and the Seller, to Northern Rock
PLC, Northern Rock House, Gosforth, Newcastle upon Tyne NE3 4PL
(facsimile number: 0191 213 2203) for the attention of the Group
Secretary;
(b) in the case of the Mortgages Trustee, to Granite Finance Trustees
Limited, c/o 22 Grenville Street, St. Helier, Jersey JE4 8PX,
Channel Islands (facsimile number 01534-609-333) for the attention
of the Company Secretary;
(c) in the case of Funding, to Granite Finance Funding Limited, 4th
Floor, 35 New Bridge Street, Blackfriars, London EC4V 6BW
(facsimile number 0207-332-6199) for the attention of the Company
Secretary;
(d) in the case of the Security Trustee, to The Bank of New York
(London Branch), One Canada Square, 48th Floor, London E14 5AL
(facsimile number 020-7964-6399) for the attention of Corporate
Trust (Global Structured Finance);
(e) in the case of Fitch, to Fitch Ratings Ltd., at Eldon House, 2
Eldon Street, London EC2M 7UA (facsimile number 0207 7417 6262)
for the attention of European Structured Finance Surveillance;
(f) in the case of Moody's, to Moody's Investors Services, Inc., at
1st Floor, 2 Minster Court, Mincing Lane, London EC3R 7XB
(facsimile number 0207 772 5400) for the attention of David
Harrison;
(g) in the case of S&P, to Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., at Garden House, 18
Finsbury Circus, London EC2M 7NJ (facsimile number 0207-826-3598)
for the attention of Andre Vollmann;
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 or by any Rating Agency
32
to the others by written notice in accordance with the provisions of
this Clause 29. All notices served under this Agreement shall be
simultaneously copied to the Security Trustee by the person serving the
same.
30. Third Party Rights
A person who is not a party to this Agreement may not enforce any of
its terms under the Contracts (Rights of Third Parties) Act 1999, but
this shall not affect any right or remedy of a third party which exists
or is available apart from that Act.
31. Execution in Counterparts; Severability
31.1 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.
31.2 Severability: Where any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations under this Agreement, or of such provision or obligation in
any other jurisdiction, shall not be affected or impaired thereby.
32. Governing Law and Submission to Jurisdiction
32.1 Governing Law: This Agreement is governed by, and shall be construed in
accordance with, English law.
32.2 Submission to Jurisdiction: Each of the parties hereto irrevocably
agrees that the courts of England shall have jurisdiction to hear and
determine any suit, action or proceeding, and to settle any disputes,
which may arise out of or in connection with this Agreement and, for
such purposes, irrevocably submits to the jurisdiction of such courts.
33. Process Agent
The Mortgages Trustee irrevocably and unconditionally appoints Mourant
& Co. Capital (SPV) Limited at Fourth Floor, 35 New Bridge Street,
Blackfriars, London EC4V 6BW or otherwise at its registered office for
the time being as its agent for service of process in England in
respect of any proceedings in respect of this Agreement and undertakes
that in the event of Mourant & Co. Capital (SPV) Limited ceasing so to
act it will appoint another person with a registered office in London
as its agent for service of process.
34. Appropriate Forum
Each of the parties hereto irrevocably waives any objection which it
might now or hereafter have to the courts of England being nominated as
the forum to hear and determine any Proceedings and to settle any
disputes, and agrees not to claim that any such court is not a
convenient or appropriate forum.
33
IN WITNESS WHEREOF the parties have caused this Agreement to be executed as a
deed the day and year first before written.
34
SCHEDULE 1
THE SERVICES
In addition to the Services set out in the body of the Administration
Agreement, the Administrator shall:
(a) keep records (written or computerised) and books of account for the
Mortgages Trustee in relation to the Mortgage Loans comprised in the
Mortgage 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 to a Borrower or any person acting on the
Borrower's behalf, in each case upon written request or otherwise at the
discretion of the Administrator;
(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 herein (Administration and Enforcement of Mortgages) 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 Mortgage Loan comprised in the Mortgage Portfolio or
any New Mortgage Portfolio or any Related Security;
(h) take all other action and do all other things which it would be
reasonable to expect a reasonable and prudent mortgage lender to do in
administering its mortgages;
(i) keep a Mortgage Account for each Mortgage Loan which shall record all
proceeds received in respect of that Mortgage Loan and all amounts
debited to such Mortgage Account;
(j) at its discretion, prepare and send on request an annual statement to
Borrowers in relation to each calendar year in the agreed form; and
(k) assist the Cash Manager in the preparation of a quarterly report
substantially in the form set out in the Cash Management Agreement.
