Exhibit 10.2
Agreed Form Cover Sheet
dated 23 May 2006
attaching:
1. the form of 1992 ISDA Master Agreement (Multicurrency - Cross Border);
2. the Agreed Form Schedule thereto (Sidley Austin document number:
1018032);
3. the form of 1995 ISDA Credit and Support Annex (Bilateral Form -
Transfer) (the "CSA pre-printed form") forming part of the Schedule; and
4. the Agreed Form Paragraph 11 to the CSA pre-printed form (Sidley Austin
document number: 1032023),
between
(1) DEUTSCHE BANK AG, LONDON BRANCH; and
(2) GRANITE MASTER ISSUER plc,
signed for the purposes of identification by:
/s/ Meghan Wallis, /s/ Nathan Townsend
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DEUTSCHE BANK AG, LONDON BRANCH
on 23 May 2006; and
/s/ Sidley Austin
- -------------------------------------------------
SIDLEY AUSTIN
on 23 May 2006.
(Multicurrency - Cross Border)
ISDA,
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of the Effective Date specified in the Confirmation
------------------------------------------------
DEUTSCHE BANK AG, LONDON BRANCH and GRANITE MASTER ISSUER plc
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have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming
those Transactions.
Accordingly, the parties agree as follows: -
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than
by payment), such delivery will be made for receipt on the due date in
the manner customary for the relevant obligation unless otherwise
specified in the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event
of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or been effectively
designated and (3) each other applicable condition precedent specified
in this Agreement.
Copyright (C) 1992 by International Swap Dealers Association, Inc.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and discharged
and, if the aggregate amount that would otherwise have been payable by one
party exceeds the aggregate amount that would otherwise have been payable by
the other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess
of the larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be
made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the
election, together with the starting date (in which case subparagraph (ii)
above will not, or will cease to, apply to such Transactions from such date).
This election may be made separately for different groups of Transactions and
will apply separately to each pairing of Offices through which the parties
make and receive payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified
by the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:-
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving notice
that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net
amount actually received by Y (free and clear of Indemnifiable
Taxes, whether assessed against X or Y) will equal the full amount
Y would have received had no such deduction or withholding been
required. However, X will not be required to pay any additional
amount to Y to the extent that it would not be required to be paid
but for:-
(A) the failure by Y to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or
4(d); or
(B) the failure of a representation made by Y pursuant
to Section 3(f) to be accurate and true unless such
failure would not have occurred but for (I) any action
taken by a taxing authority, or brought in a court of
competent jurisdiction, on or after the date on which
a Transaction is entered into (regardless of whether
such action is taken or brought with respect to a
party to this Agreement) or (11) a Change in Tax Law.
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(ii) Liability. If: -
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make
any deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount
of such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by law and subject to Section 6(c),
be required to pay interest (before as well as after judgment) on the overdue
amount to the other party on demand in the same currency as such overdue
amount, for the period from (and including) the original due date for payment
to (but excluding) the date of actual payment, at the Default Rate. Such
interest will be calculated on the basis of daily compounding and the actual
number of days elapsed. If, prior to the occurrence or effective designation
of an Early Termination Date in respect of the relevant Transaction, a party
defaults in the performance of any obligation required to be settled by
delivery, it will compensate the other party on demand if and to the extent
provided for in the relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered
into and, in the case of the representations in Section 3(f), at all times
until the termination of this Agreement) that:-
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to
perform its obligations under this Agreement and any obligations it has
under any Credit Support Document to which it is a party and has taken
all necessary action to authorise such execution, delivery and
performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision
of its constitutional documents, any order or judgment of any court or
other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in
full force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganisation,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
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(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would occur as a
result of its entering into or performing its obligations under this Agreement
or any Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding
at law or in equity or before any court, tribunal, governmental body, agency
or official or any arbitrator that is likely to affect the legality, validity
or enforceability against it of this Agreement or any Credit Support Document
to which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as of the
date of the information, true, accurate and complete in every material
respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:-
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:-
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to
allow such other party or its Credit Support Provider to make a payment
under this Agreement or any applicable Credit Support Document without
any deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of
such demand), with any such form or document to be accurate and
completed in a manner reasonably satisfactory to such other party and to
be executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of
such failure.
(e) Payment of Stamp Tax. Subject to Section 1 1, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of
this Agreement by a jurisdiction in which it is incorporated,
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organised, managed and controlled, or considered to have its seat, or in which
a branch or office through which it is acting for the purpose of this
Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the other
party against any Stamp Tax levied or imposed upon the other party or in
respect of the other party's execution or performance of this Agreement by any
such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction with
respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event of
default (an "Event of Default") with respect to such party:-
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) required to be made by it if such failure is not remedied on or
before the third Local Business Day after notice of such failure is
given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
or to give notice of a Termination Event or any agreement or obligation
under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or
performed by the party in accordance with this Agreement if such failure
is not remedied on or before the thirtieth day after notice of such
failure is given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any
applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support Document
or the failing or ceasing of such Credit Support Document to be in
full force and effect for the purpose of this Agreement (in either
case other than in accordance with its terms) prior to the
satisfaction of all obligations of such party under each
Transaction to which such Credit Support Document relates without
the written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made
or repeated by the party or any Credit Support Provider of such party in
this Agreement or any Credit Support Document proves to have been
incorrect or misleading in any material respect when made or repeated or
deemed to have been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to
any applicable notice requirement or grace period, there occurs a
liquidation of, an acceleration of obligations under, or an early
termination of, that Specified Transaction, (2) defaults, after giving
effect to any applicable notice requirement or grace period, in making
any payment or delivery due on the last payment, delivery or exchange
date of, or any payment on early termination of, a Specified Transaction
(or such default continues for at least three Local Business Days if
there is no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in part, a
Specified Transaction (or such action is taken by any person or entity
appointed or empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default,
event of default or other similar condition or event (however
5
described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of not less
than the applicable Threshold Amount (as specified in the Schedule)
which has resulted in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due and payable under such
agreements or instruments, before it would otherwise have been due and
payable or (2) a default by such party, such Credit Support Provider or
such Specified Entity (individually or collectively) in making one or
more payments on the due date thereof in an aggregate amount of not less
than the applicable Threshold Amount under such agreements or
instruments (after giving effect to any applicable notice requirement or
grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party
or any applicable Specified Entity of such party: -
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its
creditors; (4) institutes or has instituted against it a
proceeding seeking a judgment of insolvency or bankruptcy or any
other relief under any bankruptcy or insolvency law or other
similar law affecting creditors' rights, or a petition is
presented for its winding-up or liquidation, and, in the case of
any such proceeding or petition instituted or presented against
it, such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for relief or
the making of an order for its winding-up or liquidation or (B) is
not dismissed, discharged, stayed or restrained in each case
within 30 days of the institution or presentation thereof; (5) has
a resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation
or merger); (6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator, receiver,
trustee, custodian or other similar official for it or for all or
substantially all its assets; (7) has a secured party take
possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal
process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged,
stayed or restrained, in each case within 30 days thereafter; (8)
causes or is subject to any event with respect to it which, under
the applicable laws of any jurisdiction, has an analogous effect
to any of the events specified in clauses (1) to (7) (inclusive);
or (9) takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the foregoing
acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges with
or into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger or
transfer: -
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by
such resulting, surviving or transferee entity of its obligations
under this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any event specified below constitutes an Illegality if
the event is specified in (i) below, a Tax Event if the event is specified in
(ii) below or a Tax Event Upon Merger if the event is specified in (iii)
below, and, if specified to be applicable, a Credit Event
6
Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:-
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): -
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party
to perform, any contingent or other obligation which the party (or
such Credit Support Provider) has under any Credit Support
Document relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action
is taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii)
or 6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount
is required to be paid in respect of such Tax under Section 2(d)(i)(4)
(other than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the
next succeeding Scheduled Payment Date will either (1) be required to
pay an additional amount in respect of an lndemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) or (2) receive a payment from which an amount has been
deducted or withheld for or on account of any Indemnifiable Tax in
respect of which the other party is not required to pay an additional
amount (other than by reason of Section 2(d)(i)(4)(A) or (B)), in either
case as a result of a party consolidating or amalgamating with, or
merging with or into, or transferring all or substantially all its
assets to, another entity (which will be the Affected Party) where such
action does not constitute an event described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party ("X), any
Credit Support Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or into, or transfers
all or substantially all its assets to, another entity and such action
does not constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
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6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of all outstanding Transactions. If,
however, "Automatic Early Termination" is specified in the Schedule as
applying to a party, then an Early Termination Date in respect of all
outstanding Transactions will occur immediately upon the occurrence with
respect to such party of an Event of Default specified in Section
5(a)(vii)(l), (3), (5), (6) or, to the extent analogous thereto, (8), and as
of the time immediately preceding the institution of the relevant proceeding
or the presentation of the relevant petition upon the occurrence with respect
to such party of an Event of Default specified in Section 5(a)(vii)(4) or, to
the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying
the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as
the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(l) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is
the Affected Party, the Affected Party will, as a condition to its right
to designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and
obligations under this Agreement in respect of the Affected Transactions
to another of its Offices or Affiliates so that such Termination Event
ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days
after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(l) or
a Tax Event occurs and there are two Affected Parties, each party will
use all reasonable efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.
(iv) Right to Terminate. If: -
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected with
respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected
Party,
either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a Tax
Event or an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the case
of a Credit Event Upon Merger or an Additional Termination Event if
there is only one Affected Party may, by not more than 20 days notice to
the other party and provided that the relevant Termination Event is then
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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date
so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be
required to be made, but without prejudice to the other provisions of
this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant quotations and
specifLing any amount payable under Section 6(e)) and (2) giving details
of the relevant account to which any amount payable to it is to be paid.
In the absence of written confirmation from the source of a quotation
obtained in determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the existence
and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day
that notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event
of Default) and on the day which is two Local Business Days after the
day on which notice of the amount payable is effective (in the case of
an Early Termination Date which is designated as a result of a
Termination Event). Such amount will be paid together with (to the
extent permitted under applicable law) interest thereon (before as well
as after judgment) in the Termination Currency, from (and including) the
relevant Early Termination Date to (but excluding) the date such amount
is paid, at the Applicable Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method or the "Second Method. If the parties
fail to designate a payment measure or payment method in the Schedule, it will
be deemed that "Market Quotation" or the "Second Method", as the case may be,
shall apply. The amount, if any, payable in respect of an Early Termination
Date and determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default: -
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent
of the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-defaulting Party's Loss in respect of
this Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the
9
Non-defaulting Party) in respect of the Terminated Transactions
and the Termination Currency Equivalent of the Unpaid Amounts
owing to the Non-defaulting Party less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party; if it is a negative
number, the Non-defaulting Party will pay the absolute value of
that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting Party's Loss
in respect of this Agreement. If that amount is a positive number,
the Defaulting Party will pay it to the Non-defaulting Party; if
it is a negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event: -
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3),
if Market Quotation applies, or Section 6(e)(i)(4), if Loss
applies, except that, in either case, references to the Defaulting
Party and to the Non-defaulting Party will be deemed to be
references to the Affected Party and the party which is not the
Affected Party, respectively, and, if Loss applies and fewer than
all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: -
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (11) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with
the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will
be subject to such adjustments as are appropriate and permitted by law
to reflect any payments or deliveries made by one party to the other
under this Agreement (and retained by such other party) during the
period from the relevant Early Termination Date to the date for payment
determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate
of loss and not a penalty. Such amount is payable for the loss of
bargain and the loss of protection against future risks and except as
otherwise provided in this Agreement neither party will be entitled to
recover any additional damages as a consequence of such losses.
10
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that: -
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to
any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e). Any purported
transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency
other than the Contractual Currency, except to the extent such tender results
in the actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so tendered
into the Contractual Currency, of the full amount in the Contractual Currency
of all amounts payable in respect of this Agreement. If for any reason the
amount in the Contractual Currency so received falls short of the amount in
the Contractual Currency payable in respect of this Agreement, the party
required to make the payment will, to the extent permitted by applicable law,
immediately pay such additional amount in the Contractual Currency as may be
necessary to compensate for the shortfall. if for any reason the amount in the
Contractual Currency so received exceeds the amount in the Contractual
Currency payable in respect of this Agreement, the party receiving the payment
will refund promptly the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party
is entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency and will refund promptly to the other party any excess of
the Contractual Currency received by such party as a consequence of sums paid
in such other currency if such shortfall or such excess arises or results from
any variation between the rate of exchange at which the Contractual Currency
is converted into the currency of the judgment or order for the purposes of
such judgment or order and the rate of exchange at which such party is able,
acting in a reasonable manner and in good faith in converting the currency
received into the Contractual Currency, to purchase the Contractual Currency
with the amount of the currency of the judgment or order actually received by
such party. The term "rate of exchange" includes, without limitation, any
premiums and costs of exchange payable in connection with the purchase of or
conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the
party to which any payment is owed and will not be affected by judgment being
obtained or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) Evidence of Loss. For tbe purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
11
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced
by a facsimile transmission) and executed by each of the parties or confirmed
by an exchange of telexes or electronic messages on an electronic messaging
system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall he entered into as soon as practicable
and may he executed and delivered in counterparts (including by
facsimile transmission) or be created by an exchange of telexes or by an
exchange of electronic messages on an electronic messaging system, which
in each case will be sufficient for all purposes to evidence a binding
supplement to this Agreement. The parties will specify therein or
through another effective means that any such counterpart, telex or
electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking
office or jurisdiction of incorporation or organisation of such party, the
obligations of such party are the same as if it had entered into the
Transaction through its head or home office. This representation will be
deemed to be repeated by such party on each date on which a Transaction is
entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a
Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for and against all reasonable out-of-pocket expenses, including legal
fees and Stamp Tax, incurred by such other party by reason of the enforcement
and protection of its rights under this Agreement or any Credit Support
Document
12
to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:-
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible form
(it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the
sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York
City, if this Agreement is expressed to be governed by the laws of the
State of New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section l(3) of the
Civil Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
13
reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute
process agent acceptable to the other party. The parties irrevocably consent
to service of process given in the manner provided for notices in Section 12.
Nothing in this Agreement will affect the right of either party to serve
process in any other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from (i) suit, (ii)
jurisdiction of any court, (iii) relief by way of injunction, order for
specific performance or for recovery of property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or enforcement of
any judgment to which it or its revenues or assets might otherwise be entitled
in any Proceedings in the courts of any jurisdiction and irrevocably agrees,
to the extent permitted by applicable law, that it will not claim any such
immunity in any Proceedings.
14. Definitions
As used in this Agreement:-
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control"
of any entity or person means ownership of a majority of the voting power of
the entity or person.
"Applicable Rate" means:-
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party fiom and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after the
date on which the relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified
as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of hnding the relevant amount plus 1% per annum.
14
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed
in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to
such recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having
executed, delivered, performed its obligations or received a payment under, or
enforced, this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case
of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and
foreign currency deposits) (a) in relation to any obligation under Section
2(a)(i), in the place(s) specified in the relevant Confirmation or, if not so
specified, as otherwise agreed by the parties in writing or determined
pursuant to provisions contained, or incorporated by reference, in this
Agreement, (b) in relation to any other payment, in the place where the
relevant account is located and, if different, in the principal financial
centre, if any, of the currency of such payment, (c) in relation to any notice
or other communication, including notice contemplated under Section 5(a)(i),
in the city specified in the address for notice provided by the recipient and,
in the case of a notice contemplated by Section 2(b), in the place where the
relevant new account is to be located and (d) in relation to Section
5(a)(v)(2), in the relevant locations for performance with respect to such
Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading position
(or any gain resulting from any of them). Loss includes losses and costs (or
gains) in respect of any payment or delivery required to have been made
(assuming satisfaction of each applicable condition precedent) on or before
the relevant Early Termination Date and not made, except, so as to avoid
duplication, if Section 6(e)(i)(l) or (3) or 6(e)(ii)(2)(A) applies. Loss does
not include a party's legal fees and out-of-pocket expenses referred to under
Section 11. A party will determine its Loss as of the relevant Early
Termination Date, or, if that is not reasonably practicable, as of the
earliest date thereafter as is reasonably practicable. A party may (but need
not) determine its Loss by reference to quotations of relevant rates or prices
from one or more leading dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or
by such party (expressed as a positive number) in consideration of an
agreement between such party (taking into account any existing Credit Support
Document with respect to the obligations of such party) and the quoting
Reference Market-maker to enter into a transaction (the "Replacement
Transaction") that would have the effect of preserving for such party the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in
respect of such Terminated Transaction or group of Terminated Transactions
that would, but for the occurrence of the relevant Early Termination Date,
have
15
been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is
to be included. The Replacement Transaction would be subject to such
documentation as such party and the Reference Market-maker may, in good faith,
agree. The party making the determination (or its agent) will request each
Reference Market-maker to provide its quotation to the extent reasonably
practicable as of the same day and time (without regard to different time
zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if
more than one quotation has the same highest value or lowest value, then one
of such quotations shall be disregarded. If fewer than three quotations are
provided, it will be deemed that the Market Quotation in respect of such
Terminated Transaction or group of Terminated Transactions cannot be
determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it)
if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head
or home office.
"Potential Event of Default" means any event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer or
to make an extension of credit and (b) to the extent practicable, from among
such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a)
in which the party is incorporated, organised, managed and controlled or
considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through
which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-of" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or
imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: -
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not
(in the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
16
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety or
otherwise) in respect of borrowed money.
"Specialed Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter
entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party) and
the other party to this Agreement (or any Credit Support Provider of such
other party or any applicable Specified Entity of such other party) which is a
rate swap transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions),
(b) any combination of these transactions and (c) any other transaction
identified as a Specified Transaction in this Agreement or the relevant
confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment
or fee of any nature (including interest, penalties and additions thereto)
that is imposed by any government or other taxing authority in respect ofany
payment under this Agreement other than a stamp, registration, documentation
or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in
effect immediately before the effectiveness of the notice designating that
Early Termination Date (or, if "Automatic Early Termination" applies,
immediately before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated
in the Termination Currency, such Termination Currency amount and, in respect
of any amount denominated in a currency other than the Termination Currency
(the "Other Currency"), the amount in the Termination Currency determined by
the party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or,
if the relevant Market Quotation or Loss (as the case may be), is determined
as of a later date, that later date, with the Termination Currency at the rate
equal to the spot exchange rate of the foreign exchange agent (selected as
provided below) for the purchase of such Other Currency with the Termination
Currency at or about 11:OO a.m. (in the city in which such foreign exchange
agent is located) on such date as would be customary for the determination of
such a rate for the purchase of such Other Currency for value on the relevant
Early Termination Date or that later date. The foreign exchange agent will, if
only one party is obliged to make a determination under Section 6(e), be
selected in good faith by that party and otherwise will be agreed by the
parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or
prior to such Early Termination Date and which remain unpaid as at such Early
Termination Date and (b) in respect of each Terminated Transaction, for each
obligation under Section 2(a)(i) which was (or would have been but for Section
2(a)(iii)) required to be settled by delivery to such party on or prior to
such Early Termination Date and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market
17
value of that which was (or would have been) required to be delivered as of
the originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or
would have been required to have been paid or performed to (but excluding)
such Early Termination Date, at the Applicable Rate. Such amounts of interest
will be calculated on the basis of daily compounding and the actual number of
days elapsed. The fair market value of any obligation referred to in clause
(b) above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it shall be
the average of the Termination Currency Equivalents of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
DEUTSCHE BANK AG, LONDON BRANCH GRANITE MASTER ISSUER plc
- ---------------------------------- --------------------------------
(Name of Party) (Name of Party)
By: By:
------------------------------- -----------------------------
Name: Name:
Title: Title:
Date: Date:
18
Deutsche Bank AG/Granite Master Issuer plc
Cross Currency/Interest Rate ISDA Schedule
Agreed Form Version: 23.05.06.
Agreed Form Schedule
(Multicurrency - Cross Border)
SCHEDULE
to the
1992 ISDA
MASTER AGREEMENT
dated as of the Effective Date specified in the Confirmation,
between
(1) DEUTSCHE BANK AG, LONDON BRANCH ("Party A"); and
(2) GRANITE MASTER ISSUER plc ("Party B").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of:-
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
and in relation to Party B for the purpose of:-
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
(b) "Specified Transaction" will have the meaning specified in Section 14.
19
(c) The "Cross Default" provisions of Section 5(a)(vi) of this Agreement
will apply to Party A and will not apply to Party B.
"Specified Indebtedness" will have the meaning specified in Section 14
of this Agreement.
"Threshold Amount" means, with respect to Party A, an amount equal to
two per cent. (2%) of its total shareholders' equity as specified from
time to time in the most recent annual report of Deutsche Bank AG
containing consolidated financial statements, prepared in accordance
with accounting principles that are generally accepted for institutions
of its type in the jurisdiction of its organization and certified by
independent public accountants, or its equivalent in any other currency.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) of this
Agreement will apply to Party A and will not apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) of this
Agreement will not apply to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:-
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means Sterling.
(h) Additional Termination Event will apply. The events which constitute
Additional Termination Events are set forth in Part 5(f), Part
5(k)(iii), Part 5(l)(iv) and Part 5(m)(v) of this Agreement.
20
Part 2. Tax Representations
(a) Payer Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will each make the following
representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on (i)
the accuracy of any representations made by the other party pursuant to
Section 3(f) of this Agreement, (ii) the satisfaction of the agreement
of the other party contained in Section 4(a)(i) or 4(a)(iii) of this
Agreement and the accuracy and effectiveness of any document provided by
the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement and (iii) the satisfaction of the agreement of the other party
contained in Section 4(d) of this Agreement, provided that it shall not
be a breach of this representation where reliance is placed on clause
(ii) and the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(b) Payee Representations. For the purposes of Section 3(f) of the
Agreement, neither Party A nor Party B make any representation.
21
Part 3. Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each
party agrees to deliver the following documents, as applicable:-
(a) Tax forms, documents or certificates to be delivered are:-
Party required to Form/Document/ Date by which to be
deliver document Certificate delivered
None None None
(b) Other documents to be delivered are:-
Party required Form/Document/ Date by which Covered by
to deliver Certificate to be delivered Section 3(d)
document Representation
Party A and Appropriate evidence On signing of Yes
Party B of its signatory's this Agreement
authority
Party B Certified copy of On signing of Yes
board resolution this Agreement
Party A Legal opinion of On signing of No
counsel (in form and this Agreement
substance
satisfactory to Party
B)
Party B Legal opinion of On signing of No
counsel (in form and this Agreement
substance
satisfactory to Party
A)
Party A An executed original On signing of No
of the Credit Support this Agreement
Document listed in
Part 4(f) below
22
Part 4. Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this
Agreement:-
Address for notices or communications to Party A:-
Address: Deutsche Bank AG, Head Office.
Taunusanlage 12
60262 Frankfurt
Germany
Attention: Legal Department
Telex No: 411836 or 416731 or 41233
Answerback: DBF-D
Address for notices or communications to Party B:-
Address: Granite Master Issuer plc
Fifth Floor
100 Wood Street
London
EC2V 7EX
With a copy to: Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne
NE3 4PL
Attention: Andy McClean
Facsimile No.: +44 (0)191 279 4929
With a copy to the Note Trustee:-
Address: The Bank of New York
One Canada Square
48th Floor
London
E14 5AL
Attention: Corporate Trust (Global Structured Finance)
23
Facsimile No.: +44 (0)20 7964 6399
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:-
Party A appoints as its Process Agent: None.
Party B appoints as its Process Agent: None.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:-
Party A is not a Multibranch Party and will act through its London
branch.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent shall be Party A provided that
such calculations are subject to Party B's agreement as provided herein.
If Party B acting in good faith disputes Party A's calculations on a
commercially unreasonable basis, it shall deliver its written objection
to Party A within five Business Days of receipt of Party A's calculation
specifying in reasonable detail (i) its objections together with
supporting calculations, (ii) its proposed calculation and (iii) any
amount with respect to the calculation which is not in dispute. Party A
and Party B shall negotiate in good faith to resolve the dispute,
provided that in the event that the dispute is not resolved within five
Business Days following receipt of Party B's objection, Party A and
Party B shall select a leading, independent dealer in derivatives to
make the disputed calculation (the "Substitute Calculation Agent"). If
the parties are unable to agree on a Substitute Calculation Agent, each
of the parties shall elect an independent dealer in derivatives and such
two dealers shall agree on a third party who shall be deemed to be the
Substitute Calculation Agent.
(f) Credit Support Document. Details of any Credit Support Document:-
In respect of Party A: the 1995 Credit Support Annex (Bilateral Form -
Transfer) between Party A and Party B dated as of the Effective Date
specified in the Confirmation (the "Credit Support Annex").
Where a failure to comply with the terms of the Credit Support Annex is
addressed in Part 5(k), (l) or (m), such failure shall not be an Event
of Default under Section 5(a)(ii) unless so stated in Part 5(k), (l) or
(m).
In respect of Party B: none.
(g) Credit Support Provider.
Credit Support Provider means, in relation to Party A, none.
Credit Support Provider means, in relation to Party B, none.
24
(h) Governing Law. This Agreement will be governed by and construed in
accordance with English law.
