Exhibit 10.8
EXECUTION COPY
Dated 19 September 2006
GRANITE MASTER ISSUER PLC
(as Issuer)
and
BARCLAYS CAPITAL INC.
(as Remarketing Bank)
and
BARCLAYS BANK PLC
(as Conditional Purchaser)
and
NORTHERN ROCK PLC
(as Northern Rock and as Issuer Cash Manager)
---------------------------------------------------------
CONDITIONAL PURCHASE AGREEMENT
relating to
$1,000,000,000 Series 2006-3 Class A4 Notes due 2054
---------------------------------------------------------
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION......................................1
2. AGREEMENTS BY THE CONDITIONAL PURCHASER, THE REMARKETING
BANK AND THE ISSUER.................................................4
3. REPRESENTATIONS AND WARRANTIES......................................7
4. UNDERTAKINGS........................................................9
5. CLOSING OF CONDITIONAL PURCHASE....................................11
6. [RESERVED].........................................................12
7. TERMINATION OF THIS AGREEMENT......................................12
8. TRANSFER...........................................................12
9. TIME...............................................................13
10. COMMUNICATIONS.....................................................13
11. NON-PETITION AND LIMITED RECOURSE..................................14
12. COUNTERPARTS.......................................................15
13. GOVERNING LAW AND JURISDICTION.....................................15
14. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999.......................15
SCHEDULE 1 FORM OF EXTENSION REQUEST........................................17
SCHEDULE 2 FORM OF NOTICE OF EXTENSION......................................18
SCHEDULE 3 FORM OF CONDITIONAL PURCHASE ACTIVATION NOTICE...................19
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THIS CONDITIONAL PURCHASE AGREEMENT (this "Agreement") is made on 19 September
2006
BETWEEN:
(1) GRANITE MASTER ISSUER PLC, a public limited company incorporated under the
laws of England and Wales, whose registered office is at Fifth Floor, 100
Wood Street, London EC2V 7EX (the "Issuer");
(2) BARCLAYS CAPITAL INC., a corporation organised under the laws of the State
of Connecticut, operating out of its office at 200 Park Avenue, New York,
New York 10166 (the "Remarketing Bank");
(3) BARCLAYS BANK PLC, a public limited company incorporated under the laws of
England and Wales, operating out of its office at 5 The North Colonnade,
Canary Wharf, London E14 4BB (the "Conditional Purchaser"); and
(4) NORTHERN ROCK PLC, a public limited company incorporated under the laws of
England and Wales, whose registered office is at Northern Rock House,
Gosforth, Newcastle upon Tyne NE3 4PL, in its individual capacity
("Northern Rock") and in its capacity as Issuer Cash Manager (the "Issuer
Cash Manager").
WHEREAS:
(A) The Issuer, the Conditional Purchaser, the Remarketing Bank, the Issuer
Cash Manager and Northern Rock wish to record the arrangements agreed
between them in relation to an issue of $1,000,000,000 in aggregate
principal amount of Series 2006-3 Class A4 Notes due 2054 (the "Class A4
Notes") which expression shall, where the context permits, include the
Global Class A4 Note Certificate and any Individual Class A4 Note
Certificates issued in exchange for the Global Class A4 Note Certificate
which will be constituted by the Issuer Trust Deed (as defined below) and
secured in the manner set out in the Issuer Deed of Charge (as defined
below).
(B) Pursuant to a remarketing agreement (the "Remarketing Agreement") between,
inter alios, the Issuer and the Remarketing Bank, the Remarketing Bank has
been appointed to use its reasonable efforts prior to the service of a
Remarketing Termination Notice to identify third party purchasers of the
Class A4 Notes to acquire the Class A4 Notes from the then current holders
of the Class A4 Notes on each Transfer Date up to and including the
Transfer Date occurring in August 2054, subject to Clause 3.2 of the
Remarketing Agreement. The Remarketing Bank will also facilitate the
transfers of the Class A4 Notes on each Transfer Date. The Conditional
Purchaser will agree on the terms of this Agreement to purchase certain
Class A4 Notes on a Transfer Date.
1. DEFINITIONS AND INTERPRETATION
1.1 For purposes of this Agreement, the following terms shall have the
indicated meanings unless the context or use indicates another or
different meaning and intent.
"Conditional Purchase Activation Notice" has the meaning given to it in
Clause 2.2(b) of this Agreement.
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"Conditional Purchase Commitment" has the meaning given to it in Clause
2.2(a) of this Agreement.
"Conditional Purchase Commitment Period" means, subject to extension
pursuant to Clause 2.1, the period from and including the Closing Date to
18 September 2007 (or, if that day is not a Business Day, the immediately
preceding Business Day) and, thereafter, if the Conditional Purchase
Commitment is renewed pursuant to Clause 2.1, each 364-day period
extending from but not including the last day of the preceding Conditional
Purchase Commitment Period to and including the date that is specified in
the Notice of Extension most recently served.
"Conditional Purchase Loss Event" means the debiting of an amount to the
Principal Deficiency Ledger in relation to any Class A Notes of any Series
issued by the Issuer.
