Exhibit 10.7
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)
-------------------------------------------------
REMARKETING AGREEMENT
relating to
$1,000,000,000 Series 2006-3 Class A4 Notes due 2054
-------------------------------------------------
Table of Contents
1. Interpretation....................................................1
2. Appointment of Remarketing Bank...................................4
3. Remarketing.......................................................4
4. Termination of the Remarketing Bank...............................7
5. Remarketing Termination Events....................................9
6. Representations..................................................10
7. Replacement of the Conditional Purchaser.........................11
8. Indemnity........................................................12
9. Non-Petition and Limited Recourse................................12
10. Communications...................................................13
11. Contracts (Rights of Third Parties) Act 1999.....................14
12. Governing Law and Submission.....................................14
13. Counterparts.....................................................15
SCHEDULE 1 Form of Remarketing Bank Accession Letter......................17
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This Remarketing 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 (registered number 5250668), 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, in its capacity as remarketing bank pursuant to this
Agreement (the "Remarketing Bank");
(3) BARCLAYS BANK PLC, a public limited company incorporated under the laws of
England and Wales (registered number 1026167), operating out of its office
at 5 The North Colonnade, Canary Wharf, London E14 4BB, in its capacity as
the Conditional Purchaser pursuant to the Conditional Purchase Agreement
("Conditional Purchaser"); and
(4) NORTHERN ROCK PLC, a public limited company incorporated under the laws of
England and Wales (registered number 03273685), 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) On 19 September 2006 (the "Closing Date"), the Issuer proposes to issue
$1,000,000,000 Series 2006-3 Class A4 Notes due 2054 (the "Class A4
Notes").
(B) The Issuer wishes to appoint the Remarketing Bank, inter alia, (a) prior
to the service of a Remarketing Termination Notice, to use its reasonable
efforts to identify third party purchasers for the Class A4 Notes in
accordance with this Agreement and (b) prior to the service of a
Remarketing Termination Notice, to give notice to the Conditional
Purchaser to purchase Unremarketed Notes pursuant to the Conditional
Purchase Agreement.
1. INTERPRETATION
1.1 In this Agreement:
"Available Principal Receipts" means the amount of Issuer Available
Principal Receipts allocable to the Class A4 Notes on each Note Payment
Date that is a Transfer Date.
"Conditional Purchase Activation Notice" has the meaning given to it in
the Conditional Purchase Agreement.
"Conditional Purchase Agreement" means the Conditional Purchase Agreement
dated the date of this Agreement among the Issuer, the Remarketing Bank,
Northern Rock, the Issuer Cash Manager and the Conditional Purchaser.
"Incoming Class A4 Noteholders" means, as at any Transfer Date, (i) those
purchasers of Class A4 Notes identified by the Remarketing Bank who have
agreed to
pay the relevant Transfer Price on such Transfer Date and/or (ii) the
Conditional Purchaser if it has been served with a Conditional Purchase
Activation Notice in respect of such Transfer Date.
"Insolvency Proceeding" shall mean, with respect to the Remarketing Bank,
any bankruptcy, reorganisation, arrangement, insolvency or liquidation
proceeding under any United States federal or state bankruptcy or similar
law affecting creditors' rights now or hereafter in effect or any other
similar proceeding, whether voluntary or involuntary.
"Investment Company Act" means the United States Investment Company Act of
1940, as amended.
"Maximum Reset Margin" means 0.08 per cent. per annum over one-month USD
LIBOR.
"Merger" has the meaning given to it in Clause 4.4.
"Proceedings" has the meaning given to it in Clause 12.2.
"Remarketing Bank Accession Letter" means a letter in the form set out in
Schedule 1.
"Remarketing Bank Process Agent" has the meaning given to it in Clause
12.3.
"Remarketing Bank Termination Event" has the meaning given to it in Clause
4.1.
"Remarketed Notes" means, in respect of any Transfer Date, those Tendered
Notes for which the Remarketing Bank has identified third party
purchasers.
"Remarketing Period" means, in respect of each Transfer Date up to and
including the Transfer Date occurring in August 2054, the period from and
including the 15th Business Day prior to such Transfer Date through and
including the 10th Business Day prior to such Transfer Date.