35
SCHEDULE 2
FORM OF INVESTORS' QUARTERLY REPORT
Granite Finance Trustees Limited
Monthly Report
Date of Report [ ]
Mortgages
Number of Mortgages in Pool [ ]
Current Balance (GBP)[ ]
Opening Trust Assets (GBP)[ ]
Funding Share (GBP)[ ]
Funding Share Percentage [ ]%
Seller Share (GBP)[ ]
Seller Share Percentage [ ]%
Minimum Seller Share (Amount) (GBP)[ ]
Minimum Seller Share (% of Total) [ ]%
Arrears Analysis of Non Repossessed Mortgages
Number Principal Arrears
Less than [ ] month [ ] [ ] [ ]
[ ] - [ ] months [ ] [ ] [ ]
[ ] - [ ] months [ ] [ ] [ ]
[ ] - [ ] months [ ] [ ] [ ]
[ ] - [ ] months [ ] [ ] [ ]
[ ] months + [ ] [ ] [ ]
Total [ ] [ ] [ ]
36
Properties in Posession Number Principal Arrears
Total [ ] [ ] [ ]
Properties in Possession
Number Brought Forward [ ]
Repossessed [ ]
Sold [ ]
Number Carried Forward [ ]
Average Time from [ ]
Possession to Sale
Average Arrears at Sale [ ]
Repossessed [ ]
MIG Claims Submitted [ ]
MIG Claims Outstanding [ ]
Average Time from Claim [ ]
to Payment
Note: The arrears analysis and repossession information is as at close of
business for the report month
Substitution Number Principal
Substituted this period (this [ ] [ ]
month)
Substituted to dated (since [ ] [ ]
[ ])
CPR Analysis Monthly Annualised
Current [ ] Month CPR Rate [ ]% [ ]%
Previous [ ] Month CPR Rate [ ]% [ ]%
Weighted Average Seasoning (by value) [ ]
Average Loan Size [ ]
Weighted Average LTV (by value) [ ]%
37
Product Breakdown
Fixed Rate [ ]%
Flexible -Together [ ]%
LTV Levels Breakdown Number Value
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ] - [ ]% [ ] [ ]
[ ]% + [ ] [ ]
Totals [ ] [ ]
NR Current Existing Borrowers' [ ]
SVR
Effective Date of Change [ ]
38
Notes Outstanding Rating Reference Rate
Moodys/S&P/Fitch
Series 1
A1 $ XXX,XXX,XXX Aaa/AAA/AAA X.XXX% X.XX%
A2 $ XXX,XXX,XXX Aaa/AAA/AAA X.XXX% X.XX%
B $ XX,XXX,XXX Aa3/AA/AA X.XXX% X.XX%
C $ XX,XXX,XXX Baa2/BBB/BBB X.XXX% X.XX%
Series 2
A (GBP) XXX,XXX,XXX Aaa/AAA/AAA X.XXX% X.XX%
B (GBP) XX,XXX,XXX Aa3/AA/AA X.XXX% X.XX%
C (GBP) XX,XXX,XXX Baa2/BBB/BBB X.XXX% X.XX%
Issuer Reserve Fund Requirement (GBP)[ ]
Balance brought forward (GBP)[ ]
Drawings this period
Reserve Fund Top-up this period* (GBP)[ ]
Excess Spread (GBP)[ ]
Current Balance (GBP)[ ]
*Top-ups only occur at the end of each quarter.
Funding Reserve Balance (GBP)[ ]
Funding Reserve % [ ]%
39
SCHEDULE 3
ADMINISTRATOR REPRESENTATIONS AND WARRANTIES
The Administrator makes the following representations and warranties to each
of the Mortgages Trustee, Funding and the Security Trustee:
1. Status: It is a public limited company duly incorporated, validly
existing and registered under the laws of the jurisdiction in which it
is incorporated, capable of being sued in its own right and not subject
to any immunity from any proceedings, and it has the power to own its
property and assets and to carry on its business as it is being
conducted.
2. Powers and authority: It has the power to enter into, perform and
deliver, and has taken all necessary corporate and other action to
authorise the execution, delivery and performance by it of each of the
Transaction Documents to which it is or will be a party, and each such
Transaction Document has been duly executed and delivered by it.
3. Legal validity: Each Transaction Document to which it is or will be a
party constitutes or when executed in accordance with its terms will
constitute its legal, valid and binding obligation.