"Eligible Transferee" has the meaning given to it in Clause 8 of this
Agreement.
"Extension Request" has the meaning given to it in Clause 2.1(b) of this
Agreement.
"Final Prospectus" means the Final Prospectus dated 15 September 2006
relating to the US Notes.
"Global Class A4 Note Certificate" means the note certificate representing
the Class A4 Notes in global form.
"Indemnified Person" has the meaning given to it in Clause 4.2(a) of this
Agreement.
"Indemnifying Party" has the meaning given to it in Clause 4.2(a) of this
Agreement.
"Individual Class A4 Note Certificates" means the note certificates
representing the Class A4 Notes in definitive form.
"Issuer Deed of Charge" means the deed of charge entered into on 19
January, 2005 between, inter alios, the Issuer, the Issuer Security
Trustee and the Note Trustee, including any deed of accession or
supplement thereto.
"Issuer Trust Deed" means the trust deed entered into on 19 January, 2005
between the Issuer and the Note Trustee, as supplemented by any of the
supplemental deeds thereto (as amended or supplemented from time to time).
"Note Event of Default" means, in relation to the Class A4 Notes, the
occurrence of an event of default as specified in Condition 9 of the terms
and conditions of the Class A4 Notes.
"Notes" means the notes constituted by the Issuer Trust Deed.
"Notice of Extension" has the meaning given to it in Clause 2.1(c) of this
Agreement.
"Proceedings" has the meaning given to it in Clause 13.2 of this
Agreement.
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"Ratings Downgrade" means, with respect to the initial Conditional
Purchaser, any replacement Conditional Purchaser appointed pursuant to the
Remarketing Agreement or any Eligible Transferee who becomes a party to
this Agreement pursuant to Clause 8, the downgrade of the short-term
ratings of such Conditional Purchaser or Eligible Transferee below A-1+ by
Standard & Poor's, P-1 by Moody's or F1+ by Fitch.
"Relevant Documents" means this Agreement and the Remarketing Agreement.
"Revised Preliminary Prospectus" means the Preliminary Prospectus dated 12
September 2006 relating to the US Notes.
"Settlement Account" has the meaning given to it in the Remarketing
Agreement.
"Specified Disclosure" has the meaning given to it in Clause 3.2 of this
Agreement.
"Unremarketed Notes" means:
(i) prior to the service of a Remarketing Termination Notice, and with
respect to a Transfer Date, all of the Tendered Notes that will be
Outstanding on such Transfer Date for which the Remarketing Bank has
not identified purchasers by the end of the applicable Remarketing
Period in accordance with the Remarketing Agreement;
(ii) at any time after the service of a Remarketing Termination Notice,
other than based on a Remarketing Termination Event specified in
Clauses 5.1(a) or (d) of the Remarketing Agreement, all of the Class
A4 Notes (other than Class A4 Notes then held by the Conditional
Purchaser) Outstanding on the Transfer Date immediately following
the occurrence of the relevant Remarketing Termination Event, after
giving effect to the application of Available Principal Receipts on
that Transfer Date; and
(iii) with respect to the Transfer Date occurring in August 2012, all of
the Class A4 Notes (other than Class A4 Notes then held by the
Conditional Purchaser) Outstanding on that Transfer Date, after
giving effect to the application of Available Principal Receipts on
that Transfer Date.
1.2 Capitalised terms used herein and not otherwise defined herein or pursuant
hereto, unless the context otherwise requires, shall have the meanings
given to them in the Programme Master Definitions Schedule signed for the
purposes of identification only by Sidley Austin Brown & Wood and Allen &
Overy LLP on January 19, 2005 and the Issuer Master Definitions Schedule
signed for the purposes of identification only by Sidley Austin Brown &
Wood and Allen & Overy LLP on January 19, 2005 (each as amended, varied or
supplemented from time to time), each of which is incorporated into this
Agreement by reference.
1.3 In this Agreement:
(a) words denoting the singular number only shall include the plural
number also and vice versa;
(b) words denoting one gender only shall include the other genders;
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(c) words denoting persons only shall include firms and corporations and
vice versa;
(d) references to any statutory provision shall be deemed also to refer
to any statutory modification or re-enactment thereof or any
statutory instrument, order or regulation made thereunder or under
any such re-enactment;
(e) references to any agreement or other document shall be deemed also
to refer to such agreement or document as amended, varied,
supplemented, restated or novated from time to time;
(f) clause, paragraph and schedule headings are for ease of reference
only;
(g) reference to a statute shall be construed as a reference to such
statute as the same may have been, or may from time to time be,
amended or re-enacted to the extent such amendment or re-enactment
is substantially to the same effect as such statute on the date
hereof;
(h) reference to a time of day, unless otherwise specified, shall be
construed as a reference to London time; and
(i) references to any person include references to their successors,
including, without limitation, an entity which assumes the rights
and obligations of the relevant person by operation of the law of
the jurisdiction of incorporation or domicile of such person.
