Exhibit 1.1
UNDERWRITING AGREEMENT
DATED [o] JANUARY, 2004
GRANITE MORTGAGES 04-1 PLC
And
NORTHERN ROCK PLC
And
GRANITE FINANCE FUNDING LIMITED
And
GRANITE FINANCE TRUSTEES LIMITED
And
BARCLAYS CAPITAL, INC.
And
CITIGROUP GLOBAL MARKETS LIMITED
And
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
And
▇▇▇▇▇▇ BROTHERS, INC.
And
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
relating to GRANITE MORTGAGES 04-1 PLC
$[1,000,000,000] Series 1 Class A1 Floating Rate Notes due December 2004
$[920,000,000] Series 1 Class A2 Floating Rate Notes due March 2025
$[60,000,000] Series 1 Class B Floating Rate Notes due March 2044
$[50,000,000] Series 1 Class M Floating Rate Notes due March 2044
$[60,000,000] Series 1 Class C Floating Rate Notes due March 2044
$[900,000,000] Series 2 Class A1 Floating Rate Notes due March 2044
------------------------------------------------------------------------------
THIS AGREEMENT is made as of [o] January, 2004
BETWEEN:
(1) GRANITE MORTGAGES 04-1 PLC, a public limited company incorporated
under the laws of England and Wales, whose registered office is at
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Current Issuer");
(2) NORTHERN ROCK PLC, a public limited company incorporated under the
laws of England and Wales, whose registered office is at ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ("NRPLC");
(3) GRANITE FINANCE FUNDING LIMITED, a private limited company
incorporated under the laws of Jersey, Channel Islands, through its
branch at ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("Funding");
(4) GRANITE FINANCE TRUSTEES LIMITED, a private limited company
incorporated under the laws of Jersey, Channel Islands, whose
registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇, Channel Islands (the "Mortgages Trustee");
(5) BARCLAYS CAPITAL, INC., a corporation organised under the laws of [o]
whose registered office is at [o], CITIGROUP GLOBAL MARKETS LIMITED, a
company incorporated in England and Wales (registered number 01763297)
whose registered office is at Citigroup Centre, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇, and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., a corporation
organised under the laws of New York whose registered office is at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, ▇▇▇ (the "Lead
Underwriters"); and
(6) ▇▇▇▇▇▇ BROTHERS INC., a corporation organised under the laws of New
York whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, ▇▇▇, and ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED, a corporation organised under the laws of Delaware whose
registered office is at c/o The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (together with the Lead
Underwriters, the "Underwriters" and each an "Underwriter").
WHEREAS:
(A) The Current Issuer, by resolutions of its Board of Directors passed on
[o] January, 2004, has duly authorised and determined to create and
issue $[1,000,000,000] Series 1 Class A1 Floating Rate Notes due
December 2004 (the "Series 1 Class A1 Notes"), $[920,000,000] Series 1
Class A2 Floating Rate Notes due March 2025 (the "Series 1 Class A2
Notes"), $[60,000,000] Series 1 Class B Floating Rate Notes due March
2044 (the "Series 1 Class B Notes"), $[50,000,000] Series 1 Class M
Floating Rate Notes due March 2044 (the "Series 1 Class M Notes"),
$[60,000,000] Series 1 Class C Floating Rate Notes due March 2044 (the
"Series 1 Class C Notes"), $[900,000,000] Series 2 Class A1 Floating
Rate Notes due March 2044 (the "Series 2 Class A1 Notes" and together
with the Series 1 Class A1 Notes, the Series 1 Class A2 Notes, the
Series 1 Class B Notes, the Series 1 Class M Notes and the Series 1
Class C Notes, the "Dollar Notes").
(B) The Dollar Notes will be denominated in U.S. dollars and in
denominations of $10,000 and $1,000. The Dollar Notes will be issued
on or about 28th January, 2004 or at such other time and/or date as
the Current Issuer and the Lead Underwriters on behalf of the
Underwriters
------------------------------------------------------------------------------
2
------------------------------------------------------------------------------
may agree acting reasonably (the "Closing Date"). The issue of the
Dollar Notes is referred to in this Agreement as the "Issue".
(C) Simultaneously with the Issue, the Current Issuer intends to issue
(euro)[750,000,000] Series 2 Class A2 Floating Rate Notes due March
2044 (the "Series 2 Class A2 Notes"),(euro)[52,000,000] Series 2 Class
B Floating Rate Notes due March 2044 (the "Series 2 Class B Notes"),
(euro)[45,000,000] Series 2 Class M Floating Rate Notes due March 2044
(the "Series 2 Class M Notes"),(euro)[60,000,000] Series 2 Class C
Floating Rate Notes due March 2044 (the "Series 2 Class C Notes"),
(GBP)[500,000,000] Series 3 Class A Floating Rate Notes due March 2044
(the "Series 3 Class A Notes"),(euro)[15,000,000] Series 3 Class B
Floating Rate Notes due March 2044 (the "Series 3 Class B Notes"),
(euro)[10,000,000] Series 3 Class M Floating Rate Notes due March 2044
(the "Series 3 Class M Notes") and(euro)[20,000,000] Series 3 Class C
Floating Rate Notes due March 2044 (the "Series 3 Class C Notes", and
together with the Series 2 Class A2 Notes, the Series 2 Class B Notes,
the Series 2 Class M Notes, the Series 2 Class C Notes, the Series 3
Class A Notes, the Series 3 Class B Notes and the Series 3 Class M
Notes, the "Reg S Notes"). The Reg S Notes and the Dollar Notes are
collectively referred to as the "Notes". By a subscription agreement
dated as of the date hereof (the "Subscription Agreement") between the
Current Issuer, NRPLC, Funding, the Mortgages Trustee and the
respective managers named therein (the "Managers"), such Managers have
agreed to subscribe and pay for the Reg S Notes upon the terms and
subject to the conditions therein contained.