(i) Netting of Payments. Sub-paragraph (ii) of Section 2(c) of this
Agreement will apply to Transactions entered into under this Agreement
unless otherwise specified in a Confirmation.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
25
Part 5. Other Provisions
(a) Definitions and Interpretation
Capitalised terms used in this Agreement shall, except where the context
otherwise requires and save where otherwise defined in this Agreement,
bear the meanings given to them in the Programme Master Definitions
Schedule and the Issuer Master Definitions Schedule (each as described
in the Confirmation). Such Issuer Master Definitions Schedule shall
prevail to the extent that it conflicts with such Programme Master
Definitions Schedule.
For the purposes of this Agreement:
"Issuer Notes" has the meaning given to such term in the Confirmation.
(b) No Set-Off
(i) All payments under this Agreement shall be made without set-off or
counterclaim, except as expressly provided for in Section 6. For
the avoidance of doubt, Section 2(c) shall not be affected by this
provision.
(ii) Section 6(e) shall be amended by the deletion of the following
sentence: "The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be
subject to any Set-off."
(c) Security Interest
Notwithstanding Section 7, Party A hereby agrees and consents to the
assignment by way of security by Party B of its right, title and
interest under this Agreement (without prejudice to, and after giving
effect to, any contractual netting provision contained in this
Agreement) to the Issuer Security Trustee (or any successor thereto)
pursuant to and in accordance with the terms and conditions of the
Issuer Deed of Charge and acknowledges notice of such assignment.
(d) Disapplication of certain Events of Default
Section 5(a)(ii), Section 5(a)(iii), Section 5(a)(iv), Section 5(a)(v),
Section 5(a)(vii)(2),(5),(6),(7) and (9) and Section 5(a)(viii) will not
apply in respect of Party B.
Section 5(a)(vii)(8) will not apply to Party B to the extent that it
applies to Section 5(a)(vii)(2),(5),(6) and (7).
Section 5(a)(vii)(4) is deleted in its entirety and replaced with the
following:
" (4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or a petition is presented for its
winding-up or liquidation or the making of an administration order
against it and such proceeding or petition results in a judgment of
26
insolvency or bankruptcy or the making of an order for its winding-up,
administration or liquidation".
(e) Disapplication of certain Termination Events
The "Tax Event" and "Tax Event Upon Merger" provisions of Sections
5(b)(ii) and 5(b)(iii) will not apply to Party A or to Party B.
(f) Additional Termination Events
(A) Party B Additional Termination Events:
The following shall each constitute an Additional Termination Event with
respect to Party B:
(i) Note Enforcement Notice. The Note Trustee serves an Issuer
Enforcement Notice on Party B in accordance with Condition 9
(Events of Default) of the Issuer Notes.
(ii) Early Redemption. The Issuer Notes are redeemed in full in
accordance with Condition 5(E) or (F) at any time prior to their
Final Maturity Date.
In the case of (i) and (ii) above, Party B shall be the sole Affected
Party[, except that: in the case of (i), if the event described therein
occurs on or after the Termination Date (as defined in the
Confirmation), there shall be deemed to be two Affected Parties for the
purposes only of Section 6(b)(iv)].(1)
(B) Party A Additional Termination Event:
The following shall constitute an Additional Termination Event with
respect to Party A:
Without prejudice to any other remedies available to Party B under this
Agreement or otherwise, it shall be an Additional Termination Event
under this Agreement if the Additional Tax Representation in Part
5(n)(iii) proves to have been incorrect or misleading in any material
respect with respect to one or more Transactions when made or repeated
or deemed to have been made or repeated. The sole Affected Party shall
be Party A.
(g) Northern Rock plc as Party B's Agent
Party B hereby declares that pursuant to the Issuer Cash Management
Agreement it has appointed Northern Rock plc to act as its agent for the
purpose, inter alia, of the operation
- ----------------
(1) The words in square brackets will be incorporated into the Confirmation
only where the Class of the Issuer Notes referred to therein are rated
on their issuance "AAA" (or equivalent) by S&P, "AAA" (or equivalent) by
Fitch and "Aaa" (or equivalent) by Moody's.
27
of this Agreement and dealing with payments hereunder. Accordingly,
unless and until written notice is received by Party A from the Note
Trustee that such appointment has been terminated, Party A shall be
entitled to treat all communications and acts relating to this Agreement
received from or carried out by Northern Rock plc as agent for Party B
under the Issuer Cash Management Agreement as being those of Party B,
and Party B hereby agrees to ratify and confirm the same.
(h) Security, Enforcement and Limited Recourse
(i) Party A confirms to Party B that it is, or will be, by the date
hereof, bound by the terms of the Issuer Deed of Charge and, in
particular, confirms that: (i) save as otherwise expressly set out
in the Issuer Deed of Charge, no sum shall be payable by or on
behalf of Party B to it except in accordance with the Issuer
Priority of Payments as set out in the Issuer Deed of Charge (as
the same may be amended, restated, supplemented and/or otherwise
modified from time to time); and (ii) it will not take any steps
for the winding up, dissolution or reorganization or for the
appointment of a receiver, administrator, administrative receiver,
trustee, liquidator, sequestrator or similar officer of Party B or
of any or all of its revenues and assets nor participate in any ex
parte proceedings nor seek to enforce any judgment against Party B
except as provided in the Issuer Deed of Charge.
(ii) In relation to all sums due and payable by Party B to Party A,
Party A agrees that it shall have recourse only to sums available
to Party B for the purpose of making payments to Party A in
accordance with the relevant Issuer Priority of Payments and the
Issuer Deed of Charge.
(iii) If, on any payment date under a Transaction, an amount is payable
by Party B to Party A and Party B does not pay such amount in full
on such date (after the application of Section 2(c) to such
Transaction) because of the limitation contained in Part 5(h)(i)
above, then: (A) payment by Party B of the shortfall (and the
corresponding payment obligation of Party A with respect to such
shortfall (being the full amount Party A would otherwise owe on
such date less the actual amount payable by Party A determined in
accordance with Part 5(h)(iii)(C) below)) will not then fall due,
[but will instead be deferred until the first Payment Date (as
defined in the Confirmation) thereafter on which sufficient funds
are available (subject to the limitation in Part 5(h)(i)
above)](2), (B) failure by Party B to make the full payment under
such Transaction (after the application of Section 2(c) to such
Transaction) shall not constitute an Event of Default for the
purpose of Section 5(a)(i), and (C) the obligation of Party A to
make payment to Party B, in respect of the same Transaction, on
such date, will be reduced so that Party A will be obligated to
pay the Equivalent Percentage of the amount it would
- --------------
(2) The words in square brackets will not be incorporated into the
Confirmation where the Class of the Issuer Notes referred to therein are
rated on their issuance "AAA" (or equivalent) by S&P, "AAA" (or
equivalent) by Fitch and "Aaa" (or equivalent) by Moody's.
28
otherwise owe under that Transaction. "Equivalent Percentage"
means the percentage obtained by dividing the amount paid by Party
B by the amount it would have paid on the relevant date absent
such limitation multiplied by one hundred provided that, in
respect of any Transaction where the Confirmation provides that
Party B makes payments on a monthly basis and Party A makes
payments on a quarterly basis, the Equivalent Percentage shall be
adjusted by the Calculation Agent so as to reflect all of the
amounts paid by Party B during the relevant quarterly period
applicable to Party A's quarterly payment.
(iv) If an Early Termination Date results from an Event of Default or a
Termination Event, any amount payable (the payment of which was
deferred or not paid in the circumstances described under Part
5(h)(iii) above by Party A or by Party B, as the case may be,
under this Agreement) will be deemed to be Unpaid Amounts owing to
Party B or, as the case may be, owing to Party A on the Early
Termination Date.
(v) Following the calculation thereof, and in any event no later than
two Local Business Days prior to any relevant Payment Date (as
defined in the Confirmation), Party B agrees to notify Party A of
the amount of any shortfall[, the payment of which by Party B is
deferred in accordance with Part 5(h)(iii) above)](3).
(i) Scope of Agreement
It is hereby understood and agreed that the provisions of this Agreement
shall only apply to the Transaction entered into between Party A and
Party B on the Trade Date specified in the only Confirmation (other than
the Credit Support Annex) that supplements, forms part of, and is
subject to this Agreement (and, for the avoidance of doubt, all
references in this Agreement to "Confirmation" shall be to such
Confirmation or, as the context requires, the Credit Support Annex) and
that no other Transaction may be entered into pursuant hereto except in
accordance with sub-Parts 5(k)(i)(A), 5(k)(ii)(B), 5(l)(i)(D),
5(l)(iii), 5(m)(i)(A), 5(m)(ii)(A) or 5(m)(iv), or where the Rating
Agencies have confirmed in writing that the then current ratings of the
Issuer Notes would not be adversely affected by such other Transaction.
(j) Authorised Person
For the purposes of Section 3 of this Agreement, Party A represents to
Party B (which representation will be deemed to be repeated by Party A
on each date on which a Transaction is entered into and until all
outstanding payment and delivery obligations of Party A, from time to
time, under this Agreement have been satisfied in full) that it is an
- -----------------
(3) The words in square brackets will not be incorporated into the
Confirmation where the Class of the Issuer Notes referred to therein are
rated on their issuance "AAA" (or equivalent) by S&P, "AAA" (or
equivalent) by Fitch and "Aaa" (or equivalent) by Moody's.
29
authorised person for the purposes of the Financial Services and Markets
Act 2000 (or any successor to it).
(k) Ratings Downgrade of Party A - Standard & Poor's Rating Services, a
division of The McGraw-Hill Companies Inc. ("S&P")
(i) Initial S&P Note Downgrade Event
In the event that an Initial S&P Note Downgrade Event occurs, then Party
A shall, within 30 days of the occurrence of such Initial S&P Note
Downgrade Event, at its own cost, either:-
(A) put in place an appropriate mark-to-market collateral arrangement,
(which may be based on the credit support documentation published
by the International Swaps and Derivatives, Inc. ("ISDA"), or
otherwise, and relates to collateral in the form of cash or
securities or both) in support of Party A's obligations under this
Agreement on terms satisfactory to the Note Trustee (whose consent
shall be given if S&P confirms that the provision of such
collateral would maintain the rating of the Issuer Notes by S&P or
restore the rating of the Issuer Notes by S&P to the level it
would have been at immediately prior to such Initial S&P Note
Downgrade Event) provided that (1) Party A shall be deemed to have
satisfied the requirements of S&P if the amount of collateral
agreed to be provided in the form of cash and/or securities (the
"Collateral Amount") is determined on a basis which satisfies, but
is no more onerous than, the criteria set out in the most recent
article published by S&P on "Ratings Direct" which enables
entities rated lower than a specified level to participate in
structured finance transactions which, through collateralization
are rated at a higher level (the "S&P Criteria"); and (2) the
Collateral Amount shall not be required to exceed such amount as
would be required (in accordance with the S&P Criteria) to
maintain or restore the rating of the Issuer Notes by S&P at or to
the level they would have been at immediately prior to such
Initial S&P Note Downgrade Event; or
(B) transfer all of its rights and obligations with respect to this
Agreement to a replacement third party whose short-term, unsecured
and unsubordinated debt obligations are rated at least as high as
"A-1+" (or its equivalent) by S&P or such other rating as is
commensurate with the rating assigned to the Issuer Notes by S&P
from time to time; or
(C) procure another person to become co-obligor or guarantor in
respect of the obligations of Party A under this Agreement whose
short-term, unsecured and unsubordinated debt obligations are
rated at least as high as "A-1+" (or its equivalent) by S&P or
such other rating as is commensurate with the rating assigned to
the Issuer Notes by S&P from time to time; or
(D) take such other action as Party A may agree with S&P as will
result in the rating of the Issuer Notes then outstanding
following the taking of such action being
30
rated no lower than the rating of the Issuer Notes immediately
prior to such Initial S&P Note Downgrade Event.
If any of sub-paragraphs (k)(i)(B), (k)(i)(C) or (k)(i)(D) above are
satisfied at any time, all collateral (or the equivalent thereof, as
appropriate) transferred by Party A pursuant to sub-paragraph (k)(i)(A)
above will be transferred back to Party A, and Party A will not be
required to transfer any additional collateral in respect of such
particular Initial S&P Note Downgrade Event.
(ii) Subsequent S&P Note Downgrade Event
(A) Party A shall, within 10 days of the occurrence of a
Subsequent S&P Note Downgrade Event, at its own cost and
expense, use its best endeavours to take the action set out
in sub-paragraph (k)(i)(B), (k)(i)(C) or (k)(i)(D) above;
and
(B) if, at the time a Subsequent S&P Note Downgrade Event
occurs, Party A has provided collateral pursuant to a
mark-to-market collateral arrangement put in place pursuant
to sub-paragraph (k)(i)(A) above following an Initial S&P
Note Downgrade Event, it will continue to provide collateral
notwithstanding the occurrence of a Subsequent S&P Note
Downgrade Event until such time as the action in
sub-paragraph (k)(ii)(A) above has been taken.
If the action set out in sub-paragraph (k)(ii)(A) above is taken at any
time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to sub-paragraph (k)(i)(A) above will be
transferred back to Party A, and Party A will not be required to
transfer any additional collateral in respect of such Subsequent S&P
Note Downgrade Event.
(iii) Additional Termination Events
If Party A does not take any of the measures described in
sub-paragraph (k)(i) above such failure shall not be or give rise
to an Event of Default but shall constitute an Additional
Termination Event with respect to Party A and shall be deemed to
have occurred on the thirtieth day following the Initial S&P Note
Downgrade Event with Party A as the sole Affected Party and all
Transactions as Affected Transactions.
If, at the time a Subsequent S&P Note Downgrade Event occurs,
Party A has provided collateral pursuant to a mark-to-market
collateral arrangement put in place pursuant to sub-paragraph
(k)(i)(A) above and fails to continue to post collateral in
accordance with sub-paragraph (k)(ii)(B) above pending compliance
with sub-paragraph (k)(ii)(A) above, such failure will not be or
give rise to an Event of Default but will constitute an Additional
Termination Event with respect to Party A which will be deemed to
have occurred on the later of the tenth day following such
Subsequent S&P Note Downgrade Event and the thirtieth day
following the Initial S&P Note Downgrade Event with Party A as the
sole
31
Affected Party and all Transactions as Affected Transactions.
Further, an Additional Termination Event with respect to Party A
shall be deemed to have occurred if, even if Party A continues to
post collateral as required by sub-paragraph (k)(ii)(B) above,
Party A does not take the action described in sub-paragraph
(k)(ii)(A) above. Such Additional Termination Event will be deemed
to have occurred on the tenth day following the Subsequent S&P
Note Downgrade Event with Party A as the sole Affected Party and
all Transactions as Affected Transactions.
However, in the event that Party B were to designate an Early
Termination Date and there would be a payment due to Party A,
Party B may only designate such an Early Termination Date in
respect of an Additional Termination Event under this
sub-paragraph (k)(iii) if Party B has found a replacement
counterparty willing to enter into a new transaction with Party B
on terms that reflect as closely as reasonably possible (as the
Note Trustee, on behalf of Party B may, in its absolute
discretion, determine) the economic, legal and credit terms of the
Terminated Transaction with Party A.
(iv) S&P Definitions
For the purposes of this Part 5(k):
an "Initial S&P Note Downgrade Event" will occur where:
(a) the short-term, unsecured and unsubordinated debt
obligations of Party A (or its successor), or any guarantor
of Party A's obligations under this Agreement (or its
successor), cease to be rated at least as high as "A-1+" (or
its equivalent) by S&P, and
(b) as a result of such cessation, the then current rating of
the Issuer Notes may, in the reasonable opinion of S&P, be
downgraded or placed under review for possible downgrade;
and
a "Subsequent Note Downgrade Event" will occur where:
(a) the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor), or any guarantor of Party A's
obligations under this Agreement (or its successor), cease
to be rated at least as high as "BBB-" (or its equivalent)
by S&P, and
(b) as a result of such cessation, the then current rating of
the Issuer Notes may, in the reasonable opinion of S&P, be
downgraded or placed under review for possible downgrade.
(l) Ratings Downgrade of Party A - Moody's Investors Service Limited
("Moody's")
(i) Initial Moody's Note Downgrade Event
32
Within 30 days of the occurrence of an Initial Moody's Note
Downgrade Event, Party A shall, on a reasonable efforts
basis and at its own cost, attempt to:
(A) transfer all of its rights and obligations with respect to
this Agreement to either (x) a replacement third party with
the Required Ratings (as defined below) provided that such
transfer does not result in any requirement for deduction or
withholding for or on account of any Tax, or (y) a
replacement third party which, as agreed with Moody's, will
not adversely affect the ratings of the Issuer Notes; or
(B) procure another person to become co-obligor or guarantor in
respect of the obligations of Party A under this Agreement.
Such co-obligor or guarantor may be either (x) a person with
the Required Ratings (as defined below) provided that such
transfer does not result in any requirement for deduction or
withholding for or on account of any Tax, or (y) a person,
who as agreed with Moody's, will not adversely affect the
ratings of the Issuer Notes; or
(C) take such other action as Moody's shall confirm to Party A
will remedy an Initial Moody's Note Downgrade Event; or
(D) provide collateral in the form of cash or securities or
both, in support of its obligations under this Agreement in
accordance with the provisions of the Credit Support Annex.
If any of sub-paragraphs (l)(i)(A), (l)(i)(B) or (l)(i)(C) above
are satisfied at any time, all collateral (or the equivalent
thereof, as appropriate) transferred by Party A pursuant to
sub-paragraph (l)(i)(D) above will be transferred back to Party A
and Party A will not be required to transfer any additional
collateral as a consequence of such particular Initial Moody's
Note Downgrade Event.
(ii) Subsequent Moody's Note Downgrade Event
Party A shall, within 30 days of the occurrence of a Subsequent
Moody's Note Downgrade Event, on a reasonable efforts basis and at
its own cost, attempt to:
(A) transfer all of its rights and obligations with respect to
this Agreement to either (x) a replacement third party with
the Required Ratings (as defined below) provided that such
transfer does not result in any requirement for deduction or
withholding for or on account of any Tax, or (y) a
replacement third party which, as agreed with Moody's, will
not adversely affect the ratings of the Issuer Notes; or
(B) procure another person to become co-obligor or guarantor in
respect of the obligations of Party A under this Agreement.
Such co-obligor or guarantor may be either (x) a person with
the Required Ratings (as defined below) provided that such
transfer does not result in any requirement for deduction or
withholding for or on account of any Tax, or (y) a person,
33
who as agreed with Moody's, will not adversely affect the
ratings of the Issuer Notes; or
(C) take such other action as Moody's shall confirm to Party A
will remedy a Subsequent Moody's Note Downgrade Event.
(iii) Subsequent Moody's Note Downgrade Event - Collateral Requirements
Pending compliance with any of sub-paragraphs (l)(ii)(A),
(l)(ii)(B) or (l)(ii)(C) above, Party A will at its own cost and
within 10 days of such Subsequent Moody's Note Downgrade Event or
30 days of the occurrence of an Initial Moody's Note Downgrade
Event, whichever is the earlier, provide collateral in the form of
cash or securities or both, in support of its obligations under
this Agreement in accordance with the provisions of the Credit
Support Annex; provided that, if at the time when a Subsequent
Moody's Note Downgrade Event occurs, Party A has provided
collateral pursuant to the Credit Support Annex pursuant to
sub-paragraph (l)(i)(D) above, it will continue to provide
collateral notwithstanding the occurrence of a Subsequent Moody's
Note Downgrade Event.
If any of sub-paragraphs (l)(ii)(A), (l)(ii)(B) or (l)(ii)(C)
above are satisfied at any time, all collateral (or the equivalent
thereof, as appropriate) transferred by Party A pursuant to this
sub-paragraph (l)(iii) will be transferred back to Party A and
Party A will not be required to transfer any additional collateral
(subject always to any collateral which may be required pursuant
to sub-paragraph (l)(i)(D) above and unless a further Subsequent
Moody's Note Downgrade Event occurs).
(iv) Additional Termination Events and Event of Default
If Party A does not take the measures described in sub-paragraph
(l)(i) above such failure shall not be or give rise to an Event of
Default but shall constitute an Additional Termination Event with
respect to Party A and shall be deemed to have occurred on the
thirtieth day following an Initial Moody's Note Downgrade Event
with Party A as the sole Affected Party and all Transactions as
Affected Transactions.
If Party A does not take the measures described in sub-paragraph
(l)(iii) above such failure shall give rise to an Event of Default
under Section 5(a)(iii) with respect to Party A and shall be
deemed to have occurred on the tenth day following such Subsequent
Moody's Note Downgrade Event with Party A as the sole Defaulting
Party. Further, it shall constitute an Additional Termination
Event with respect to Party A if, even after satisfying the
requirements of sub-paragraph (l)(iii), Party A has failed, having
applied reasonable efforts, to comply with any of sub-paragraphs
(l)(ii)(A), (l)(ii)(B) or (l)(ii)(C) and such Additional
Termination Event shall be deemed to have occurred on the
thirtieth day following such Subsequent Moody's Note Downgrade
Event with Party A as the sole Affected Party and all Transactions
as Affected Transactions.
34
However, in the event that Party B were to designate an Early
Termination Date and there would be a payment due to Party A,
Party B may only designate such an Early Termination Date in
respect of an Additional Termination Event under this
sub-paragraph (l)(iv) if Party B has found a replacement
counterparty willing to enter into a new transaction with Party B
on terms that reflect as closely as reasonably possible (as the
Note Trustee, on behalf of Party B, may, in its absolute
discretion, determine) the economic, legal and credit terms of the
Terminated Transactions with Party A.
(v) Mark-to-Market valuation
In relation to paragraphs (l)(i)(D) and (iii) above, Party A will,
upon receipt of reasonable notice from Moody's demonstrate to
Moody's the calculation by it of the mark-to-market value of the
outstanding Transactions. In relation to paragraph (iii) above,
Party A will, at its own cost, on receipt of reasonable notice
from Moody's (which, for the avoidance of doubt, will be no less
than 30 days) arrange a third party valuation of the
mark-to-market value of the outstanding Transactions.
(vi) Moody's Definitions
For the purposes of this Part 5(l):
an "Initial Moody's Note Downgrade Event" will occur where:
(a) the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) and, if relevant, any
guarantor of Party A's obligations under this Agreement (or
its successor), cease to be rated at least as high as "A1"
(or its equivalent) by Moody's, or
(b) the short-term, unsecured and unsubordinated debt
obligations of Party A (or its successor) and, if relevant,
any guarantor of Party A's obligations under this Agreement
(or its successor), cease to be rated at least as high as
"P-1" (or its equivalent) by Moody's;
a "Subsequent Moody's Note Downgrade Event" will occur where:
(a) the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) and, if relevant, any
guarantor of Party A's obligations under this Agreement (or
its successor), cease to be rated at least as high as "A3"
(or its equivalent) by Moody's, or
(b) the short-term, unsecured and unsubordinated debt
obligations of Party A (or its successor) and, if relevant,
any guarantor of Party A's obligations under this Agreement
(or its successor), cease to be rated at least as high as
"P-2" (or its equivalent) by Moody's; and
35
"Required Ratings" means, in respect of a person, its
short-term, unsecured and unsubordinated debt obligations
are rated at least as high as "P-1" and its long-term,
unsecured and unsubordinated debt obligations are rated at
least as high as "A1", or such other ratings as may be
agreed with Moody's from time to time.
(m) Ratings Downgrade of Party A - Fitch Ratings Ltd ("Fitch")
(i) Initial Fitch Note Downgrade Event
Party A will, on a reasonable efforts basis, within 30 days
of the occurrence of an Initial Fitch Note Downgrade Event,
at its own cost, either:-
(A) provide collateral in the form of cash or securities
or both, in support of its obligations under this
Agreement, in accordance with the provisions of the
Credit Support Annex; or
(B) transfer all of its rights and obligations with
respect to this Agreement to a replacement third party
whose long-term, unsecured and unsubordinated debt
ratings are rated at least as high as "A+" (or its
equivalent) by Fitch, and whose short-term, unsecured
and unsubordinated debt ratings are rated at least as
high as "F1" (or its equivalent) by Fitch or such
other rating as is commensurate with the rating
assigned to the Issuer Notes by Fitch from time to
time; or
(C) procure another person to become co-obligor or
guarantor in respect of the obligations of Party A
under this Agreement whose long-term, unsecured and
unsubordinated debt ratings are rated at least as high
as "A+" (or its equivalent) by Fitch, and whose
short-term, unsecured and unsubordinated debt ratings
are rated at least as high as "F1" (or its equivalent)
by Fitch or such other rating as is commensurate with
the rating assigned to the Issuer Notes by Fitch from
time to time; or
(D) take such other action as Party A may agree with Fitch
as will result in the rating of the Issuer Notes then
outstanding being maintained, or obtain confirmation
from Fitch that there is no adverse effect on the
rating of the Issuer Notes as a result of that Initial
Fitch Downgrade Event so that none of the courses of
action outlined at (m)(i)(A), (m)(i)(B) or (m)(i)(C)
above need be pursued in respect of such Initial Fitch
Downgrade Event.
If any of sub-paragraphs (m)(i)(B), (m)(i)(C) or (m)(i)(D)
are satisfied at any time all collateral (or the equivalent
thereof, as appropriate) transferred by Party A pursuant to
sub-paragraph (m)(i)(A) will be transferred back to Party A
and Party A will not be required to transfer any additional
collateral in consequence of the particular Initial Fitch
Note Downgrade Event.
