DATED [30] AUGUST 2005
GRANITE MASTER ISSUER PLC
(AS ISSUER)
AND
MORGAN STANLEY & CO. INCORPORATED
(AS REMARKETING BANK)
AND
THE BANK OF NEW YORK
(AS NOTE TRUSTEE)
AND
CANCARA ASSET SECURITISATION LIMITED
(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 2005-3 CLASS A NOTES DUE 2054
---------------------------------------------------------
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION......................................................................2
2. AGREEMENTS BY THE CONDITIONAL PURCHASER AND THE ISSUER..............................................4
3. REPRESENTATIONS AND WARRANTIES......................................................................7
4. UNDERTAKINGS........................................................................................8
5. CLOSING OF CONDITIONAL PURCHASE....................................................................10
6. FEES...............................................................................................11
7. TERMINATION OF THIS AGREEMENT......................................................................11
8. TRANSFER...........................................................................................11
9. TIME...............................................................................................12
10. COMMUNICATIONS.....................................................................................12
11. NON-PETITION AND LIMITED RECOURSE..................................................................13
12. COUNTERPARTS.......................................................................................14
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
SCHEDULE 4 CONDITIONS TO PURCHASE UNDER CLAUSE 2.2(d)(iii)..................................................21
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THIS AGREEMENT is made on [30] August 2005
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) MORGAN STANLEY & CO. INCORPORATED, a corporation organised under the
laws of the State of Delaware, whose registered office is at 1585
Broadway, New York, New York 10036 (the "REMARKETING BANK");
(3) THE BANK OF NEW YORK, a New York banking corporation, acting through
its London branch at 48th Floor, One Canada Square, Canary Wharf,
London E14 5AL, as Note Trustee pursuant to the Issuer Trust Deed (the
"NOTE TRUSTEE");
(4) CANCARA ASSET SECURITISATION LIMITED, a private limited company
incorporated under the laws of Jersey, whose registered office is at 26
New Street, St. Helier, Jersey JE2 3RA, Channel Islands (the
"CONDITIONAL PURCHASER"); and
(5) 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, Northern Rock and the Note Trustee wish to record the
arrangements agreed between them in relation to an issue of
$[1,000,000,000] in aggregate principal amount of Series 2005-3 Class A
Notes due 2054 (the "CLASS A NOTES") which expression shall, where the
context permits, include the Global Class A Note Certificate and any
Individual Class A Note Certificates issued in exchange for the Global
Class A 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 alia, the Issuer, the Remarketing Bank and the Note
Trustee, 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 A Notes to acquire the
Class A Notes from the then current holders of the Class A Notes on
each Transfer Date through the transfer date occurring in August 2009.
The Remarketing Bank will also facilitate the transfers of the
Class A Notes on each Transfer Date by, inter alia, arranging and
delivering payment to the Class A Noteholders. The Conditional
Purchaser will agree on the terms of this Agreement to purchase the
outstanding Class A Notes on the relevant Transfer Date.
(C) 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.
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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.
"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 date of this
Agreement to the date that is 364 days following the date of this
Agreement (provided that if such 364th day is not a Business Day then
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 ASSIGNEE" 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.
"FEE LETTER" means the Fee Letter referred to in Section 6 of this
Agreement.
"GLOBAL CLASS A NOTE CERTIFICATE" means the note certificate
representing the Class A Notes in global form.
"INDEMNIFIED PARTY" and "INDEMNIFIED PERSON" has the meaning given to
it in Clause 4.2(a) of this Agreement.
"INDIVIDUAL CLASS A NOTE CERTIFICATES" means the note certificates
representing the Class A Notes in definitive form.
"ISSUER DEED OF CHARGE" means the deed of charge entered into on 19
January, 2005 between, inter alia, the Issuer, the Issuer Security
Trustee and the Note Trustee.
"ISSUER TRUST DEED" means the trust deed entered into on 19 January,
2005 between the Issuer and the Note Trustee.
"NOTE EVENT OF DEFAULT" means, in relation to the Class A Notes, the
occurrence of an event of default as specified in Condition 9 of the
terms and conditions of the 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.