2. AGREEMENTS BY THE CONDITIONAL PURCHASER, THE REMARKETING BANK AND THE
ISSUER
2.1 Term of Conditional Purchase Commitment
(a) The Conditional Purchaser makes this Conditional Purchase Commitment
to the Remarketing Bank.
(b) Save as otherwise provided in this Agreement, the Issuer Cash
Manager or the Remarketing Bank may deliver, not more than sixty
(60) days and not less than forty (40) days before the end of each
Conditional Purchase Commitment Period, to the Conditional Purchaser
an irrevocable request in writing to extend the Conditional Purchase
Commitment Period, substantially in the form of Schedule 1 hereto
(an "Extension Request") to the date that is not more than 364 days
following the last day of the current Conditional Purchase
Commitment Period.
(c) If the Conditional Purchaser wishes to accept an Extension Request
then it shall deliver, by not less than thirty (30) days before the
last day of the current Conditional Purchase Commitment Period, to
the Issuer Cash Manager and the Remarketing Bank an irrevocable
notice, substantially in the form of Schedule 2 hereto ("Notice of
Extension") that the Conditional Purchaser has consented to the
Extension Request and specifying the last day of the extended
Conditional Purchase Commitment Period agreed to thereby. Failure to
deliver such a Notice of Extension by the day referred to above
shall be
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deemed a refusal to grant an extension of the Conditional Purchase
Commitment Period.
(d) The Conditional Purchaser is not obliged to agree to extend the
Conditional Purchase Commitment Period and in no event (unless
otherwise agreed in writing by the parties to this Agreement) will
it be extended beyond the Transfer Date occurring in August 2012.
The initial Conditional Purchaser, any replacement Conditional
Purchaser or any Eligible Transferee will not extend the Conditional
Purchase Commitment Period unless each Rating Agency has confirmed
in writing that no Ratings Downgrade will occur as a consequence of
the extension of the Conditional Purchase Commitment. If the
Conditional Purchaser does not extend its Conditional Purchase
Commitment, the Issuer will cause notice of this fact to be given to
the Class A4 Noteholders.
(e) The Remarketing Bank agrees to deliver an Extension Request to the
Conditional Purchaser prior to each Transfer Date through and
including the Transfer Date occurring in August 2011, pursuant to
Clause 2.1(b) above, unless instructed otherwise by the Issuer Cash
Manager.
2.2 Conditional Purchase by the Conditional Purchaser
(a) The Conditional Purchaser agrees to purchase Unremarketed Notes on
the Transfer Date falling in each Conditional Purchase Commitment
Period at the Transfer Price payable on that Transfer Date, on the
terms of this Agreement and the Remarketing Agreement, as specified
in the Conditional Purchase Activation Notice described in this
Clause and delivered in respect of that Transfer Date (the
"Conditional Purchase Commitment"). The Transfer Price payable upon
the exercise of the Conditional Purchase Commitment shall not, on
any Transfer Date, exceed the lesser of (a) $1,000,000,000 minus the
aggregate Principal Amount Outstanding of the Class A4 Notes
previously purchased by the Conditional Purchaser and then held by
the Conditional Purchaser and (b) the Transfer Price payable in
respect of the Unremarketed Notes referred to in the Conditional
Purchase Activation Notice issued in respect of that Transfer Date.
(b) If, on any Transfer Date, the Conditional Purchase Commitment is to
be exercised, the Remarketing Bank will give notice to the
Conditional Purchaser in writing, substantially in the form of
Schedule 3 hereto (a "Conditional Purchase Activation Notice") in
accordance with Clause 3.7 of the Remarketing Agreement, which
notice shall be irrevocable. Pursuant to Clause 3.7 of the
Remarketing Agreement, the Issuer Cash Manager may deliver a
Conditional Purchaser Activation Notice to the Conditional Purchaser
if the Remarketing Bank does not. The Conditional Purchaser agrees
to purchase, on a Transfer Date, all of the Unremarketed Notes
specified in the Conditional Purchase Activation Notice delivered in
respect of that Transfer Date, in accordance with the provisions of
this Agreement.
(c) A Conditional Purchase Activation Notice shall specify:
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(i) the Principal Amount Outstanding of Unremarketed Notes that
the Conditional Purchaser is obliged to purchase on the
Transfer Date specified therein;
(ii) the Transfer Price payable by the Conditional Purchaser to or
at the direction of the Remarketing Bank on the Transfer Date
specified therein; and
(iii) that the Remarketing Bank has not received notice from the
Issuer Cash Manager that any of the events specified in Clause
2.2(d) below has occurred and is continuing and the
Remarketing Bank is otherwise not aware that any of the events
in Clause 2.2(d) below has occurred and is continuing.
(d) The obligation of the Conditional Purchaser to purchase the
Unremarketed Notes on any Transfer Date shall be subject to the
conditions that:
(i) no Note Event of Default (as that term is then defined or was
defined on the Closing Date) has occurred and is continuing;
(ii) no Conditional Purchase Loss Event has occurred and is
continuing; and
(iii) the Conditional Purchaser shall have received notice from the
Issuer Cash Manager that there will be sufficient Issuer
Available Revenue Receipts to pay all amounts of interest on
the Class A4 Notes scheduled to be paid on such Transfer Date,
in each case (except in respect of clause (iii) above), on the date
that the Conditional Purchase Activation Notice is o delivered to
the Conditional Purchaser and on such Transfer Date.