(ii) First Subsequent Fitch Note Downgrade Event
36
Party A will on a reasonable efforts basis, within 30 days
of the occurrence of a First Subsequent Fitch Note Downgrade
Event, at its own cost, either,
(A) within 30 days of the occurrence of a First Subsequent
Fitch Note Downgrade Event provide collateral in the
form of cash or securities or both, in support of its
obligations under this Agreement in accordance with
the provisions of the Credit Support Annex; provided
that, if at the time when a First Subsequent Fitch
Note Downgrade Event Party A has provided collateral
pursuant to the Credit Support Annex pursuant to
sub-paragraph (m)(i)(A) above it will continue to
provide collateral notwithstanding the occurrence of a
First Subsequent Fitch Note Downgrade Event; provided
further that, in either case, the mark-to-market
calculations and the correct and timely provision of
collateral thereunder are verified by an independent
third party within five Local Business Days of the
date on which collateral is provided pursuant to this
sub-paragraph (l)(ii)(A) and thereafter, on a periodic
basis on every fifth Local Business Day whilst
collateral is being provided pursuant to this
sub-paragraph (l)(ii)(A) (with the costs of such
independent verification being borne by Party A); or
(B) transfer all of its rights and obligations with
respect to this Agreement to a replacement third party
whose long-term, unsecured and unsubordinated debt
ratings are rated at least as high as "A+" (or its
equivalent) by Fitch, and whose short-term, unsecured
and unsubordinated debt ratings are rated at least as
high as "F1" (or its equivalent) by Fitch or such
other rating as is commensurate with the rating
assigned to the Issuer Notes by Fitch from time to
time; or
(C) procure another person to become co-obligor or
guarantor in respect of the obligations of Party A
under this Agreement whose long-term, unsecured and
unsubordinated debt ratings are rated at least as high
as "A+" (or its equivalent) by Fitch, and whose
short-term, unsecured and unsubordinated debt ratings
are rated at least as high as "F1" (or its equivalent)
by Fitch or such other rating as is commensurate with
the rating assigned to the Issuer Notes by Fitch from
time to time; or
(D) take such other action as Party A may agree with Fitch
as will result in the rating of the Issuer Notes then
outstanding being maintained, or obtain confirmation
from Fitch that there is no adverse effect on the
rating of the Issuer Notes as a result of that First
Subsequent Fitch Downgrade Event so that none of the
courses of action outlined at (m)(ii)(A), (m)(ii)(B)
or (m)(ii)(C) above need be pursued in respect of such
First Subsequent Fitch Downgrade Event.
If any of sub-paragraphs (m)(ii)(B), (m)(ii)(C) or
(m)(ii)(D) above are satisfied at any time, all collateral
(or the equivalent thereof, as appropriate) transferred by
Party A pursuant to sub-paragraph (m)(ii)(A) above will be
transferred back to
37
Party A and Party A will not be required to transfer any
additional collateral as a consequence of the particular
First Subsequent Fitch Note Downgrade Event.
(iii) Second Subsequent Fitch Note Downgrade Event
Party A will, on a reasonable efforts basis, within 30 days
of the occurrence of a Second Subsequent Fitch Note
Downgrade Event, at its own cost, either:
(A) transfer all of its rights and obligations with
respect to this Agreement to a replacement third party
whose long-term, unsecured and unsubordinated debt
ratings are rated at least as high as "A+" (or its
equivalent) by Fitch, and whose short-term, unsecured
and unsubordinated debt ratings are rated at least as
high as "F1" (or its equivalent) by Fitch or such
other rating as is commensurate with the rating
assigned to the Issuer Notes by Fitch from time to
time; or
(B) procure another person to become co-obligor or
guarantor in respect of the obligations of Party A
under this Agreement whose long-term, unsecured and
unsubordinated debt ratings are rated at least as high
as "A+" (or its equivalent) by Fitch, and whose
short-term, unsecured and unsubordinated debt ratings
are rated at least as high as "F1" (or its equivalent)
by Fitch or such other rating as is commensurate with
the rating assigned to the Issuer Notes by Fitch from
time to time; or
(C) take such other action as Party A may agree with Fitch
as will result in the rating of the Issuer Notes then
outstanding being maintained, or obtain confirmation
from Fitch that there is no adverse effect on the
rating of the Issuer Notes as a result of that Second
Subsequent Fitch Downgrade Event so that none of the
courses of action outlined at (m)(iii)(A) or
(m)(iii)(B) above need be pursued in respect of such
Second Subsequent Fitch Downgrade Event.
(iv) Second Subsequent Fitch Note Downgrade Event - Collateral
Requirements
Pending compliance with any of sub-paragraphs (m)(iii)(A),
(m)(iii)(B) or (m)(iii)(C) above, Party A will provide, at
its own cost, within 10 days of such Second Subsequent Fitch
Note Downgrade Event or 30 days of the occurrence of First
Subsequent Fitch Note Downgrade Event, whichever is the
earlier, collateral in the form of cash or securities or
both, in support of its obligations under this Agreement in
accordance with the provisions of the Credit Support Annex;
provided that, if at the time when an Initial Fitch Note
Downgrade Event or a First Subsequent Fitch Note Downgrade
Event, as the case may be, occurs Party A has provided
collateral pursuant to the Credit Support Annex pursuant to
sub-paragraphs (m)(i)(A) or (m)(ii)(A) above, it will
continue to provide collateral notwithstanding the
occurrence of a Second Subsequent Fitch Note Downgrade
Event; provided further that in either case, the
mark-to-market calculations and the correct and timely
provision of collateral thereunder are verified by an
38
independent third party (with the costs of such independent
verification being borne by Party A).
If any of sub-paragraphs (m)(iii)(A), (m)(iii)(B) or
(m)(iii)(C) above are satisfied at any time, all collateral
(or the equivalent thereof, as appropriate) transferred by
Party A pursuant to this sub-paragraph (m)(iv) will be
transferred back to Party A and Party A will not be required
to transfer any additional collateral as a consequence of
the particular Second Subsequent Fitch Note Downgrade Event.
(v) Additional Termination Events
If Party A does not take any of the measures described in
sub-paragraphs (m)(i), (m)(ii) or (m)(iii) above such
failure shall not be or give rise to an Event of Default but
shall constitute an Additional Termination Event with
respect to Party A and shall be deemed to have occurred on
the thirtieth day following such Initial Fitch Note
Downgrade Event, First Subsequent Fitch Note Downgrade Event
or Second Subsequent Fitch Note Downgrade Event, as the case
may be, with Party A as the sole Affected Party.
However, in the event that Party B were to designate an
Early Termination Date and there would be a payment due to
Party A, Party B may only designate such an Early
Termination Date in respect of an Additional Termination
Event under this sub-paragraph (m)(v) if Party B has found a
replacement counterparty willing to enter a new transaction
with Party B on terms that reflect as closely as reasonably
possible (as the Note Trustee, on behalf of Party B, may, in
its absolute discretion, determine) the economic, legal and
credit terms of the Terminated Transactions with Party A.
(vi) Fitch Definitions
For the purposes of this Part 5(m):
an "Initial Fitch Note Downgrade Event" will occur where,
the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) or, if relevant, any guarantor
of Party A's obligations under this Agreement (or its
successor) cease to be rated at least as high as "A+" (or
its equivalent) by Fitch, and the short-term, unsecured and
unsubordinated debt obligations of Party A (or its
successor) or any guarantor of Party A's obligations under
this Agreement (or its successor), cease to be rated at
least as high as "F1" (or its equivalent) by Fitch;
a "First Subsequent Fitch Note Downgrade Event" will occur
where, the long-term, unsecured and unsubordinated debt
obligations of Party A (or its successor) or, if relevant,
any guarantor of Party A's obligations under this
39
Agreement (or its successor), cease to be rated at least as
high as "BBB+" (or its equivalent) by Fitch, and the
short-term, unsecured and unsubordinated debt obligations of
Party A (or its successor) or any guarantor of Party A's
obligations under this Agreement (or its successor), cease
to be rated at least as high as "F2" (or its equivalent) by
Fitch; and
a "Second Subsequent Fitch Note Downgrade Event" will occur
where, the long-term, unsecured and unsubordinated debt
obligations of Party A (or its successor) or, if relevant,
any guarantor of Party A's obligations under this Agreement
(or its successor), cease to be rated at least as high as
"BBB-" (or its equivalent) by Fitch, and the short-term,
unsecured and unsubordinated debt obligations of Party A (or
its successor) or any guarantor of Party A's obligations
under this Agreement (or its successor), cease to be rated
at least as high as "F3" (or its equivalent) by Fitch.
(n) Additional Section 3 and Tax Deductibility Representations
(i) Section 3 is amended by the addition at the end thereof of
the following additional representation:-
"(g) No Agency. It is entering into this Agreement and each
Transaction as principal and not as agent of any person."
(ii) Party A represents to Party B (which representation will be
deemed to be repeated by Party A on each date on which a
Transaction is entered into) that its obligations under this
Agreement rank pari passu with all of its other unsecured,
unsubordinated obligations except those obligations
preferred by operation of law.
(iii) The following representation (the "Additional Tax
Representation") will apply to Party A and will not apply to
Party B and will be deemed to be repeated by Party A at all
times until the termination of this Agreement.
"(h) Residence. Party A represents, warrants and undertakes
to Party B that in relation to each Transaction, either:
(A) it is resident in the United Kingdom for United
Kingdom tax purposes, or
(B) the conditions of Paragraph 31(6) or Paragraph 31(7)
of Schedule 26 of the Finance Act 2002 (in each case
as amended or re-enacted from time to time) are
satisfied with respect to the relevant Transaction."
(o) Recording of Conversations
Each party: (i) consents to the recording of telephone
conversations between the trading, marketing and other relevant
personnel of the parties in connection with this Agreement or any
potential Transaction, (ii) agrees to obtain any necessary consent
of, and give any necessary notice of such recording to, its
relevant personnel, and (iii) agrees, to the extent permitted by
applicable law, that recordings may be submitted in evidence in
any Proceedings relating to this Agreement.
40
(p) Relationship between the parties
The Agreement is amended by the insertion after Section 14 of an
additional Section 15, reading in its entirety as follows:
"15. Relationship between the parties
Each party will be deemed to represent to the other party on the
date on which it enters into a Transaction that (absent a written
agreement between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction):-
(i) Non Reliance. It is acting for its own account, and it has
made its own decisions to enter into that Transaction and as
to whether that Transaction is appropriate or proper for it
based upon its own judgment and advice from such advisers as
it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as
investment advice or as a recommendation to enter into that
Transaction; it being understood that information and
explanations related to the terms and conditions of a
Transaction shall not be considered investment advice or a
recommendation to enter into that Transaction. It has not
received from the other party any assurance or guarantee as
to the expected results of that Transaction.
(ii) Assessment and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through
independent professional advice), and understands and
accepts, the terms, conditions and risks of that
Transaction. It is also capable of assuming, and assumes,
the financial and other risks of that Transaction.
(iii) Status of Parties. The other party is not acting as a
fiduciary for or an adviser to it in respect of that
Transaction."
(q) Tax
The Agreement is amended by deleting Section 2(d) in its entirety
and replacing it with the following:
"(d) Deduction or Withholding for Tax
(i) Requirement to Withhold
All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless
such deduction or withholding is required (including, for
the avoidance of doubt, if such deduction or withholding is
required in order for the payer to obtain relief from Tax)
by any applicable law, as modified by the practice of any
relevant governmental revenue authority, then in effect. If
a party ("X") is so required to deduct or withhold, then
that party (the "Deducting Party"):-
41
(A) will promptly notify the other party ("Y") of such
requirement;
(B) will pay to the relevant authorities the full amount
required to be deducted or withheld (including the
full amount required to be deducted or withheld from
any Gross Up Amount (as defined below) paid by the
Deducting Party to Y under this Section 2(d)) promptly
upon the earlier of determining that such deduction or
withholding is required or receiving notice that such
amount has been assessed against Y;
(C) will promptly forward to Y an official receipt (or a
certified copy), or other documentation reasonably
acceptable to Y, evidencing such payment to such
authorities; and
(D) if X is Party A, X will promptly pay in addition to
the payment to which Party B is otherwise entitled
under this Agreement, such additional amount (the
"Gross Up Amount") as is necessary to ensure that the
net amount actually received by Party B will equal the
full amount which Party B would have received had no
such deduction or withholding been required.
(ii) Liability
If:
(A) X is required by any applicable law, as modified by
the practice of any relevant governmental revenue
authority, to make any deduction or withholding for or
on account of any Tax in respect of payments under
this Agreement; and
(B) X does not so deduct or withhold; and
(C) a liability resulting from such Tax is assessed
directly against X,
then, except to the extent that Y has satisfied or then
satisfies the liability resulting from such Tax, (A) where X
is Party B, Party A will promptly pay to Party B the amount
of such liability (the "Liability Amount") (including any
related liability for interest and together with an amount
equal to the Tax payable by Party B on receipt of such
amount but including any related liability for penalties
only if Party A has failed to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d))
and Party B will promptly pay to the relevant government
revenue authority the amount of such liability (including
any related liability for interest and penalties) and (B)
where X is Party A and Party A would have been required to
pay a Gross Up Amount to Party B, Party A will promptly pay
to the relevant government revenue authority the amount of
such liability (including any related liability for interest
and penalties).
(iii) Tax Credit, etc.
42
(a) Where Party A pays an amount in accordance with Section
2(d)(i)(D) or 2(d)(ii)(C) above, Party B undertakes as
follows:-
(1) to the extent that Party B obtains any Tax credit,
allowance, set-off or repayment from the tax
authorities of any jurisdiction relating to any
deduction or withholding giving rise to such payment
or in the case of Section 2(d)(ii)(B) the amount to be
assessed ("Tax Credit"), it shall pay to Party A on
the next Note Interest Payment Date after receipt of
the same so much of the cash benefit (as determined in
accordance with sub-paragraph (iii)(a)(2) below)
relating thereto which it has received as will leave
Party B in substantially the same (but in any event no
worse) position as Party B would have been in if no
such deduction or withholding had been required or the
amount had not been so assessed;
(2) the "cash benefit" shall, in the case of credit,
allowance or set-off, be the additional amount of Tax
which would have been payable by Party B in the
jurisdiction referred to in sub-paragraph (iii)(a)(1)
above but for the obtaining by it of the said Tax
credit, allowance or set-off and, in the case of a
repayment, shall be the amount of the repayment
together, in either case, with any related interest or
similar payment obtained by Party B; and
(3) it will use all best endeavours to obtain any Tax
Credit as soon as is reasonably practicable, provided
that it shall be the sole judge of the amount of any
such Tax Credit and of the date on which the same is
received and shall not be obliged to disclose to Party
A any information regarding its tax affairs or tax
computations save that Party B shall, upon request by
Party A, supply Party A with a reasonably detailed
explanation of its calculation of the amount of any
such Tax Credit and of the date on which the same is
received.
(4) Without prejudice to this Part 5(q)(iii), nothing
contained in this Schedule shall interfere with the
right of Party B (or any of its members) or Party A to
arrange its tax and other affairs in whatever manner
it thinks fit and, in particular, neither Party B (nor
any of its members) nor Party A shall be under any
obligation to claim relief from Tax on its corporate
profits, or from any similar Tax liability or to claim
relief in priority to any other claims, reliefs,
credits or deductions available to it. Neither Party B
(or any of its members) nor Party A shall be obliged
(other than as required by law) to disclose any
confidential information relating to the organisation
of its affairs.
The definition of "Indemnifiable Tax" in Section 14
shall be deleted and the following shall be
substituted therefor:
43
"Indemnifiable Tax" means any Tax."
(r) Change of Account
Section 2(b) of this Agreement is hereby amended by the addition
of the following at the end thereof:
"; provided that such new account shall be in the same legal and
tax jurisdiction as the original account and such new account, in
the case of Party B, is held with a financial institution with a
long-term unsecured and unsubordinated debt obligation rating of
at least "A1" by Moody's and a short-term unsecured,
unsubordinated and unguaranteed debt obligation rating of at least
"P-1" by Moody's and "A-1+" by S&P."
(s) Condition Precedent
Section 2(a)(iii) shall be amended by the deletion of the words
"or Potential Event of Default" in respect of conditions precedent
to the obligations of Party A only.
(t) Representations
(i) Section 3(a)(v) shall be amended by the addition of the
words "(with the exception of Section 11 insofar as it
relates to any Stamp Tax)" after the words "this Agreement".
(ii) Section 3(b) shall be amended by the deletion of the words
"or Potential Event of Default" in respect of the
representation given by Party B only.
(u) Transfers
(i) Section 7 of this Agreement shall not apply to Party A, who
shall be required to comply with, and shall be bound by, the
following:
Without prejudice to Section 6(b)(ii) Party A may transfer
all its interest and obligations in and under this Agreement
to any other entity (a "Transferee"), provided that:
(a) it has given five Local Business Days prior written
notice to the Note Trustee;
(b) the Transferee's long-term, unsecured and
unsubordinated debt obligations are then rated not
less than "A1" by Moody's and its short-term,
unsecured and unsubordinated debt obligations are then
rated not less than "P-1" by Moody's, "A-1+" by S&P
and "F1" by Fitch (or its equivalent by any substitute
rating agency) or such Transferee's obligations under
this Agreement are guaranteed by an entity whose
long-term, unsecured and unsubordinated debt
44
obligations are then rated not less than "A1" by
Moody's and whose short-term, unsecured and
unsubordinated debt obligations are then rated not
less than "P-1" by Moody's, "A-1+" by S&P and "F1"by
Fitch (or its equivalent by any substitute rating
agency);
(c) as of the date of such transfer the Transferee will
not, as a result of such transfer, be required to
withhold or deduct on account of Tax under this
Agreement;
(d) a Termination Event or an Event of Default does not
occur under this Agreement as a result of such
transfer;
(e) no additional amount will be payable by Party B to
Party A or the Transferee on the next succeeding
Scheduled Payment Date as a result of such transfer;
and
(f) (if the Transferee is domiciled in a different country
from both Party A and Party B) S&P, Moody's and Fitch
have provided prior written notification that the then
current ratings of the Issuer Notes will not be
adversely affected.
Following such transfer all references to Party A shall be
deemed to be references to the Transferee.
(v) Contracts (Rights of Third Parties) Act 1999
A person who is not a party to this Agreement shall have no right
under the Contracts (Rights of Third Parties) Act 1999 to enforce
any of its terms but this shall not affect any right or remedy of
a third party which exists or is available apart from that Act.
(w) Calculations if an Early Termination Date occurs as a result of an
Event of Default or Additional Termination Event where Party A is
the Defaulting Party or the sole Affected Party.
Subject to compliance with clause 14.3(m) (Issuer Swap Agreements)
of the Issuer Deed of Charge, upon the occurrence of an Event of
Default or an Additional Termination Event where Party A is the
Defaulting Party or the sole Affected Party, as applicable, Party
B will be entitled (but not obliged in the event that it does not
designate an Early Termination Date) to proceed in accordance with
Section 6 of the Agreement subject to the following:
(i) For the purposes of Section 6(d)(i) of this Agreement, Party
B's obligation with respect to the extent of information to
be provided with its calculations is limited to information
Party B has already received in writing and provided Party B
is able to release this information without breaching the
provisions of any law applicable to, or any contractual
restriction binding upon, Party B.
(ii) The following amendments shall be deemed to be made to the
definitions of "Market Quotation":
45
(a) the word "firm" shall be added before the word
"quotations" in the second line; and
(b) the words "provided that the documentation relating
thereto is either the same as this Agreement and the
Confirmations with respect to the Terminated
Transactions (and the long-term unsecured and
unsubordinated debt obligations of the Reference
Market-maker are rated not less than "A1" by Moody's,
and its short-term, unsecured and unsubordinated debt
obligations are rated not less than "P-1" by Moody's,
"A-1+" by S&P and "F1" by Fitch (or, if such Reference
Market-maker is not rated by a Rating Agency, at such
equivalent rating (by another rating agency) that is
acceptable to each such Rating Agency) or the Rating
Agencies have confirmed in writing such proposed
documentation will not adversely impact the ratings of
the Issuer Notes" shall be added after "agree" in the
sixteenth line; and
(c) the last sentence shall be deleted and replaced with
the following:
"If, on the last date set for delivery of quotations,
exactly two quotations are provided, the Market
Quotation will be the arithmetic mean of the two
quotations. If only one quotation is provided on such
date, Party B may, in its discretion, accept such
quotation as the Market Quotation and if Party B does
not accept such quotation (or if no quotation has been
provided), it will be deemed that the Market Quotation
in respect of the Terminated Transaction cannot be
determined."
(iii) For the purpose of the definition of "Market Quotation", and
without limitation of the general rights of Party B under
the Agreement:
(A) Party B will undertake to use its reasonable efforts
to obtain at least three firm quotations as soon as
reasonably practicable after the Early Termination
Date and in any event within the time period specified
pursuant to sub-paragraph (w)(iii)(C) below;
(B) Party A shall, for the purposes of Section 6(e), be
permitted to obtain quotations from Reference
Market-makers; and
(C) if no quotations have been obtained within six Local
Business Days after the occurrence of the Early
Termination Date or such longer period as Party B may
specify in writing to Party A, then it will be deemed
that the Market Quotation in respect of the Terminated
Transaction cannot be determined.
(iv) Party B will be deemed to have discharged its obligations
under sub-paragraph (w)(iii)(A) above if it requests that
Party A (such request to be in writing and made within two
Local Business Days after the occurrence of the Early
Termination Date) obtains quotations from Reference
Market-makers and Party A agrees to act in accordance with
such request.
46
(v) Party B will not be obliged to consult with Party A as to
the day and time of obtaining any quotations.
(x) Misrepresentation
Section 5(a)(iv) (Misrepresentation) of this Agreement shall be
deemed to be amended by the addition of the words "and 3(h)" after
the words "Section 3(e) and (f)" in the first line thereof.
47
ISDA(R)
International Swaps and Derivatives Association, Inc.
CREDIT SUPPORT ANNEX
to the Schedule to the
ISDA Master Agreement
dated as of the Effective Date specified in the Confirmation
between
DEUTSCHE BANK AG, LONDON BRANCH and GRANITE MASTER ISSUER plc
("Party A") ("Party B")
This Annex supplements, forms part of, and is subject to, the ISDA Master
Agreement referred to above and is part of its Schedule. For the purposes of
this Agreement, including, without limitation, Sections 1(c), 2(a), 5 and 6,
the credit support arrangements set out in this Annex constitute a Transaction
(for which this Annex constitutes the Confirmation).
Paragraph 1. Interpretation
Capitalised terms not otherwise defined in this Annex or elsewhere in this
Agreement have the meanings specified pursuant to Paragraph 10, and all
references in this Annex to Paragraphs are to Paragraphs of this Annex. In the
event of any inconsistency between this Annex and the other provisions of this
Schedule, this Annex will prevail, and in the event of any inconsistency
between Paragraph 11 and the other provisions of this Annex, Paragraph 11 will
prevail. For the avoidance of doubt, references to "transfer" in this Annex
mean, in relation to cash, payment, and in relation to the assets, delivery.
Paragraph 2. Credit Support Obligations
(a) Delivery Amount. Subject to Paragraphs 3 and 4, upon a demand made by the
Transferee on or promptly following a Valuation Date, if the Delivery Amount
for that Valuation Date equals or exceeds the Transferor's Minimum Transfer
Amount, then the Transferor will transfer to the Transferee Eligible Credit
Support having a Value as of the date of transfer at least equal to the
applicable Delivery Amount (rounded pursuant to Paragraph 11(b)(iii)(D)).
Unless otherwise specified in Paragraph 11(b), the "Delivery Amount"
applicable to the Transferor for any Valuation Date will equal the amount by
which:
(i) the Credit Support Amount
exceeds
(ii) the Value as of that Valuation Date of the Transferor's Credit
Support Balance (adjusted to include any prior Delivery Amount and to
exclude any prior Return Amount, the transfer of which, in each case,
has not yet been completed and for which the relevant Settlement Day
falls on or after such Valuation Date).
(b) Return Amount. Subject to Paragraphs 3 and 4, upon a demand made by the
Transferor on or promptly following a Valuation Date, if the Return Amount for
that Valuation Date equals or exceeds the Transferee's Minimum Transfer
Amount, then the Transferee will transfer to the Transferor Equivalent Credit
Support specified by the Transferor in that demand having a Value as of the
date of transfer as close as practicable to the applicable Return Amount
(rounded pursuant to Paragraph 11(b)(iii)(D)) and the Credit Support Balance
will, upon such transfer, be reduced accordingly. Unless otherwise specified
in Paragraph 11(b), the "Return Amount" applicable to the Transferee for any
Valuation Date will equal the amount by which:
(i) the Value as of that Valuation Date of the Transferor's Credit
Support Balance (adjusted to include any prior Delivery Amount and to
exclude any prior Return Amount, the transfer of which, in each case,
has not yet been completed and for which the relevant Settlement Day
falls on or after such Valuation Date).
exceeds
(ii) the Credit Support Amount.