The Notes will be constituted by, issued subject to and have the
benefit of a trust deed (the "Current Issuer Trust Deed") to be
entered into on or before the Closing Date between the Current Issuer
and The Bank of New York, London Branch as trustee for the Noteholders
(the "Note Trustee").
(D) The Notes (together with the Current Issuer's obligations to its other
creditors) will be secured by the benefit of security interests
created under a deed of charge and assignment by way of security (the
"Current Issuer Deed of Charge") to be entered into on or before the
Closing Date by the Current Issuer, the Note Trustee, Citibank, N.A.,
(in its separate capacities as the "Principal Paying Agent", the "US
Paying Agent", the "Registrar", the "Transfer Agent" and the "Agent
Bank"), [o] as dollar currency swap provider to the Current Issuer
(the "Dollar Currency Swap Provider"), [o], as euro currency swap
provider to the Current Issuer (the "Euro Currency Swap Provider" and
together with the Dollar Currency Swap Provider, the "Currency Rate
Swap Providers"), NRPLC in its capacity as cash manager to the Current
Issuer under the Current Issuer cash management agreement (the
"Current Issuer Cash Manager"), NRPLC as basis rate swap provider to
the Current Issuer (the "Basis Rate Swap Provider"), Citibank, N.A. in
its capacity as account bank to the Current Issuer under the Current
Issuer Bank Account Agreement (the "Current Issuer Account Bank") and
Law Debenture Corporate Services Limited in its capacity as corporate
services provider to the Current Issuer under the corporate services
provider agreement (the "Current Issuer Corporate Services Provider").
(E) Payments of principal of, and interest on, the Dollar Notes will be
made by the Current Issuer to the US Paying Agent and by the US Paying
Agent to Noteholders on behalf of the Current Issuer under a paying
agent and agent bank agreement to be entered into on or before the
Closing Date (the "Current Issuer Paying Agent and Agent Bank
Agreement") between the Current Issuer, the Note Trustee, the Agent
Bank, the paying agents named therein, the Transfer Agent and the
Registrar.
(F) Each class of the Dollar Notes will be in fully registered permanent
global form. The Registrar will maintain a register (the "Register")
in respect of the Dollar Notes in accordance
------------------------------------------------------------------------------
3
------------------------------------------------------------------------------
with the Current Issuer Paying Agent and Agent Bank Agreement. The
global note certificates representing the Dollar Notes (the "Dollar
Global Note Certificates") will be deposited on behalf of the
beneficial owners of the Dollar Notes with Citibank N.A. in New York,
as custodian for, and registered in the name of Cede & Co. as nominee
of, The Depository Trust Company ("DTC").
(G) The Current Issuer will use an amount in Sterling equal to the gross
proceeds of the Issue as well as an amount in Sterling equal to the
gross proceeds of the Reg S Notes issue to make a loan to Funding
pursuant to an intercompany loan agreement to be entered into on or
before the Closing Date between the Current Issuer, Funding, the Agent
Bank and The Bank of New York, London Branch in its capacity as
security trustee (the "Security Trustee") (the "Intercompany Loan
Agreement" and the loan made thereunder, the "Intercompany Loan").
Reference to the Intercompany Loan Agreement shall include reference
to a loan confirmation in respect of the Intercompany Loan Agreement
to be entered into on or about the Closing Date and made between
Funding, the Current Issuer, the Security Trustee and the Agent Bank
(the "Current Issuer Intercompany Loan Confirmation"), and the general
terms and conditions applicable to the Intercompany Loan Agreement
which has been signed for the purposes of identification by the
Security Trustee, the Agent Bank and Funding on the Initial Closing
Date, as amended and restated, novated, verified or supplemented from
time to time and shall include any additional and/or replacement
intercompany loan terms and conditions entered into from time to time
in accordance with the Legal Agreements (the "Intercompany Loan Terms
and Conditions").
(H) Funding will pay the proceeds of the Intercompany Loan to the
Mortgages Trustee (or to its order) in consideration for the
acquisition of part of the beneficial share of the additional assigned
mortgage trust portfolio of first residential mortgage loans (the
"Additional Assigned Mortgage Loans") and an interest in the related
insurances and their related security (together, the "Related
Security").
(I) NRPLC assigned the portfolio of Additional Assigned Mortgage Loans and
their Related Security to the Mortgages Trustee on 18th January, 2004
and may assign further Mortgage Loans on subsequent assignment dates
pursuant to a mortgage sale agreement dated 26th March, 2001 between
NRPLC, the Mortgages Trustee, Funding and the Security Trustee (the
"Mortgage Sale Agreement"). Each of the Mortgages Trustee and Funding
has appointed NRPLC as administrator to service the Additional
Assigned Mortgage Loans and their Related Security pursuant to an
Administration Agreement dated 26th March, 2001 (the "Administration
Agreement").
(J) The Mortgages Trustee holds the Additional Assigned Mortgage Loans and
their Related Security on a bare trust in undivided shares for the
benefit of Funding and NRPLC pursuant to the mortgages trust deed
dated 26th March, 2001 entered into by NRPLC, Funding and the
Mortgages Trustee (the "Mortgages Trust Deed"). The Mortgages Trustee
also entered into a guaranteed investment contract dated on or about
26th March, 2001 in respect of its principal bank account (the
"Mortgages Trustee Guaranteed Investment Contract") between the
Mortgages Trustee and Lloyds TSB Bank plc, Jersey International Branch
(in such capacity, the "Mortgages Trustee GIC Provider").