(e) The Conditional Purchase Commitment shall terminate upon the earlier
of (i) the redemption in full of the Class A4 Notes and (ii) if not
extended in accordance with Clause 2.1, the last day of the current
Conditional Purchase Commitment Period.
2.3 Conditions Precedent
The conditions precedent to the Conditional Purchaser entering into this
Agreement are:
(a) Executed Copies of Relevant Documents and other documents
On or prior to the Closing Date there having been delivered to the
Conditional Purchaser executed copies by all parties thereto of the
Relevant Documents, the Issuer Swap Agreement in respect of the
Series 2006-3 Class A4 Notes and the Series 2006-3 Loan Tranche
Supplement;
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(b) Legal Opinions
On or prior to the Closing Date, there having been delivered to the
Conditional Purchaser copies of opinions with respect to the
enforceability of the Relevant Documents, in form and substance
satisfactory to the Conditional Purchaser, dated the Closing Date,
of Sidley Austin, legal advisers as to English law to Northern Rock
and Allen & Overy LLP, legal advisers as to English law to the
Remarketing Bank;
(c) Certified Constitutional Documents
On or prior to the Closing Date, there having been delivered to the
Conditional Purchaser a copy, certified by a duly authorised
director or the company secretary, as applicable, of the Issuer of
(i) the Memorandum and Articles of Association of the Issuer; (ii)
the resolution of the Board of Directors of the Issuer authorising
the execution of the Relevant Documents and the entry into and
performance of the transactions contemplated thereby; and the issue
of the Class A4 Notes and the entry into and performance of the
transactions contemplated thereby;
(d) Note Event of Default
No Note Event of Default has occurred which is continuing on the
Closing Date; and
(e) Ratings
On or prior to the Closing Date, receipt of notification from Fitch,
Moody's and Standard & Poor's that the long-term ratings for the
Class A4 Notes of AAA/Aaa/AAA and the short-term ratings of
A-1+/P-1/F1+ by Standard & Poor's, Moody's and Fitch, respectively,
have been assigned either without conditions or subject only to the
execution and delivery on or before the Closing Date of the Relevant
Documents and any other applicable Transaction Documents.
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Northern Rock and the Issuer
(a) Northern Rock represents and warrants to the other parties to this
Agreement as at the date of this Agreement that:
(i) the execution of Relevant Documents to which it is a party and
the performance of the terms thereof by it have been duly
authorised by it and that such Relevant Documents constitute
its legal, valid and binding obligations, enforceable against
it in accordance with their terms, subject as to
enforceability to bankruptcy or other similar laws of general
applicability relating to or affecting creditors' rights;
(ii) the execution and delivery by it of the Relevant Documents and
the performance by it of the terms of such Relevant Documents
will not
7
infringe any existing law or regulation and are not contrary
to the provisions of its Memorandum and Articles of
Association;
(iii) all consents and approvals of any court, government department
or other regulatory body in any jurisdiction to which it is
subject, required for the execution and delivery by it of the
Relevant Documents and the performance by it of the terms of
such Relevant Documents have been obtained and are in full
force and effect; and
(iv) it is duly incorporated as a public limited company under the
laws of England and Wales.
(b) The Issuer represents and warrants to the other parties to this
Agreement as at the date of this Agreement that:
(i) the execution of the Relevant Documents, the Transaction
Documents to which it is a party and the performance of the
terms thereof by it have been duly authorised by it and on the
Closing Date such Relevant Documents and the Transaction
Documents constitute its legal, valid and binding obligations,
enforceable against it in accordance with their terms, subject
as to enforceability to bankruptcy or other similar laws of
general applicability relating to or affecting creditors'
rights;
(ii) the execution and delivery by it of the Relevant Documents and
the Transaction Documents and the performance by it of the
terms of such Relevant Documents and the Transaction Documents
will not (A) conflict with, or result in a breach of, any of
the terms or provisions of, or constitute a default under, the
Memorandum and Articles of Association of the Issuer or any
agreement or instrument to which the Issuer is a party or by
which any of its assets or properties is bound, or (B)
infringe any applicable law or regulation;
(iii) all consents and approvals of any court, government department
or other regulatory body in any jurisdiction to which it is
subject, required for the execution and delivery by it of the
Relevant Documents and the performance by it of the terms of
such Relevant Documents have been obtained and are in full
force and effect;
(iv) it is duly incorporated as a public limited company under the
laws of England and Wales;
(v) the creation, sale and issue of the Class A4 Notes have been
duly authorised by the Issuer and, when executed and
authenticated in accordance with the Fifth Supplemental Issuer
Trust Deed and the Issuer Paying Agent and Agent Bank
Agreement, the Class A4 Notes will constitute legal, valid and
binding obligations of the Issuer enforceable against the
Issuer in accordance with their terms, subject as to
enforceability to bankruptcy or other similar laws of general
applicability relating to or affecting creditors' rights; and
8
(vi) no event has occurred or circumstance arisen which, had the
Class A4 Notes already been issued, would constitute a Note
Event of Default as set out in the Terms and Conditions of the
Class A4 Notes.
