Exhibit 10.1
EXECUTION COPY
Dated 31 August 2005
GRANITE MASTER ISSUER PLC
(as Issuer)
and
XXXXXX XXXXXXX & CO. INCORPORATED
(as Remarketing Bank)
and
CANCARA ASSET SECURITISATION LIMITED
(as Conditional Purchaser)
and
NORTHERN ROCK PLC
(as Northern Rock and as Issuer Cash Manager)
---------------------------------------------------------------
relating to
$1,000,000,000 Series 2005-3 Class A Notes due 2054
---------------------------------------------------------------
SIDLEY XXXXXX XXXXX & XXXX
WOOLGATE EXCHANGE
00 XXXXXXXXXX XXXXXX
XXXXXX XX0X 0XX
TELEPHONE 000 0000 0000
FACSIMILE 020 7626 7937
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...........................................................14
11. Contracts (Rights of Third Parties) Act 1999.............................15
12. Governing Law and Submission.............................................15
13. Counterparts.............................................................16
SCHEDULE 1 Form of Remarketing Bank Accession Letter..........................18
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This Agreement is made on 31 August 2005 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 Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx
XX0X 0XX (the "Issuer");
(2) XXXXXX XXXXXXX & CO. INCORPORATED, a corporation organised under the
laws of the State of Delaware, whose registered office is at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in its capacity as remarketing
bank pursuant to this Agreement (the "Remarketing Bank");
(3) CANCARA ASSET SECURITISATION LIMITED, a Jersey, Channel Islands
entity with limited liability (registered number 84185), whose
registered office is at 00 Xxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX,
Channel Islands, 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 Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx
Xxxx XX0 0XX, in its individual capacity ("Northern Rock") and in its
capacity as Issuer Cash Manager (the "Issuer Cash Manager").
WHEREAS:
(A) On 31 August 2005 (the "Closing Date"), the Issuer proposes to issue
$1,000,000,000 Series 2005-3 Class A Notes due 2054 (the "Class A
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 A
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 A 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, Lloyds TSB
Bank plc and the Conditional Purchaser.
"Incoming Class A Noteholders" means, as at any Transfer Date, (i)
those purchasers of Class A Notes identified by the Remarketing Bank
who have agreed to
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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 per cent. per annum.
"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 2009, 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 A 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 A 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 2006 through and including the Note Payment
Date occurring in August 2010.
"Transfer Price" means, in respect of each Class A Note as at a
Transfer Date, the Principal Amount Outstanding of such Class A 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 Programme Master Definitions Schedule
signed for the purposes of identification only by Sidley Xxxxxx Xxxxx
& Wood and Xxxxx & Xxxxx LLP on January 19, 2005 and the Issuer
Master Definitions Schedule signed for the purposes of identification
only by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx & Xxxxx 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 Xxxxxx Xxxxxxx & Co. Incorporated as the
Remarketing Bank (i) in respect of the remarketing, transfer and
settlement of the Class A 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 am 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, 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.
3.3 Determination of Principal Amounts by the Issuer Cash Manager: Prior
to the service of a Remarketing Termination Notice, by 9 am London
time on the day which is four (4) Business Days prior to each
Transfer Date, the Issuer Cash Manager will notify the Remarketing
Bank of the Transfer Price applicable to the Class A 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 some but not all of the Class A Notes
will be Unremarketed Notes on such Transfer Date, the
Reset Margin for the immediately following Reset Period
will be the Maximum Reset Margin.
(ii) If the Remarketing Bank determines in respect of any
Transfer Date that all of the Class A Notes will be
Unremarketed Notes on such Transfer Date, the Reset Margin
for all the following Reset Periods will be the Maximum
Reset Margin;
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(iii) 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 A 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 Swap Counterparty of the Reset Margin
to apply on the Class A 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 A
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 some or all
of the Tendered Notes in accordance with Clause 3.4 by
the end of the Remarketing Period; or
(ii) the Class A Notes will not be redeemed in full on the
Transfer Date occurring in August 2010,
(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 A Notes:
(a) The Remarketing Bank will provide the Settlement Account to be
used by Incoming Class A 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 A
Notes: The Remarketing Bank shall:
(a) provide or procure written notice of the following information
in respect of the Class A 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 A Noteholder and
amount of Class A Notes purchased thereby;
(ii) the Reset Margin applicable to the Class A Notes for the
following Reset Period(s); and
(iii) the next Reset Period; and
(b) on each Transfer Date, arrange delivery of Class A Notes from
the Settlement Account to Incoming Class A Noteholders through
the facilities of DTC (including, without limitation, specifying
details of the accounts of such Incoming Class A 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 A 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 A 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 A 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
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whatever reason to procure a purchaser of the Class A 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 A 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 A Notes;
(c) will hold any interests transferred to the Settlement Account in
respect of the Class A Notes for the benefit of the relevant
Class A Noteholders holding an interest through DTC pending
transfer of such interests to the Incoming Class A 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 A 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 A 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 A 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
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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
A Notes in the secondary market;
(c) the requirements of Rule 2a-7 of the Investment Company Act
affecting the purchase of the Class A Notes by money market
funds have changed since the Closing Date;
(d) all of the Class A 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 A 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 to
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the Conditional Purchaser on substantially the same terms as the
Conditional Purchaser.