(K) Funding's obligations to the Current Issuer under the Intercompany
Loan Agreement and to Funding's other creditors are secured by the
benefit of security interests created by a deed of charge and
assignment dated 26th March, 2001, which includes any deed of
accession entered into in connection therewith or supplement thereto
(the "Funding Deed of Charge") and entered into by Funding, Granite
Mortgages 01-1 plc (the "First Issuer"), the Mortgages Trustee, the
Security Trustee, NRPLC in its capacity as cash manager to the
Mortgages
------------------------------------------------------------------------------
4
------------------------------------------------------------------------------
Trustee and Funding (the "Cash Manager") Lloyds TSB Bank plc, Jersey
International Branch in its capacity as account bank to the Mortgages
Trustee, Lloyds TSB Bank plc in its capacity as account bank to
Funding (in such capacities, each an "Account Bank") and NRPLC in its
capacity as Current Issuer start-up loan provider to Funding (the
"Current Issuer Start-up Loan Provider") and acceded to pursuant to
deeds of accession dated 28th September, 2001 by Granite Mortgages
01-2 plc (the "Second Issuer") and the Current Issuer Start-up Loan
Provider respectively, 20th March, 2002 by Granite Mortgages 02-1 plc
(the "Third Issuer") and the Current Issuer Start-up Loan Provider,
respectively, 23rd September, 2002 by Granite Mortgages 02-2 plc (the
"Fourth Issuer") and the Current Issuer Start-up Loan Provider,
respectively, 27th January, 2003 by Granite 03-1 plc (the "Fifth
Issuer") and the Current Issuer Start-Up Loan Provider, respectively,
dated 21st May, 2003 by Granite Mortgages 03-2 plc (the "Sixth
Issuer") and the Current Issuer Start-up Loan Provider, respectively,
and dated 24th September, 2003 by Granite Mortgages 03-3 plc (the
"Seventh Issuer") and the Current Issuer Start-up Loan Provider,
respectively (together the "Deeds of Accession"). On or before the
Closing Date, the Current Issuer and the Current Issuer Start-up Loan
Provider will, pursuant to a deed of accession (the "Current Deed of
Accession") accede to the terms of the Funding Deed of Charge and
thereby become secured creditors of Funding.
(L) In connection with the purchase of an initial mortgage portfolio and
the issue of certain notes by the First Issuer, Funding, in addition
to the documents described above, entered into on 26th March, 2001
(the "Initial Closing Date") (1) a cash management agreement with the
Cash Manager, the Mortgages Trustee and the Security Trustee (the
"Cash Management Agreement"); (2) a bank account agreement with the
Account Banks, the Mortgages Trustee, Funding, the Security Trustee
and the Cash Underwriter (the "Bank Account Agreement"); (3) a
guaranteed investment contract with, inter alios, Lloyds TSB Bank plc
as GIC provider to Funding (the "Funding GIC Provider") (the "Funding
Guaranteed Investment Contract"); (4) a corporate services provider
agreement (the "Funding Corporate Services Agreement") with Mourant &
Co. Capital (SPV) Limited as corporate services provider to Funding,
each of which will remain in effect, as applicable, in respect of the
Issue and (5) a start-up loan agreement made between the Current
Issuer Start-up Loan Provider and the Security Trustee (the "Start-Up
Loan Agreement").
(M) In connection with the Issue, the Current Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Notes relating
to each class of the Notes; (2) the Current Issuer Corporate Services
Agreement with respect to the Current Issuer; (3) a cash management
agreement between the Current Issuer, the Current Issuer Cash Manager
and the Note Trustee (the "Current Issuer Cash Management Agreement");
(4) a bank account agreement between the Current Issuer, the Note
Trustee, the Current Issuer Cash Manager and the Current Issuer
Account Bank (the "Current Issuer Bank Account Agreement"); (5) a
post-enforcement call option agreement (the "Post-Enforcement Call
Option Agreement") between the Current Issuer, the Note Trustee, the
Registrar, the Transfer Agent and GPCH Limited; (6) the Start-Up Loan
Agreement; (7) ISDA Master Agreements including the Schedules thereto
and confirmations thereunder in respect of Dollar/Sterling currency
swaps between the Current Issuer, the Dollar Currency Swap Provider
and the Note Trustee (the "Dollar Currency Swap Agreements"); (8) ISDA
Master Agreements including the Schedules thereto and confirmations
thereunder in respect of Euro/Sterling currency swaps between the
Current Issuer, the Euro Currency Swap Provider and the Note Trustee
(the "Euro Currency Swap Agreements" and the together with the Dollar
Currency Swap Agreements, the "Currency Swap Agreements"); and (9) an
ISDA Master Agreement including the Schedule thereto and confirmations
thereunder in respect of a variable rate swap and a fixed rate swap
between the Current Issuer, the Basis Rate Swap Provider and the Note
------------------------------------------------------------------------------
5
------------------------------------------------------------------------------
Trustee (the "Basis Rate Swap Agreement", and together with the
Currency Swap Agreements, the "Swap Agreements").
(N) As required, the Current Issuer, Funding, the Mortgages Trustee and/or
NRPLC have entered or will enter into any other relevant documents to
be signed and delivered on or before the Closing Date (such documents,
together with the Mortgage Sale Agreement, the Mortgages Trust Deed,
the Mortgages Trustee Corporate Services Agreement, the Administration
Agreement, the Mortgages Trustee Guaranteed Investment Contract, the
Intercompany Loan Agreement (including, for the avoidance of doubt,
the Intercompany Loan Terms and Conditions and the Current Issuer
Intercompany Loan Confirmation), the Post-Enforcement Call Option
Agreement, the Funding (Granite 04-1) Guaranteed Investment Contract,
the Funding Guaranteed Investment Contract, the Cash Management
Agreement, the Bank Account Agreement, the Collection Bank Agreement,
the Start-up Loan Agreement with respect to the Current Issuer, the
Funding (Granite 04-1) Bank Account Agreement, the Funding Deed of
Charge, the Current Issuer Deed of Charge, the Current Issuer Trust
Deed, the Current Issuer Cash Management Agreement, the Current Issuer
Paying Agent and Agent Bank Agreement, the Current Issuer Bank Account
Agreement, the Current Issuer Corporate Services Agreement, the Swap
Agreements, the Funding Corporate Services Agreement, this Agreement
and the Subscription Agreement, each as they have been or may be
amended, restated, varied or supplemented from time to time are
collectively referred to herein as the "Legal Agreements").