"Remarketing Termination Event" has the meaning given to it in Clause 5.1.
"Remarketing Termination Notice" has the meaning given to it in Clause
5.2.
"Reset Margin" means for each Reset Period (i) a percentage not exceeding
the Maximum Reset Margin determined by the Remarketing Bank in accordance
with Clause 3.4(b) or (c) or (ii) if a Remarketing Termination Notice has
been given prior to the commencement of such Reset Period, the Maximum
Reset Margin.
"Reset Period" means each period commencing on and including a Transfer
Date up to but excluding the next Transfer Date, or in the case of the
last Transfer Date, the period from and including such Transfer Date to
the Final Maturity Date.
"Settlement Account" means the account held by the Remarketing Bank at DTC
for the purpose of taking delivery of Remarketed Notes on each Transfer
Date in order to effect settlement pursuant to the terms of this
Agreement.
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"Tendered Notes" means, with respect to a Transfer Date, all of the Class
A4 Notes that will then be Outstanding, after giving effect to the
application of Available Principal Receipts on that Transfer Date, the
holders of which have not exercised their right to retain such Class A4
Notes through the facilities of DTC at any time prior to the commencement
of the Remarketing Period that ends immediately before that Transfer Date.
"Transfer Date" means the Note Payment Date falling in August of each
year, beginning in August 2007 through and including the Note Payment Date
occurring in August 2054.
"Transfer Price" means, in respect of each Class A4 Note as at a Transfer
Date, the Principal Amount Outstanding of such Class A4 Note on that
Transfer Date (not to exceed $1,000,000,000 at any time), following the
application of Available Principal Receipts on such date.
"Unremarketed Notes" has the meaning given to it in the Conditional
Purchase Agreement.
1.2 The headings and the contents page in this Agreement (which expression
shall include the Schedules hereto) shall not affect its interpretation.
1.3 Words denoting the singular number only shall include the plural number
also and vice versa; words denoting one gender only shall include the
other gender and words denoting persons only shall include firms and
corporations and vice versa.
1.4 References to Clauses, sub-clauses and Schedules shall, unless the context
otherwise requires, be to Clauses and sub-clauses of and schedules to this
Agreement.
1.5 Any reference to an enactment is a reference to it as already amended and
includes a reference to any repealed enactment which it may re-enact, with
or without amendment, and to any re-enactment and/or amendment of it.
1.6 All certificates required to be provided pursuant to this Agreement shall
be certificates signed by duly authorised representatives of the persons
or companies required to provide such certificates.
1.7 Reference to any document or agreement shall include reference to such
document or agreement as varied, supplemented or replaced from time to
time.
1.8 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.
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2. APPOINTMENT OF REMARKETING BANK
The Issuer hereby appoints Barclays Capital Inc. as the Remarketing Bank
(i) in respect of the remarketing, transfer and settlement of the Class A4
Notes on each Transfer Date and (ii) in respect of giving a Conditional
Purchase Activation Notice to the Conditional Purchaser in respect of any
Unremarketed Notes, each in accordance with the terms of this Agreement.
The Remarketing Bank accepts such appointment, on the terms of and subject
to the conditions set out in this Agreement.
3. REMARKETING
3.1 Indicative Principal Amounts: By 9:00 a.m. (London time) on the first day
of each Remarketing Period, the Issuer Cash Manager will determine from
the Principal Paying Agent the Outstanding Principal Amount of Tendered
Notes in respect of the Transfer Date falling immediately after the end of
that Remarketing Period and notify the Remarketing Bank of such amount.
3.2 Approaches to Investors: During each Remarketing Period through and
including the Remarketing Period preceding the Transfer Date occurring in
August 2011, prior to the service of a Remarketing Termination Notice,
following the notification and based on the amount notified in Clause 3.1
above, the Remarketing Bank will use reasonable efforts to identify third
party purchasers to buy the Tendered Notes on the relevant Transfer Date.
Notwithstanding anything to the contrary herein, the Remarketing Bank
shall not remarket the Class A4 Notes after the Remarketing Period
occurring in August 2011.