"RATINGS DOWNGRADE" means (i) with respect to the initial Conditional
Purchaser only, the downgrade of the short-term ratings of the
commercial paper notes issued by the Conditional Purchaser below A-1+
by Standard & Poor's or P-1 by Moody's, and (ii) with
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respect to any replacement Conditional Purchaser appointed pursuant to
the Remarketing Agreement or any Eligible Assignee who becomes a party
to this Agreement pursuant to Clause 8, the downgrade of the short-term
ratings of such replacement Conditional Purchaser or Eligible Assignee
below A-1+ by Standard & Poor's, P-1 by Moody's or F-1+ by Fitch.
"RELEVANT DOCUMENTS" means this Agreement and the Remarketing
Agreement.
"UNREMARKETED NOTES" means, in relation to each Transfer Date, all of
the Tendered Notes Outstanding on such Transfer Date for which the
Remarketing Bank has not identified purchasers in accordance with its
obligations in the Remarketing Agreement. On the Transfer Date
occurring in August 2010, Unremarketed Notes will comprise all of the
Outstanding Class A Notes (other than Class A Notes held by the
Conditional Purchaser).
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 Remarketing Agreement or in the Programme
Master Definitions Schedule, dated 19 January 2005 and signed for
purposes of identification by Allen & Overy LLP and Sidley Austin Brown
& Wood, 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;
(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; and
(h) reference to a time of day, unless otherwise specified, shall
be construed as a reference to London time.
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2. AGREEMENTS BY THE CONDITIONAL PURCHASER AND THE ISSUER
2.1 TERM OF CONDITIONAL PURCHASE COMMITMENT
(a) The Conditional Purchaser makes this Conditional Purchase
Commitment (i) to the Remarketing Bank and (ii) if the
Remarketing Bank is terminated pursuant to Clause 4 of the
Remarketing Agreement and no replacement Remarketing Bank has
been appointed, to the Issuer Cash Manager.
(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 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. Failure to deliver
such a Notice of Extension by the day referred to above shall
be 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 2010. The Conditional Purchaser will not
extend the Conditional Purchase Commitment Period unless the
Standard & Poor's and Moody's have confirmed in writing that
the then current rating of the commercial paper issued by the
Conditional Purchaser will not be reduced or withdrawn as a
consequence of the extension of the Conditional Purchase
Commitment.
(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 2010,
pursuant to Clause 2.1(b) above, unless instructed otherwise
by the Issuer Cash Manager.
2.2 REMARKETING OF CLASS A NOTES AND CONDITIONAL PURCHASE BY THE
CONDITIONAL PURCHASER
(a) The Conditional Purchaser agrees to purchase some or all of
the Class A Notes at any time during the Conditional Purchase
Commitment Period at the applicable Transfer Price (not to
exceed $1,000,000,000 outstanding at any time) payable on each
Transfer Date, on the terms of this Agreement and the
Remarketing Agreement, as specified in the Conditional
Purchase Activation Notice described in this Clause (the
"CONDITIONAL PURCHASE COMMITMENT").
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For the avoidance of doubt, the Conditional Purchase
Commitment shall not, at any time, exceed $1,000,000,000.
(b) 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"), (i) in
accordance with Clause 3.7 of the Remarketing Agreement and
(ii) immediately upon the occurrence of a Remarketing
Termination Event, which notice shall be irrevocable. The
Conditional Purchaser agrees to purchase all of the
Unremarketed Notes in accordance with the provisions of this
Agreement and as specified in the Conditional Purchase
Activation Notice.
(c) A Conditional Purchase Activation Notice shall specify:
(i) the Principal Amount Outstanding of Unremarketed
Notes that the Conditional Purchaser is obliged to
purchase on the Transfer Date specified therein or
that a Remarketing Termination Event (other than
pursuant to Clause 5.1(a) of the Remarketing
Agreement) has occurred on or before the relevant
Transfer Date;
(ii) the Unremarketed Notes to be purchased by the
Conditional Purchaser on the Transfer Date specified
therein;
(iii) the Transfer Price payable by the Conditional
Purchaser to the Securities Account on the Transfer
Date specified therein; and
(iv) that the Remarketing Bank has not received notice
from (i) the Note Trustee that any of the events
specified in Clause 2.2(d)(i) and (ii) below has
occurred and is continuing and the Remarketing Agent
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 has occurred and is
continuing;
(ii) no Conditional Purchase Loss Event has occurred and
is continuing;
(iii) no event specified in paragraphs (A) through (F) in
Schedule 4 hereto has occurred and is continuing;
(iv) the rating of the Class A Notes has not been
downgraded to "[CCC]" or lower by Standard & Poor's
and "[Caa1]" or lower by Moody's; and
(v) the Conditional Purchaser shall not have received
notice from the Issuer Cash Manager that there will
be insufficient Issuer Available Revenue Receipts to
pay all amounts of interest on the Class A Notes
scheduled to be paid on such Transfer Date,
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in each case (except in respect of clause (v) above),
on the date that the Conditional Purchase Activation
Notice is served upon the Conditional Purchaser and
on such Transfer Date.