Paragraph 3. Transfers, Calculations and Exchanges
(a) Transfers. All transfers under this Annex of any Eligible Credit Support,
Equivalent Credit Support, Interest Amount or Equivalent Distributions shall
be made in accordance with the instructions of the Transferee or Transferor,
as applicable, and shall be made:
(i) in the case of cash, by transfer into one or more bank accounts
specified by the recipient;
(ii) in the case of certificated securities which cannot or which the
parties have agreed will not be delivered by book-entry, by delivery in
appropriate physical form to the recipient or its account accompanied by
any duly executed instruments of transfer, transfer tax stamps and any
other documents necessary to constitute a legally valid transfer of the
transferring party's legal and beneficial title to the recipient; and
(iii) in the case of securities which the parties have agreed will be
delivered by book-entry, by the giving of written instructions
(including, for the avoidance of doubt, instructions given by telex,
facsimile transmission or electronic messaging system) to the relevant
depository institution or other entity specified by the recipient,
together with a written copy of the instructions to the recipient,
sufficient, if complied with, to result in a legally effective transfer
of the transferring party's legal and beneficial title to the recipient.
Subject to Paragraph 4 and unless otherwise specified, if a demand for the
transfer of Eligible Credit Support or Equivalent Credit Support is received
by the Notification Time, then the
relevant transfer will be made not later than the close of business on the
Settlement Day relating to the date such demand is received; if a demand is
received after the Notification Time, then the relevant transfer will be made
not later than the close of business on the Settlement Day relating to the day
after the date such demand is received.
(b) Calculations. All calculations of Value and Exposure for purposes of
Paragraphs 2 and 4(a) will be made by the relevant Valuation Agent as of the
relevant Valuation Time. The Valuation Agent will notify each party (or the
other party, if the Valuation Agent is a party) of its calculations not later
than the Notification Time on the Local Business Day following the applicable
Valuation Date (or, in the case of Paragraph 4(a), following the date of
calculation).
(c) Exchanges.
(i) Unless otherwise specified in Paragraph 11, the Transferor may on
any Local Business Day by notice inform the Transferee that it wishes to
transfer to the Transferee Eligible Credit Support specified in that
notice (the "New Credit Support") in exchange for certain Eligible
Credit Support (the "Original Credit Support") specified in that notice
comprised in the Transferor's Credit Support Balance.
(ii) If the Transferee notifies the Transferor that it has consented to
the proposed exchange, (A) the Transferor will be obliged to transfer
the New Credit Support to the Transferee on the first Settlement Day
following the date on which it receives notice (which may be oral
telephonic notice) from the Transferee of its consent and (B) the
Transferee will be obliged to transfer to the Transferor Equivalent
Credit Support in respect of the Original Credit Support not later than
the Settlement Day following the date on which the Transferee receives
the New Credit Support, unless otherwise specified in Paragraph 11(d)
(the "Exchange Date"); provided that the Transferee will only be obliged
to transfer Equivalent Credit Support with a Value as of the date of
transfer as close as practicable to, but in any event not more than, the
Value of the New Credit Support as of that date.
Paragraph 4. Dispute Resolution
(a) Disputed Calculations or Valuations. If a party (a "Disputing Party")
reasonably disputes (I) the Valuation Agent's calculation of a Delivery Amount
or a Return Amount or (II) the Value of any transfer of Eligible Credit
Support or Equivalent Credit Support, then:
(1) the Disputing Party will notify the other party and the Valuation
Agent (if the Valuation Agent is not the other party) not later than the
close of business on the Local Business Day following, in the case of
(I) above, the date that the demand is received under Paragraph 2 or, in
the case of (II) above, the date of transfer;
(2) in the case of (I) above, the appropriate party will transfer the
undisputed amount to the other party not later than the close of
business on the Settlement Day following the date that the demand is
received under Paragraph 2;
(3) the parties will consult with each other in an attempt to resolve
the dispute; and
(4) if they fail to resolve the dispute by the Resolution Time. then:
(i) in the case of a dispute involving a Delivery Amount or Return
Amount, unless otherwise specified in Paragraph 11(c), the
Valuation Agent will recalculate the Exposure and the Value as of
the Recalculation Date by:
(A) utilising any calculations of that part of the Exposure
attributable to the Transactions that the parties have
agreed are not in dispute;
(B) calculating that part of the Exposure attributable to
the Transactions in dispute by seeking four actual
quotations at mid-market from Reference Market-makers for
purposes of calculating Market Quotation, and taking the
arithmetic average of those obtained; provided that if four
quotations are not available for a particular Transaction,
then fewer than four quotations may be used for that
Transaction, and if no quotations are available for a
particular Transaction, then the Valuation Agent's original
calculations will be used for the Transaction; and
(C) utilising the procedures specified in Paragraph
11(e)(ii) for calculating the Value, if disputed, of the
outstanding Credit Support Balance;
(ii) in the case of a dispute involving the Value of any transfer
of Eligible Credit Support or Equivalent Credit Support, the
Valuation Agent will recalculate the Value as of the date of
transfer pursuant to Paragraph 11(e)(ii).
Following a recalculation pursuant to this Paragraph, the Valuation Agent will
notify each party (or the other party, if the Valuation Agent is a party) as
soon as possible but in any event not later than the Notification Time on the
Local Business Day following the Resolution Time. The appropriate party will,
upon demand following such notice given the Valuation Agent or resolution
pursuant to (3) above and subject to Paragraph 3(a), make the appropriate
transfer.
(b) No Event of Default. The failure by a party to make a transfer of any
amount which is the subject of a dispute to which Paragraph 4(a) applies will
not constitute an Event of Default for as long as the procedures set out in
this Paragraph 4 are being carried out. For the avoidance of doubt, upon
completion of those procedures, Section 5(a)(i) of this Agreement will apply
to any failure by a party to make a transfer required under the final sentence
of Paragraph 4(a) on the relevant due date.
Paragraph 5. Transfer of Title, No Security Interest, Distributions and
Interest Amount
(a) Transfer of Title. Each party agrees that all right, title and interest in
and to any Eligible Credit Support, Equivalent Credit Support, Equivalent
Distributions or Interest Amount which it transfers to the other party under
the terms of this Annex shall vest in the recipient free and clear of any
liens, claims, charges or encumbrances or any other interest of the
transferring party or of any third person (other than a lien routinely imposed
on all securities in a relevant clearance system).
(b) No Security Interest. Nothing in this Annex is intended to create or does
create in favour of either party any mortgage, charge, lien, pledge,
encumbrance or other security interest
in any cash or other property transferred by one party to the other party
under the terms of this Annex.
(c) Distributions and Interest Amount.
(i) Distributions. The Transferee will transfer to the Transferor not
later than the Settlement Day following each Distributions Date cash,
securities or other property of the same type, nominal value,
description and amount as the relevant Distributions ("Equivalent
Distributions") to the extent that a Delivery Amount would not be
created or increased by the transfer, as calculated by the Valuation
Agent (and the date of calculation will be deemed a Valuation Date for
this purpose).
(ii) Interest Amount. Unless otherwise specified in Paragraph
11(f)(iii), the Transferee will transfer to the Transferor at the times
specified in Paragraph 11(f)(ii) the relevant Interest Amount to the
extent that a Delivery Amount would not be created or increased by the
transfer, as calculated by the Valuation Agent (and the date of
calculation will be deemed a Valuation Date for this purpose).
Paragraph 6. Default
If any Early Termination Date is designated or deemed to occur as a result of
an Event of Default in relation to a party, an amount equal to the Value of
the Credit Support Balance, determined as though the Early Termination Date
were a Valuation Date, will be deemed to be an Unpaid Amount due to the
Transferor (which may or may not be the Defaulting Party) for purposes of
Section 6(e). For the avoidance of doubt, if Market Quotation is the
applicable payment measure for purposes of Section 6(e), then the Market
Quotation determined under Section 6(e) in relation to the Transaction
constituted by this Annex will be deemed to be zero, and if Loss is the
applicable payment measure for purposes of Section 6(e), then the Loss
determined under Section 6(e) in relation to the Transaction will be limited
to the Unpaid Amount representing the Value of the Credit Support Balance.
Paragraph 7. Representation
Each party represents to the other party (which representation will be deemed
to be repeated as of each date on which it transfers Eligible Credit Support,
Equivalent Credit Support or Equivalent Distributions) that is the sole owner
of or otherwise has the right to transfer all Eligible Credit Support,
Equivalent Credit Support or Equivalent Distributions it transfers to the
other party under this Annex, free and clear of any security interest, lien
encumbrance or other restriction (other than lien routinely imposed on all
securities in a relevant clearance system).
Paragraph 8. Expenses
Each party will pay its own costs and expenses (including any stamp, transfer,
or similar transaction tax or duty payable on any transfer it is required to
make under this Annex) in connection with performing its obligations under
this Annex, and neither party will be liable for any such costs and expenses
incurred by the other party.
Paragraph 9. Miscellaneous
(a) Default Interest. Other than in the case of an amount which is the subject
of dispute under Paragraph 4(a), if a Transferee fails to make, when due, any
transfer of Equivalent Credit Support, Equivalent Distributions or the
Interest Amount, it will be obliged to pay the Transferor (to the extent
permitted under applicable law) an amount equal to interest at the Default
Rate multiplied by the Value on the relevant Valuation Date of the items of
property that were required to be transferred, from (and including) the date
that the Equivalent Credit Support, Equivalent Distributions or Interest
Amount were required to be transferred to (but excluding) the date of transfer
of the Equivalent Credit Support, Equivalent Distributions or Interest Amount.
This interest will be calculated on the basis of daily compounding and the
actual number of days elapsed.
(b) Good Faith and Commercially Reasonable Manner. Performance of all
obligations under this Annex, including, but not limited to, all calculations,
valuations and determinations made by either party, will be made in good faith
and in a commercially reasonable manner.
(c) Demands and Notices. All demands and notices given by a party under this
Annex will be given as specified in Section 12 of this Agreement.
(d) Specifications of Certain Matters. Anything referred to in this Annex as
being specified in Paragraph 11 also may be specified in one or more
Confirmations or other documents and this Annex will be construed accordingly.
Paragraph 10. Definitions
As used in this Annex:
"Base Currency" means the currency specified as such in Paragraph 11(a)(i).
"Base Currency Equivalent" means, with respect to an amount on a Valuation
Date, in the case of an amount denominated in the Base Currency, such Base
Currency and, in the case of an amount denominated in a currency other than
the Base Currency (the "Other Currency"), the amount of Base Currency required
to purchase such amount of the Other Currency at the spot exchange rate
determined by the Valuation Agent for value on such Valuation Date.
"Credit Support Amount" means, with respect to a Transferor on a Valuation
Date, (i) the Transferee's Exposure plus (ii) all Independent Amounts
applicable to the Transferor, if any, minus (iii) all Independent Amounts
applicable to the Transferee, if any, minus (iv) the Transferor's Threshold;
provided, however, that the Credit Support Amount will be deemed to be zero
whenever the calculation of Credit Support Amount yields a number less than
zero.
"Credit Support Balance" means, with respect to a Transferor on a Valuation
Date, the aggregate of all Eligible Credit Support that has been transferred
to or received by the Transferee under this Annex, together with any
Distributions and all proceeds of any such Eligible Credit Support or
Distributions, as reduced pursuant to Paragraph 2(b), 3(c)(ii) or 6. Any
Equivalent Distributions or Interest Amount (or portion of either) not
transferred pursuant to Paragraph 5(c)(i) or (ii) will form part of the Credit
Support Balance.
"Delivery Amount" has the meaning specified in Paragraph 2(a).
"Disputing Party" has the meaning specified in Paragraph 4.
"Distributions" means, with respect to any Eligible Credit Support comprised
in the Credit Support Balance consisting of securities, all principal,
interest and other payments and distributions of cash or other property to
which a holder of securities of the same type, nominal value, description and
amount as such Eligible Credit Support would be entitled from time to time.
"Distribution Date" means, with respect to any Eligible Credit Support
comprised in the Credit Support Balance other than cash, each date on which a
holder of such Eligible Credit Support is entitled to receive Distributions
or, if that date is not a Local Business Day, the next following Local
Business Day.
"Eligible Credit Support" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 11(b)(ii) including, in relation
to any securities, if applicable, the proceeds of any redemption in whole or
in party of such securities by the relevant issuer.
"Eligible Currency" means each currency specified as such in Paragraph
11(a)(ii), if such currency is freely available.
"Equivalent Credit Support" means, in relation to any Eligible Credit Support
comprised in the Credit Support Balance, Eligible Credit Support of the same
type, nominal value, description and amount as that Eligible Credit Support.
"Equivalent Distributions" has the meaning specified in Paragraph 5(c)(i).
"Exchange Date" has the meaning specified in Paragraph 11(d).
"Exposure" means, with respect to a party on a Valuation Date and subject to
Paragraph 4 in the case of a dispute, the amount, if any, that would be
payable to that party by the other party (expressed as a positive number) or
by that party to the other party (expressed as a negative number) pursuant to
Section 6(e)(ii)(1) of this Agreement if all Transactions (other than the
Transaction constituted by this Annex) were being terminated as of the
relevant Valuation Time, on the basis that (i) that party is not the Affected
Party and (ii) the Base Currency is the Termination Currency; provided that
Market Quotations will be determined by the Valuation Agent on behalf of that
party using its estimates at mid-market of the amounts that would be paid for
Replacement Transactions (as that term is defined in the definition of "Market
Quotation").
"Independent Amount" means, with respect to a party, the Base Currency
Equivalent of the amount specified as such for that party in Paragraph
11(b)(iii)(A); if not amount is specified, zero.
"Interest Amount" means, with respect to an Interest Period, the aggregate sum
of the Base Currency Equivalents of the amounts of interest determined for
each relevant currency and calculated for each day in that Interest Period on
the principal amount of the portion of the Credit Support Balance comprised of
cash in such currency, determined by the Valuation Agent for each such day as
follows:
(x) the amount of cash in such currency on that day; multiplied by
(y) the relevant Interest Rate in effect for that day; divided by
(z) 360 (or, in the case of pounds sterling, 365).
"Interest Period" means the period from (and including) the last Local
Business Day on which an Interest Amount was transferred (or, if no Interest
Amount has yet been transferred, the Local Business Day on which Eligible
Credit Support or Equivalent Credit Support in the form of cash was
transferred to or received by the Transferee) to (but excluding) the Local
Business Day on which the current Interest Amount is transferred.
"Interest Rate" means with respect to an Eligible Currency, the rate specified
in Paragraph 11(f)(i) for that currency.
"Local Business Day" , unless otherwise specified in Paragraph 11(h), means:
(i) in relation to a transfer of cash or other property (other than
securities) under this Annex, a day on which commercial banks are open
for business (including dealings in foreign exchange and foreign
currency deposits) in the place where the relevant account is located
and, if different, in the principal financial centre, if any, of the
currency of such payment;
(ii) in relation to a transfer of securities under this Annex, a day on
which the clearance system agreed between the parties for delivery of
the securities is open for the acceptance and execution of settlement
instructions or, if delivery of the securities is contemplated by other
means, a day on which commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in the
place(s) agreed between the parties for this purpose.
(iii) in relation to a valuation under this Annex, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in the place of location of the
Valuation Agent and in the place(s) agreed between the parties for this
purpose; and
(iv) in relation to any notice or other communication under this Annex,
a day on which commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in the place
specified in the address for notice most recently provided by the
recipient.
"Minimum Transfer Amount" means, with respect to a party, the amount specified
as such for that party in Paragraph 11(b)(iii)(C); if no amount is specified,
zero.
"New Credit Support" has the meaning specified in Paragraph 3(c)(i).
"Notification Time" has the meaning specified in Paragraph 11(c)(iv).
"Recalculation Date" means the Valuation Date that gives rise to the dispute
under Paragraph 4; provided however, that if a subsequent Valuation Date
occurs under Paragraph 2 prior to the resolution of the dispute, then the
"Recalculation Date" means the most recent Valuation Date under Paragraph 2.
"Resolution Time" has the meaning specified in Paragraph 11(c)(i).
"Return Amount" has the meaning specified in Paragraph 2(b).
"Settlement Day" means, in relation to a date, (i) with respect to a transfer
of cash or other property (other than securities), the next Local Business Day
and (ii) with respect to a transfer of securities, the first Local Business
Day after such date on which settlement of a trade in the relevant securities,
if effected on such date, would have been settled in accordance with customary
practice when settling through the clearance system agreed between the parties
for delivery of such securities or, otherwise, on the market in which such
securities are principally traded (or, in either case, if there is no such
customary practice, on the first Local Business Day after such date on which
it is reasonably practicable to deliver such securities).
"Threshold" means, with respect to a party, the Base Currency Equivalent of
the amount specified as such for that party in Paragraph 11(b)(iii)(B); if no
amount is specified, zero.
"Transferee" means, in relation to each Valuation Date, the party in respect
of which Exposure is a positive number and, in relation to a Credit Support
Balance, the party which, subject to this Annex, owes such Credit Support
Balance or, as the case may be, the Value of such Credit Support Balance to
the other party.
"Transferor" means, in relation to a Transferee, the other party.
"Valuation Agent" has the meaning specified in Paragraph 11(c)(i).
"Valuation Date" means each date specified in or otherwise determined pursuant
to Paragraph 11(c)(ii).
"Valuation Percentage" means, for any item of Eligible Credit Support, the
percentage specified in Paragraph 11(b)(ii).
"Valuation Time" has the meaning specified in Paragraph 11(c)(iii).
"Value" means, for any Valuation Date or other date for which Value is
calculated, and subject to Paragraph 4 in the case of a dispute, with respect
to:
(i) Eligible Credit Support comprised in a Credit Support Balance that
is:
(A) an amount of cash, the Base Currency Equivalent of such amount
multiplied by the applicable Valuation Percentage, if any; and
(B) a security, the Base Currency Equivalent of the bid price
obtained by the Valuation Agent multiplied by the applicable
Valuation Percentage, if any; and
(ii) items that are comprised in a Credit Support Balance and are not
Eligible Credit Support, zero.
Deutsche Bank AG/Granite Master Issuer plc
Cross Currency/Interest Rate Paragraph 11 to the English law CSA
Agreed Form Version: 23.05.06
Agreed Form Paragraph 11
CREDIT SUPPORT ANNEX
Elections and Variables dated as of the Effective Date
specified in the Confirmation
Between
Deutsche Bank AG, London Branch
("Party A")
and
Granite Master Issuer plc
("Party B")
Paragraph 11. Elections and Variables
(a) Base Currency and Eligible Currency.
(i) "Base Currency" means Pounds Sterling.
(ii) "Eligible Currency" means the Base Currency and each other
currency specified here: Euro and US Dollars.
It is agreed by the parties that where the Credit Support Amount is
transferred in a currency other than the Base Currency, the Valuation
Percentage specified in Paragraph 11(b)(ii) shall be reduced by a
percentage agreed by the parties and approved by the relevant rating
agency ("Additional Valuation Percentage"), in respect of Moody's such
Additional Valuation Percentage being 6% or such lower percentage as
agreed by the parties and approved by the relevant rating agency. For
the purpose of this Annex, references to the "relevant rating agency"
shall mean the rating agency whose Ratings Criteria will be used to
determine the amount of Eligible Credit Support that Party A is required
to transfer to Party B following a credit ratings downgrade of Party A.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph
2(a), except that the words, "upon a demand made by the
Transferee" shall be deleted and the word "that" on the
second line of Paragraph 2(a) shall be replaced with the
word "a".
(B) "Return Amount" has the meaning as specified in Paragraph
2(b).
(C) "Credit Support Amount" has the meaning specified under the
relevant definition of Ratings Criteria. In circumstances
where more than one of the Ratings Criteria apply to Party
A, the Credit Support Amount shall be calculated by
reference to the Ratings Criteria which would result in
Party A transferring the greatest amount of Eligible Credit
Support. Under no circumstances will Party A be required to
transfer more Eligible Credit Support than the greatest
amount calculated in accordance with the Ratings Criteria
set out below.
11
(ii) Eligible Credit Support. On any date, the following items will
qualify as "Eligible Credit Support" for each party:
- -------------------------------------------------------------------------------
Valuation
Percentage
- -------------------------------------------------------------------------------
(A) cash in an Eligible Currency 100%
- -------------------------------------------------------------------------------
(B) negotiable debt obligations For the
issued after 18 July 1984 by the purposes of
U.S. Treasury Department having a Moody's, 99%;
residual maturity on such date of for the
less than 1 year (with local and purposes of
foreign currency issuer ratings of Fitch, the
Aa2 or above) Advanced Rate,
if applicable
(the "Advanced
Rate") under
the heading
"Notes
Rating/AAA" in
the table
entitled
"Advanced
Rates (%)" in
Appendix 3 to
Fitch's
Structured
Finance Report
entitled
"Counterparty
Risk in
Structured
Finance
Transactions:
Swap Criteria"
dated 13
September 2004
(the "Fitch
Report" as
modified,
updated or
replaced from
time to time).
- -------------------------------------------------------------------------------
(C) negotiable debt obligations issued For the
after 18 July 1984 by the U.S. purposes of
Treasury Department having a Moody's, 97%;
residual maturity on such date for the
equal to or greater than 1 year purposes of
but less than 5 years (with local Fitch, the
and foreign currency issuer Advanced Rate,
ratings of Aa2 or above) if applicable.
- -------------------------------------------------------------------------------
(D) negotiable debt obligations issued For the
after 18 July 1984 by the U.S. purposes of
Treasury Department having a Moody's, 95%;
residual maturity on such date for the
equal to or greater than 5 years purposes of
but less than 10 years (with local Fitch, the
and foreign currency issuer Advanced Rate,
ratings of Aa2 or above) if applicable.
- -------------------------------------------------------------------------------
(E) negotiable debt obligations of the For the
Federal Republic of Germany (with purposes of
local and foreign currency issuer Moody's, 95%;
ratings of Aa2 or above) with a for the
residual maturity of less than 10 purposes of
years at the date of their Fitch, the
transfer to the Secured Party. Advanced Rate,
if applicable.
- -------------------------------------------------------------------------------
(F) negotiable debt obligations of the For the
Republic of France(with local and purposes of
foreign currency issuer ratings of Moody's, 95%;
Aa2 or above) with a residual for the
maturity of less than 10 years at purposes of
the date of their transfer to the Fitch, the
Secured Party. Advanced Rate,
if applicable.
- -------------------------------------------------------------------------------
(G) negotiable debt obligations of For the
Belgium (with local and foreign purposes of
currency issuer ratings of Aa2 or Moody's, 95%;
above) with a residual maturity of for the
less than 10 years at the date of purposes of
their transfer to the Secured Fitch, the
Party. Advanced Rate,
if applicable.
- -------------------------------------------------------------------------------
11
- -------------------------------------------------------------------------------
(H) negotiable debt obligations of the For the
United Kingdom (with local and purposes of
foreign currency issuer ratings of Moody's, 95%;
Aa2 or above) with a residual for the
maturity of less than 10 years at purposes of
the date of their transfer to the Fitch, the
Secured Party Advanced Rate,
if applicable.
- -------------------------------------------------------------------------------
(I) negotiable debt obligations of For the
Switzerland (with local and purposes of
foreign currency issuer ratings of Moody's, 95%;
Aa2 or above) with a residual for the
maturity of less than 10 years at purposes of
the date of their transfer to the Fitch, the
Secured Party. Advanced Rate,
if applicable.
- -------------------------------------------------------------------------------
(J) negotiable debt obligations of For the
Italy (with local and foreign purposes of
currency issuer ratings of Aa2 or Moody's, 95%;
above) with a residual maturity of for the
less than 10 years at the date of purposes of
their transfer to the Secured Fitch, the
Party. Advanced Rate,
if applicable.
- -------------------------------------------------------------------------------
(K) negotiable debt obligations of the For the
Netherlands (with local and purposes of
foreign currency issuer ratings of Moody's, 95%;
Aa2 or above) with a residual for the
maturity of less than 10 years at purposes of
the date of their transfer to the Fitch, the
Secured Party. Advanced Rate,
if applicable.
- -------------------------------------------------------------------------------
(L) negotiable debt obligations of the For the
US Government National Mortgage purposes of
Association, the US Federal Moody's, 95%
National Mortgage Association, the (or as
US Federal Home Loan Mortgage otherwise
Corporation, the US Student Loans determined by
Marketing Association or a US Moody's); for
Federal Home Loan Bank (all the purposes
entities rated Aa1 or above) with of Fitch, the
a residual maturity on such date Advanced Rate,
equal to or greater than 1 year if applicable.
but less than 3 years.
- -------------------------------------------------------------------------------
(M) negotiable debt obligations of the For the
US Government National Mortgage purposes of
Association, the US Federal Moody's, 90%
National Mortgage Association, the (or as
US Federal Home Loan Mortgage otherwise
Corporation, the US Student Loans determined by
Marketing Association or a US Moody's); for
Federal Home Loan Bank (all the purposes
entities rated Aa1 or above) with of Fitch, the
a residual maturity on such date Advanced Rate,
equal to or greater than 3 years if applicable.
but less than 5 years.
- -------------------------------------------------------------------------------
(N) negotiable debt obligations of the For the
US Government National Mortgage purposes of
Association, the US Federal Moody's, 87%
National Mortgage Association, the (or as
US Federal Home Loan Mortgage otherwise
Corporation, the US Student Loans determined by
Marketing Association or a US Moody's); for
Federal Home Loan Bank (all the purposes
entities rated Aa1 or above) with of Fitch, the
a residual maturity on such date Advanced Rate,
equal to or greater than 5 years if applicable.
but less than 7 years.