4. Non-conflict: The execution by it of each of the Transaction Documents
to which it is a party and the exercise by it of its rights and the
performance of its obligations under such Transaction Documents will
not:
(a) result in the existence or imposition of, nor oblige it to create,
any Security Interest in favour of any person over all or any of
its present or future revenues or assets;
(b) conflict with any document which is binding upon it or any of its
assets;
(c) conflict with its constitutional documents; or
(d) conflict with any law, regulation or official or judicial order of
any government, governmental body or court, domestic or foreign,
having jurisdiction over it.
5. No litigation: It is not a party to any material litigation,
arbitration or administrative proceedings and, to its knowledge, no
material litigation, arbitration or administrative proceedings are
pending or threatened against it.
6. Consents and Licences: All governmental consents, licences and other
approvals and authorisations required in connection with the entry
into, performance, validity and enforceability of, and the transactions
contemplated by, the Transaction Documents have been obtained or
effected (as appropriate) and are in full force and effect.
7. Solvency: No Insolvency Event has occurred in respect of the
Administrator, and the Administrator is not insolvent.
40
8. Financial Statements: The most recent financial statements of the
Administrator:
(a) were prepared in accordance with accounting principles generally
accepted in England and Wales consistently applied;
(b) disclose all liabilities (contingent or otherwise) and all
unrealised and or anticipated losses of the Administrator; and
(c) save as disclosed therein, give a true and fair view of the
financial condition and operations of the Administrator during the
relevant financial year.
9. No Adverse Change: Since the date as of which the most recent financial
statements of the Administrator were stated to be prepared, there has
been:
(a) no significant change in the financial position of the
Administrator; and
(b) no material adverse change in the financial position or prospects
of the Administrator.
10. Ranking of Claims
Under the laws of England and Wales in force as at the date of making
this representation, claims against the Administrator under the
Transaction Documents will rank at least pari passu with the claims of
all its other unsecured and unsubordinated creditors, save those whose
claims are preferred solely by any bankruptcy, liquidation or other
similar laws of general application.
11. Information in Prospectus and Offering Circular:
(a) All information in the Prospectus and the Offering Circular with
regard to the Administrator, its business and its experience
administering mortgage loans (including its arrears and
repossession experience) are true and accurate in all material
respects and not misleading in any material respect.
(b) Any opinions, predictions and intentions expressed in the
Prospectus and/or the Offering Circular on the part of the
Administrator are honestly held and not misleading in any material
respect.
(c) Each of the Prospectus and the Offering Circular does not omit to
state any material fact necessary to make such information,
opinions, predictions or intentions not misleading in any material
respect.
(d) The Administrator has made all proper inquiries to ascertain and
to verify the foregoing.
41
SCHEDULE 4
AUTHORISED THIRD PARTY
1. Agreement to Allow Delegation
1.1. The Seller and the Administrator agree (subject to the other provisions
of this Schedule, including paragraph 2 (Appointment and Payment) and
subject to the Funding Deed of Charge) that the Security Trustee may
appoint or facilitate the appointment of an Authorised Third Party to
implement, administer and carry out the duties and powers of the
Security Trustee:
(a) under the Seller's Power of Attorney;
(b) in connection with and following a Completion Event; and
(c) in connection with and following a Termination Event,
(together the "Back-up Functions")
1.2. Each of the Seller and the Administrator shall authorise the Authorised
Third Party on their behalf and in their name or otherwise to sign or
execute or make any alteration or addition or deletion in or to any
agreements or documents or certificates or instructions or notices
which they are entitled or required to give, receive, implement,
transact or become a party to in relation to the Back-up Functions or
for doing any other act or thing required to be done by them under or
in connection with the Back-up Functions and otherwise generally to
sign, seal and deliver any agreement, assurance, document, certificate,
instruction or act which may be required by the Authorised Third Party
acting in connection with the Back-up Functions.
2. Appointment and Payment
The appointment of the Authorised Third Party shall be on the terms and
conditions as negotiated between the Security Trustee, the Seller
and/or the Administrator (as the case may be) and such Authorised Third
Party. The fees, costs and expenses payable to such Authorised Third
Party shall be considered as part of the additional remuneration and
expenses of the Security Trustee and therefore shall be payable in the
manner contemplated by and in accordance with Clause 18 of the Funding
Deed of Charge from funds that the Security Trustee receives in
accordance with the Funding Priority of Payments as set forth in the
Funding Deed of Charge.