(e) The obligation of the Conditional Purchaser shall terminate
upon the earlier of (i) the redemption in full of the Class A
Notes and (ii) the last day of the current Conditional
Purchase Commitment Period.
2.3 CONDITIONS PRECEDENT
The obligation of the Conditional Purchaser to enter into this
Agreement is subject to the following conditions precedent:
(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 Fee Letter the Swap
Agreement in respect of the Series 2005-3 Class A Notes and
the Series 2005-3 Loan Tranche Supplement;
(b) LEGAL OPINIONS
On or prior to the Closing Date, there having been delivered
to the Conditional Purchaser a copy of an opinion 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 Brown & Wood, legal advisers as
to English law to Northern Rock;
(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
authorized director or the company secretary of, as
applicable, the Issuer of (i) the Memorandum and Articles of
Association of the Issuer; (ii) the resolution of the Board of
Directors of the Issuer authorizing the execution of the
Relevant Documents and the Fee Letter and the entry into and
performance of the transactions contemplated thereby; and
(iii) the issue of the Class A Notes and the entry into and
performance of the transactions contemplated thereby;
(d) NOTE EVENT OF DEFAULT
On or prior to the Closing Date, no Note Event of Default has
occurred and is continuing; and
(e) RATINGS
On or prior to the Closing Date, receipt of notification from
Fitch, Moody's and Standard & Poor's that the ratings for the
Class A Notes of AAA/Aaa/AAA 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.
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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 applicable bankruptcy, insolvency,
reorganisation, conservatorship, receivership,
liquidation or other similar laws affecting the
enforcement of creditors rights generally and to
general equitable principles;
(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 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 Fee
Letter and 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
applicable bankruptcy, insolvency, reorganisation,
conservatorship, receivership, liquidation or other
similar laws affecting the enforcement of creditors
rights generally and to general equitable principles;
(ii) the execution and delivery by it of the Relevant
Documents, the Fee Letter 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;
7
(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 Fee Letter and the performance by
it of the terms of such Relevant Documents and the
Fee Letter 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 A Notes
have been duly authorized by the Issuer and, when
executed and authenticated in accordance with the
Supplemental Issuer Trust Deed and the Issuer Paying
Agent and Agent Bank Agreement, the Class A Notes
will constitute legal, valid and binding obligations
of the Issuer and the Supplemental Issuer Trust Deed
will have been duly qualified under the Trust
Indenture Act; and
(vi) no event has occurred or circumstance arisen which,
had the Class A Notes already been issued, would
constitute a Note Event of Default as set out in the
Terms and Conditions of the Class A Notes.
3.2 REPRESENTATIONS AND WARRANTIES OF THE CONDITIONAL PURCHASER
The Conditional Purchaser represents and warrants to the other parties
to this Agreement that the Conditional Purchaser 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 applicable bankruptcy,
insolvency, reorganisation, conservatorship, receivership, liquidation
or other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles.
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 by whom it is
controlled for the purposes of the Securities 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 or any breach or alleged breach of any
of the undertakings in Clause 4.1; and
8
(ii) furnish to the Conditional Purchaser on the date
hereof a copy of the Prospectus certified by a duly
authorised officer of the Issuer and, without charge,
such additional number of copies of the Prospectus as
the Conditional Purchaser may reasonably request.
(b) The Note Trustee undertakes to the Conditional Purchase that
it will so long as any of the Class A Notes remains
outstanding, furnish to the Conditional Purchaser copies of
any notice given to Class A Noteholders under the Issuer Trust
Deed;
(c) The Issuer Cash Manager undertakes that it will:
(i) notify the Remarketing Bank and the Conditional
Purchaser not less than ten (10) Business Days of
each Transfer Date if any of the events specified in
Clause 2.2(d) has occurred and is continuing; and
(ii) on or prior to the tenth (10th) Business Day prior to
each Transfer Date provide notice to the Remarketing
Bank and the Conditional Purchaser as to whether or
not there will be insufficient Issuer Available
Revenue Receipts or Issuer Available Principal
Receipts to pay all amounts of interest on and
principal of the Class A Notes scheduled to be paid
on such Transfer Date.