3.2 Representations and Warranties of the Conditional Purchaser
(a) The Conditional Purchaser represents and warrants to the other
parties to this Agreement that it has the requisite power and
authority to enter into each Relevant Document to which it is a
party on the terms on which it is made and all requisite corporate
authority has been taken for it to enter into such agreement and to
perform the matters envisaged thereby at the requisite time and such
agreement will constitute a valid and legally binding obligation,
enforceable against the Conditional Purchaser in accordance with its
terms, subject as to enforceability to bankruptcy or other similar
laws of general applicability relating to or affecting creditors'
rights; and
(b) The Conditional Purchaser represents and warrants to the Issuer and
Northern Rock that the Specified Disclosure did not as of the date
of the Final Prospectus (or, in the case of the Revised Preliminary
Prospectus, as of the Time of Sale (as defined in the Underwriting
Agreement)) and will not, as of the Closing Date, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
"Specified Disclosure" means the information contained under the headings
"The conditional purchaser" and "The issuer swap provider" in each of the
Revised Preliminary Prospectus and the Final Prospectus provided by
Barclays Bank PLC to the Issuer for inclusion therein.
4. UNDERTAKINGS
4.1 (a) Northern Rock undertakes to the Conditional Purchaser that it will:
(i) indemnify and hold harmless the Conditional Purchaser on an
after tax basis (and each of its officers, directors or
employees and each person who controls the Conditional
Purchaser within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) from and
against any claim, demand, action, liability, damages, cost,
loss or expense (including, without limitation, legal fees to
the extent permitted by Clause 4.3 and any applicable value
added tax) which it may incur as a result or arising out of or
in relation to any inaccuracy or alleged inaccuracy contained
in, or any breach or alleged breach of, any of the
representations and warranties in Clause 3.1; and
(ii) furnish to the Conditional Purchaser on the date hereof a copy
of the Final Prospectus certified by a duly authorised officer
of the Issuer and, without charge, such additional number of
copies of the Final Prospectus as the Conditional Purchaser
may reasonably request.
(b) The Conditional Purchaser undertakes to indemnify and hold harmless
Northern Rock, its directors, officers, employees and agents and
each person
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who controls Northern Rock within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act against any
claim, demand, action, liability, damages, cost, loss or expense
(including, without limitation, legal fees to the extent permitted
by Clause 4.3 and any applicable value added tax), which it may
incur as a result or arising out of or in relation to any inaccuracy
or alleged inaccuracy contained in, or any breach or alleged breach
of, any of the representations and warranties in Clause 3.2(b).
(c) The Issuer Cash Manager undertakes that it will:
(i) notify the Remarketing Bank and the Conditional Purchaser on
the fifth (5th) Business Day prior to each Transfer Date by
10:00 am (London time) if any of the conditions specified in
Clause 2.2(d) has not been satisfied;
(ii) on the fifth (5th) Business Day prior to each Transfer Date by
10:00 am (London time) provide notice to the Remarketing Bank
and the Conditional Purchaser as to whether or not there will
be sufficient Issuer Available Revenue Receipts to pay all
amounts of interest on the Class A4 Notes scheduled to be paid
on such Transfer Date;
(iii) notify the Conditional Purchaser as soon as it becomes aware
of any downgrade of the rating of the Class A4 Notes by any
Rating Agency, and of any notice received from a Rating Agency
advising that the Class A4 Notes have been placed under review
for possible downgrade; and
(iv) notify the Conditional Purchaser of the occurrence of a Note
Event of Default within ten (10) Business Days of obtaining
actual knowledge thereof.
4.2 If any claim, demand or action is brought or asserted under Clauses
4.1(a)(i), 4.1(a)(iii) or 4.1(d) (each a "Claim"), the following
provisions shall apply:
(a) Notification: the Conditional Purchaser or Northern Rock, as the
case may be (the "Indemnified Person") shall promptly notify
Northern Rock or the Conditional Purchaser, as the case may be (the
"Indemnifying Party") as soon as reasonably practicable after
becoming aware of a Claim (but failure to do so shall not relieve
the Indemnifying Party from liability);
(b) Assumption of defence: the Indemnifying Party shall, subject to
Clause 4.4, be entitled to assume the defence of the relevant Claim
including the retention of legal advisers approved by each
Indemnified Person (which shall not be unreasonably withheld or
delayed), subject to the payment by the Indemnifying Party of all
legal and other expenses of such defence; and
(c) Separate representation: if the Indemnifying Party assumes the
defence of the relevant Claim, each Indemnified Person shall be
entitled to retain separate legal advisers and to participate in
such defence but the legal or other expenses incurred in so doing
shall, subject to Clause 4.4, be borne by such Indemnified
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Person unless the Indemnifying Party has specifically authorised
such retention or participation.