3.3 Determination of Principal Amounts by the Issuer Cash Manager: Prior to
the service of a Remarketing Termination Notice, by 9:00 a.m. (London
time) on the day which is four (4) Business Days prior to each Transfer
Date through and including the Transfer Date occurring in August 2011, the
Issuer Cash Manager will notify the Remarketing Bank of the Transfer Price
applicable to the Class A4 Notes to be transferred on such Transfer Date.
3.4 Third Party Bids and Margin Reset:
(a) If one or more third parties is willing to purchase some or all of
the Tendered Notes, the Remarketing Bank will notify the Issuer Cash
Manager of the names of such purchasers by the last day of the
Remarketing Period prior to the relevant Transfer Date;
(b) Prior to the end of each Remarketing Period, the Remarketing Bank
will determine the lowest margin in relation to one-month USD LIBOR
at which third party purchasers will agree to purchase all of the
Tendered Notes (which margin may be a negative number) at the
Transfer Price as at the relevant Transfer Date;
(c) (i) If the Remarketing Bank determines in respect of any Transfer
Date that any of the Class A4 Notes will be Unremarketed Notes
on such Transfer Date, the Reset Margin for the immediately
following Reset Period will be the Maximum Reset Margin; and
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(ii) If there are no Tendered Notes in respect of a Transfer Date,
then the Remarketing Bank will determine the Reset Margin in
its sole discretion based on prevailing market interest rates;
and
(d) A Reset Margin determined pursuant to clause (b) or (c) above as
applicable will apply to all of the Class A4 Notes for the
immediately following Reset Period.
3.5 Notification of Reset Margin to Principal Paying Agent and Swap
Counterparty: On the last day of the Remarketing Period prior to each
relevant Transfer Date, the Remarketing Bank shall notify the Principal
Paying Agent and the Issuer Swap Provider of the Reset Margin to apply on
the Class A4 Notes for the immediately following Reset Period(s).
3.6 Payment of Transfer Price: The Remarketing Bank shall provide payment
instructions for the relevant Transfer Price to each Incoming Class A4
Noteholder.
3.7 Purchase by Conditional Purchaser:
(a) To the extent that:
(i) the Remarketing Bank is unable, in respect of any Remarketing
Period, to obtain firm bids for any of the Tendered Notes in
accordance with Clause 3.4 by the end of the Remarketing
Period;
(ii) the Class A4 Notes will not be redeemed in full on the
Transfer Date occurring in August 2012; or
(iii) a Remarketing Termination Notice has been served based other
than on the events specified in sub-clauses 5.1(a) and (d) of
this Agreement),
the Remarketing Bank shall give a Conditional Purchase Activation Notice
to the Conditional Purchaser in respect of the Unremarketed Notes by no
later than 10:00 a.m. (London time) on the fourth (4th) Business Day prior
to the applicable Transfer Date in the manner set out in the Conditional
Purchase Agreement.
(b) The Remarketing Bank shall notify the Issuer Cash Manager in writing
by such time on such fourth (4th) Business Day as to whether or not
it has given a Conditional Purchase Activation Notice. If the Issuer
Cash Manager does not receive such written notice from the
Remarketing Bank on such fourth (4th) Business Day, then the Issuer
Cash Manager shall give a Conditional Purchase Activation Notice by
10:00 a.m. (London time) on the third (3rd) Business Day prior to
the Transfer Date to which such Conditional Purchase Activation
Notice relates in the same manner, subject to the Remarketing Bank
having provided to the Issuer Cash Manager the information required
to be included in the Conditional Purchase Activation Notice.
(c) If prior to any Transfer Date a Conditional Purchase Activation
Notice has been delivered to the Conditional Purchaser pursuant to
this Clause 3.7, the Issuer Cash Manager will notify the Conditional
Purchaser on the Transfer Date specified in such Conditional
Purchase Activation Notice as to whether
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any of the events specified in Clause 5.1(a) of this Agreement has
occurred and is continuing.
3.8 Transfer and Settlement of Class A4 Notes:
(a) The Remarketing Bank will provide the Settlement Account to be used
by Incoming Class A4 Noteholders for the purposes of settlement of
the Tendered Notes on each Transfer Date and will act in accordance
with the Conditional Purchase Agreement and the other provisions of
this Agreement with a view to facilitating the transfer and
settlement of Tendered Notes on each Transfer Date as contemplated
thereby.