(d) The Conditional Purchaser undertakes to the Remarketing Bank
and the Issuer Cash Manager that it will notify Fitch of any
replacement of its liquidity provider(s).
4.2 If any claim, demand or action is brought or asserted under Clause
4.1(a)(i) (each a "CLAIM"), the following provisions shall apply:
(a) NOTIFICATION: the Conditional Purchaser (here the "INDEMNIFIED
PERSON") shall promptly notify Northern Rock (here 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 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:
9
(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 A 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, the Conditional Purchaser will pay or cause to be paid
to the Custodial Account the Transfer Price in respect of the relevant
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
relevant Unremarketed Notes in accordance with Clause 5.2.
5.2 TRANSFER
The Remarketing Bank will procure the transfer of interests in the
Unremarketed Notes to the Securities 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. FEES
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In consideration of the agreement by the Conditional Purchaser to make
the Conditional Purchase Commitment, the Issuer agrees to pay or
procure the payment to the Conditional Purchaser of a commitment fee as
agreed in a fee letter of even date herewith between the Issuer and the
Conditional Purchaser.
7. TERMINATION OF THIS AGREEMENT
7.1 TERMINATION OF THIS AGREEMENT
Notwithstanding anything contained herein, this Agreement shall
terminate when the Conditional Purchaser ceases to be under an
obligation to pay the Transfer Price in respect of the Class A Notes by
virtue of Clause 2.2(d) or (e) (including for the avoidance of doubt
where it has satisfied its obligation to pay each such amount).
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
Northern Rock shall remain liable under Clause 4.1 to indemnify the
Conditional Purchaser in accordance with the terms thereof for any
breach of any representation or warranty provided such breach has been
incurred prior to the termination of this Agreement.
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 F-1+
by Fitch (each such Person, an "ELIGIBLE ASSIGNEE") all of its
rights and obligations under this Agreement (including,
without limitation, all of its Conditional Purchase
Commitment). The Conditional Purchaser will not transfer or
transfer all of its rights or any of its 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 A Notes will not be
reduced 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, the Eligible Assignee
specified in such notice shall be a party hereto and, to the
extent that rights and obligations hereunder have been
transferred to it pursuant to this Agreement, have the rights
and obligations of a Conditional Purchaser hereunder and the
Conditional Purchaser shall, to the extent that rights and
obligations hereunder have been transferred by it pursuant to
this Agreement, relinquish its rights and be released from its
obligations under this Agreement.
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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:
Cancara Asset Securitisation Limited
26 New Street, St. Helier
Jersey JE2 3RA
Channel Islands
Fax: +1534 814815
Attention: Bedell SPV - Administration
with a copy to:
Securitisation
Lloyds TSB Bank plc
Faryner's House
25 Monument Street
London EC2R 8BQ
Fax: +44(0) 20 7418 3881
Attention: Head of Securitisation
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(d) if to the Note Trustee, to it at:
The Bank of New York
48th Floor
One Canada Square
London E14 5AL
Fax: +44 (0) 20 7964 6061/6399
Attention: (Corporate Trust) Global Structured Finance
(e) if to the Remarketing Bank, to it at:
[ ]
Fax: [ ]
Attention: [ ]
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 (a) 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.
(b) Each of the parties hereto (other than the Conditional
Purchaser) undertakes to the Conditional Purchaser that it
shall not until the expiry of one year and one day after the
latest maturing commercial paper note issued by the
Conditional Purchaser is paid in full, take any corporate
action or other steps or legal proceedings for the winding up,
dissolution, arrangement, reconstruction, reorganisation or
similar proceedings or for the appointment of a liquidator,
receiver, manager, administrator, administrative receiver or
similar officer of the Conditional Purchaser or any or all of
its assets or revenues, petition or commence proceedings for
the administration or winding-up of the Conditional Purchaser
(nor join any person in such proceedings or commencement of
proceedings) nor commence any legal proceedings against the
Conditional Purchaser.