- -------------------------------------------------------------------------------
(O) negotiable debt obligations of the For the
US Government National Mortgage purposes of
Association, the US Federal Moody's, 83%
National Mortgage Association, the (or as
US Federal Home Loan Mortgage otherwise
Corporation, the US Student Loans determined by
Marketing Association or a US Moody's); for
Federal Home Loan Bank (all the purposes
entities rated Aa1 or above) with of Fitch, the
a residual maturity on such date Advanced Rate,
equal to or greater than 7 years if applicable.
but less than 10 years.
- -------------------------------------------------------------------------------
Where negotiable debt obligations are rated by only one of the above relevant
rating agencies, the rating applied will be based on the rating of that
agency.
Where the ratings and/or the Valuation Percentages of the relevant rating
agencies differ with respect to the same negotiable debt obligation, for the
purposes of B to O
12
above, the lower of the ratings and or Valuation Percentages, as
the case may be, shall apply.
(iii) Thresholds.
(A) "Independent Amount" means, for Party A and Party B, with
respect to each Transaction, zero.
(B) "Threshold" means, for Party A: infinity, unless either: (A)
(i) an Initial Moody's Note Downgrade Event and/or an
Initial Fitch Note Downgrade Event has occurred AND (ii)
Party A has not otherwise complied with Part 5(1)(i)(A), (B)
or (C) and/or Part 5(m)(i)(B), (C) or (D), respectively, of
the Agreement, OR (B) (i) a Subsequent Moody's Note
Downgrade Event and/or a First Subsequent Fitch Note
Downgrade Event and/or a Second Subsequent Fitch Note
Downgrade Event has occurred AND (ii) Party A has not
otherwise complied with Part 5(1)(ii)(A), (B) or (C) and/or
Part 5 (m)(ii)(B), (C) or (D) or Part 5(m)(iii)(A), (B) or
(C) respectively, of the Agreement,
then its Threshold shall be zero,
"Threshold" means, for Party B: infinity
(C) "Minimum Transfer Amount" means, with respect to Party A and
Party B, GBP10,000; provided, that if (1) an Event of
Default has occurred and is continuing with respect to Party
A, or (2) an Additional Termination Event has occurred in
respect of which Party A is an Affected Party, the Minimum
Transfer Amount with respect to Party A shall be zero.
(D) "Rounding". The Delivery Amount and the Return Amount will
be rounded up and down to the nearest integral multiple of
GBP10,000 respectively, subject to the maximum Return Amount
being equal to the Credit Support Balance.
(c) Valuation and Timing.
(i) "Valuation Agent" means, Party A in all circumstances.
(ii) "Valuation Date" means the first Business Day of each calendar
week; provided that if such day is not a Local Business Day then
the Valuation Date shall be the preceding day that is a Local
Business Day.
(iii) "Valuation Time" means the close of business on the Local Business
Day immediately preceding the Valuation Date or date of
calculation, as applicable; provided that the calculations of
Value and Exposure will be made as approximately the same time on
the same date.
(iv) "Notification Time" means by 5.00p.m., London time, on a Local
Business Day.
(d) Exchange Date. "Exchange Date" has the meaning specified in paragraph
3(c)(ii).
(e) Dispute Resolution.
(i) "Resolution Time" means 1.00 p.m., London time, on the Local
Business Day following the date on which notice is given that
gives rise to a dispute under Paragraph 4.
13
(ii) "Value". For the purpose of Paragraph 4(a)(4)(i)(C) and
4(a)(4)(ii), the Value of the outstanding Credit Support Balance
or of any transfer of Eligible Credit Support or Equivalent Credit
Support, as the case may be, will be calculated as follows:
(A) For Eligible Credit Support comprised in a Credit Support
Balance that is an amount of cash, the Base Currency
Equivalent of such amount; and
(B) with respect to any Eligible Credit Support or Equivalent
Credit Support comprising securities ("Securities") the Base
Currency Equivalent of the sum of (a) (x) the close of
business bid price on such date for such Securities on the
principal national securities exchange on which such
Securities are listed, multiplied by the applicable
Valuation Percentage; or (y) an amount equal to the average
of the bid price quotes provided on such date by two or more
recognised dealers, selected in good faith by the Valuation
Agent, or if no such quotes are available on such date, the
average of the bid price quotes as of the next preceding
date on which such quotes were available, multiplied by the
applicable Valuation Percentage; plus (b) the accrued
interest where applicable on such Securities (except to the
extent that such interest shall have been paid to the
Transferor pursuant to Paragraph 5(c)(ii) or included in the
applicable price referred to in subparagraph (a) above) as
of such date;
(iii) "Alternative". The provisions of Paragraph 4 will apply.
(f) Distribution and Interest Amount.
(i) Interest Rate. The "Interest Rate" will be with respect to the
Base Currency, such rate as may be agreed between the parties from
time to time, and subject to confirmation from Moody's that it
shall not affect the then current ratings of the relevant Series
of Notes. In the event that the parties agree that Eligible Credit
Support may include currencies other than the Base Currency, the
"Interest Rate" with respect to each such currency shall be such
rate as may be agreed between the parties at the time that it is
agreed that Eligible Credit Support may include such currency and
subject to confirmation from Moody's that it shall not effect the
then current ratings of the relevant Series of Notes.
(ii) "Transfer of Interest Amount". The transfer of the Interest Amount
will be made on the first Local Business Day following the end of
each calendar month to the extent that Party B has earned and
received such amount of interest and that a Delivery Amount would
not be created or increased by that transfer, and on any other
Local Business Day on which Equivalent Credit Support is
transferred to the Transferor pursuant to Paragraph 2(b), provided
that Party B shall only be obliged to transfer any Interest Amount
to Party A to the extent that it has received such amount.
(iii) "Alternative to Interest Amount". The provisions of Paragraph
5(c)(ii) will apply. For the purposes of calculating the Interest
Amount the amount of interest calculated for each day of the
Interest Period shall, with respect to any Eligible Currency, be
compounded daily.
(iv) Interest Amount"
The definition of "Interest Amount" shall be deleted and replaced with
the following:
"Interest Amount" means, with respect to an Interest Period and
each portion of the Credit Support Balance comprised of cash in an
Eligible
14
Currency, the sum of the amounts of interest determined for each
day in that Interest Period by the Valuation Agent as follows:
(x) the amount of such currency comprised in the Credit Support
Balance at the close of business for general dealings in the
relevant currency on such day (or, if such day is not a Local
Business Day, on the immediately preceding Local Business Day);
multiplied by
(y) the relevant Interest Rate; divided by
(z) 360 (or in the case of Sterling 365).
(v) "Distributions" means, with respect to any Eligible Credit Support
comprised in the Credit Support Balance consisting of securities,
all principal, interest and other payments and distributions of
cash or other property to which a holder of securities of the same
type, nominal value, description and amount as such Eligible
Credit Support would have received from time to time.
(vi) "Distribution Date" means, with respect to any Eligible Credit
Support comprised in the Credit Support Balance other than cash,
each date on which a holder of such Eligible Credit Support would
have received Distributions or, if that date is not a Local
Business Day, the next following Local Business Day.
(g) Addresses for Transfers.
Party A: To be advised. Details to be obtained from: Deutsche Bank AG
London, Floor 14, 6/8 Bishopsgate, London EC2N 4DA
Party B: Details to be obtained from: To be advised by Party B
Collateral calls / queries should be addressed to:
To be advised by Party B
(h) Other Provisions.
(i) Transfer Timing
1) The final paragraph of Paragraph 3(a) shall be deleted and
replaced with the following:
"Subject to Paragraph 4, and unless otherwise specified, any
transfer of Eligible Credit Support or Equivalent Credit Support
(whether by the Transferor pursuant to Paragraph 2(a) or by the
Transferee pursuant to Paragraph 2(b)) shall be made not later
than the close of business on the Settlement Day."
2) The definition of Settlement Day shall be deleted and replaced
with the following:
"Settlement Day" means the next Local Business Day after the
Demand Date
3) For the purposes of this Paragraph 11(h)(i):
"Demand Date" means, with respect to a transfer by a party.
15
(i) in the case of a transfer pursuant to Paragraph 2, Paragraph 3
or Paragraph 4(a)(2), the relevant Valuation Date. For the
avoidance of doubt, for the purposes of Paragraph 2 and Paragraph
4(a)(2), the Transferor will be deemed to receive notice of the
demand by the Transferee to make a transfer of Eligible Credit
Support; and
(ii) in the case of a transfer pursuant to Paragraph 3(c)(ii)(A),
the date on which the Transferee has given its consent to the
proposed exchange.
for the avoidance of doubt, on each Demand Date the Transferor
shall deliver to the Transferee and the Trustee a statement
showing the amount of Eligible Credit Support to be delivered.
(ii) Costs of Transfer on Exchange
Notwithstanding Paragraph 8, the Transferor will be responsible
for, and will reimburse the Transferee for, all transfer and other
taxes and other costs in connection with performing both its and
the Transferee's obligations under this Annex, which are in
relation to the transfer of Eligible Credit Support or Equivalent
Credit Support either from the Transferor to the Transferee or
from the Transferee to the Transferor hereto.
(iii) Cumulative Rights
The rights, powers and remedies of the Transferee under this Annex
shall be in addition to all rights, powers and remedies given to
the Transferee by this Agreement or by virtue of any statute or
rule of law, all of which rights, powers and remedies shall be
cumulative and may be exercised successively or concurrently
without impairing the rights of the Transferee in the Credit
Support Balance created pursuant to this Annex.
(iv) Single Transferor and Single Transferee
Party A and Party B agree that, notwithstanding anything to the
contrary in this Annex, (including, without limitation, the
recital hereto, Paragraph 2 or the definitions in Paragraph 10),
(a) the term "Transferee" as used in this Annex means only Party
B, (b) the term "Transferor" as used in this Annex means only
Party A, (c) only Party A will be required to make Transfers of
Eligible Credit Support hereunder and, for the avoidance of Party
B shall have no obligation to make transfer of any Delivery
Amounts to Party A pursuant to the terms of this Annex; and (d) in
the calculation of any Credit Support Amount, where the
Transferee's Exposure would be expressed as a negative number,
such Exposure shall be deemed to be zero.
(v) Ratings Criteria
"Ratings Criteria" means, the criteria used by Moody's ("Moody's
Criteria") and the criteria used by Fitch (as set out in the Fitch
Report) ("Fitch Criteria") for the purposes of determining the
amount of Eligible Credit Support Party A is required to transfer
hereunder following a credit ratings downgrade where Party A has
opted to transfer Eligible Credit Support in support of its
obligations under this Agreement pursuant to Part 5(l) and/or Part
5(m) of this Agreement.
16
Moody's Criteria
"Credit Support Amount" shall be calculated in accordance with the
meaning specified in Paragraph 10 provided however that the words
"plus the Additional Collateral Amount" shall be added after the
words "Transferee's Exposure" in the second line thereof. For such
purposes "Additional Collateral Amount" means, with respect to a
Valuation Date the sum of (i) the Transferee's Exposure multiplied
by A and (ii) the product of B multiplied by the sum of the
Notional Amount(s) as defined in the Confirmation for each
outstanding Transaction under this Agreement, where :
1. "A" means 2% and "B" means 1.6% if the long-term, unsecured and
unsubordinated debt obligations or the short-term, unsecured and
unsubordinated debt obligation of Party A (or its successor) and,
if relevant, any Credit Support Provider of Party A cease to be
rated as high as "A1" or cease to be rated as high as "Prime-1" by
Moody's; or
2. "A" shall be equal to or greater than 2% (as determined by
Moody's) and "B" means 2.6% if the long-term, unsecured and
unsubordinated debt obligations or the short-term, unsecured and
unsubordinated debt obligation of Party A (or its successor) and,
if relevant, any Credit Support Provider of Party A cease to be
rated as high as "A3" or cease to be rated as high as "Prime-2" by
Moody's.
Fitch Criteria
"Credit Support Amount" shall mean at any time for the purposes of
the Fitch Criteria with respect to a Transferor on a Valuation
Date the result of the following formula:
max [MV plus VC x 105 per cent multiplied by N; 0]
where:
"max" means maximum;
"MV" means the Transferee's Exposure;
"VC" means the applicable volatility cushion at that time
determined by reference to the table headed "Volatility Cushion
(%)" appearing at the end of Appendix 2 to the Fitch Criteria (and
for such purpose calculating the relevant Weighted Average Life
assuming a zero prepayment rate and zero default rate in relation
to the mortgages beneficially owned by Party B), if applicable;
and
"N" means the Transaction Notional Amount at that time.
"Remaining Average Life" means the remaining average life of a
swap as a number of years (expressed to two decimal places), and
is based on an amortization schedule that is calculated using
expected prepayment rates and which does not take into account any
potential cancellation option exercise or early terminations of
such swap.
(vi) Calculations.
Paragraph 3(b) of this Annex shall be amended by inserting the
words "and shall provide each party (or the other party, if the
Valuation Agent is a party) with a
17
description in reasonable detail of how such calculations were
made, upon request" after the word "calculations" in the third
line thereof.
(vii) Independent Party.
If Party A is at any time rated below A1 or Prime-1 by Moody's,
Party A shall (i) on a weekly basis (on the same date that the
Valuation Agent makes its Calculation), obtain a Calculation from
a party which is independent to Party A's trading desk (or the
equivalent) (for example the middle office or market risk
department of Party A, Party A's auditors or a consulting firm in
derivative products appointed by Party A) to validate the
calculation of any Calculation by Party A's trading desk (or the
equivalent); and (ii) upon the written request of Moody's, on a
monthly basis, use it's best efforts to seek two quotations from
Reference Market-makers; provided that if 2 Reference
Market-makers are not available to provide a quotation, then fewer
than 2 Reference Market-makers may be used for such purpose, and
if no Reference Market-makers are available, the Trustee will
determine an alternative source, for the purpose of Calculations.
Where more than one quotation is obtained, the quotation
representing the greatest amount of Exposure shall be used by the
Valuation Agent."
(viii) Implementation of Credit Support Annex.
Notwithstanding anything to the contrary in this Agreement and for
the avoidance of doubt, Party A's obligation to transfer Eligible
Credit Support pursuant to the terms of this Credit Support Annex
will be subject to the provisions of Part 5(l) and 5(m) of the
Schedule to this Agreement.
(ix) Definitions.
As used in this Annex, the following terms shall mean:
"Fitch" means Fitch Ratings Ltd and includes any successors
thereto;
"Moody's" means Moody's Investors Service Limited and includes any
successors thereto; and
"Rating Agencies" means Moody's and Fitch.
18
Cross-Currency Confirmation for Series 2006-02 (Class A1 Notes)
EXECUTION VERSION
From: Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
Attention: OTC Derivative Operations Division
To: Granite Master Issuer plc
Fifth Floor
100 Wood Street
London
EC2V 7EX
Attention: Securitisation Team, Risk Operations
Summit Ref: 1492431M
24 May 2006
Dear Sirs,
Re: Cross Currency Swap Transaction relating to the Issuer Notes
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the "Transaction").
It is agreed that upon the execution of this Confirmation, we shall be deemed
to have entered into an agreement relating to the Issuer Notes on the terms of
the Agreed Form Agreement (the "Agreement") dated as of the Effective Date
specified below.
"Agreed Form Agreement" means the form of 1992 ISDA Master Agreement
(Multicurrency Cross Border) (including the Schedule thereto and the ISDA
Credit Support Annex (Bilateral Form - Transfer) forming part of the Schedule)
signed for the purposes of identification by Sidley Austin and Deutsche Bank
AG, London Branch on 23 May 2006.
This Confirmation constitutes a "Confirmation" as referred to in, and
supplements, forms part of and is subject to, the Agreement. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified herein.
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern. References herein to a "Transaction" shall be deemed to be
references to a "Swap Transaction" for the purposes of the Definitions. Any
terms not otherwise defined herein or in the Definitions shall have the
meanings given to them in the Programme Master Definitions Schedule signed for
the purposes of identification by Sidley Austin Brown & Wood (now known as
Sidley Austin) and Allen & Overy LLP on
19 January 2005 (as the same may be amended, restated, varied or supplemented
from time to time with the consent of the parties hereto), and the Issuer
Master Definitions Schedule signed for the purposes of identification by
Sidley Austin Brown & Wood (now known as Sidley Austin) and Allen & Overy LLP
on 19 January 2005 (as the same may be amended, restated, varied or
supplemented from time to time with the consent of the parties hereto). The
Issuer Master Definitions Schedule shall prevail to the extent that it
conflicts with the Master Definitions Schedule.
In this Confirmation:
"Conditions" means the terms and conditions of the Issuer Notes, as set out in
the Base Prospectus dated 11 May 2006 and the Final Terms dated 18 May 2006
(as each may be amended, restated, varied, supplemented and/or otherwise
modified from time to time in accordance with the provisions of the Issuer
Trust Deed), and any reference to a numbered Condition shall be construed
accordingly; and
"Issuer Notes" means the Granite Master Issuer plc USD 810,000,000 Series
2006-2 Class A1 Notes due April 2031.
1 The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Party A: Deutsche Bank AG, London Branch.
Party B: Granite Master Issuer plc.
Trade Date: 16 May 2006.
Effective Date: 24 May 2006.
Termination Date: The Floating Rate Payer I
Payment Date falling in April
2031.
Exchange Rate: GBP 1.00: USD 1.88
A. Floating Payments
Floating Amounts I:
Floating Rate Payer I: Party A.
Floating Rate Payer I On any Floating Rate Payer I
Currency Amount: Payment Date, USD 810,000,000
less the aggregate of the
Floating Rate Payer I Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer I Each Note Payment Date (as
Payment Dates: defined in the Conditions).
2
Floating Rate Payer I LIBOR (as defined in the
Floating Rate Option: Conditions).
Floating Rate Payer I 1 month; except in respect of
Designated Maturity: the initial Calculation Period
for which Linear Interpolation
is applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 2 week and 1 month
rates.
Floating Rate Payer I Spread: 0.01 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.02 per cent. per
annum.
Floating Rate Payer I Actual/360.
Floating Rate Day Count
Fraction:
Floating Rate Payer I The first day of each
Reset Dates: Calculation Period.
Floating Amounts II:
Floating Rate Payer II: Party B.
Floating Rate Payer II On any Floating Rate Payer II
Currency Amount: Payment Date, GBP 430,851,064
less the aggregate of the
Floating Rate Payer II Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer II The 20th day of each calendar
Payment Dates: month in each year during the
Term from, and including, June
2006 to, but excluding, the
Termination Date, subject to
adjustment in accordance with
the Following Business Day
Convention and the Termination
Date.
Floating Rate Payer II GBP-LIBOR-BBA.
Floating Rate Option:
Floating Rate Payer II 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which Linear Interpolation
is applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
3
rates; or 1 month, following
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer II Spread: -0.0117 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.1266 per cent. per
annum.
Floating Rate Payer II Actual/365 (Fixed).
Floating Rate Day Count
Fraction:
Floating Rate Payer II The first day of each
Reset Dates: Calculation Period; provided
however, that in respect of
every Floating Rate Payer II
Calculation Period (other than
the first Calculation Period
and any Calculation Period
following the occurrence of a
Pass-Through Trigger Event or
Step-Up Date) that does not
start on a Note Payment Date
(as defined in the Issuer
Notes), the Floating Rate in
effect for such Calculation
Period shall be the Floating
Rate for the immediately
preceding Floating Rate Payer
II Calculation Period.
Calculation Agent: Party A.
Business Days: London and New York.
B. Initial Exchange:
Initial Exchange Date: Effective Date.
Party A Initial Exchange Amount: GBP 430,851,064.
Party B Initial Exchange Amount: USD 810,000,000
C. Interim Exchange:
Interim Exchange Dates: Each Note Payment Date (as
defined in the Conditions) on
which a USD Amortisation Amount
is payable.
Floating Rate Payer I In respect of an Interim
Exchange Date, the amount in
USD (if any)
4
Interim Exchange Amount: equal to the principal amount
of the Issuer Notes required to
be so repaid, prepaid or
otherwise redeemed (howsoever
described) in accordance with
the Conditions and as
determined by the Cash Manager
pursuant to the Issuer Cash
Management Agreement; and
notified to the Calculation
Agent by the Issuer Cash
Manager pursuant to the Issuer
Cash Management Agreement (the
"USD Amortisation Amount").
Floating Rate Payer II In respect of any Interim
Interim Exchange Amount: Exchange Date, an amount in GBP
equal to the Floating Rate
Payer I Interim Exchange Amount
converted into GBP at the
Exchange Rate.
D. Final Exchange:
Final Exchange Date: The Termination Date.
Floating Rate Payer I A USD amount equal to the
Final Exchange Amount: Floating Rate Payer II Final
Exchange Amount converted into
USD at the Exchange Rate.
Floating Rate Payer II The Floating Rate Payer II
Final Exchange Amount: Currency Amount.
E. Account Details:
Payments to Floating Rate Payer I:
Account for Payments in USD: Deutsche Bank Trust Co.,
New York
ABA 021 001 033
Account Number: 04-411-739
Swift Code: BKTRUS33
Account for Payments in GBP: Deutsche Bank AG, London
Account Number: Direct Chaps
40-50-81
Swift Code: DEUTGB2L
5
Payments to Floating Rate Payer II:
Account for Payments in USD: Citibank, N.A., New York
SWIFT: CITIUS33
A/C Citibank, N.A., London
A/C No. 10990765
SWIFT: CITIGB2L
for further credit to account:
10860263
Ref: GATS/Granite Master Issuer
plc.
Account for Payments in GBP: Citibank, N.A., London
A/C No. 10860255
Sort Code 18-50-08
Ref: GATS/Granite Master Issuer
plc.
F. Notice Details:
Floating Rate Payer I: Deutsche Bank AG, London Branch
Address: Deutsche Bank AG, Head Office.
Taunusanlage 12
60262 Frankfurt, Germany
Copied to:
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
OTC Derivative Operations
Division
44 207 545 4888
44 20 754 54226
Telex No: 411836 or 416731 or 41233
Attention: Legal Department
Floating Rate Payer II: Granite Master Issuer plc
Address: Fifth Floor
100 Wood Street
London
EC2V 7EX
With a copy to: Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne
NE3 4PL
6
Facsimile Number: +44 (0)191 279 4694
Attention: Andy McLean/Tony Laggan
With a copy to the The Bank of New York
Issuer Security Trustee:
Address: One Canada Square
48th Floor
London
E14 5AL
Facsimile Number: +44 (0)20 7964 6399
G. Offices: The Office of Party A is London.
H. Additional Termination Event:
For the purposes of Section 5(b)(v), the following event shall constitute an
Additional Termination Event:
Party A fails to provide the financial statements with the US Securities and
Exchange Commission ("SEC") as required to be filed by Party B in respect of
Party A pursuant to Regulation AB as promulgated by the SEC. For the purposes
of this Additional Termination Event, Party A shall be the sole Affected
Party.
I. Miscellaneous:
1. It is understood and agreed that in the Schedule to the Agreement:
1.1 The words in the square brackets in the last paragraph of Part 5(f)A
are incorporated into this Confirmation and the square brackets are
accordingly deleted.
1.2 The words in the square brackets in Part 5(h)(iii) falling after the
words "will not then fall due are not incorporated into this
Confirmation and the square brackets and words therein are
accordingly deleted.
1.3 The words in the square brackets at the end of Part 5(h)(v) falling
after the words "of any shortfall" are not incorporated into this
Confirmation and the square brackets and words therein are
accordingly deleted.
Please confirm your agreement to be bound by the terms of the foregoing by
executing a copy of this Confirmation and returning it to us by facsimile.
7
Yours faithfully
Deutsche Bank AG, London Branch
By: /s/ Meghan Wallis
Name: Meghan Wallis
Title: Legal Cousel
By: /s/ Nathan Townsend
Name: Nathan Townsend
Title: Legal Counsel
Confirmed as of the date first written:
Granite Master Issuer plc
By: /s/ Ian Bowden
Name: Ian Bowden
Title: Representing L.D.C. Securitisation Director No. 1 Limited
8
Cross-Currency Confirmation for Series 2006-02 (Class A4 Notes)
EXECUTION VERSION
From: Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
Attention: OTC Derivative Operations Division
To: Granite Master Issuer plc
Fifth Floor
100 Wood Street
London
EC2V 7EX
Attention: Securitisation Team, Risk Operations
Summit Ref: 1492442M
24 May 2006
Dear Sirs,
Re: Cross Currency Swap Transaction relating to the Issuer Notes
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the "Transaction").
It is agreed that upon the execution of this Confirmation, we shall be deemed
to have entered into an agreement relating to the Issuer Notes on the terms of
the Agreed Form Agreement (the "Agreement") dated as of the Effective Date
specified below.
"Agreed Form Agreement" means the form of 1992 ISDA Master Agreement
(Multicurrency Cross Border) (including the Schedule thereto and the ISDA
Credit Support Annex (Bilateral Form - Transfer) forming part of the Schedule)
signed for the purposes of identification by Sidley Austin and Deutsche Bank
AG, London Branch on 23 May 2006.
This Confirmation constitutes a "Confirmation" as referred to in, and
supplements, forms part of and is subject to, the Agreement. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified herein.