IT IS AGREED as follows:
1. Agreement to Issue and Subscribe
1.1 Definitions and Interpretation
(a) Capitalised terms used herein and not otherwise defined herein
or pursuant hereto shall have the meanings given to them in the
Prospectus (as defined below) unless the context otherwise
requires.
(b) In this Agreement:
(i) words denoting the singular number only shall include
the plural number also and vice versa;
(ii) words denoting one gender only shall include the other
genders;
(iii) words denoting persons only shall include firms and
corporations and vice versa;
(iv) 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;
(v) references to any agreement or other document (including
any of the Legal Agreements) shall be deemed also to
refer to such agreement or document as amended, varied,
supplemented, restated or novated from time to time;
(vi) clause, paragraph and schedule headings are for ease of
reference only;
------------------------------------------------------------------------------
6
------------------------------------------------------------------------------
(vii) 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;
(viii) reference to a time of day, unless otherwise specified,
shall be construed as a reference to London time; and
(ix) references to any person shall include references to his
successors, transferees and assigns and any person
deriving title under or through him.
1.2 Agreement to Issue and Underwrite
Subject to the terms and conditions of this Agreement, the Current
Issuer agrees to issue the Dollar Notes on the Closing Date to the
Underwriters or as they may direct. The Dollar Notes will be issued at
a price equal to the aggregate of 100 per cent. of the aggregate
principal amount of the Series 1 Class A1 Notes, 100 per cent. of the
aggregate principal amount of the Series 1 Class A2 Notes, 100 per
cent. of the aggregate principal amount of the Series 1 Class B Notes,
100 per cent. of the aggregate principal amount of the Series 1 Class
M Notes, 100 per cent. of the aggregate principal amount of the Series
1 Class C Notes, and 100 per cent. of the aggregate principal amount
of the Series 2 Class A1 Notes (the "Issue Price").
1.3 The Legal Agreements
To the extent that each of the Current Issuer, Funding, the Mortgages
Trustee and NRPLC is a signatory of the Legal Agreements, each will on
or before the Closing Date, have entered into or enter into each of
the Legal Agreements to which it is a party, substantially in the form
of the draft reviewed by ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
(any draft of any document so reviewed being called an "agreed form"),
with such amendments as the Lead Underwriters, on behalf of the
Underwriters, may agree with the Current Issuer and, if it is a
signatory, Funding, the Mortgages Trustee and/or NRPLC.
1.4 The Notes
The Dollar Notes will be issued on the Closing Date in accordance with
the terms of the Current Issuer Trust Deed and will be in, or
substantially in, the form set out therein.
1.5 Prospectus
The Current Issuer confirms that it has prepared a prospectus dated on
or around today's date (together with the preliminary prospectus of
the Current Issuer dated [o] January, 2004, the "Prospectus") for use
in connection with the issue of the Dollar Notes and hereby authorises
the Underwriters to distribute copies of the Prospectus in connection
with the offering and sale of the Dollar Notes.
1.6 Authority to Offer
The Current Issuer confirms that it has authorised the Lead
Underwriters to offer the Dollar Notes on its behalf to the
Underwriters for subscription at the Issue Price subject to signature
of this Agreement.
------------------------------------------------------------------------------
7
------------------------------------------------------------------------------
2. Stabilisation
2.1 Stabilisation
The Underwriters may, to the extent permitted by applicable laws and
regulations, engage in over-allotment transactions, stabilising
transactions, syndicate covering transactions and penalty bids and
otherwise effect transactions in the open market or otherwise in
connection with the distribution of the Notes with a view to
stabilising or maintaining the respective market prices of the Notes
at levels other than those which might otherwise prevail in the open
market. Such stabilising, if commenced, may be discontinued at any
time. In doing so the Underwriters shall act as principal and in no
circumstances shall the Current Issuer be obliged to issue more than
(i) $[1,000,000,000] in aggregate principal amount of the Series 1
Class A1 Notes, (ii) $[920,000,000] in aggregate principal amount of
the Series 1 Class A2 Notes, (iii) $[60,000,000] in aggregate
principal amount of the Series 1 Class B Notes, (iv) $[50,000,000] in
aggregate principal amount of the Series 1 Class M Notes, (v)
$[60,000,000] in aggregate principal amount of the Series 1 Class C
Notes, or (vi) $[900,000,000] in aggregate principal amount of the
Series 2 Class A1 Notes.
2.2 Stabilisation Profits and Losses
As between the Current Issuer and the Underwriters any loss resulting
from stabilisation transactions entered into by the Underwriters,
pursuant to Clause 2.1 shall be borne, and any profit arising
therefrom shall be retained, by the Underwriters.
3. Agreements by the Underwriters
3.1 Purchase
Each Underwriter severally agrees to purchase and pay for such
principal amount of the Dollar Notes set out against its name in the
Schedule hereto on the Closing Date at the Issue Price, all on the
terms set out in this Agreement.
(a) If any Underwriter shall default on its obligation to purchase
Dollar Notes which it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange to
purchase, or for another party or other parties reasonably
satisfactory to NRPLC to purchase, such Dollar Notes on the
terms contained herein. If within thirty-six hours after such
default by any Underwriter, the non-defaulting Underwriters do
not arrange for the purchase of such Dollar Notes, then NRPLC
shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties
satisfactory to the non-defaulting Underwriters to purchase
such Dollar Notes on such terms. In the event that, within the
respective prescribed periods, the Lead Underwriters on behalf
of the non-defaulting Underwriters notify NRPLC that the
non-defaulting Underwriters have so arranged for the purchase
of such Dollar Notes, or NRPLC notifies the non-defaulting
Underwriters that it has so arranged for the purchase of such
Dollar Notes, the non-defaulting Underwriters or NRPLC shall
have the right to postpone the Closing Date for a period of
time agreed by the Lead Underwriters and NRPLC acting
reasonably, in order to effect whatever changes may thereby be
made necessary in any documents or arrangements relating to the
offering and sale of the Dollar Notes. Any substitute purchaser
of Notes pursuant to this paragraph shall be deemed to be an
Underwriter, for purposes of this Agreement, in connection with
the offering and sale of the Dollar Notes.