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The provisions of this Clause 11.1 shall survive the termination of
this Agreement.
11.2 Notwithstanding anything to the contrary contained in this Agreement,
the obligations of the Conditional Purchaser under this Agreement are
solely the obligations of the Conditional Purchaser and shall be
payable by the Conditional Purchaser solely as provided in this Clause
11.2. Each of the parties to this Agreement (other than the Conditional
Purchaser) agrees that the Conditional Purchaser shall only be required
to pay (a) any liabilities that it may incur under this Agreement,
subject to the Conditional Purchaser having funds available in
accordance with the payment priorities set out in Section 3(a)(v) of
the Issuing and Paying Agency Agreement dated as of December 6, 2002
among the Conditional Purchaser and JPMorgan Chase Bank, N.A. as
Issuing and Paying Agent (the "Issuing and Paying Agency Agreement"),
and (b) any expenses, indemnities or other liabilities that it may
incur under this Agreement, subject to funds being available for such
purpose in accordance with the payment priorities set out in Section
3(a)(v) of the Issuing and Paying Agency Agreement.
To the extent permitted by law, no recourse under any obligation,
covenant or agreement of any person contained in this Agreement shall
be had against any shareholder, officer or director of the Issuer or
the Conditional Purchaser, 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 and the Conditional Purchaser expressed to be
a party hereto and no personal liability shall attach or be incurred by
the shareholders, officers, agents or directors of such person as such,
or any of them, under or by reason of any of the obligations, covenants
or agreements of the Issuer or the Conditional Purchaser 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 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 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.
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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.
In witness whereof, this Agreement has been entered into on the date stated at
the beginning.
GRANITE MASTER ISSUER PLC
(as Issuer)
BY:
NORTHERN ROCK PLC
BY:
NORTHERN ROCK PLC
(as Issuer Cash Manager)
BY:
15
CANCARA ASSET SECURITISATION LIMITED
(as Conditional Purchaser)
BY:
MORGAN STANLEY & CO. INCORPORATED
(as the Remarketing Bank)
BY:
THE BANK OF NEW YORK
(as Note Trustee)
BY:
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SCHEDULE 1
FORM OF EXTENSION REQUEST
[on letterhead of the Remarketing Bank]
[DATE]
To: Cancara Asset Securitisation Limited
Fax: +1534 814815
Attention: Bedell SPV - Administration
Ladies and Gentlemen:
We refer to the Conditional Purchase Agreement dated [30] August, 2005 (as
amended from time to time, the "Agreement") among Granite Master Issuer plc, as
Issuer, Cancara Asset Securitisation Limited (the "Conditional Purchaser"),
Morgan Stanley & Co. Incorporated (the "Remarketing Bank"), The Bank of New
York, as Note Trustee 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 Program Master Definitions Schedule referred to in the Agreement.
Pursuant to Section 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,
MORGAN STANLEY & CO. INCORPORATED,
as Remarketing Bank
By_____________________________
Name:
Title:
17
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
Morgan Stanley & Co. Incorporated, as Remarketing Bank
1585 Broadway
New York, New York 10036
Attention: [ ]
Ladies and Gentlemen:
We refer to the Conditional Purchase Agreement dated [30] August, 2005 (as
amended from time to time, the "Agreement") among Granite Master Issuer plc, as
Issuer, Cancara Asset Securitisation Limited (the "Conditional Purchaser"),
Morgan Stanley & Co. Incorporated (the "Remarketing Bank"), The Bank of New
York, as Note Trustee 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 Program Master Definitions Schedule referred to in the Agreement.
Pursuant to Section 2.1(c) of the Agreement, we, as the Conditional Purchaser
hereby consent to the Extension Request dated [ ] delivered to us by the
Remarketing Bank.
Yours faithfully,
CANCARA ASSET SECURITISATION
LIMITED, 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: Cancara Asset Securitisation Limited
Fax: +1534 814815
Attention: Bedell SPV - Administration
[ Date ]
Dear Sirs
GRANITE MASTER ISSUER PLC
$[1,000,000,000] CLASS A NOTES DUE 2054
All terms used herein shall have the meanings specified in or by reference to
the Conditional Purchase Agreement entered into on [30] August 2005 between,
inter alia, the Issuer, Northern Rock plc and Cancara Asset Securitisation
Limited (the "AGREEMENT").