4.3 Notwithstanding Clause 4.2, the Indemnified Person may retain separate
legal advisers in each relevant jurisdiction and direct the defence of the
relevant Claim. The Indemnifying Party shall reimburse the Indemnified
Person for any legal or other expenses reasonably so incurred if:
(a) Indemnifying Party's failure: the Indemnifying Party (having assumed
such defence) fails properly to make such defence or to retain for
such purpose legal advisers approved by such Indemnified Person;
(b) Conflict of interest: such Indemnified Person has reasonably
concluded that the use of any legal advisers chosen by the
Indemnifying Party to represent such Indemnified Person would
present such legal advisers with a conflict of interest; or
(c) Different defences: the actual or potential defendants in, or
targets of, such Claim include both the Indemnifying Party and such
Indemnified Person and such Indemnified Person has reasonably
concluded that there are legal defences available to it which are
different from or additional to those available to the Indemnifying
Party.
4.4 The Indemnifying Party shall not, without the prior written consent of the
Indemnified Person, settle or compromise, or consent to the entry of
judgement with respect to, any pending or threatened Claim (irrespective
of whether any Indemnified Person is an actual or potential defendant in,
or target of, such Claim) unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Person from all
liability arising out of the matters which are the subject of such claim.
The Indemnifying Party shall not be liable to indemnify any Indemnified
Person where the relevant Claim has been settled or compromised without
its written consent (which shall not be unreasonably withheld).
4.5 The rights and remedies conferred upon the Conditional Purchaser under
this Clause shall continue in full force and effect notwithstanding the
completion of the arrangements set out herein for the purchase of, and
payment for, the Class A4 Notes and regardless of any investigation made
by the Conditional Purchaser.
5. CLOSING OF CONDITIONAL PURCHASE
5.1 Payment
As soon as is practicable in the working day in New York on each Transfer
Date on which the Conditional Purchaser is required to purchase
Unremarketed Notes, the Conditional Purchaser will pay or cause to be paid
to or at the direction of the Remarketing Bank the Transfer Price in
respect of the Unremarketed Notes specified in the Conditional Purchase
Activation Notice applicable to such Transfer Date. The Remarketing Bank
will hold the Transfer Price in the manner contemplated by Clause 3.13 of
the Remarketing Agreement pending completion of the transfer of the
Unremarketed Notes in accordance with Clause 5.2.
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5.2 Transfer
The Remarketing Bank will procure the transfer of interests in the
Unremarketed Notes to the Settlement Account and will hold those interests
in accordance with Clause 3.13 of the Remarketing Agreement and deliver
them to the Conditional Purchaser against payment of the relevant Transfer
Price.
6. [RESERVED]
7. TERMINATION OF THIS AGREEMENT
7.1 Termination of this Agreement
Notwithstanding anything contained herein, this Agreement shall terminate
when the Conditional Purchase Commitment terminates by virtue of Clause
2.2(e).
7.2 Consequences of Termination of this Agreement
Upon such termination in accordance with Clause 7.1 this Agreement shall
terminate and be of no further effect and no party shall be under any
liability to any other in respect of this Agreement, except that (i)
Northern Rock shall remain liable under Clause 4.1(a)(i) to indemnify the
Conditional Purchaser in accordance with the terms thereof for any breach
of any representation or warranty provided such breach has occurred prior
to the termination of this Agreement; and (ii) the indemnities provided by
Northern Rock in Clause 4.1(a)(i) and by the Conditional Purchaser in
Clause 4.1(b) shall not so terminate.
8. TRANSFER
(a) By written notice to Northern Rock and the Remarketing Bank, the
Conditional Purchaser may at any time after the date of this
Agreement transfer to any Person having short-term debt ratings of
A-1+ by Standard & Poor's, P-1 by Moody's and F1+ by Fitch as at the
date of such transfer (each such Person, an "Eligible Transferee")
all of its rights and obligations under this Agreement (including,
without limitation, all of its Conditional Purchase Commitment). The
Conditional Purchaser may not transfer any of its rights or
obligations hereunder without:
(i) the prior written consent of Northern Rock and the Remarketing
Bank; and
(ii) a confirmation from each Rating Agency that the then current
ratings of the Class A4 Notes will not be downgraded or
withdrawn as a result of such transfer.
(b) Subject to the satisfaction of the conditions set forth in Clause
8(a), from and after the effective date specified in the written
notice given by the Conditional Purchaser to Northern Rock and the
Remarketing Bank:
(i) the transferor Conditional Purchaser shall be released from
further obligations under this Agreement and its rights under
this Agreement shall be cancelled;
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(ii) the Eligible Transferee shall acquire the same rights and
assume the same obligations in place of the transferor
Conditional Purchaser expressed to be the subject of the
transfer in the written notice given by the Conditional
Purchaser; and
(iii) the Eligible Transferee shall become a party hereto as the
"Conditional Purchaser", and all references to the Conditional
Purchaser shall be construed accordingly.