------------------------------------------------------------------------------
8
------------------------------------------------------------------------------
(b) If, after giving effect to any arrangements for the purchase of
Dollar Notes of a defaulting Underwriter by the non-defaulting
Underwriters, as provided in Clause 3.1(a) above, the aggregate
principal amount of the Dollar Notes which remains unpurchased
does not exceed ten per cent. of the aggregate principal amount
of the Dollar Notes, NRPLC shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
the Dollar Notes which such Underwriter agreed to purchase
hereunder and, in addition to require each non-defaulting
Underwriter to purchase its pro rata share (based on the
principal amount of the Dollar Notes which such Underwriter
agreed to purchase hereunder) of the principal amount of the
Dollar Notes of such defaulting Underwriter for which such
arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the principal amount of the Dollar Notes of a defaulting
Underwriter by the non-defaulting Underwriters as provided in
Clause 3.1(a) above, the aggregate principal amount of the
Dollar Notes which remains unpurchased exceeds ten per cent. of
the aggregate principal amount of the Dollar Notes, or if NRPLC
shall not exercise the right described in Clause 3.1(b) above
to require non-defaulting Underwriters to purchase the Dollar
Notes of a defaulting Underwriter, then this Agreement shall
thereupon terminate, without liability on the part of the
non-defaulting Underwriters; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
3.2 Selling
Each Underwriter severally (and not jointly) agrees as follows:
(a) United States
It is understood that several Underwriters propose to offer the
Dollar Notes for sale to the public in the United States as set
forth in the Prospectus.
(b) United Kingdom
Each Underwriter represents and agrees that:
(1) it has not offered or sold, and will not offer or sell,
any Dollar Notes to persons in the United Kingdom prior
to admission of the Dollar Notes to listing in
accordance with Part VI of the Financial Services and
Markets ▇▇▇ ▇▇▇▇, as amended (the "FSMA") except to
persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments
(as principal or agent) for purposes of their businesses
or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers
of Securities Regulations 1995 (as amended) or the FSMA;
(2) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated
any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the FSMA)
received by it in connection with the issue or sale of
any Dollar Notes in circumstances in which Section 21(1)
of the FSMA does not apply to the Current Issuer; and
------------------------------------------------------------------------------
9
------------------------------------------------------------------------------
(3) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it
in relation to the Dollar Notes in, from or otherwise
involving the United Kingdom.
(c) Italy
Each Underwriter represents and agrees that the offering of the
Dollar Notes has not been cleared by CONSOB (the Italian
Securities Exchange Commission) pursuant to Italian securities
legislation and, accordingly, the Dollar Notes have not been
and will not be offered, sold or delivered, and the copies of
the Prospectus or any other document relating to the Dollar
Notes have not been and will not be distributed in the Republic
of Italy, except:
(i) to professional investors (operatori qualificati), as
defined in Article 31, second paragraph, of CONSOB
Regulation No. 11522 of 1st July, 1998, as amended; or
(ii) in circumstances which are exempted from the rules on
solicitation of investments pursuant to Article 100 of
Legislative Decree No. 58 of 24th February, 1998 (the
"Financial Services Act") and Article 33, first
paragraph of CONSOB Regulation No. 11971 of 14th May,
1999, as amended; or
(iii) to an Italian resident who submits an unsolicited offer
to purchase the Dollar Notes.
In addition, each Underwriter represents and agrees that any
offer, sale or delivery of the Dollar Notes or distribution of
copies of the Prospectus or any other document relating to the
Dollar Notes in the Republic of Italy under (i) or (ii) above
has been and will be:
(A) made by an investment firm, bank or financial
intermediary permitted to conduct such activities in the
Republic of Italy in accordance with the Financial
Services Act and Legislative Decree ▇▇. ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇ ▇▇▇"); and
(B) in compliance with Article 129 of the Banking Act and
the implementing guidelines of the Bank of Italy, as
amended from time to time, pursuant to which the issue
or the offer of securities in the Republic of Italy may
need to be preceded and followed by an appropriate
notice to be filed with the Bank of Italy depending,
inter alia, on the aggregate value of the securities
issued or offered in the Republic of Italy and their
characteristics.
(d) Spain
Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not offer or
sell any Dollar Notes in Spain by means of a public offer as
defined and construed by Spanish law unless such public offer
is made in compliance with the requirements of Law 24/1988 of
28th July (as amended by Law 37/1998, of 16th November), on the
Spanish Securities Market and the Royal Decree 291/1992, of
27th March (as amended by Royal Decree 2590/1998, of 7th
December and Royal Decree 705/2002, of 19th July), on issues
and public offers for the sale of securities.
------------------------------------------------------------------------------
10
------------------------------------------------------------------------------
(e) Ireland
Each Underwriter represents and agrees that it has not and will
not, directly or indirectly, offered or sold in Ireland any
Dollar Notes other than to persons whose ordinary business it
is to buy or sell shares or debentures whether as principal or
agent.