(b) The Remarketing Bank shall arrange on each Transfer Date payment of
the aggregate of Transfer Prices received in accordance with clause
3.6 to DTC to be credited to the account of relevant holders of
Remarketed Notes holding an interest via DTC.
3.9 Notification to DTC and Conditional Purchaser; Delivery of Class A4 Notes:
The Remarketing Bank shall:
(a) provide or procure written notice of the following information in
respect of the Class A4 Notes to DTC by no later than three (3)
Business Days prior to each Transfer Date, or such other time as DTC
may require:
(i) the identity of each Incoming Class A4 Noteholder and amount
of Class A4 Notes purchased thereby;
(ii) the Reset Margin applicable to the Class A4 Notes for the
following Reset Period(s); and
(iii) the next Reset Period; and
(b) on each Transfer Date, arrange delivery of Class A4 Notes from the
Settlement Account to Incoming Class A4 Noteholders through the
facilities of DTC (including, without limitation, specifying details
of the accounts of such Incoming Class A4 Noteholders to DTC).
3.10 Compliance with law: The Remarketing Bank will carry out its remarketing
activities hereunder in accordance with all applicable laws and
regulations.
3.11 Limitation of Liabilities: It is acknowledged that neither the Issuer,
Northern Rock, the Issuer Cash Manager nor the Remarketing Bank shall have
any obligation or liability under any circumstances to purchase Class A4
Notes or any interest therein. For the avoidance of doubt, it is
acknowledged by the parties hereto that the Remarketing Bank is not
intended to be acting as agent of the Issuer with respect to the
remarketing or procuring the purchase of the Class A4 Notes.
Except as set forth herein, neither the Issuer, Northern Rock nor the
Issuer Cash Manager shall have any obligation or liability with respect to
the remarketing of Class A4 Notes by the Remarketing Bank. For the
avoidance of doubt, the Remarketing Bank shall have no liability if, after
having used reasonable endeavours, it fails for
6
whatever reason to procure a purchaser of the Class A4 Notes at the
appropriate time, save to the extent of its own fraud, wilful default,
negligence or bad faith.
3.12 Notification: If the Remarketing Bank fails to take any action that it is
required to take pursuant to this Agreement, it shall forthwith notify the
Issuer Cash Manager in writing.
3.13 General: In acting under this Agreement, the Remarketing Bank:
(a) may take such steps as it considers appropriate in order to effect
an orderly remarketing of the Class A4 Notes under this Clause 3;
(b) will hold any Transfer Price paid to it by third party purchasers or
the Conditional Purchaser (as the case may be) as client funds for
the benefit of the relevant purchaser until transferred in exchange
for Class A4 Notes;
(c) will hold any interests transferred to the Settlement Account in
respect of the Class A4 Notes for the benefit of the relevant Class
A4 Noteholders holding an interest through DTC pending transfer of
such interests to the Incoming Class A4 Noteholders;
(d) may consult on any legal matter any legal adviser selected by it and
it shall not be liable in respect of anything done or omitted to be
done relating to that matter in good faith in accordance with that
adviser's opinion; and
(e) may acquire, hold or dispose of any Class A4 Notes or other
securities (or any interest therein) of the Issuer or any other
person, may enter into or be interested in any contract or
transaction with any such person and may act on, or as trustee or
agent for, any committee or body of holders of any securities of any
such person in each case with the same rights as it would have had
if the Remarketing Bank were not the Remarketing Bank, and need not
account for any profit.
3.14 Alternative Arrangements: If Individual Note Certificates representing the
Class A4 Notes are issued in accordance with the Issuer Trust Deed, or if
DTC ceases to offer the relevant mechanisms to enable the remarketing and
settlement of the Class A4 Notes as contemplated hereby, then the parties
hereto will make reasonable efforts to enter into alternative arrangements
to give effect to the arrangements contemplated hereby.