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern. References herein to a "Transaction" shall be deemed to be
references to a "Swap Transaction" for the purposes of the Definitions. Any
terms not otherwise defined herein or in the Definitions shall have the
meanings given to them in the Programme Master Definitions Schedule signed for
the purposes of identification by Sidley Austin Brown & Wood (now known as
Sidley Austin) and Allen & Overy LLP on
19 January 2005 (as the same may be amended, restated, varied or supplemented
from time to time with the consent of the parties hereto), and the Issuer
Master Definitions Schedule signed for the purposes of identification by
Sidley Austin Brown & Wood (now known as Sidley Austin) and Allen & Overy LLP
on 19 January 2005 (as the same may be amended, restated, varied or
supplemented from time to time with the consent of the parties hereto). The
Issuer Master Definitions Schedule shall prevail to the extent that it
conflicts with the Master Definitions Schedule.
In this Confirmation:
"Conditions" means the terms and conditions of the Issuer Notes, as set out in
the Base Prospectus dated 11 May 2006 and the Final Terms dated 18 May 2006
(as each may be amended, restated, varied, supplemented and/or otherwise
modified from time to time in accordance with the provisions of the Issuer
Trust Deed), and any reference to a numbered Condition shall be construed
accordingly; and
"Issuer Notes" means the Granite Master Issuer plc USD 1,275,000,000 Series
2006-2 Class A4 Notes due December 2054.
1 The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Party A: Deutsche Bank AG, London Branch.
Party B: Granite Master Issuer plc.
Trade Date: 16 May 2006.
Effective Date: 24 May 2006.
Termination Date: The Floating Rate Payer I
Payment Date falling in
December 2054
Exchange Rate: GBP 1.00: USD 1.88
A. Floating Payments
Floating Amounts I:
Floating Rate Payer I: Party A.
Floating Rate Payer I On any Floating Rate Payer I
Currency Amount: Payment Date, USD 1,275,000,000
less the aggregate of the
Floating Rate Payer I Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer I Each Note Payment Date (as
Payment Dates: defined in the Conditions).
2
Floating Rate Payer I LIBOR (as defined in the
Floating Rate Option: Conditions).
Floating Rate Payer I 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which Linear Interpolation
is applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, in the event
that the frequency of the
Floating Rate Payer I Payment
Dates alter to monthly due to
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer I Spread: 0.04 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.08 per cent. per
annum.
Floating Rate Payer I Actual/360.
Floating Rate Day Count
Fraction:
Floating Rate Payer I The first day of each
Reset Dates: Calculation Period.
Floating Amounts II:
Floating Rate Payer II: Party B.
Floating Rate Payer II On any Floating Rate Payer II
Currency Amount: Payment Date, GBP 678,191,489
less the aggregate of the
Floating Rate Payer II Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer II The 20th day of each calendar
Payment Dates: month in each year during the
Term from, and including, June
2006 to, but excluding, the
Termination Date, subject to
adjustment in accordance with
the Following Business Day
Convention and the Termination
Date.
Floating Rate Payer II GBP-LIBOR-BBA.
Floating Rate Option:
Floating Rate Payer II 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which
3
Linear Interpolation is
applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, following
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer II Spread: 0.0311 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.2122 per cent. per
annum.
Floating Rate Payer II Actual/365 (Fixed).
Floating Rate Day Count
Fraction:
Floating Rate Payer II The first day of each
Reset Dates: Calculation Period; provided
however, that in respect of
every Floating Rate Payer II
Calculation Period (other than
the first Calculation Period
and any Calculation Period
following the occurrence of a
Pass-Through Trigger Event or
Step-Up Date) that does not
start on a Note Payment Date
(as defined in the Issuer
Notes), the Floating Rate in
effect for such Calculation
Period shall be the Floating
Rate for the immediately
preceding Floating Rate Payer
II Calculation Period.
Calculation Agent: Party A.
Business Days: London and New York.
B. Initial Exchange:
Initial Exchange Date: Effective Date.
Party A Initial Exchange Amount: GBP 678,191,489.
Party B Initial Exchange Amount: USD 1,275,000,000
C. Interim Exchange:
Interim Exchange Dates: Each Note Payment Date (as
defined in the Conditions) on
which a USD
4
Amortisation Amount is payable.
Floating Rate Payer I In respect of an Interim
Interim Exchange Amount: Exchange Date, the amount in
USD (if any) equal to the
principal amount of the Issuer
Notes required to be so repaid,
prepaid or otherwise redeemed
(howsoever described) in
accordance with the Conditions
and as determined by the Cash
Manager pursuant to the Issuer
Cash Management Agreement; and
notified to the Calculation
Agent by the Issuer Cash
Manager pursuant to the Issuer
Cash Management Agreement (the
"USD Amortisation Amount").
Floating Rate Payer II In respect of any Interim
Interim Exchange Amount: Exchange Date, an amount in GBP
equal to the Floating Rate
Payer I Interim Exchange Amount
converted into GBP at the
Exchange Rate.
D. Final Exchange:
Final Exchange Date: The Termination Date.
Floating Rate Payer I A USD amount equal to the
Final Exchange Amount: Floating Rate Payer II Final
Exchange Amount converted into
USD at the Exchange Rate.
Floating Rate Payer II The Floating Rate Payer II
Final Exchange Amount: Currency Amount.
E. Account Details:
Payments to Floating Rate Payer I:
Account for Payments in USD: Deutsche Bank Trust Co.,
New York
ABA 021 001 033
Account Number: 04-411-739
Swift Code: BKTRUS33
Account for Payments in GBP: Deutsche Bank AG, London
Account Number: Direct Chaps
40-50-81
5
Swift Code: DEUTGB2L
.
Payments to Floating Rate Payer II:
Account for Payments in USD: Citibank, N.A., New York
SWIFT: CITIUS33
A/C Citibank, N.A., London
A/C No. 10990765
SWIFT: CITIGB2L
for further credit to account:
10860263
Ref: GATS/Granite Master Issuer
plc.
Account for Payments in GBP: Citibank, N.A., London
A/C No. 10860255
Sort Code 18-50-08
Ref: GATS/Granite Master Issuer
plc.
F. Notice Details:
Floating Rate Payer I: Deutsche Bank AG, London Branch
Address: Deutsche Bank AG, Head Office.
Taunusanlage 12
60262 Frankfurt, Germany
Copied to:
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
OTC Derivative Operations
Division
44 207 545 4888
44 20 754 54226
Telex No: 411836 or 416731 or 41233
Attention: Legal Department
Floating Rate Payer II: Granite Master Issuer plc
Address: Fifth Floor
100 Wood Street
London
EC2V 7EX
With a copy to: Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne
6
NE3 4PL
Facsimile Number: +44 (0)191 279 4694
Attention: Andy McLean/Tony Laggan
With a copy to the The Bank of New York
Issuer Security Trustee:
Address: One Canada Square
48th Floor
London
E14 5AL
Facsimile Number: +44 (0)20 7964 6399
G. Offices: The Office of Party A is London.
H. Additional Termination Event:
For the purposes of Section 5(b)(v), the following event shall constitute an
Additional Termination Event:
Party A fails to provide the financial statements with the US Securities and
Exchange Commission ("SEC") as required to be filed by Party B in respect of
Party A pursuant to Regulation AB as promulgated by the SEC. For the purposes
of this Additional Termination Event, Party A shall be the sole Affected
Party.
I. Miscellaneous:
1. It is understood and agreed that in the Schedule to the Agreement:
1.1 The words in the square brackets in the last paragraph of Part 5(f)A are
incorporated into this Confirmation and the square brackets are
accordingly deleted.
1.2 The words in the square brackets in Part 5(h)(iii) falling after the
words "will not then fall due" are not incorporated into this
Confirmation and the square brackets and words therein are accordingly
deleted.
1.3 The words in the square brackets at the end of Part 5(h)(v) falling
after the words "of any shortfall" are not incorporated into this
Confirmation and the square brackets and words therein are accordingly
deleted.
Please confirm your agreement to be bound by the terms of the foregoing by
executing a copy of this Confirmation and returning it to us by facsimile.
7
Yours faithfully
Deutsche Bank AG, London Branch
By: /s/ Meghan Wallis
Name: Meghan Wallis
Title: Legal Counsel
By: /s/ Nathan Townsend
Name: Nathan Townsend
Title: Legal Counsel
Confirmed as of the date first written:
Granite Master Issuer plc
By: /s/ Ian Bowden
Name: Ian Bowden
Title: Representing L.D.C. Securitisation Director No. 1 Limited
8
Cross-Currency Confirmation for Series 2006-02 (Class B1 Notes)
EXECUTION VERSION
From: Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
Attention: OTC Derivative Operations Division
To: Granite Master Issuer plc
Fifth Floor
100 Wood Street
London
EC2V 7EX
Attention: Securitisation Team, Risk Operations
Summit Ref: 1492447M
24 May 2006
Dear Sirs,
Re: Cross Currency Swap Transaction relating to the Issuer Notes
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the "Transaction").
It is agreed that upon the execution of this Confirmation, we shall be deemed
to have entered into an agreement relating to the Issuer Notes on the terms of
the Agreed Form Agreement (the "Agreement") dated as of the Effective Date
specified below.
"Agreed Form Agreement" means the form of 1992 ISDA Master Agreement
(Multicurrency Cross Border) (including the Schedule thereto and the ISDA
Credit Support Annex (Bilateral Form - Transfer) forming part of the Schedule)
signed for the purposes of identification by Sidley Austin and Deutsche Bank
AG, London Branch on 23 May 2006.
This Confirmation constitutes a "Confirmation" as referred to in, and
supplements, forms part of and is subject to, the Agreement. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified herein.
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern. References herein to a "Transaction" shall be deemed to be
references to a "Swap Transaction" for the purposes of the Definitions. Any
terms not otherwise defined herein or in the Definitions shall have the
meanings given to them in the Programme Master Definitions Schedule signed for
the purposes of identification by Sidley Austin Brown & Wood (now known as
Sidley Austin) and Allen & Overy LLP on
19 January 2005 (as the same may be amended, restated, varied or supplemented
from time to time with the consent of the parties hereto), and the Issuer
Master Definitions Schedule signed for the purposes of identification by
Sidley Austin Brown & Wood (now known as Sidley Austin) and Allen & Overy LLP
on 19 January 2005 (as the same may be amended, restated, varied or
supplemented from time to time with the consent of the parties hereto). The
Issuer Master Definitions Schedule shall prevail to the extent that it
conflicts with the Master Definitions Schedule.
In this Confirmation:
"Conditions" means the terms and conditions of the Issuer Notes, as set out in
the Base Prospectus dated 11 May 2006 and the Final Terms dated 18 May 2006
(as each may be amended, restated, varied, supplemented and/or otherwise
modified from time to time in accordance with the provisions of the Issuer
Trust Deed), and any reference to a numbered Condition shall be construed
accordingly; and
"Issuer Notes" means the Granite Master Issuer plc USD 29,000,000 Series
2006-2 Class B1 Notes due December 2054.
1 The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Party A: Deutsche Bank AG, London Branch.
Party B: Granite Master Issuer plc.
Trade Date: 16 May 2006.
Effective Date: 24 May 2006.
Termination Date: The Floating Rate Payer I
Payment Date falling in
December 2054.
Exchange Rate: GBP 1.00: USD 1.88
A. Floating Payments
Floating Amounts I:
Floating Rate Payer I: Party A.
Floating Rate Payer I On any Floating Rate Payer I
Currency Amount: Payment Date, USD 29,000,000
less the aggregate of the
Floating Rate Payer I Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer I Each Note Payment Date (as
Payment Dates: defined in the Conditions).
2
Floating Rate Payer I LIBOR (as defined in the
Floating Rate Option: Conditions).
Floating Rate Payer I 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which Linear Interpolation
is applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, in the event
that the frequency of the
Floating Rate Payer I Payment
Dates alter to monthly due to
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer I Spread: 0.08 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.16 per cent. per
annum.
Floating Rate Payer I Actual/360.
Floating Rate Day Count
Fraction:
Floating Rate Payer I The first day of each
Reset Dates: Calculation Period.
Floating Amounts II:
Floating Rate Payer II: Party B.
Floating Rate Payer II On any Floating Rate Payer II
Currency Amount: Payment Date, GBP 15,425,532
less the aggregate of the
Floating Rate Payer II Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer II The 20th day of each calendar
Payment Dates: month in each year during the
Term from, and including, June
2006 to, but excluding, the
Termination Date, subject to
adjustment in accordance with
the Following Business Day
Convention and the Termination
Date.
Floating Rate Payer II GBP-LIBOR-BBA.
Floating Rate Option:
Floating Rate Payer II 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which
3
Linear Interpolation is
applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, following
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer II Spread: 0.0651 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.2802 per cent. per
annum.
Floating Rate Payer II Actual/365 (Fixed).
Floating Rate Day Count
Fraction:
Floating Rate Payer II The first day of each
Reset Dates: Calculation Period; provided
however, that in respect of
every Floating Rate Payer II
Calculation Period (other than
the first Calculation Period
and any Calculation Period
following the occurrence of a
Pass-Through Trigger Event or
Step-Up Date) that does not
start on a Note Payment Date
(as defined in the Issuer
Notes), the Floating Rate in
effect for such Calculation
Period shall be the Floating
Rate for the immediately
preceding Floating Rate Payer
II Calculation Period.
Calculation Agent: Party A.
Business Days: London and New York.
B. Initial Exchange:
Initial Exchange Date: Effective Date.
Party A Initial Exchange Amount: GBP 15,425,532.
Party B Initial Exchange Amount: USD 29,000,000.
C. Interim Exchange:
Interim Exchange Dates: Each Note Payment Date (as
defined in the Conditions) on
which a USD
4
Amortisation Amount is payable.
Floating Rate Payer I In respect of an Interim
Interim Exchange Amount: Exchange Date, the amount in
USD (if any) equal to the
principal amount of the Issuer
Notes required to be so repaid,
prepaid or otherwise redeemed
(howsoever described) in
accordance with the Conditions
and as determined by the Cash
Manager pursuant to the Issuer
Cash Management Agreement; and
notified to the Calculation
Agent by the Issuer Cash
Manager pursuant to the Issuer
Cash Management Agreement (the
"USD Amortisation Amount").
Floating Rate Payer II In respect of any Interim
Interim Exchange Amount: Exchange Date, an amount in GBP
equal to the Floating Rate
Payer I Interim Exchange Amount
converted into GBP at the
Exchange Rate.
D. Final Exchange:
Final Exchange Date: The Termination Date.
Floating Rate Payer I A USD amount equal to the
Final Exchange Amount: Floating Rate Payer II Final
Exchange Amount converted into
USD at the Exchange Rate.
Floating Rate Payer II The Floating Rate Payer II
Final Exchange Amount: Currency Amount.
E. Account Details:
Payments to Floating Rate Payer I:
Account for Payments in USD: Deutsche Bank Trust Co.,
New York
ABA 021 001 033
Account Number: 04-411-739
Swift Code: BKTRUS33
Account for Payments in GBP: Deutsche Bank AG, London
Account Number: Direct Chaps
40-50-81
Swift Code: DEUTGB2L
5
Payments to Floating Rate Payer II:
Account for Payments in USD: Citibank, N.A., New York
SWIFT: CITIUS33
A/C Citibank, N.A., London
A/C No. 10990765
SWIFT: CITIGB2L
for further credit to account:
10860263
Ref: GATS/Granite Master Issuer
plc.
Account for Payments in GBP: Citibank, N.A., London
A/C No. 10860255
Sort Code 18-50-08
Ref: GATS/Granite Master Issuer
plc.
F. Notice Details:
Floating Rate Payer I: Deutsche Bank AG, London Branch
Address: Deutsche Bank AG, Head Office.
Taunusanlage 12
60262 Frankfurt, Germany
Copied to:
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
OTC Derivative Operations
Division
44 207 545 4888
44 20 754 54226
Telex No: 411836 or 416731 or 41233
Attention: Legal Department
Floating Rate Payer II: Granite Master Issuer plc
Address: Fifth Floor
100 Wood Street
London
EC2V 7EX
With a copy to: Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne
NE3 4PL
6
Facsimile Number: +44 (0)191 279 4694
Attention: Andy McLean/Tony Laggan
With a copy to the The Bank of New York
Issuer Security Trustee:
Address: One Canada Square
48th Floor
London
E14 5AL
Facsimile Number: +44 (0)20 7964 6399
G. Offices: The Office of Party A is London.
H. Additional Termination Event:
For the purposes of Section 5(b)(v), the following event shall constitute an
Additional Termination Event:
Party A fails to provide the financial statements with the US Securities and
Exchange Commission ("SEC") as required to be filed by Party B in respect of
Party A pursuant to Regulation AB as promulgated by the SEC. For the purposes
of this Additional Termination Event, Party A shall be the sole Affected
Party.
I. Miscellaneous:
1. It is understood and agreed that in the Schedule to the Agreement:
1.1 The words in the square brackets in the last paragraph of Part 5(f)A are
not incorporated into this Confirmation and the square brackets and
words therein are accordingly deleted.
1.2 The words in the square brackets in Part 5(h)(iii) falling after the
words "will not then fall due" are incorporated into this Confirmation
and the square brackets are accordingly deleted.
1.3 The words in the square brackets at the end of Part 5(h)(v) falling
after the words "of any shortfall" are incorporated into this
Confirmation and the square brackets are accordingly deleted.
2. If the payment of any Floating Amount I is deferred in accordance with
Part 5(h)(iii) of the Schedule to the Agreement, then the amount so
deferred (the "Floating Amount I Deferred Amount") shall, subject to the
terms of this Confirmation, be payable on the next Floating Rate Payer I
Payment Date (the "Floating Amount I Deferred Payment Date") (together
with interest thereon (the "Floating Amount I Deferred Interest") at the
Floating Rate Payer I Floating Rate for the relevant Calculation Period)
and the Floating Amount I due on such Floating Amount I Deferred Payment
Date shall be deemed to include the Floating Amount I Deferred Amounts
and the Floating Amount I Deferred Interest.
7
If the payment of any Floating Amount II is deferred in accordance with
Part 5(h)(iii) the Agreement, then the amount so deferred (the "Floating
Amount II Deferred Amount") shall, subject to the terms of this
Confirmation, be payable on the next Floating Rate Payer II Payment Date
(the "Floating Amount II Deferred Payment Date") (together with interest
thereon (the "Floating Amount II Deferred Interest") at the Floating
Rate Payer II Floating Rate for the relevant Calculation Period) and the
Floating Amount II due on such Floating Amount II Deferred Payment Date
shall be deemed to include the Floating Amount II Deferred Amounts and
the Floating Amount II Deferred Interest.
Please confirm your agreement to be bound by the terms of the foregoing by
executing a copy of this Confirmation and returning it to us by facsimile.
Yours faithfully
Deutsche Bank AG, London Branch
By: /s/ Meghan Wallis
Name: Meghan Wallis
Title: Legal Counsel
By: /s/ Nathan Townsend
Name: Nathan Townsend
Title: Legal Counsel
Confirmed as of the date first written:
Granite Master Issuer plc
By: /s/ Ian Bowden
Name: Ian Bowden
Title: Representing L.D.C. Securitisation Director No. 1 Limited
8
Cross-Currency Confirmation for Series 2006-02 (Class B2 Notes)
EXECUTION VERSION
From: Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
Attention: OTC Derivative Operations Division
To: Granite Master Issuer plc
Fifth Floor
100 Wood Street
London
EC2V 7EX
Attention: Securitisation Team, Risk Operations
Summit Ref: 1492415M
24 May 2006
Dear Sirs,
Re: Cross Currency Swap Transaction relating to the Issuer Notes
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the "Transaction").
It is agreed that upon the execution of this Confirmation, we shall be deemed
to have entered into an agreement relating to the Issuer Notes on the terms of
the Agreed Form Agreement (the "Agreement") dated as of the Effective Date
specified below.
"Agreed Form Agreement" means the form of 1992 ISDA Master Agreement
(Multicurrency Cross Border) (including the Schedule thereto and the ISDA
Credit Support Annex (Bilateral Form - Transfer) forming part of the Schedule)
signed for the purposes of identification by Sidley Austin and Deutsche Bank
AG, London Branch on 23 May 2006.
This Confirmation constitutes a "Confirmation" as referred to in, and
supplements, forms part of and is subject to, the Agreement. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified herein.
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern. References herein to a "Transaction" shall be deemed to be
references to a "Swap Transaction" for the purposes of the Definitions. Any
terms not otherwise defined herein or in the Definitions shall have the
meanings given to them in the Programme Master Definitions Schedule signed for
the purposes of identification by Sidley Austin Brown & Wood (now known as
Sidley Austin) and Allen & Overy LLP on
19 January 2005 (as the same may be amended, restated, varied or supplemented
from time to time with the consent of the parties hereto), and the Issuer
Master Definitions Schedule signed for the purposes of identification by
Sidley Austin Brown & Wood (now known as Sidley Austin) and Allen & Overy LLP
on 19 January 2005 (as the same may be amended, restated, varied or
supplemented from time to time with the consent of the parties hereto). The
Issuer Master Definitions Schedule shall prevail to the extent that it
conflicts with the Master Definitions Schedule.
In this Confirmation:
"Conditions" means the terms and conditions of the Issuer Notes, as set out in
the Base Prospectus dated 11 May 2006 and the Final Terms dated 18 May 2006
(as each may be amended, restated, varied, supplemented and/or otherwise
modified from time to time in accordance with the provisions of the Issuer
Trust Deed), and any reference to a numbered Condition shall be construed
accordingly; and
"Issuer Notes" means the Granite Master Issuer plc USD 36,000,000 Series
2006-2 Class B2 Notes due December 2054.
1 The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Party A: Deutsche Bank AG, London Branch.
Party B: Granite Master Issuer plc.
Trade Date: 16 May 2006.
Effective Date: 24 May 2006.
Termination Date: The Floating Rate Payer I
Payment Date falling in
December 2054.
Exchange Rate: GBP 1.00: USD 1.88
A. Floating Payments
Floating Amounts I:
Floating Rate Payer I: Party A.
Floating Rate Payer I On any Floating Rate Payer I
Currency Amount: Payment Date, USD 36,000,000
less the aggregate of the
Floating Rate Payer I Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer I Each Note Payment Date (as
Payment Dates: defined in the Conditions).
2
Floating Rate Payer I LIBOR (as defined in the
Floating Rate Option: Conditions).
Floating Rate Payer I 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which Linear Interpolation
is applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, in the event
that the frequency of the
Floating Rate Payer I Payment
Dates alter to monthly due to
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer I Spread: 0.14 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.28 per cent. per
annum.
Floating Rate Payer I Actual/360.
Floating Rate Day Count
Fraction:
Floating Rate Payer I The first day of each
Reset Dates: Calculation Period.
Floating Amounts II:
Floating Rate Payer II: Party B.
Floating Rate Payer II On any Floating Rate Payer II
Currency Amount: Payment Date, GBP 19,148,936
less the aggregate of the
Floating Rate Payer II Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer II The 20th day of each calendar
Payment Dates: month in each year during the
Term from, and including, June
2006 to, but excluding, the
Termination Date, subject to
adjustment in accordance with
the Following Business Day
Convention and the Termination
Date.
Floating Rate Payer II GBP-LIBOR-BBA.
Floating Rate Option:
Floating Rate Payer II 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which
3
Linear Interpolation is
applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, following
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer II Spread: 0.1386 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.4272 per cent. per
annum.
Floating Rate Payer II Actual/365 (Fixed).
Floating Rate Day Count
Fraction:
Floating Rate Payer II The first day of each
Reset Dates: Calculation Period; provided
however, that in respect of
every Floating Rate Payer II
Calculation Period (other than
the first Calculation Period
and any Calculation Period
following the occurrence of a
Pass-Through Trigger Event or
Step-Up Date) that does not
start on a Note Payment Date
(as defined in the Issuer
Notes), the Floating Rate in
effect for such Calculation
Period shall be the Floating
Rate for the immediately
preceding Floating Rate Payer
II Calculation Period.
Calculation Agent: Party A.
Business Days: London and New York.
B. Initial Exchange:
Initial Exchange Date: Effective Date.
Party A Initial Exchange Amount: GBP 19,148,936.
Party B Initial Exchange Amount: USD 36,000,000.
C. Interim Exchange:
Interim Exchange Dates: Each Note Payment Date (as
defined in the Conditions) on
which a USD
4
Amortisation Amount is payable.
Floating Rate Payer I In respect of an Interim
Interim Exchange Amount: Exchange Date, the amount in
USD (if any) equal to the
principal amount of the Issuer
Notes required to be so repaid,
prepaid or otherwise redeemed
(howsoever described) in
accordance with the Conditions
and as determined by the Cash
Manager pursuant to the Issuer
Cash Management Agreement; and
notified to the Calculation
Agent by the Issuer Cash
Manager pursuant to the Issuer
Cash Management Agreement (the
"USD Amortisation Amount").
Floating Rate Payer II In respect of any Interim
Interim Exchange Amount: Exchange Date, an amount in GBP
equal to the Floating Rate
Payer I Interim Exchange Amount
converted into GBP at the
Exchange Rate.
D. Final Exchange:
Final Exchange Date: The Termination Date.
Floating Rate Payer I A USD amount equal to the
Final Exchange Amount: Floating Rate Payer II Final
Exchange Amount converted into
USD at the Exchange Rate.
Floating Rate Payer II The Floating Rate Payer II
Final Exchange Amount: Currency Amount.