(f) Other
For each jurisdiction outside the United States and the United
Kingdom (a "Relevant Jurisdiction"), each Underwriter
acknowledges that no representation is made by the Current
Issuer or any Underwriter that any action has been or will be
taken in any Relevant Jurisdiction by the Current Issuer or any
Underwriter that would permit a public offering of the Dollar
Notes (other than as described above), or possession or
distribution of the Prospectus or any other offering material,
in any country or Relevant Jurisdiction where action for that
purpose is required. Each Underwriter will comply with all
applicable securities laws and regulations in any Relevant
Jurisdiction in which it purchases, offers, sells or delivers
Dollar Notes or has in its possession or distributes the
Prospectus or any other offering material, in all cases at its
own expense. Each Underwriter represents that it has not and
will not directly or indirectly offer, sell or deliver any
offered notes or publish any prospectus, form of application,
offering circular, advertisement or other offering material
except under circumstances that will, to the best of its
knowledge and belief, result in compliance with any applicable
laws and regulations, and all offers, sales and deliveries of
offered notes by it will be made on the same terms and will
obtain any consent, approval or permission required by it for
the purchase, offer, sale or delivery by it of Dollar Notes
under the laws and regulations in force in any Relevant
Jurisdictions to which it is subject or in which it makes such
purchases, offers, sales or deliveries and the Current Issuer
shall have no responsibility for them.
4. Listing
4.1 Application for Listing
The Current Issuer confirms that it has authorised the Lead
Underwriters to make or cause to be made at the Current Issuer's
expense applications on the Current Issuer's behalf for the Notes to
be listed on the Official List of the UK Listing Authority and for the
Notes to be admitted to trading by the London Stock Exchange plc (the
"Stock Exchange").
4.2 Supply of Information
The Current Issuer agrees to supply to the Lead Underwriters for
delivery to the UK Listing Authority and the Stock Exchange copies of
the Prospectus and such other documents, information and undertakings
as may be required for the purpose of obtaining such listing.
4.3 Maintenance of Listing
The Current Issuer agrees to use its reasonable endeavours to maintain
a listing of the Dollar Notes on the Official List of the UK Listing
Authority and the admission of the Notes to trading by the Stock
Exchange for as long as any of the Dollar Notes are outstanding and to
pay all fees and supply all further documents, information and
undertakings and publish all advertisements or other material as may
be necessary for such purpose. However, if such listing becomes
impossible, the Current Issuer will obtain, and will thereafter use
its best
------------------------------------------------------------------------------
11
------------------------------------------------------------------------------
endeavours to maintain, a quotation for, or listing of, the Dollar
Notes on or by such other stock exchange, competent listing authority
and/or quotation system as is commonly used for the quotation or
listing of debt securities as it may, with the approval of the Lead
Underwriters (such approval not to be unreasonably withheld or
delayed), decide.
5. Representations and Warranties of the Current Issuer
The Current Issuer represents and warrants to, and agrees with,
Funding, the Mortgages Trustee, the Underwriters and each of them
that:
(a) The Registration Statement
The Current Issuer has prepared and filed with the United
States Securities and Exchange Commission (the "Commission") a
registration statement (file number 333-110773) on Form S-11
(the "Registration Statement"), including a related preliminary
prospectus dated [o] January, 2004, for registration under the
U.S. Securities Act of 1933, as amended (the "Securities Act")
of the offering and sale of the Dollar Notes. The Current
Issuer may have filed one or more amendments thereto, including
a related preliminary prospectus, each of which has previously
been furnished to the Underwriters. The Current Issuer will
next file with the Commission one of the following, either (1)
prior to the date and time that such Registration Statement
becomes effective (the "Effective Date"), a further amendment
to such Registration Statement, including the form of final
prospectus, or (2) after the Effective Date of such
Registration Statement, a final prospectus in accordance with
Rules 430A and 424(b) under the Securities Act. In the case of
clause (2), the Current Issuer has included in such
Registration Statement, as amended at the Effective Date, all
information (other than information with respect to the Notes
and the Issue permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A
("Rule 430A Information")) required by the Securities Act and
the rules thereunder to be included in such Registration
Statement and the Prospectus. As filed, such amendment and form
of final prospectus, or such final prospectus, shall contain
all Rule 430A Information, together with all other such
required information, and, except to the extent that the Lead
Underwriters shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to the
Underwriters prior to the date and time that this Agreement is
executed and delivered by the parties hereto (the "date of this
Agreement"), or, to the extent not completed at the date of
this Agreement, shall contain only specific additional
information and other changes (beyond that contained in the
latest preliminary prospectus) as the Current Issuer has
advised the Lead Underwriters, prior to the date of this
Agreement, will be included or made therein;
(b) No Material Misstatements or Omissions
On the Effective Date, the Registration Statement, as amended,
did or will, and when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing
Date, the Prospectus (and any supplements thereto) will, comply
in all material respects with the applicable requirements of
the Securities Act, the U.S. Securities Exchange Act of 1934,
as amended (the "Exchange Act") and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the respective
rules thereunder; on the Effective Date and at the date of this
Agreement, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; on the Effective Date and on the
------------------------------------------------------------------------------
12
------------------------------------------------------------------------------
Closing Date the Current Issuer Trust Deed did or will comply
in all material respects with the applicable requirements of
the Trust Indenture Act and the rules thereunder; and on the
Effective Date, the Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Prospectus (together
with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; provided, however, that the Current Issuer makes no
representations or warranties as to the information contained
in or omitted from the Registration Statement, or the
Prospectus (or any statement thereto) in reliance upon and in
conformity with information furnished in writing to the Current
Issuer by or on behalf of any Underwriter through the Lead
Underwriters specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto), which
information is described in Clause 13.2;
(c) Incorporation, Capacity and Authorisation
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power
and capacity to conduct its business as described in the
Prospectus, has full power and capacity to create and issue the
Notes, to execute this Agreement and the Legal Agreements to
which it is a party and to undertake and perform the
obligations expressed to be assumed by it herein and therein;