4. TERMINATION OF THE REMARKETING BANK
4.1 The occurrence of any of the following events shall constitute a
"Remarketing Bank Termination Event":
(a) any warranty, representation or statement which is given by the
Remarketing Bank in this Agreement or which is contained in any
certificate, statement or notice provided under or in connection
with this Agreement proves to be incorrect in any material respect
or any such warranty, representation or statement, if it is
expressed to be repeated at any time by reference to the
circumstances then prevailing, would be incorrect in any material
respect and at such time the result of any of the foregoing is, in
the reasonable opinion of
7
the Issuer, likely to materially and adversely affect the financial
condition of the Remarketing Bank or its ability to observe or
perform its obligations under this Agreement and the Conditional
Purchase Agreement;
(b) the Remarketing Bank fails to observe or perform any of its
obligations under this Agreement or the Conditional Purchase
Agreement and such failure is not remedied within five (5) Business
Days after the Issuer has notified the Remarketing Bank of the
failure;
(c) the Remarketing Bank, otherwise than for the purposes of
amalgamation or reconstruction as is referred to in Clause 4.4
below, ceases or, through an official action of the Board of
Directors of the Remarketing Bank, threatens to cease to carry on
business;
(d) the Remarketing Bank admits in writing its inability, or fails
generally, to pay its debts as they become due;
(e) (i) an Insolvency Proceeding shall have been instituted by a
creditor of the Remarketing Bank in a court having jurisdiction in
the premises seeking a decree or order for relief in respect of the
Remarketing Bank, or for the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator, conservator or other
similar official of the Remarketing Bank or for any substantial part
of its property, or for the winding-up or liquidation of its affairs
and (ii) either such Insolvency Proceeding shall remain undismissed
or unstayed for a period of sixty (60) days or any of the actions
sought in such proceedings shall occur, provided that the grace
period allowed for by this clause (ii) shall not apply to any
Insolvency Proceeding instituted by an affiliate of the Remarketing
Bank in furtherance of any of the actions set forth in the preceding
clause (i);
(f) an Insolvency Proceeding shall have been commenced by the
Remarketing Bank or the Remarketing Bank's consent to the entry of
an order for relief in an Insolvency Proceeding commenced against it
by another party, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator or other similar official of the
Remarketing Bank or for any substantial part of its property, or any
general assignment for the benefit of creditors; or
(g) the Remarketing Bank or any of its subsidiaries takes any corporate
action in furtherance of any of the actions set forth in the
preceding clause (d), (e) or (f).
4.2 Following the occurrence of a Remarketing Bank Termination Event, by
written notice to the Remarketing Bank, the Issuer may immediately
terminate the appointment of the Remarketing Bank and shall give notice of
such termination to the Conditional Purchaser. Following such termination
of its appointment hereunder, the Remarketing Bank shall have no further
obligations hereunder except pursuant to Clause 4.3.
4.3 If the appointment of the Remarketing Bank is terminated pursuant to
Clause 4.2, the Remarketing Bank must if required by the Issuer use its
reasonable endeavours to identify within fifteen (15) days an alternative
entity to act as Remarketing Bank on
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substantially the same terms as set out herein and procure the delivery of
a Remarketing Bank Accession Letter duly executed by that alternative
Remarketing Bank to the Issuer. Any replacement Remarketing Bank nominated
pursuant to this Clause 4.3 or appointed by the Issuer must be:
(a) either a leading bank or an investment banking firm operating in
both the London and New York banking and fixed income markets;
(b) appropriately licensed and authorised to discharge its obligations
hereunder;
(c) approved by Northern Rock, the Issuer and the Conditional Purchaser
(such approval not to be unreasonably withheld); and
(d) have customary arrangements for conducting transactions through (i)
a participant account with DTC and (ii) a broker-dealer registered
under the Exchange Act.
4.4 Any organisation into which the Remarketing Bank may be merged or
converted or with which the Remarketing Bank may be consolidated or which
results from any merger, conversion or consolidation ("Merger") to which
the Remarketing Bank shall be a party shall, to the extent permitted by
applicable law, be the successor Remarketing Bank under this Agreement
without any further formality. In addition, the Remarketing Bank may
transfer all of its rights and obligations to any organisation to which
the Remarketing Bank transfers all or substantially all of the Remarketing
Bank's assets and business and that assumes such obligations. Upon any
such transfer and assumption of obligations, the Remarketing Bank shall be
relieved of and fully discharged from all obligations under this
Agreement, whether such obligations arose before or after such transfer
and assumption, and the successor Remarketing Bank shall assume all of the
obligations of the Remarketing Bank under this Agreement.