E. Account Details:
Payments to Floating Rate Payer I:
Account for Payments in USD: Deutsche Bank Trust Co.,
New York
ABA 021 001 033
Account Number: 04-411-739
Swift Code: BKTRUS33
Account for Payments in GBP: Deutsche Bank AG, London
Account Number: Direct Chaps
40-50-81
Swift Code: DEUTGB2L
5
Payments to Floating Rate Payer II:
Account for Payments in USD: Citibank, N.A., New York
SWIFT: CITIUS33
A/C Citibank, N.A., London
A/C No. 10990765
SWIFT: CITIGB2L
for further credit to account:
10860263
Ref: GATS/Granite Master Issuer
plc.
Account for Payments in GBP: Citibank, N.A., London
A/C No. 10860255
Sort Code 18-50-08
Ref: GATS/Granite Master Issuer
plc.
F. Notice Details:
Floating Rate Payer I: Deutsche Bank AG, London Branch
Address: Deutsche Bank AG, Head Office.
Taunusanlage 12
60262 Frankfurt, Germany
Copied to:
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
OTC Derivative Operations
Division
44 207 545 4888
44 20 754 54226
Telex No: 411836 or 416731 or 41233
Attention: Legal Department
Floating Rate Payer II: Granite Master Issuer plc
Address: Fifth Floor
100 Wood Street
London
EC2V 7EX
With a copy to: Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne
6
NE3 4PL
Facsimile Number: +44 (0)191 279 4694
Attention: Andy McLean/Tony Laggan
With a copy to the The Bank of New York
Issuer Security Trustee:
Address: One Canada Square
48th Floor
London
E14 5AL
Facsimile Number: +44 (0)20 7964 6399
G. Offices: The Office of Party A is London.
H. Additional Termination Event:
For the purposes of Section 5(b)(v), the following event shall constitute an
Additional Termination Event:
Party A fails to provide the financial statements with the US Securities and
Exchange Commission ("SEC") as required to be filed by Party B in respect of
Party A pursuant to Regulation AB as promulgated by the SEC. For the purposes
of this Additional Termination Event, Party A shall be the sole Affected
Party.
I. Miscellaneous:
1. It is understood and agreed that in the Schedule to the Agreement:
1.1 The words in the square brackets in the last paragraph of Part 5(f)A are
not incorporated into this Confirmation and the square brackets and
words therein are accordingly deleted.
1.2 The words in the square brackets in Part 5(h)(iii) falling after the
words "will not then fall due" are incorporated into this Confirmation
and the square brackets are accordingly deleted.
1.3 The words in the square brackets at the end of Part 5(h)(v) falling
after the words "of any shortfall" are incorporated into this
Confirmation and the square brackets are accordingly deleted.
2. If the payment of any Floating Amount I is deferred in accordance with
Part 5(h)(iii) of the Schedule to the Agreement, then the amount so
deferred (the "Floating Amount I Deferred Amount") shall, subject to the
terms of this Confirmation, be payable on the next Floating Rate Payer I
Payment Date (the "Floating Amount I Deferred Payment Date") (together
with interest thereon (the "Floating Amount I Deferred Interest") at the
Floating Rate Payer I Floating Rate for the relevant Calculation Period)
and the Floating Amount I due on such Floating Amount I Deferred Payment
Date shall be deemed to include the Floating Amount I Deferred
7
Amounts and the Floating Amount I Deferred Interest.
If the payment of any Floating Amount II is deferred in accordance with
Part 5(h)(iii) the Agreement, then the amount so deferred (the "Floating
Amount II Deferred Amount") shall, subject to the terms of this
Confirmation, be payable on the next Floating Rate Payer II Payment Date
(the "Floating Amount II Deferred Payment Date") (together with interest
thereon (the "Floating Amount II Deferred Interest") at the Floating
Rate Payer II Floating Rate for the relevant Calculation Period) and the
Floating Amount II due on such Floating Amount II Deferred Payment Date
shall be deemed to include the Floating Amount II Deferred Amounts and
the Floating Amount II Deferred Interest.
Please confirm your agreement to be bound by the terms of the foregoing by
executing a copy of this Confirmation and returning it to us by facsimile.
Yours faithfully
Deutsche Bank AG, London Branch
By: /s/ Meghan Wallis
Name: Meghan Wallis
Title: Legal Counsel
By: /s/ Nathan Townsend
Name: Nathan Townsend
Title: Representing L.D.C. Securitisation Director No. 1 Limited
Confirmed as of the date first written:
Granite Master Issuer plc
By:
Name:
Title:
8
Cross-Currency Confirmation for Series 2006-02 (Class M1 Notes)
EXECUTION VERSION
From: Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
Attention: OTC Derivative Operations Division
To: Granite Master Issuer plc
Fifth Floor
100 Wood Street
London
EC2V 7EX
Attention: Securitisation Team, Risk Operations
Summit Ref: 1492410M
24 May 2006
Dear Sirs,
Re: Cross Currency Swap Transaction relating to the Issuer Notes
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the "Transaction").
It is agreed that upon the execution of this Confirmation, we shall be deemed
to have entered into an agreement relating to the Issuer Notes on the terms of
the Agreed Form Agreement (the "Agreement") dated as of the Effective Date
specified below.
"Agreed Form Agreement" means the form of 1992 ISDA Master Agreement
(Multicurrency Cross Border) (including the Schedule thereto and the ISDA
Credit Support Annex (Bilateral Form - Transfer) forming part of the Schedule)
signed for the purposes of identification by Sidley Austin and Deutsche Bank
AG, London Branch on 23 May 2006.
This Confirmation constitutes a "Confirmation" as referred to in, and
supplements, forms part of and is subject to, the Agreement. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified herein.
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern. References herein to a "Transaction" shall be deemed to be
references to a "Swap Transaction" for the purposes of the Definitions. Any
terms not otherwise defined herein or in the Definitions shall have the
meanings given to them in the Programme Master Definitions Schedule signed for
the purposes of identification by Sidley Austin Brown & Wood (now known as
Sidley Austin) and Allen & Overy LLP on
19 January 2005 (as the same may be amended, restated, varied or supplemented
from time to time with the consent of the parties hereto), and the Issuer
Master Definitions Schedule signed for the purposes of identification by
Sidley Austin Brown & Wood (now known as Sidley Austin) and Allen & Overy LLP
on 19 January 2005 (as the same may be amended, restated, varied or
supplemented from time to time with the consent of the parties hereto). The
Issuer Master Definitions Schedule shall prevail to the extent that it
conflicts with the Master Definitions Schedule.
In this Confirmation:
"Conditions" means the terms and conditions of the Issuer Notes, as set out in
the Base Prospectus dated 11 May 2006 and the Final Terms dated 18 May 2006
(as each may be amended, restated, varied, supplemented and/or otherwise
modified from time to time in accordance with the provisions of the Issuer
Trust Deed), and any reference to a numbered Condition shall be construed
accordingly; and
"Issuer Notes" means the Granite Master Issuer plc USD 25,000,000 Series
2006-2 Class M1 Notes due December 2054.
1 The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Party A: Deutsche Bank AG, London Branch.
Party B: Granite Master Issuer plc.
Trade Date: 16 May 2006.
Effective Date: 24 May 2006.
Termination Date: The Floating Rate Payer I
Payment Date falling in
December 2054
Exchange Rate: GBP 1.00: USD 1.88
A. Floating Payments
Floating Amounts I:
Floating Rate Payer I: Party A.
Floating Rate Payer I On any Floating Rate Payer I
Currency Amount: Payment Date, USD 25,000,000
less the aggregate of the
Floating Rate Payer I Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer I Each Note Payment Date (as
Payment Dates: defined in the Conditions).
2
Floating Rate Payer I LIBOR (as defined in the
Floating Rate Option: Conditions).
Floating Rate Payer I 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which Linear Interpolation
is applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, in the event
that the frequency of the
Floating Rate Payer I Payment
Dates alter to monthly due to
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer I Spread: 0.18 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.36 per cent. per
annum.
Floating Rate Payer I Actual/360.
Floating Rate Day Count
Fraction:
Floating Rate Payer I The first day of each
Reset Dates: Calculation Period.
Floating Amounts II:
Floating Rate Payer II: Party B.
Floating Rate Payer II On any Floating Rate Payer II
Currency Amount: Payment Date, GBP 13,297,872
less the aggregate of the
Floating Rate Payer II Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer II The 20th day of each calendar
Payment Dates: month in each year during the
Term from, and including, June
2006 to, but excluding, the
Termination Date, subject to
adjustment in accordance with
the Following Business Day
Convention and the Termination
Date.
Floating Rate Payer II GBP-LIBOR-BBA.
Floating Rate Option:
Floating Rate Payer II 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which
3
Linear Interpolation is
applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, following
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer II Spread: 0.1753 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.5006 per cent. per
annum.
Floating Rate Payer II Actual/365 (Fixed).
Floating Rate Day Count
Fraction:
Floating Rate Payer II The first day of each
Reset Dates: Calculation Period; provided
however, that in respect of
every Floating Rate Payer II
Calculation Period (other than
the first Calculation Period
and any Calculation Period
following the occurrence of a
Pass-Through Trigger Event or
Step-Up Date) that does not
start on a Note Payment Date
(as defined in the Issuer
Notes), the Floating Rate in
effect for such Calculation
Period shall be the Floating
Rate for the immediately
preceding Floating Rate Payer
II Calculation Period.
Calculation Agent: Party A.
Business Days: London and New York.
B. Initial Exchange:
Initial Exchange Date: Effective Date.
Party A Initial Exchange Amount: GBP 13,297,872.
Party B Initial Exchange Amount: USD 25,000,000.
C. Interim Exchange:
Interim Exchange Dates: Each Note Payment Date (as
defined in the Conditions) on
which a USD
4
Amortisation Amount is payable.
Floating Rate Payer I In respect of an Interim
Interim Exchange Amount: Exchange Date, the amount in
USD (if any) equal to the
principal amount of the Issuer
Notes required to be so repaid,
prepaid or otherwise redeemed
(howsoever described) in
accordance with the Conditions
and as determined by the Cash
Manager pursuant to the Issuer
Cash Management Agreement; and
notified to the Calculation
Agent by the Issuer Cash
Manager pursuant to the Issuer
Cash Management Agreement (the
"USD Amortisation Amount").
Floating Rate Payer II In respect of any Interim
Interim Exchange Amount: Exchange Date, an amount in GBP
equal to the Floating Rate
Payer I Interim Exchange Amount
converted into GBP at the
Exchange Rate.
D. Final Exchange:
Final Exchange Date: The Termination Date.
Floating Rate Payer I A USD amount equal to the
Final Exchange Amount: Floating Rate Payer II Final
Exchange Amount converted into
USD at the Exchange Rate.
Floating Rate Payer II The Floating Rate Payer II
Final Exchange Amount: Currency Amount.
E. Account Details:
Payments to Floating Rate Payer I:
Account for Payments in USD: Deutsche Bank Trust Co.,
New York
ABA 021 001 033
Account Number: 04-411-739
Swift Code: BKTRUS33
Account for Payments in GBP: Deutsche Bank AG, London
Account Number: Direct Chaps
40-50-81
Swift Code: DEUTGB2L
5
Payments to Floating Rate Payer II:
Account for Payments in USD: Citibank, N.A., New York
SWIFT: CITIUS33
A/C Citibank, N.A., London
A/C No. 10990765
SWIFT: CITIGB2L
for further credit to account:
10860263
Ref: GATS/Granite Master Issuer
plc.
Account for Payments in GBP: Citibank, N.A., London
A/C No. 10860255
Sort Code 18-50-08
Ref: GATS/Granite Master Issuer
plc.
F. Notice Details:
Floating Rate Payer I: Deutsche Bank AG, London Branch
Address: Deutsche Bank AG, Head Office.
Taunusanlage 12
60262 Frankfurt, Germany
Copied to:
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
OTC Derivative Operations
Division
44 207 545 4888
44 20 754 54226
Telex No: 411836 or 416731 or 41233
Attention: Legal Department
Floating Rate Payer II: Granite Master Issuer plc
Address: Fifth Floor
100 Wood Street
London
EC2V 7EX
With a copy to: Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne
6
NE3 4PL
Facsimile Number: +44 (0)191 279 4694
Attention: Andy McLean/Tony Laggan
With a copy to the The Bank of New York
Issuer Security Trustee:
Address: One Canada Square
48th Floor
London
E14 5AL
Facsimile Number: +44 (0)20 7964 6399
G. Offices: The Office of Party A is London.
H. Additional Termination Event:
For the purposes of Section 5(b)(v), the following event shall constitute an
Additional Termination Event:
Party A fails to provide the financial statements with the US Securities and
Exchange Commission ("SEC") as required to be filed by Party B in respect of
Party A pursuant to Regulation AB as promulgated by the SEC. For the purposes
of this Additional Termination Event, Party A shall be the sole Affected
Party.
I. Miscellaneous:
1. It is understood and agreed that in the Schedule to the Agreement:
1.1 The words in the square brackets in the last paragraph of Part 5(f)A are
not incorporated into this Confirmation and the square brackets and
words therein are accordingly deleted.
1.2 The words in the square brackets in Part 5(h)(iii) falling after the
words "will not then fall due" are incorporated into this Confirmation
and the square brackets and words therein are accordingly deleted.
1.3 The words in the square brackets at the end of Part 5(h)(v) falling
after the words "of any shortfall" are incorporated into this
Confirmation and the square brackets are accordingly deleted.
2. If the payment of any Floating Amount I is deferred in accordance with
Part 5(h)(iii) of the Schedule to the Agreement, then the amount so
deferred (the "Floating Amount I Deferred Amount") shall, subject to the
terms of this Confirmation, be payable on the next Floating Rate Payer I
Payment Date (the "Floating Amount I Deferred Payment Date") (together
with interest thereon (the "Floating Amount I Deferred Interest") at the
Floating Rate Payer I Floating Rate for the relevant Calculation Period)
and the Floating Amount I due on such Floating Amount I Deferred Payment
Date shall be deemed to include the Floating Amount I Deferred
7
Amounts and the Floating Amount I Deferred Interest.
If the payment of any Floating Amount II is deferred in accordance with
Part 5(h)(iii) the Agreement, then the amount so deferred (the "Floating
Amount II Deferred Amount") shall, subject to the terms of this
Confirmation, be payable on the next Floating Rate Payer II Payment Date
(the "Floating Amount II Deferred Payment Date") (together with interest
thereon (the "Floating Amount II Deferred Interest") at the Floating
Rate Payer II Floating Rate for the relevant Calculation Period) and the
Floating Amount II due on such Floating Amount II Deferred Payment Date
shall be deemed to include the Floating Amount II Deferred Amounts and
the Floating Amount II Deferred Interest.
Please confirm your agreement to be bound by the terms of the foregoing by
executing a copy of this Confirmation and returning it to us by facsimile.
Yours faithfully
Deutsche Bank AG, London Branch
By: /s/ Meghan Wallis
Name: Meghan Wallis
Title: Legal Counsek
By: /s/ Nathan Townsend
Name: Nathan Townsend
Title: Legal Counsel
Confirmed as of the date first written:
Granite Master Issuer plc
By: /s/ Ian Bowden
Name: Ian Bowden
Title: Representing L.D.C. Securitisation Director No. 1 Limited
8
Cross-Currency Confirmation for Series 2006-02 (Class M2 Notes)
EXECUTION VERSION
From: Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
Attention: OTC Derivative Operations Division
To: Granite Master Issuer plc
Fifth Floor
100 Wood Street
London
EC2V 7EX
Attention: Securitisation Team, Risk Operations
Summit Ref: 1492408M
24 May 2006
Dear Sirs,
Re: Cross Currency Swap Transaction relating to the Issuer Notes
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the "Transaction").
It is agreed that upon the execution of this Confirmation, we shall be deemed
to have entered into an agreement relating to the Issuer Notes on the terms of
the Agreed Form Agreement (the "Agreement") dated as of the Effective Date
specified below.
"Agreed Form Agreement" means the form of 1992 ISDA Master Agreement
(Multicurrency Cross Border) (including the Schedule thereto and the ISDA
Credit Support Annex (Bilateral Form - Transfer) forming part of the Schedule)
signed for the purposes of identification by Sidley Austin and Deutsche Bank
AG, London Branch on 23 May 2006.
This Confirmation constitutes a "Confirmation" as referred to in, and
supplements, forms part of and is subject to, the Agreement. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified herein.
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern. References herein to a "Transaction" shall be deemed to be
references to a "Swap Transaction" for the purposes of the Definitions. Any
terms not otherwise defined herein or in the Definitions shall have the
meanings given to them in the Programme Master Definitions Schedule signed for
the purposes of identification by Sidley Austin Brown & Wood (now known as
Sidley Austin) and Allen & Overy LLP on 19 January 2005 (as the same may be
amended, restated, varied or supplemented from time to time with the consent
of the parties hereto), and the Issuer Master Definitions Schedule signed for
the purposes of identification by Sidley Austin Brown & Wood (now known as
Sidley Austin) and Allen & Overy LLP on
19 January 2005 (as the same may be amended, restated, varied or supplemented
from time to time with the consent of the parties hereto). The Issuer Master
Definitions Schedule shall prevail to the extent that it conflicts with the
Master Definitions Schedule.
In this Confirmation:
"Conditions" means the terms and conditions of the Issuer Notes, as set out in
the Base Prospectus dated 11 May 2006 and the Final Terms dated 18 May 2006
(as each may be amended, restated, varied, supplemented and/or otherwise
modified from time to time in accordance with the provisions of the Issuer
Trust Deed), and any reference to a numbered Condition shall be construed
accordingly; and
"Issuer Notes" means the Granite Master Issuer plc USD 25,000,000 Series
2006-2 Class M2 Notes due December 2054.
1 The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Party A: Deutsche Bank AG, London Branch.
Party B: Granite Master Issuer plc.
Trade Date: 16 May 2006.
Effective Date: 24 May 2006.
Termination Date: The Floating Rate Payer I
Payment Date falling in
December 2054
Exchange Rate: GBP 1.00: USD 1.88
A. Floating Payments
Floating Amounts I:
Floating Rate Payer I: Party A.
Floating Rate Payer I On any Floating Rate Payer I
Currency Amount: Payment Date, USD 25,000,000
less the aggregate of the
Floating Rate Payer I Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer I Each Note Payment Date (as
Payment Dates: defined in the Conditions).
2
Floating Rate Payer I LIBOR (as defined in the
Floating Rate Option: Conditions).
Floating Rate Payer I 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which Linear Interpolation
is applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, in the event
that the frequency of the
Floating Rate Payer I Payment
Dates alter to monthly due to
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer I Spread: 0.23 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.46 per cent. per
annum.
Floating Rate Payer I Actual/360.
Floating Rate Day Count
Fraction:
Floating Rate Payer I The first day of each
Reset Dates: Calculation Period.
Floating Amounts II:
Floating Rate Payer II: Party B.
Floating Rate Payer II On any Floating Rate Payer II
Currency Amount: Payment Date, GBP 13,297,872
less the aggregate of the
Floating Rate Payer II Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer II The 20th day of each calendar
Payment Dates: month in each year during the
Term from, and including, June
2006 to, but excluding, the
Termination Date, subject to
adjustment in accordance with
the Following Business Day
Convention and the Termination
Date.
Floating Rate Payer II GBP-LIBOR-BBA.
Floating Rate Option:
Floating Rate Payer II 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which
3
Linear Interpolation is
applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, following
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer II Spread: 0.2434 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.6368 per cent. per
annum.
Floating Rate Payer II Actual/365 (Fixed).
Floating Rate Day Count
Fraction:
Floating Rate Payer II The first day of each
Reset Dates: Calculation Period; provided
however, that in respect of
every Floating Rate Payer II
Calculation Period (other than
the first Calculation Period
and any Calculation Period
following the occurrence of a
Pass-Through Trigger Event or
Step-Up Date) that does not
start on a Note Payment Date
(as defined in the Issuer
Notes), the Floating Rate in
effect for such Calculation
Period shall be the Floating
Rate for the immediately
preceding Floating Rate Payer
II Calculation Period.
Calculation Agent: Party A.
Business Days: London and New York.
B. Initial Exchange:
Initial Exchange Date: Effective Date.
Party A Initial Exchange Amount: GBP 13,297,872.
Party B Initial Exchange Amount: USD 25,000,000.
C. Interim Exchange:
Interim Exchange Dates: Each Note Payment Date (as
defined in the Conditions) on
which a USD
4
Amortisation Amount is payable.
Floating Rate Payer I In respect of an Interim
Interim Exchange Amount: Exchange Date, the amount in
USD (if any) equal to the
principal amount of the Issuer
Notes required to be so repaid,
prepaid or otherwise redeemed
(howsoever described) in
accordance with the Conditions
and as determined by the Cash
Manager pursuant to the Issuer
Cash Management Agreement; and
notified to the Calculation
Agent by the Issuer Cash
Manager pursuant to the Issuer
Cash Management Agreement (the
"USD Amortisation Amount").
Floating Rate Payer II In respect of any Interim
Interim Exchange Amount: Exchange Date, an amount in GBP
equal to the Floating Rate
Payer I Interim Exchange Amount
converted into GBP at the
Exchange Rate.
D. Final Exchange:
Final Exchange Date: The Termination Date.
Floating Rate Payer I A USD amount equal to the
Final Exchange Amount: Floating Rate Payer II Final
Exchange Amount converted into
USD at the Exchange Rate.
Floating Rate Payer II The Floating Rate Payer II
Final Exchange Amount: Currency Amount.
E. Account Details:
Payments to Floating Rate Payer I:
Account for Payments in USD: Deutsche Bank Trust Co.,
New York
ABA 021 001 033
Account Number: 04-411-739
Swift Code: BKTRUS33
Account for Payments in GBP: Deutsche Bank AG, London
Account Number: Direct Chaps
40-50-81
5
Swift Code: DEUTGB2L
Payments to Floating Rate Payer II:
Account for Payments in USD: Citibank, N.A., New York
SWIFT: CITIUS33
A/C Citibank, N.A., London
A/C No. 10990765
SWIFT: CITIGB2L
for further credit to account:
10860263
Ref: GATS/Granite Master Issuer
plc.
Account for Payments in GBP: Citibank, N.A., London
A/C No. 10860255
Sort Code 18-50-08
Ref: GATS/Granite Master Issuer
plc.
F. Notice Details:
Floating Rate Payer I: Deutsche Bank AG, London Branch
Address: Deutsche Bank AG, Head Office.
Taunusanlage 12
60262 Frankfurt, Germany
Copied to:
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
OTC Derivative Operations
Division
44 207 545 4888
44 20 754 54226
Telex No: 411836 or 416731 or 41233
Attention: Legal Department
Floating Rate Payer II: Granite Master Issuer plc
Address: Fifth Floor
100 Wood Street
London
EC2V 7EX
With a copy to: Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne
6
NE3 4PL
Facsimile Number: +44 (0)191 279 4694
Attention: Andy McLean/Tony Laggan
With a copy to the The Bank of New York
Issuer Security Trustee:
Address: One Canada Square
48th Floor
London
E14 5AL
Facsimile Number: +44 (0)20 7964 6399
G. Offices: The Office of Party A is London.
H. Additional Termination Event:
For the purposes of Section 5(b)(v), the following event shall constitute an
Additional Termination Event:
Party A fails to provide the financial statements with the US Securities and
Exchange Commission ("SEC") as required to be filed by Party B in respect of
Party A pursuant to Regulation AB as promulgated by the SEC. For the purposes
of this Additional Termination Event, Party A shall be the sole Affected
Party.
I. Miscellaneous:
1. It is understood and agreed that in the Schedule to the Agreement:
1.1 The words in the square brackets in the last paragraph of Part 5(f)A are
not incorporated into this Confirmation and the square brackets and
words therein are accordingly deleted.
1.2 The words in the square brackets in Part 5(h)(iii) falling after the
words "will not then fall due" are incorporated into this Confirmation
and the square brackets are accordingly deleted.
1.3 The words in the square brackets at the end of Part 5(h)(v) falling
after the words "of any shortfall" are incorporated into this
Confirmation and the square brackets are accordingly deleted.
2. If the payment of any Floating Amount I is deferred in accordance with
Part 5(h)(iii) of the Schedule to the Agreement, then the amount so
deferred (the "Floating Amount I Deferred Amount") shall, subject to the
terms of this Confirmation, be payable on the next Floating Rate Payer I
Payment Date (the "Floating Amount I Deferred Payment Date") (together
with interest thereon (the "Floating Amount I Deferred Interest") at the
Floating Rate Payer I Floating Rate for the relevant Calculation Period)
and the Floating Amount I due on such Floating Amount I Deferred Payment
Date shall be deemed to include the Floating Amount I Deferred
7
Amounts and the Floating Amount I Deferred Interest.
If the payment of any Floating Amount II is deferred in accordance with
Part 5(h)(iii) the Agreement, then the amount so deferred (the "Floating
Amount II Deferred Amount") shall, subject to the terms of this
Confirmation, be payable on the next Floating Rate Payer II Payment Date
(the "Floating Amount II Deferred Payment Date") (together with interest
thereon (the "Floating Amount II Deferred Interest") at the Floating
Rate Payer II Floating Rate for the relevant Calculation Period) and the
Floating Amount II due on such Floating Amount II Deferred Payment Date
shall be deemed to include the Floating Amount II Deferred Amounts and
the Floating Amount II Deferred Interest.
Please confirm your agreement to be bound by the terms of the foregoing by
executing a copy of this Confirmation and returning it to us by facsimile.