and has taken all necessary action to approve and authorise the
same; and the Current Issuer is lawfully qualified to do
business in England and Wales. The Current Issuer has not taken
any corporate action nor (to the best of its knowledge and
belief) have any other steps been taken or legal proceedings
been started or threatened against it for its winding-up,
dissolution or reorganisation or for the appointment of a
receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues;
(d) Validity of Legal Agreements
This Agreement has been duly authorised, executed and delivered
by the Current Issuer and constitutes, and the other Legal
Agreements to which the Current Issuer is a party have been
duly authorised by the Current Issuer and on the Closing Date
will constitute, valid and legally binding obligations of the
Current Issuer;
(e) Validity of Notes
The creation, sale and issue of the Notes have been duly
authorised by the Current Issuer and, when executed and
authenticated in accordance with the Current Issuer Trust Deed
and the Current Issuer Paying Agent and Agent Bank Agreement,
the Notes will constitute valid and legally binding obligations
of the Current Issuer and, upon effectiveness of the
Registration Statement, the Current Issuer Trust Deed will have
been duly qualified under the Trust Indenture Act;
(f) Consents
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities
required for the creation, issue and offering of the Notes or
in connection with the execution and performance of the
transactions contemplated by the Legal Agreements or the
compliance by the Current Issuer with the terms of the Notes
and the Legal Agreements as the case may be, except for (i)
------------------------------------------------------------------------------
13
------------------------------------------------------------------------------
such consents, approvals, authorisations, registrations or
qualifications as may be required under applicable United
States state securities, Blue Sky or similar laws in connection
with the purchase and distribution of the Notes by the
Underwriters and (ii) those which will on the Closing Date be,
in full force and effect;
(g) Compliance
The authorisation of the Notes and the granting of security
interests in relation thereto under the Current Issuer Deed of
Charge, the offering and issue of the Notes on the terms and
conditions of this Agreement, the Trust Deed and the
Prospectus, the execution and delivery of the Legal Agreements
to which it is a party and the implementation of the
transactions contemplated by such Legal Agreements and
compliance with the terms of the Legal Agreements to which it
is a party do not, and will not, (i) 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 Current Issuer or any agreement or
instrument to which the Current Issuer is a party or by which
its properties is bound; (ii) infringe any applicable law,
rule, regulation, judgment, order or decree of any government,
governmental body or court, having jurisdiction over the
Current Issuer or any of its properties; or (iii) result in the
creation or imposition of any mortgage, charge, pledge, lien or
other security interest on any of its properties, other than
those created in, or imposed by, the Legal Agreements
themselves;
(h) Financial Statements
(i) The auditor's report by PricewaterhouseCoopers LLP, as
independent auditor to the Current Issuer, set out in
the Prospectus presents fairly the financial position of
the Current Issuer as at the date at which it has been
prepared;
(ii) Since the date of each such report there has been no
change (nor any development or event involving a
prospective change of which the Current Issuer is, or
might reasonably be expected to be, aware) since the
date of incorporation of the Current Issuer which is
materially adverse to the condition (financial or
other), prospects, results of operations or general
affairs of the Current Issuer; and
(iii) PricewaterhouseCoopers LLP are independent public
accountants with respect to the Current Issuer within
the meaning of the standards established by the American
Institute of Certified Public Accountants;
(i) Taxation
Save as described in the legal opinions referred to in Clause
9(d) of this Agreement, no stamp or other similar duty is
assessable or payable in the United Kingdom, and no withholding
or deduction for any taxes, duties, assessments or governmental
charges of whatever nature is imposed or made for or on account
of any income, registration, transfer or turnover taxes,
customs or other duties or taxes of any kind in connection with
the authorisation, execution or delivery of the Legal
Agreements or with the authorisation, issue, sale or delivery
of the Notes and (except as disclosed in the Prospectus) the
performance of the Current Issuer's, Funding's and/or, as the
case may be, the Mortgages Trustee's obligations under the
Legal Agreements and the Notes. This warranty does not apply to
any United Kingdom corporation tax which may be levied,
collected, withheld or assessed in connection with the
authorisation,
------------------------------------------------------------------------------
14
------------------------------------------------------------------------------
execution or delivery of the Legal Agreements or with the
authorisation, issue, sale or delivery of the Notes;
(j) Breach of other agreements
The Current Issuer is not in breach of or in default under any
agreement to which it is a party or which is binding on it or
any of its assets or revenues;
(k) Events of Default
No event has occurred or circumstance arisen which, had the
Notes already been issued, would (whether or not with the
giving of notice and/or the passage of time and/or the
fulfilment of any other requirement) constitute an Event of
Default as set out in the Conditions of the Notes;
(l) No Subsidiaries
The Current Issuer has no subsidiaries or subsidiary
undertakings within the meanings of Sections 258 and 736 of the
Companies ▇▇▇ ▇▇▇▇;
(m) Granite Finance Holdings Limited
The Previous Issuers, the Current Issuer, Funding, the
Mortgages Trustee and GPCH Limited are the only subsidiaries or
subsidiary undertakings of Granite Finance Holdings Limited
within the meanings of Sections 258 and 736 of the Companies
▇▇▇ ▇▇▇▇;
(n) No Activities
The Current Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any
registration or re-registration as a public limited company
under the Companies Acts 1985 and 1989 and various changes to
its directors, secretary, registered office, Memorandum and
Articles of Association; (ii) the authorisation and execution
of the Legal Agreements to which it is a party; (iii) the
activities referred to or contemplated in the Legal Agreements
to which it is a party or in the Prospectus and (v) the
authorisation and issue by it of the Notes. The Current Issuer
has not (other than as set out in the Prospectus) prepared any
accounts and has neither paid any dividends nor made any
distributions since the date of its incorporation;
(o) Listing Rules
Prior to the delivery of the Prospectus to the Registrar of
Companies in England and Wales, the Prospectus has been
approved by or on behalf of the competent authority as listing
particulars as required by the listing rules made pursuant to
Part VI of the FSMA and the Prospectus complies with the
listing rules made under Section 72 of the FSMA;
(p) Litigation
There are no pending actions, suits or proceedings against or
affecting the Current Issuer which could individually or in the
aggregate have an adverse effect on the condition (financial or
other), prospects, results of operations or general affairs of
the
------------------------------------------------------------------------------
15
------------------------------------------------------------------------------
Current Issuer or could adversely affect the ability of the