5. REMARKETING TERMINATION EVENTS
5.1 If any of the following events occur (each, a "Remarketing Termination
Event"), the Remarketing Bank will have the rights set out under Clause
5.2:
(a) an event specified in Clause 2.2(d) of the Conditional Purchase
Agreement has occurred and is continuing;
(b) there shall have been in the Remarketing Bank's reasonable opinion,
since the date of this Agreement, any change, any circumstance, or
any development involving a prospective change, in national or
international monetary, financial, political or economic conditions
or currency exchange rates or foreign exchange controls such as
would in its view be likely to prejudice materially the success of
the remarketing of the Class A4 Notes in the secondary market;
(c) the requirements of Rule 2a-7 of the Investment Company Act
affecting the purchase of the Class A4 Notes by money market funds
have changed since the Closing Date;
(d) all of the Class A4 Notes have been purchased by the Conditional
Purchaser;
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(e) the Remarketing Bank's appointment is terminated pursuant to Clause
4.2 and a suitable replacement Remarketing Bank is not appointed
pursuant to Clause 4.3 on or before (fifteen) 15 Business Days prior
to a Transfer Date; or
(f) the Conditional Purchaser (i) has declined to extend the Conditional
Purchase Commitment Period under the terms of Clause 2.1 of the
Conditional Purchase Agreement or (ii) the Remarketing Bank fails to
deliver an Extension Request to the Conditional Purchaser in
accordance with Clause 2.1(b) of the Conditional Purchase Agreement
and, in either case, a replacement Conditional Purchaser has not
been appointed pursuant to Clause 7 of this Agreement.
5.2 Following the occurrence of any Remarketing Termination Event set out in
Clause 5.1 above, the Remarketing Bank shall have the right to deliver a
written notice to the Issuer (with a copy of such notice to the other
parties to this Agreement) terminating its appointment under this
Agreement (a "Remarketing Termination Notice").
5.3 Notwithstanding Clause 4.3, following the service of a Remarketing
Termination Notice, the Remarketing Bank shall have no further obligations
hereunder except as follows (provided (i) that no replacement Remarketing
Bank has assumed these functions and (ii) no event specified in Clause
5.1(a) or (d) of this Agreement has occurred):
(a) to issue a Conditional Purchase Activation Notice to the Conditional
Purchaser in the manner contemplated hereunder; and
(b) to facilitate the transfer of the Class A4 Notes to the Conditional
Purchaser on the Transfer Date immediately succeeding the date of
service of a Remarketing Termination Notice as contemplated by
Clauses 3.8 and 3.9.
6. REPRESENTATIONS
Each party to this Agreement, other than the Issuer and the Conditional
Purchaser, makes the representations and warranties set out in this Clause
6 to the other parties as of the date of this Agreement.
6.1 Status
(a) It is a corporation or a limited company (as applicable), duly
incorporated and validly existing under the law of its jurisdiction
of incorporation.
(b) It has the power to own its assets and carry on its business as it
is being conducted.
6.2 Binding obligations
The obligations expressed to be assumed by it under this Agreement are
legal, valid, binding obligations, enforceable against it in accordance
with their terms, subject as to enforceability to applicable bankruptcy,
insolvency, reorganisation, conservatorship, receivership, liquidation or
other similar laws affecting the enforcement of creditors rights generally
and to general equitable principles.
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6.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated
by, this Agreement do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement or instrument binding upon it or any of its assets.
6.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of
this Agreement and the transactions contemplated by this Agreement.
6.5 Validity and admissibility in evidence
All authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and comply
with this Agreement; and
(b) to make this Agreement admissible in evidence in its jurisdiction of
incorporation,
have been obtained or effected and are in full force and effect.