(b) Any replacement Conditional Purchaser appointed under this
Clause 8.2 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 Xxxxx'x and F-1+ by Fitch; and
(v) be acceptable to each of Standard & Poor's, Xxxxx and
Fitch such that each such rating agency does not
downgrade or withdraw its then current ratings of the
Class A 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 (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
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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.
The provisions of this Clause 9.1 shall survive the termination of
this Agreement.
9.2 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 9.2. 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 (as amended,
supplemented or otherwise modified from time to time, 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, agent, affiliate, director
or employee 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 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 or the Conditional Purchaser contained in
this
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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.
9.3 The Conditional Purchaser is not, by reason of entering into this
Agreement and providing its commitment under the Conditional Purchase
Agreement, offering any securities under the Prospectus or in
relation to the Class A Notes issued by the Issuer. The Conditional
Purchaser is not involved in the remarketing of the Class A Notes
issued by the Issuer, and has no obligation to remarket the Class A
Notes. Its commitment to purchase can be called upon by the
Remarketing Bank only in accordance with this Agreement. The
Conditional Purchaser is not soliciting any offers to buy the Class A
Notes issued by the Issuer.
10. COMMUNICATIONS
Any communication shall be by letter, telephone or fax:
in the case of the Issuer, to it at:
Granite Master Issuer plc
0xx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax no.: x00 (0) 00 0000 0000
Attention: The Company Secretary
in the case of the Remarketing Bank, to it at:
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: x000 000 0000
Attention: Head of Short Term Fixed Income Sales
in the case of Northern Rock or the Issuer Cash Manager, to it at:
Northern Rock plc
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx
Xxxxxxxxx xxxx Xxxx XX0 0XX
Fax no.: x00 (0) 000 000 0000
Attention: Securitisation, Risk Operations
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in the case of the Conditional Purchaser, to it at:
Cancara Asset Securitisation Limited
00 Xxx Xxxxxx
Xx. Xxxxxx
Xxxxxx XX0 0XX
Channel Islands
Fax no.: x00 (0)0000 000 000
Attention: Xxxxxx SPV - Administration
with a copy to:
Securitisation
Lloyds TSB Bank plc
Xxxxxxx'x Xxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax no.: x00 (0)00 0000 0000
Attention: Head of Securitisation
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) Xxx 0000 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).
12.3 Service of Process
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The Remarketing Bank irrevocably appoints Company Secretary, Law
Division, Xxxxxx Xxxxxxx & Co. Incorporated, 00 Xxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxxxxx X00 0XX (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:
XXXXXX XXXXXXX & CO. INCORPORATED (as Remarketing Bank)
By:
CANCARA ASSET SECURITISATION LIMITED (as Conditional Purchaser)
By:
NORTHERN ROCK PLC
By:
NORTHERN ROCK PLC (as Issuer Cash Manager)
By:
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SCHEDULE 1
Form of Remarketing Bank Accession Letter
To: Granite Master Issuer plc ("Issuer")
0xx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx XX0X
Attention: Company Secretary
Xxxxxx Xxxxxxx & Co. Incorporated ("Remarketing Bank")(1)
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Head of Short Term Fixed Income Sales
Northern Rock plc ("Issuer Cash Manager")
Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx
Xxxxxxxxx xxxx Xxxx XX0 0XX
Attention: Securitisation, Risk Operations
Dated [o]
Dear Sirs
relating to $1,000,000,000 Series 2005-3 Class A Notes
due 2054 between, inter alia, the Issuer and the Remarketing Bank
("")
We refer to the . This is a Remarketing Bank Accession
Letter. Terms defined in the 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 and to be
bound by the terms of the 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 as at the date of this letter for the benefit of the other parties
to the .
For the purposes of Clause 10 of the , the Replacement
Remarketing Bank's details are as follows:
Address: [o]
----------------
(1) Replace with current Remarketing Bank if Xxxxxx Xxxxxxx & Co. Incorporated
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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