In respect of the Transfer Date occurring on [ ] pursuant to Clauses 2.2(b)
and 2.2(c) of the Agreement, the Remarketing Bank hereby confirm that:
(a) (i) there will be U.S.$[ ] aggregate Principal Amount Outstanding of
Unremarketed Notes on such Transfer Date or (ii) a Remarketing
Termination Event has occurred and is continuing (other than as a
result of an event specified in Clause 2.2(d) of the Agreement);
(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 have not received notice that any of the events
specified in Clause 2.2(d) of the Agreement 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 Securities Account and will hold those
interests in accordance with Clause 3.14 of the Remarketing Agreement
and deliver them to you against payment of the Transfer Price.
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Yours faithfully,
MORGAN STANLEY & CO. INCORPORATED
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 A NOTES TO BE PURCHASED:
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SCHEDULE 4
CONDITIONS TO PURCHASE UNDER CLAUSE 2.2(D)(III)
(A) The Issuer fails to pay for a period of seven business days any amount
of principal of the class A notes of any series when such payment ought
to have been paid in accordance with the conditions or the issuer fails
to pay for a period of fifteen business days any amount of interest on
the class A notes of any series when such payment ought to have been
paid in accordance with the conditions; or
(B) the Issuer fails to perform or observe any of its other obligations
under the class A notes of any series, the Issuer Trust Deed, the
Issuer Deed of Charge or any other transaction document, and (except
where the Note Trustee certifies that, in its opinion, such failure is
incapable of remedy, in which case no notice will be required) it
remains unremedied for 30 days after the Note Trustee has given notice
of it to us requiring the same to be remedied; and the Note Trustee has
certified that the failure to perform or observe is materially
prejudicial to the interests of the holders of the class A notes of
such series; or
(C) except for the purposes of an amalgamation or restructuring as
described in the point immediately following, the Issuer ceases or
threatens to cease carrying on all or a substantial part of our
business or the Issuer is deemed unable to pay our debts within the
meaning of section 123(1)(a), (b), (c) or (d) of the Insolvency Act
1986 (as that section may be amended, modified or re-enacted) or
becomes unable to pay our debts within the meaning of section 123(2) of
the Insolvency Act 1986 (as that section may be amended, modified or
re-enacted); or
(D) an order is made or an effective resolution is passed for our winding
up except for the purposes of or pursuant to an amalgamation,
restructuring or merger previously approved by the Note Trustee in
writing or by an extraordinary resolution (as defined in the Issuer
Trust Deed) of the holders of the class A notes; or
(E) proceedings are otherwise initiated against the Issuer under any
applicable liquidation, insolvency, composition, reorganization or
other similar laws (including, but not limited to, presentation of a
petition or the making of an application for administration or the
filing of documents with the court for an administration) and (except
in the case of presentation of a petition for an administration order)
such proceedings are not, in the opinion of the Note Trustee, being
disputed in good faith with a reasonable prospect of success, a formal
notice is given of intention to appoint an administrator in relation to
us or an administration order being granted or an administrative
receiver or other receiver, liquidator or other similar official being
appointed in relation to us or in relation to the whole or any
substantial part of the undertaking or assets of the Issuer, or an
encumbrancer taking possession of the whole or any substantial part of
the undertaking or assets of us, or a distress, execution, diligence or
21
other process being levied or enforced upon or sued out against the
whole or any substantial part of the undertaking or assets of us and
such possession or process (as the case may be) not being discharged or
not otherwise ceasing to apply within 30 days, or the Issuer initiating
or consenting to judicial proceedings relating to itself under
applicable liquidation, insolvency, composition, reorganisation or
other similar laws or making a conveyance or assignment for the benefit
of our creditors generally or a composition or similar arrangement with
the creditors or takes steps with a view to obtaining a moratorium in
respect of our indebtedness, including without limitation, the filing
of documents with the court; or
(F) if a Funding 2 Intercompany Loan Enforcement Notice is served in
respect of any Funding 2 Intercompany Loan Agreement while the class A
notes of any series are outstanding.
TERMS USED IN THIS SCHEDULE 4 AND NOT OTHERWISE DEFINED SHALL BEAR THE
MEANINGS GIVEN TO THEM IN THE TERMS AND CONDITIONS OF THE CLASS A NOTES.
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