3. Delegation
3.1. The Security Trustee shall use reasonable endeavours (in its opinion)
to appoint in writing one or more persons to act as an Authorised Third
Party in respect of the Back-up Functions (on any terms other than the
power to appoint a delegate), and references in the Operating
Agreements to the "Security Trustee" shall be construed accordingly
and, unless the context does not permit, include any Authorised Third
Party. Any such appointment of an Authorised Third Party may be revoked
by the Security Trustee at any time.
42
3.2. In the event that the Security Trustee has not, having used such
reasonable endeavours, appointed such Authorised Third Party, the
Security Trustee shall have no liability to any person and,
notwithstanding any other provision of the Operating Agreements, shall
not itself be required to perform any Back-up Functions or any other
duties of the Seller or the Administrator either during the period it
is seeking to appoint an Authorised Third Party or thereafter.
3.3. As condition precedents to the appointment of the Authorised Third
Party, the arrangements to be entered into between the Authorised Third
Party and the Seller or Administrator (as the case may be) shall
provide that (1) the Authorised Third Party shall make timely transfer
of information to the Seller or Administrator (as appropriate); and (2)
the Security Trustee shall provide any Authorised Third Party with a
copy of the Operating Agreements and the Funding Deed of Charge and
shall request such Authorised Third Party to confirm in writing to the
Seller, the Administrator and the Security Trustee that it has read and
understood the terms of this Agreement and the other Operating
Agreements.
4. Ratification
Each of the Seller and the Administrator shall, upon the written
request of the Security Trustee or such Authorised Third Party, ratify
and confirm all documents, deeds, certificates, instructions, acts and
things which the Security Trustee or such Authorised Third Party shall
execute or do in the exercise of any of the powers conferred, or
purported to be conferred, on him by this Agreement and the other
Operating Agreements. The terms of appointment of the Authorised Third
Party shall oblige the Authorised Third Party to provide information
concerning its activities on a regular basis and on request to the
Seller, Administrator, Funding and the Security Trustee.
5. Limitations on the Responsibility of the Security Trustee
The Security Trustee shall not be obliged to monitor or supervise the
performance by such Authorised Third Party of its duties hereunder or
in relation to the Operating Agreements and shall not be responsible or
liable for any act or omission of such Authorised Third Party or for
any loss caused thereby, provided that if any party to a Transaction
Document notifies the Security Trustee that an Authorised Third Party
appointed by the Security Trustee is implementing, administering or
carrying out the duties and powers of the Security Trustee in breach of
the terms and conditions of the relevant Operating Agreement pursuant
to which such duties and powers are to be performed, the Security
Trustee shall use its reasonable endeavours to appoint or facilitate
the appointment of a substitute Authorised Third Party to implement,
administer and carry out such duties and powers. The terms of
appointment of an Authorised Third Party and the Security Trustee's
responsibilities in relation thereto as set out in this Schedule 4
shall apply to the appointment of a substitute Authorised Third Party.
Nothing in this Schedule constitutes the Security Trustee in its role
as specified in this schedule as trustee or fiduciary for any person.
The Security Trustee shall assume, until it receives notice thereof
pursuant to the relevant Operating Agreement, that no Back-up Trigger
Event has occurred and until such time that it receives such
notification and is first indemnified and/or secured to its
satisfaction, is not entitled to take any action in respect of the
Back-up Functions under the Operating Agreements.
43
6. Exoneration
6.1. Without limiting paragraph 6.2 below, the Security Trustee shall not be
liable to any Person for any action taken or not taken by the Security
Trustee or such Authorised Third Party under or in connection with the
Operating Agreements, other than in respect of any loss, liability,
claim, expense or damage suffered or incurred by such Person in respect
of the gross negligence or wilful default of the Security Trustee or
such Authorised Third Party in carrying out its functions under the
relevant Operating Agreement.
6.2. No Person may take any proceedings against any officer, employee or
agent of the Security Trustee in respect of any claim it might have
against the Security Trustee in respect of any act or omission of any
kind by their officer, employee or agent.
44
EXECUTION PAGE
as Administrator
EXECUTED for and on behalf of )
NORTHERN ROCK PLC )
by: )
- -------------------------
Authorised Signatory
Name:
Title:
as Seller
EXECUTED for and on behalf of )
NORTHERN ROCK PLC )
by: )
- -------------------------
Authorised Signatory
Name:
Title:
EXECUTED for and on behalf of )
GRANITE FINANCE TRUSTEES LIMITED )
by: )
- -------------------------
Authorised Signatory
Name:
Title:
EXECUTED for and on behalf of )
GRANITE FINANCE FUNDING LIMITED )
by: )
- -------------------------
Authorised Signatory
Name:
Title:
45