Yours faithfully
Deutsche Bank AG, London Branch
By: /s/ Meghan Wallis
Name: Meghan Wallis
Title: Legal Counsel
By: /s/ Nathan Townsend
Name: Nathan Townsend
Title: Legal Counsel
Confirmed as of the date first written:
Granite Master Issuer plc
By: /s/ Ian Bowden
Name: Ian Bowden
Title: Representing L.D.C. Secuiritisation Director No. 1 Limited
8
Cross-Currency Confirmation for Series 2006-02 (Class C1 Notes)
EXECUTION VERSION
From: Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
Attention: OTC Derivative Operations Division
To: Granite Master Issuer plc
Fifth Floor
100 Wood Street
London
EC2V 7EX
Attention: Securitisation Team, Risk Operations
Summit Ref: 1492402M
24 May 2006
Dear Sirs,
Re: Cross Currency Swap Transaction relating to the Issuer Notes
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the "Transaction").
It is agreed that upon the execution of this Confirmation, we shall be deemed
to have entered into an agreement relating to the Issuer Notes on the terms of
the Agreed Form Agreement (the "Agreement") dated as of the Effective Date
specified below.
"Agreed Form Agreement" means the form of 1992 ISDA Master Agreement
(Multicurrency Cross Border) (including the Schedule thereto and the ISDA
Credit Support Annex (Bilateral Form - Transfer) forming part of the Schedule)
signed for the purposes of identification by Sidley Austin and Deutsche Bank
AG, London Branch on 23 May 2006.
This Confirmation constitutes a "Confirmation" as referred to in, and
supplements, forms part of and is subject to, the Agreement. All provisions
contained in the Agreement govern this Confirmation except as expressly
modified herein.
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps and Derivatives Association, Inc. (the
"Definitions") are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern. References herein to a "Transaction" shall be deemed to be
references to a "Swap Transaction" for the purposes of the Definitions. Any
terms not otherwise defined herein or in the Definitions shall have the
meanings given to them in the Programme Master Definitions Schedule signed for
the purposes of identification by Sidley Austin Brown & Wood (now known as
Sidley Austin) and Allen & Overy LLP on
19 January 2005 (as the same may be amended, restated, varied or supplemented
from time to time with the consent of the parties hereto), and the Issuer
Master Definitions Schedule signed for the purposes of identification by
Sidley Austin Brown & Wood (now known as Sidley Austin) and Allen & Overy LLP
on 19 January 2005 (as the same may be amended, restated, varied or
supplemented from time to time with the consent of the parties hereto). The
Issuer Master Definitions Schedule shall prevail to the extent that it
conflicts with the Master Definitions Schedule.
In this Confirmation:
"Conditions" means the terms and conditions of the Issuer Notes, as set out in
the Base Prospectus dated 11 May 2006 and the Final Terms dated 18 May 2006
(as each may be amended, restated, varied, supplemented and/or otherwise
modified from time to time in accordance with the provisions of the Issuer
Trust Deed), and any reference to a numbered Condition shall be construed
accordingly; and
"Issuer Notes" means the Granite Master Issuer plc USD 75,000,000 Series
2006-2 Class C1 Notes due December 2054.
1 The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Party A: Deutsche Bank AG, London Branch.
Party B: Granite Master Issuer plc.
Trade Date: 16 May 2006.
Effective Date: 24 May 2006.
Termination Date: The Floating Rate Payer I
Payment Date falling in
December 2054.
Exchange Rate: GBP 1.00: USD 1.88
A. Floating Payments
Floating Amounts I:
Floating Rate Payer I: Party A.
Floating Rate Payer I On any Floating Rate Payer I
Currency Amount: Payment Date, USD 75,000,000
less the aggregate of the
Floating Rate Payer I Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer I Each Note Payment Date (as
Payment Dates: defined in the Conditions).
2
Floating Rate Payer I LIBOR (as defined in the
Floating Rate Option: Conditions).
Floating Rate Payer I 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which Linear Interpolation
is applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, in the event
that the frequency of the
Floating Rate Payer I Payment
Dates alter to monthly due to
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer I Spread: 0.47 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 0.94 per cent. per
annum.
Floating Rate Payer I Actual/360.
Floating Rate Day Count
Fraction:
Floating Rate Payer I The first day of each
Reset Dates: Calculation Period.
Floating Amounts II:
Floating Rate Payer II: Party B.
Floating Rate Payer II On any Floating Rate Payer II
Currency Amount: Payment Date, GBP 39,893,617
less the aggregate of the
Floating Rate Payer II Interim
Exchange Amounts paid prior to
such date.
Floating Rate Payer II The 20th day of each calendar
Payment Dates: month in each year during the
Term from, and including, June
2006 to, but excluding, the
Termination Date, subject to
adjustment in accordance with
the Following Business Day
Convention and the Termination
Date.
Floating Rate Payer II GBP-LIBOR-BBA.
Floating Rate Option:
Floating Rate Payer II 3 months; except in respect of
Designated Maturity: the initial Calculation Period
for which
3
Linear Interpolation is
applicable and in respect of
which the Linear Interpolation
shall be applied by reference
to the 1 month and 2 month
rates; or 1 month, following
the occurrence of a
Pass-Through Trigger Event or
Step-Up Date.
Floating Rate Payer II Spread: 0.5032 per cent. per annum for
the Calculation Periods up to
and including the Calculation
Period ending on, but
excluding, the Payment Date
falling in July 2011; and
thereafter 1.1564 per cent. per
annum.
Floating Rate Payer II Actual/365 (Fixed).
Floating Rate Day Count
Fraction:
Floating Rate Payer II The first day of each
Reset Dates: Calculation Period; provided
however, that in respect of
every Floating Rate Payer II
Calculation Period (other than
the first Calculation Period
and any Calculation Period
following the occurrence of a
Pass-Through Trigger Event or
Step-Up Date) that does not
start on a Note Payment Date
(as defined in the Issuer
Notes), the Floating Rate in
effect for such Calculation
Period shall be the Floating
Rate for the immediately
preceding Floating Rate Payer
II Calculation Period.
Calculation Agent: Party A.
Business Days: London and New York.
B. Initial Exchange:
Initial Exchange Date: Effective Date.
Party A Initial Exchange Amount: GBP 39,893,617.
Party B Initial Exchange Amount: USD 75,000,000.
C. Interim Exchange:
Interim Exchange Dates: Each Note Payment Date (as
defined in the Conditions) on
which a USD
4
Amortisation Amount is payable.
Floating Rate Payer I In respect of an Interim
Interim Exchange Amount: Exchange Date, the amount in
USD (if any) equal to the
principal amount of the Issuer
Notes required to be so repaid,
prepaid or otherwise redeemed
(howsoever described) in
accordance with the Conditions
and as determined by the Cash
Manager pursuant to the Issuer
Cash Management Agreement; and
notified to the Calculation
Agent by the Issuer Cash
Manager pursuant to the Issuer
Cash Management Agreement (the
"USD Amortisation Amount").
Floating Rate Payer II In respect of any Interim
Interim Exchange Amount: Exchange Date, an amount in GBP
equal to the Floating Rate
Payer I Interim Exchange Amount
converted into GBP at the
Exchange Rate.
D. Final Exchange:
Final Exchange Date: The Termination Date.
Floating Rate Payer I A USD amount equal to the
Final Exchange Amount: Floating Rate Payer II Final
Exchange Amount converted into
USD at the Exchange Rate.
Floating Rate Payer II The Floating Rate Payer II
Final Exchange Amount: Currency Amount.
E. Account Details:
Payments to Floating Rate Payer I:
Account for Payments in USD: Deutsche Bank Trust Co.,
New York
ABA 021 001 033
Account Number: 04-411-739
Swift Code: BKTRUS33
Account for Payments in GBP: Deutsche Bank AG, London
Account Number: Direct Chaps
40-50-81
Swift Code: DEUTGB2L
5
Payments to Floating Rate Payer II:
Account for Payments in USD: Citibank, N.A., New York
SWIFT: CITIUS33
A/C Citibank, N.A., London
A/C No. 10990765
SWIFT: CITIGB2L
for further credit to account:
10860263
Ref: GATS/Granite Master Issuer
plc.
Account for Payments in GBP: Citibank, N.A., London
A/C No. 10860255
Sort Code 18-50-08
Ref: GATS/Granite Master Issuer
plc.
F. Notice Details:
Floating Rate Payer I: Deutsche Bank AG, London Branch
Address: Deutsche Bank AG, Head Office.
Taunusanlage 12
60262 Frankfurt, Germany
Copied to:
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB
OTC Derivative Operations
Division
44 207 545 4888
44 20 754 54226
Telex No: 411836 or 416731 or 41233
Attention: Legal Department
Floating Rate Payer II: Granite Master Issuer plc
Address: Fifth Floor
100 Wood Street
London
EC2V 7EX
With a copy to: Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne
6
NE3 4PL
Facsimile Number: +44 (0)191 279 4694
Attention: Andy McLean/Tony Laggan
With a copy to the The Bank of New York
Issuer Security Trustee:
Address: One Canada Square
48th Floor
London
E14 5AL
Facsimile Number: +44 (0)20 7964 6399
G. Offices: The Office of Party A is London.
H. Additional Termination Event:
For the purposes of Section 5(b)(v), the following event shall constitute an
Additional Termination Event:
Party A fails to provide the financial statements with the US Securities and
Exchange Commission ("SEC") as required to be filed by Party B in respect of
Party A pursuant to Regulation AB as promulgated by the SEC. For the purposes
of this Additional Termination Event, Party A shall be the sole Affected
Party.
I. Miscellaneous:
1. It is understood and agreed that in the Schedule to the Agreement:
1.1 The words in the square brackets in the last paragraph of Part 5(f)A are
not incorporated into this Confirmation and the square brackets and
words therein are accordingly deleted.
1.2 The words in the square brackets in Part 5(h)(iii) falling after the
words "will not then fall due" are incorporated into this Confirmation
and the square brackets are accordingly deleted.
1.3 The words in the square brackets at the end of Part 5(h)(v) falling
after the words "of any shortfall" are incorporated into this
Confirmation and the square brackets are accordingly deleted.
2. If the payment of any Floating Amount I is deferred in accordance with
Part 5(h)(iii) of the Schedule to the Agreement, then the amount so
deferred (the "Floating Amount I Deferred Amount") shall, subject to the
terms of this Confirmation, be payable on the next Floating Rate Payer I
Payment Date (the "Floating Amount I Deferred Payment Date") (together
with interest thereon (the "Floating Amount I Deferred Interest") at the
Floating Rate Payer I Floating Rate for the relevant Calculation Period)
and the Floating Amount I due on such Floating Amount I Deferred Payment
Date shall be deemed to include the Floating Amount I Deferred
7
Amounts and the Floating Amount I Deferred Interest.
If the payment of any Floating Amount II is deferred in accordance with
Part 5(h)(iii) the Agreement, then the amount so deferred (the "Floating
Amount II Deferred Amount") shall, subject to the terms of this
Confirmation, be payable on the next Floating Rate Payer II Payment Date
(the "Floating Amount II Deferred Payment Date") (together with interest
thereon (the "Floating Amount II Deferred Interest") at the Floating
Rate Payer II Floating Rate for the relevant Calculation Period) and the
Floating Amount II due on such Floating Amount II Deferred Payment Date
shall be deemed to include the Floating Amount II Deferred Amounts and
the Floating Amount II Deferred Interest.
Please confirm your agreement to be bound by the terms of the foregoing by
executing a copy of this Confirmation and returning it to us by facsimile.
Yours faithfully
Deutsche Bank AG, London Branch
By: /s/ Meghan Wallis
Name: Meghan Wallis
Title: Legal Counsel
By: /s/ Nathan Townsend
Name: Nathan Townsend
Title: Legal Counsel
Confirmed as of the date first written:
Granite Master Issuer plc
By: /s/ Ian Bowden
Name: Ian Bowden
Title: Representing L.D.C. Secuiritisation Director No. 1 Limited
8
EXECUTION COPY
DISCLOSURE AGREEMENT
THIS DISCLOSURE AGREEMENT, dated as of May 18, 2006 (this "Disclosure
Agreement"), is entered into by and between GRANITE MASTER ISSUER PLC, a
public limited company incorporated under the laws of England and Wales (the
"Issuing Entity"), GRANITE FINANCE FUNDING 2 LIMITED, a private limited
company incorporated under the laws of England and Wales ("Funding 2"),
GRANITE FINANCE TRUSTEES LIMITED, a private limited company incorporated under
the laws of Jersey, Channel Islands (the "Mortgages Trustee"), NORTHERN ROCK
PLC, a public limited company incorporated under the laws of England and Wales
(the "Sponsor"), BARCLAYS CAPITAL INC., J.P. MORGAN SECURITIES INC. and MORGAN
STANLEY & CO. INTERNATIONAL LIMITED (each a "Lead Underwriter" and
collectively with the other underwriters listed on Schedule 1 to the
Underwriting Agreement referred to below, the "Underwriters"), and DEUTSCHE
BANK AG, LONDON BRANCH (the "Swap Counterparty").
W I T N E S S E T H:
WHEREAS, on or about May 24 (the "Closing Date"), the Issuing Entity is
issuing its USD-denominated Series 2006-2 (the "US Notes") pursuant to the
Sixth Supplemental Issuer Trust Deed dated as of May 24, 2006 to the Issuer
Trust Deed dated January 19, 2005, as amended or supplemented from time to
time (together, the "Issuer Trust Deed"), between the Issuing Entity and The
Bank of New York, as note trustee; and
WHEREAS, the Underwriters are acquiring the US Notes from the Issuing
Entity pursuant to the Underwriting Agreement, dated as of May 18, 2006 (the
"Underwriting Agreement"), among, inter alios, the Issuing Entity and the
Underwriters; and
WHEREAS, pursuant to the Prospectus, dated April 24, 2006 (the
"Prospectus"), the Preliminary Prospectus Supplement, dated May 2, 2006, to
the Prospectus, together with the Term Sheet, dated May 3, 2006, and the
Prospectus Supplement, dated May 18, 2006 to the Prospectus (the "Prospectus
Supplement" and, together with each of the foregoing, the "Offering
Materials"), the Underwriters are offering for sale the US Notes; and
WHEREAS, the Issuing Entity and the Swap Counterparty are entering into
a 1992 ISDA Master Agreement (Multicurrency - Cross Border), dated as of May
24, 2006, and a related confirmation, schedule and credit support annex
(collectively, the "Currency Swap Agreement"); and
WHEREAS, the Offering Materials are required to contain certain
disclosure concerning the Swap Counterparty in accordance with the Securities
and Exchange Commission's Regulation AB ("Regulation AB");
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Significance Estimate. The Issuing Entity and the Sponsor represent
that the "significance estimate" in respect of the Currency Swap Agreement as
of the date hereof is 20% or more.
2. Swap Counterparty Representations. (a) The Swap Counterparty
represents that:
(i) it is a "foreign private issuer" as defined in Rule 405 issued
under the Securities Act of 1933, as amended (the "Securities
Act");
(ii) it is subject to the periodic reporting requirements of Section
13(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(iii) pursuant to Section 13(a) of the Exchange Act, it (A) files an
Annual Report on Form 20-F with the Securities and Exchange
Commission (the "SEC") and (B) submits to the SEC on Reports on
Form 6-K certain other financial information that it publishes,
including (1) preliminary year-end financial results containing a
preliminary unaudited statement of income of the Swap Counterparty
("Preliminary Financial Results") and (2) Interim Reports for each
of the first three quarters of its fiscal year, each containing
unaudited interim financial statements of the Swap Counterparty
for such quarter;
(iv) it transmits its Annual Reports on Form 20-F and Reports on Form
6-K to the SEC via the SEC's EDGAR System, and such reports are
available on the SEC's EDGAR internet site under File Number
001-15242; and
(v) it satisfies the requirements for incorporation by reference
specified in Section 1100(c)(i)-(iii) of Regulation AB.
3. Swap Counterparty Information. (a) The parties hereto acknowledge and
agree that the statements set forth under the heading "Issuer Swap Provider"
in the Prospectus Supplement (including any information described or
incorporated therein by reference to the reports filed by the Swap
Counterparty with the SEC) constitute the only information furnished to the
Issuing Entity, Funding 2, the Mortgages Trustee, the Sponsor or the
Underwriters by or on behalf of the Swap Counterparty for inclusion in the
Prospectus Supplement as of the date thereof (the "Swap Counterparty
Information").
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(b) The Swap Counterparty hereby represents and warrants, as of the date
of the Prospectus Supplement, that the Swap Counterparty Information (i)
contained and contains all information concerning the Swap Counterparty
required by Item 1115 of Regulation AB and (ii) fairly presents in all
material respects the financial condition, results of operations and cash
flows of the Swap Counterparty as of, and for, the periods presented therein.
4. Exchange Act Reporting. (a) So long as the Issuing Entity, Funding 2,
the Mortgages Trustee or the Sponsor is required to file reports in respect of
the US Notes with the SEC pursuant to Sections 13(a) or 15(d) of the Exchange
Act ("Exchange Act Reports"), the Swap Counterparty agrees either:
(i) to provide the Issuing Entity such information relating to the
Swap Counterparty as may be necessary to enable the Issuing Entity
to comply with such requirements, including without limitation
information concerning the Swap Counterparty required by Item 1115
of Regulation AB and Forms 10-D and 10-K; or
(ii) to secure another party to replace Deutsche Bank AG, London Branch
as Swap Counterparty on terms substantially similar to the
Currency Swap Agreement, which other party (or a guarantor
thereof) (A) satisfies any condition for replacement imposed on an
entity acting as Swap Counterparty by any rating agency for the US
Notes and (B) represents that it is able to comply with the
requirements of Regulation AB.
(b) In order to satisfy the requirements of Section 4(a)(i) hereof, the
Swap Counterparty authorizes the Issuing Entity to incorporate by reference
into the Prospectus Supplement or its Exchange Act Reports the audited
financial statements contained in the Swap Counterparty's most recent Annual
Report on Form 20-F and the unaudited financial statements contained in any
Preliminary Financial Results and any Interim Report on Form 6-K furnished to
the SEC by the Swap Counterparty subsequent to the filing of its most recent
Annual Report on Form 20-F. The information provided, or authorized to be
incorporated by reference, by the Counterparty pursuant to Section 4(a)(i) or
this Section 4(b) is referred to as the "Additional Information."
(c) To the extent necessary to comply with Regulation AB, the Swap
Counterparty agrees to use its reasonable efforts to obtain any necessary
auditor's consents related to the financial statements so incorporated by
reference and promptly to forward to the Sponsor any such auditor consents
obtained.
(d) In connection with the filing or submission to the SEC of Additional
Information provided or incorporated by reference pursuant to Section 4(a)(i)
or Section 4(b), the Swap Counterparty will be deemed to have represented and
warranted that the Additional Information includes all information required to
be included in the Exchange Act Reports by Item 1115 of Regulation AB and that
such Additional Information fairly presents in all material respects the
financial condition, results of operations and cash flows of the Swap
Counterparty as of, and for, the periods presented therein.
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(e) In the case of Additional Information incorporated by reference into
the Prospectus Supplement or the Exchange Act Reports pursuant to Section 4(b)
hereof, the Swap Counterparty shall be deemed to represent that, at the time
of such incorporation by reference, it satisfies the requirements for
incorporation by reference specified in Section 1100(c)(i)-(iii) of Regulation
AB.
(f) (i) Upon the identification by the Swap Counterparty of a
replacement pursuant to Section 4(a)(ii) hereof meeting the requirements set
forth in such Section (a "Replacement Swap Counterparty"), the Issuing Entity
agrees to consent to such replacement and enter into documentation replacing
the Swap Counterparty with the Replacement Swap Counterparty as the obligor in
respect of the Currency Swap Agreement, and the parties hereto agree to
consent to such replacement and enter into documentation replacing the Swap
Counterparty with the Replacement Swap Counterparty as the obligor in respect
of this Disclosure Agreement.
(ii) Subject to Section 4(f)(iii) hereof, the Swap Counterparty hereby
agrees to indemnify and hold harmless the Issuing Entity and the Sponsor, the
respective present and former directors, officers, employees and agents of
each of the foregoing and each person, if any, who controls the Issuing Entity
or the Sponsor within the meaning of Section 15 of the Securities Act, or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and expenses (or actions in respect thereof) arising out
of or are based upon the replacement of the Swap Counterparty with the
Replacement Swap Counterparty.
(iii) Upon any such replacement, the parties hereto agree that Deutsche
Bank AG, London Branch shall have no liability or responsibility for (A) the
performance or non-performance of the Replacement Swap Counterparty in respect
of the Currency Swap Agreement or this Disclosure Agreement or any other
agreement relating to the US Notes or the transactions relating thereto or (B)
any information provided or failed to be provided by or with respect to the
Replacement Swap Counterparty for use in the Prospectus Supplement or the
Exchange Act Reports of the Issuing Entity or the Sponsor.
5. Suspension of Exchange Act Reporting. If as of January 1, 2008, the
US Notes are held of record by less than 300 persons, and if permitted by law,
the Sponsor shall cause the Issuing Entity to file with the SEC, by no later
than January 30, 2008, a Form 15 suspending the Issuing Entity's requirement
to file reports with the SEC pursuant to the Exchange Act. The Issuing Entity
shall notify the Swap Counterparty upon the filing of any Form 15. Following
the filing of such Form 15 and any required Exchange Act Reports subsequent
thereto, the Swap Counterparty shall have no further obligation to provide
Additional Information.
6. Indemnification. The Swap Counterparty hereby agrees to indemnify and
hold harmless each of the Issuing Entity, Funding 2, the Mortgages Trustee,
the Sponsor and each Underwriter, the respective present and former directors,
officers, employees and agents of each of the foregoing and each person, if
any, who controls any of the Issuing Entity, Funding 2, the Mortgages Trustee,
the Sponsor or any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and
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against any and all losses, claims, damages, liabilities and expenses (or
actions in respect thereof) arising out of or based upon (a) any breach of any
of the agreements and undertakings of the Swap Counterparty contained in this
Disclosure Agreement, (b) the failure of the Swap Counterparty Information or
Additional Information to comply with the requirements of Regulation AB or
fairly to present in all material respects the financial condition, results of
operations and cash flows of the Swap Counterparty as of, and for, the periods
presented therein and (c)(i) any untrue statement or alleged untrue statement
of a material fact contained in the Swap Counterparty Information, or (ii) the
omission or alleged omission to state in the Swap Counterparty Information a
material fact required to be stated in the Swap Counterparty Information or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
7. Procedures. Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability that such indemnifying party may have to any indemnified party under
this Disclosure Agreement except to the extent that such indemnifying party
has been materially prejudiced by such failure. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that such indemnifying party may wish,
to assume (at its own expense) the defense thereof, with counsel satisfactory
to such indemnified party (which counsel may be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party hereunder, such indemnifying party shall not be liable for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnifying party shall have agreed
in writing to the continuing participation of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would, in the opinion of such counsel, be
inappropriate due to the actual or potential differing interests between them.
If the indemnifying party assumes the defense of any proceeding, it shall be
entitled to settle such proceeding with the consent of the indemnified party,
which will not be unreasonably withheld or delayed or, if such settlement
provides for release of the indemnified party in connection with all matters
relating to the proceeding which have been asserted against the indemnified
party in such proceeding by the other parties to such settlement, without the
consent of the indemnified party.
8. Survival of Terms. The agreements, indemnities and representations of
the parties thereto contained herein or made pursuant to this Disclosure
Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any parties hereto or any of the controlling persons referred to herein, and
will survive the sale of the US Notes.
9. Governing Law. THIS DISCLOSURE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF
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THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS
(OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
10. Benefit of Agreement. This Disclosure Agreement shall inure to the
benefit of and be binding upon the parties hereto and their successors and
assigns and the controlling persons referred to herein, and no other person
shall have any right or obligation hereunder. Neither this Disclosure
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought.
11. Counterparts. This Disclosure Agreement may be executed in
counterparts, each of which when so executed and delivered shall be considered
an original, and all such counterparts shall constitute one and the same
instrument.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
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Executed as of the day and year first above written.
DEUTSCHE BANK AG,
acting through its London Branch, as Swap Counterparty
By: /s/ Toni McDermott
------------------------------
Name: Toni McDermott
Title: Director
By: /s/ Paul Weitzkorn
------------------------------
Name: Paul Weitzkorn
Title: Director
GRANITE MASTER ISSUER PLC, as Issuing Entity
By: /s/ Ian Bowden
------------------------------
Name: Ian Bowden
Title: Representing L.D.C. Securitisation Director No. 1 Limited
GRANITE FINANCE FUNDING 2 LIMITED, as Funding 2
By: /s/ Ian Bowden
------------------------------
Name: Ian Bowden
Title: Representing L.D.C. Securitisation Director No. 1 Limited
GRANITE FINANCE TRUSTEES LIMITED, as Mortgages Trustee
By: /s/ Dean Godwin
------------------------------
Name: Dean Godwin
Title: Director
NORTHERN ROCK PLC, as Sponsor
By: /s/ Colin Taylor
------------------------------
Name: Colin Taylor
Title: Company Secretary6
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J.P. MORGAN SECURITIES INC.
For itself and on behalf of the several Underwriters listed in Schedule 1
hereto (other than Morgan Stanley & Co. International Limited)
By: /s/ Richard J. Perez
------------------------------
Name: Richard J. Perez
Title: Vice President
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
By: /s/ Brent Williams
------------------------------
Name: Brent Williams
Title: Executive Director
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