9. TIME
Any date or period specified herein (excluding, subject to extension
pursuant to Clause 2.1, the Conditional Purchase Commitment Period) may be
postponed or extended by mutual agreement among the parties but, as
regards any date or period originally fixed or so postponed or extended,
time shall be of the essence.
10. COMMUNICATIONS
Any communication shall be given by letter, or by telex or facsimile
transmission, or by telephone and shall be sent:
(a) if to the Issuer, to it at:
Granite Master Issuer plc
Fifth Floor
100 Wood Street
London EC2V 7EX
Fax: +44 (0) 20 7606 0643
Attention: The Company Secretary
(b) if to Northern Rock or to the Issuer Cash Manager, to it at:
Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne NE3 4PL
Fax: +44 (0) 191 279 4929
Attention: Securitisation, Risk Operations
(c) if to the Conditional Purchaser, to it at:
Barclays Bank PLC
5 The North Colonnade
Canary Wharf
London E14 4BB
Fax: +44 (0) 20 7516 7280
Attention: Rob Ford, ABS Trading
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(d) if to the Remarketing Bank, to it at:
Barclays Capital Inc.
200 Park Avenue
New York New York 10166
Fax: +1 (1) 212 4127305
Attention: Craig Leonard, ABS Syndicate
Any such communication shall take effect, in the case of a letter, at the
time of delivery, in the case of telex or facsimile transmission, at the
time of dispatch or, in the case of telephone, when made.
Any communication not by letter shall be confirmed by letter but failure
to send or receive the letter of confirmation shall not invalidate the
original communication. No communication pursuant to Clauses 2.1 or 2.2
may be made other than in writing, including via facsimile, and will be
deemed received on actual receipt by the Conditional Purchaser.
11. NON-PETITION AND LIMITED RECOURSE
11.1 Each of the parties hereto (other than the Issuer) undertakes to the
Issuer that it shall not, until the expiry of one year and one day after
the payment of all sums outstanding and owing under all Notes issued by
the Issuer from time to time, take any corporate action or other steps or
legal proceedings for the winding up, dissolution, arrangement,
reconstruction or reorganisation or for the appointment of a liquidator,
receiver, manager, administrator, administrative receiver or similar
officer of the Issuer or any or all of its assets or revenues, petition or
commence proceedings for the administration or winding-up of the Issuer
(nor join any person in such proceedings or commencement of proceedings)
nor commence any legal proceedings against the Issuer.
The provisions of this Clause 11.1 shall survive the termination of this
Agreement.
11.2 To the extent permitted by law, no recourse under any obligation, covenant
or agreement of any person contained in this Agreement shall be had
against any shareholder, officer, agent, affiliate or director of the
Issuer, by the enforcement of any assessment or by any legal proceedings,
by virtue of any statute or otherwise; it being expressly agreed and
understood that this Agreement is a corporate obligation of the Issuer
expressed to be a party hereto and no personal liability shall attach to
or be incurred by the shareholders, officers, agents, affiliates or
directors of such person as such, or any of them, under or by reason of
any of the obligations, covenants or agreements of the Issuer contained in
this Agreement, or implied therefrom, and that any and all personal
liability for breaches by such person of any such obligations, covenants
or agreements, either under any applicable law or by statute or
constitution, of every such shareholder, officer, agent, affiliate or
director is hereby expressly waived by each person expressed to be a party
hereto as a condition of and consideration for the execution of this
Agreement; provided, however, that the foregoing shall not relieve any
such person or entity of any liability they might otherwise have as a
result of wilful misconduct or fraudulent actions or omissions taken by
them.
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The provisions of this Clause 11.2 shall survive the termination of this
Agreement.
12. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument,
provided, however, that this Agreement shall have no force or effect until
it is executed by the last party to execute the same and shall be deemed
to have been executed as delivered in the place where such last party
executed this Agreement.
13. GOVERNING LAW AND JURISDICTION
13.1 Governing Law
This Agreement shall be governed by and construed in accordance with
English law.
13.2 Jurisdiction
The courts of England are to have jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement and
accordingly any legal action or proceedings arising out of or in
connection with this Agreement ("Proceedings") may be brought in such
courts. The parties to this Agreement hereby irrevocably submit to the
jurisdiction of such courts and waive any objection to Proceedings in such
courts whether on the ground of venue or on the ground that the
Proceedings have been brought in an inconvenient forum. This submission is
for the benefit of each of the parties to this Agreement and shall not
limit the right of any of them to take Proceedings in any other court of
competent jurisdiction nor shall the taking of Proceedings in any one or
more jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not).
14. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement shall have no rights under
the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of
this Agreement but this does not affect any rights or remedy of any person
which exists or is available apart from that Act.
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In witness whereof, this Agreement has been entered into on the date stated at
the beginning.
GRANITE MASTER ISSUER PLC
(as Issuer)
By: /s/ Ian Bowden
Ian Bowden
Representing L.D.C. Securitisation Director No 1 Limited
NORTHERN ROCK PLC
By: /s/ CG
NORTHERN ROCK PLC
(as Issuer Cash Manager)
By: /s/ CG
BARCLAYS BANK PLC
(as Conditional Purchaser)
By: /s/ Louis E. Kelly
BARCLAYS CAPITAL INC.