6.6 Governing law and enforcement
(a) The choice of English law as the governing law of this Agreement
will be recognised and enforced in its jurisdiction of
incorporation.
(b) Any judgment obtained in England in relation to this Agreement will
be recognised and enforced in its jurisdiction of incorporation.
6.7 No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency which, if adversely determined, might
reasonably be expected to have a material adverse effect on its ability to
comply with its obligations under this Agreement have (to the best of its
knowledge and belief) been started or threatened against it.
7. REPLACEMENT OF THE CONDITIONAL PURCHASER
(a) If the Conditional Purchaser does not extend the Conditional
Purchase Commitment pursuant to Clause 2 of the Conditional Purchase
Agreement, (i) the Issuer Cash Manager will attempt to identify and
appoint an alternative entity to act as successor to the Conditional
Purchaser and (ii) the Remarketing Bank will use reasonable efforts
to identify an alternative entity to act as successor
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to the Conditional Purchaser on substantially the same terms as the
Conditional Purchaser.
(b) Any replacement Conditional Purchaser appointed under this Clause 7
must:
(i) be a leading bank operating in both the London and New York
banking markets;
(ii) be appropriately licensed and authorised to discharge its
obligations hereunder;
(iii) be acceptable to the Issuer Cash Manager or the Remarketing
Bank, as the case may be, their consent not to be unreasonably
withheld;
(iv) be an entity which has a short-term ratings of "A-1+" by
Standard & Poor's, "P-1" by Moody's and "F1+" by Fitch; and
(v) be acceptable to each of Standard & Poor's, Moody and Fitch
such that each such rating agency does not downgrade or
withdraw its then current ratings of the Class A4 Notes.
(c) A replacement Conditional Purchaser must be appointed in the case of
a failure to extend the Conditional Purchase Commitment pursuant to
Clause 2.1 of the Conditional Purchase Agreement prior to the
beginning of the next following Remarketing Period in respect of
such Transfer Date.
8. INDEMNITY
8.1 By Northern Rock: Northern Rock will indemnify the Remarketing Bank
against any loss, liability, cost, claim, action, demand or expense
(including, but not limited to, all reasonable costs, charges and expenses
paid or incurred in disputing or defending any of the foregoing) which it
may incur or which may be made against it arising out of or in relation to
or in connection with its appointment or the exercise of its functions
hereunder, except such as may result from a breach by it of this Agreement
or its fraud, wilful default, negligence or bad faith or that of its
officers or employees; provided, however, that the Remarketing Bank shall
not be entitled to indemnification by Northern Rock if payments by
Northern Rock under such indemnification would adversely affect the
off-balance sheet treatment by the Financial Services Authority of
Mortgage Loans assigned by Northern Rock to the Mortgages Trustee pursuant
to the Mortgages Sale Agreement.
8.2 By the Remarketing Bank: The Remarketing Bank will indemnify Northern Rock
against any loss, liability, cost, claim, action, demand or expense
(including, but not limited to, all reasonable costs, charges and expenses
paid or incurred in disputing or defending any of the foregoing) which
Northern Rock may incur or which may be made against it as a result of a
breach by the Remarketing Bank of this Agreement or its fraud, wilful
default, negligence or bad faith or that of its officers or employees.
9. NON-PETITION AND LIMITED RECOURSE
9.1 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
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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 9.1 shall survive the termination of this
Agreement.
9.2 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.
The provisions of this Clause 9.2 shall survive the termination of this
Agreement.
10. COMMUNICATIONS
Any communication shall be by letter, telephone or fax:
in the case of the Issuer, to it at:
Granite Master Issuer plc
5th Floor
100 Wood Street
London EC2V 7EX
Fax no.: +44 (0) 20 7606 0643
Attention: The Company Secretary
in the case of the Remarketing Bank, to it at:
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Fax: +1 (1) 212 4127305
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Attention: Craig Leonard, ABS Syndicate
in the case of Northern Rock or the Issuer Cash Manager, to it at:
Northern Rock plc
Northern Rock House
Gosforth
Newcastle upon Tyne NE3 4PL
Fax no.: +44 (0) 191 279 4929
Attention: Securitisation, Risk Operations
in the case of the Conditional Purchaser, to it at:
Barclays Bank PLC
5 The North Colonnade
Canary Wharf
London E14 4BB
Fax no.: +44 (0) 20 7516 7280
Attention: Rob Ford, ABS Trading
or any other address of which written notice has been given to the other
party/parties in accordance with this Clause. Such communications will
take effect, in the case of a letter, when delivered or, in the case of
fax, when despatched.
11. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement but this does not affect any rights or remedy of any person
which exists or is available apart from that Act.
12. GOVERNING LAW AND SUBMISSION
12.1 Governing Law: This Agreement shall be governed by and construed in
accordance with English law.
12.2 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).
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12.3 Service of Process
The Remarketing Bank irrevocably appoints Barclays Bank PLC of 5 The North
Colonnade, Canary Wharf, London E14 4BB (the "Remarketing Bank Process
Agent") to receive, for it and on its behalf, service of process in any
proceedings in England. Such service shall be deemed completed on delivery
to the Remarketing Bank's Process Agent (whether or not it is forwarded to
and received by the Issuer). If for any reason the Remarketing Bank's
Process Agent ceases to act as such or no longer has an address in
England, the Remarketing Bank irrevocably agrees to appoint a substitute
process agent acceptable to each of the Issuer and the Issuer Cash Manager
and shall immediately notify each of the Issuer and the Issuer Cash
Manager of such appointment. Nothing shall affect the right to service
process in any other manner permitted by law.
13. 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.
In witness whereof, this Agreement has been entered into on the date stated at
the beginning.
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GRANITE MASTER ISSUER PLC (as Issuer)
By: /s/ Ian Bowden
Ian Bowden
Representing L.D.C. Securitisation Director No 1 Limited
BARCLAYS CAPITAL INC. (as Remarketing Bank)
By: /s/ Michael Wade
Michael Wade
Managing Director
BARCLAYS BANK PLC (as Conditional Purchaser)
By: /s/ Louis E. Kelly
NORTHERN ROCK PLC
By: /s/ CG
NORTHERN ROCK PLC (as Issuer Cash Manager)
By: /s/ CG
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SCHEDULE 1
Form of Remarketing Bank Accession Letter
To: Granite Master Issuer plc ("Issuer")
5th Floor
100 Wood Street
London EC2V
Attention: The Company Secretary
Barclays Capital Inc. ("Remarketing Bank")(1)
200 Park Avenue
New York, New York 10166
Attention: Craig Leonard, ABS Syndicate
Northern Rock plc ("Issuer Cash Manager")
Northern Rock House, Gosforth
Newcastle upon Tyne NE3 4PL
Attention: Securitisation, Risk Operations
Dated [o]
Dear Sirs
Remarketing Agreement relating to $1,000,000,000 Series 2006-3 Class A4 Notes
due 2054 between, inter alia, the Issuer and the Remarketing Bank ("Remarketing
Agreement")
We refer to the Remarketing Agreement. This is a Remarketing Bank Accession
Letter. Terms defined in the Remarketing Agreement have the same meaning in this
Remarketing Bank Accession Letter unless given a different meaning in this
Remarketing Bank Accession Letter.
On and from the date of this letter, [insert name of replacement Remarketing
Bank] ("Replacement Remarketing Bank") agrees to become the new Remarketing Bank
in accordance with Clause 4.3 of the Remarketing Agreement and to be bound by
the terms of the Remarketing Agreement as if it were an original party to that
document.
On the date of this letter, the Replacement Remarketing Bank repeats each of the
representations and warranties set out in Clause 6 of the Remarketing Agreement
as at the date of this letter for the benefit of the other parties to the
Remarketing Agreement.
For the purposes of Clause 10 of the Remarketing Agreement, the Replacement
Remarketing Bank's details are as follows:
Address: [o]
- -----------------
(1) Replace with current Remarketing Bank if Barclays Capital Inc. has been
replaced as Remarketing Bank under clause 4.3 of the Remarketing
Agreement.
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Fax No: [o]
Attention: [o]
This Remarketing Bank Accession Letter is governed by English law.
Yours faithfully
..................................................
for and on behalf of
[insert name of Replacement Remarketing Bank]
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