(as the Remarketing Bank)
By: /s/ Michael Wade
Michael Wade
Managing Director
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SCHEDULE 1
FORM OF EXTENSION REQUEST
[on letterhead of the Remarketing Bank]
[DATE]
To: Barclays Bank PLC
Fax: +44 (0) 20 7516 7280
Attention: Rob Ford, ABS Trading
Ladies and Gentlemen:
We refer to the Conditional Purchase Agreement dated 19 September 2006 (as
amended from time to time, the "Agreement") among Granite Master Issuer plc, as
Issuer, Barclays Bank PLC (the "Conditional Purchaser"), Barclays Capital Inc.
(the "Remarketing Bank") and Northern Rock plc, in its individual capacity and
as Issuer Cash Manager. Terms and expressions defined herein shall bear the
meanings ascribed to such terms in the Agreement or, if not defined therein, in
the Programme Master Definitions Schedule referred to in the Agreement.
Pursuant to Clause 2.1(b) of the Agreement, we, as the Remarketing Bank, hereby
irrevocably request the Conditional Purchaser to extend the Conditional Purchase
Commitment Period to [ ].
Yours faithfully,
BARCLAYS CAPITAL INC., as Remarketing
Bank
By_____________________________
Name:
Title:
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SCHEDULE 2
FORM OF NOTICE OF EXTENSION
[on letterhead of the Conditional Purchaser]
[DATE]
Northern Rock plc, as Issuer Cash Manager
Northern Rock House, Gosforth
Newcastle upon Tyne NE3 4PL
Barclays Capital Inc., as Remarketing Bank
200 Park Avenue
New York, New York 10166
Attention: Craig Leonard, ABS Syndicate
Ladies and Gentlemen:
We refer to the Conditional Purchase Agreement dated 19 September 2006 (as
amended from time to time, the "Agreement") among Granite Master Issuer plc, as
Issuer, Barclays Bank PLC (the "Conditional Purchaser"), Barclays Capital Inc.
(the "Remarketing Bank") and Northern Rock plc, in its individual capacity and
as Issuer Cash Manager. Terms and expressions defined herein shall bear the
meanings ascribed to such terms in the Agreement or, if not defined therein, in
the Programme Master Definitions Schedule referred to in the Agreement.
Pursuant to Clause 2.1(c) of the Agreement, we, as the Conditional Purchaser
hereby consent to the Extension Request dated [ ]. The new Conditional Purchaser
Commitment Period shall commence on [o] and end on [o].
Yours faithfully,
BARCLAYS BANK PLC, as Conditional
Purchaser
By_____________________________
Name:
Title:
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SCHEDULE 3
FORM OF CONDITIONAL PURCHASE ACTIVATION NOTICE
[on the letterhead of the Remarketing Bank]
To: Barclays Bank PLC
Fax: +44 (0) 20 7516 7280
Attention: Rob Ford, ABS Trading
[Date]
Dear Sirs
Granite Master Issuer plc
$1,000,000,000 Class A4 Notes due 2054
All terms used herein shall have the meanings specified in or by reference to
the Conditional Purchase Agreement entered into on 19 September 2006 between,
inter alios, the Issuer, Northern Rock plc and Barclays Bank PLC (the
"Agreement").
In respect of the Transfer Date occurring on [ ], the Remarketing Bank delivers
this Conditional Purchase Activation Notice pursuant to Clauses 2.2(b) and
2.2(c) of the Agreement, and hereby confirms that:
(a) there will be U.S.$[ ] aggregate Principal Amount Outstanding of
Unremarketed Notes on such Transfer Date;
(b) the Transfer Price on the above Transfer Date is U.S.$[ ] and is to be
paid to the following account: [ ];
(c) the Remarketing Bank has not received notice from the Issuer Cash Manager
that any of the events specified in Clause 2.2(d) of the Agreement has
occurred and is continuing and the Remarketing Bank is otherwise not aware
that any of the events in such Clause 2.2(d) has occurred and is
continuing;
(e) the Unremarketed Notes to be purchased are identified in the schedule at
the end of this notice; and
(f) the Remarketing Bank will procure the transfer of interests in the
Unremarketed Notes to the Settlement Account and will hold those interests
in accordance with Clause 3.13 of the Remarketing Agreement and deliver
them to you against payment of the Transfer Price.
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Yours faithfully,
BARCLAYS CAPITAL INC.
By:
---------------------------------------------------
Name:
Title:
Copy to:
Northern Rock plc, as Issuer Cash Manager
Northern Rock House, Gosforth
Newcastle upon Tyne NE3 4PL
Fax: +44 (0) 191 279 4929
Attention: Securitisation, Risk Operations
Granite Master Issuer plc
Fifth Floor
100 Wood Street
London EC2V 7EX
Fax No: +44 (0) 20 76060643
Attention: The Company Secretary
SCHEDULE OF CLASS A4 NOTES TO BE PURCHASED:
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