Current Issuer to perform its obligations under the Legal
Agreements or the Notes or which are otherwise material in the
context of the issue or offering of the Notes and, to the best
of the Current Issuer's knowledge, no such actions, suits or
proceedings are threatened or contemplated;
(q) No Prior Security
Save as set out in any of the Legal Agreements, there exists no
mortgage, lien, pledge or other charge on or over the assets of
the Current Issuer and, other than the Legal Agreements, the
Current Issuer has not entered into any indenture or trust
deed;
(r) Security for the Notes
The Notes and the obligations of the Current Issuer under the
Current Issuer Trust Deed will be secured in the manner
provided in the Current Issuer Deed of Charge and with the
benefit of the charges, covenants and other security interests
provided for therein including, without limitation, (i) an
assignment by way of first fixed security of the Current
Issuer's right, title, interest and benefit in the Intercompany
Loan Agreement, the Swap Agreements, the Funding Deed of Charge
(as amended by the Deeds of Accession and the Current Deed of
Accession), the Current Issuer Trust Deed, the Notes, the
Current Issuer Paying Agent and Agent Bank Agreement, the
Current Issuer Cash Management Agreement, the Current Issuer
Corporate Services Agreement, the Current Issuer Bank Account
Agreement, the Post-Enforcement Call Option Agreement, this
Agreement, the Subscription Agreement and any other of the
Legal Agreements to which the Current Issuer is a party; (ii)
an assignment by way of first fixed charge over the Current
Issuer Transaction Accounts; (iii) a first fixed charge (which
may take effect as a floating charge) over the Current Issuer's
right, title, interest and benefit to any Authorised
Investments made with moneys standing to the credit of any of
the Current Issuer Bank Accounts; and (iv) a first ranking
floating charge over the whole of the assets and undertaking of
the Current Issuer which are not otherwise effectively subject
to any fixed charge or assignment by way of security;
(s) Capitalisation
The authorised capital of the Current Issuer is as set out in
the Prospectus;
(t) Investment Company Act
The Current Issuer is not an "investment company" as defined in
the U.S. Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the offer and sale of the Notes
in the United States will not subject the Current Issuer to
registration under, or result in a violation of, the Investment
Company Act;
(u) United States Income Tax
The Issuer will not engage in any activities in the United
States (directly or through agents), derive any income from
United States sources as determined under the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), or hold any
property if doing so would cause it to be engaged or deemed to
be engaged in a trade or business within the United States as
determined under the Code; and
------------------------------------------------------------------------------
16
------------------------------------------------------------------------------
(v) Legal Agreements
The representations given by the Current Issuer in the Legal
Agreements are true and accurate, and the description of the
Legal Agreements as set out in the Prospectus is materially
complete and accurate.
Unless otherwise indicated, the representations and warranties set out
in this Clause 5 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
6. Representations and Warranties of Funding and the Mortgages Trustee
Each of Funding and the Mortgages Trustee severally represents and
warrants (in respect of itself only) to, and agrees with each other,
the Underwriters, the Current Issuer, NRPLC and each of them that:
(a) The Registration Statement
Together with the Current Issuer they have prepared and filed
with the Commission the Registration Statement, including a
related preliminary prospectus dated [o] January, 2004, for
registration under the Securities Act of the offering and sale
of the Dollar Notes. They may have filed one or more amendments
thereto, including a related preliminary prospectus, each of
which has previously been furnished to the Underwriters. They
will next file with the Commission one of the following either
(1) prior to the Effective Date of such Registration Statement,
a further amendment to such Registration Statement, including
the form of final prospectus or (2) after the Effective Date of
such Registration Statement, a final prospectus in accordance
with Rules 430A and 424(b). In the case of clause (2), they
have included in such Registration Statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Securities Act and the rules
thereunder to be included in such Registration Statement and
the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule
430A Information, together with all other such required
information, and, except to the extent that the Lead
Underwriters shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to the
Underwriters prior to the date of this Agreement, or, to the
extent not completed at the date of this Agreement, shall
contain only specific additional information and other changes
(beyond that contained in the latest preliminary prospectus) as
they have advised the Lead Underwriters, prior to the date of
this Agreement, will be included or made therein;
(b) No Material Misstatements or Omissions
On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the
Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the
Securities Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder; on the Effective Date and
at the date of this Agreement, the Registration Statement did
not or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date
the Current Issuer Trust Deed did or will comply in all
material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and on the Effective
Date, the
------------------------------------------------------------------------------
17
------------------------------------------------------------------------------
Prospectus, if not filed pursuant to Rule 424(b), will not, and
on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that neither Funding nor the Mortgages Trustee makes any
representations or warranties as to the information contained
in or omitted from the Registration Statement, or the
Prospectus (or any statement thereto) in reliance upon and in
conformity with information furnished in writing to them by or
on behalf of any Underwriter through the Lead Underwriters
specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto), which information is
described in Clause 13.2;
(c) Incorporation, Capacity and Authorisation
Each is duly incorporated and validly existing under the laws
of Jersey, Channel Islands and Funding has lawfully constituted
a branch office in Great Britain in accordance with Ch. I of
Part XXIII of the Companies Act of 1985, as amended, with full
power and authority to conduct its business as described in the
Prospectus, is lawfully qualified to do business in Jersey and
has full power and capacity to execute this Agreement and the
Legal Agreements to which each is respectively a party, and to
undertake and perform the obligations expressed to be assumed
by each herein and therein; and each has taken all necessary
action to approve and authorise the same. Neither Funding nor
the Mortgages Trustee has taken any corporate action nor (to
the best of its knowledge and belief) have any other steps been
taken or legal proceedings been started or threatened against
it for its winding-up, dissolution or reorganisation or for the
appointment of a receiver, administrator, administrative
receiver or similar officer of it or of any or all of its
assets or revenues;
(d) Validity of Legal Agreements
This Agreement has been duly authorised, executed and delivered
by each of Funding and the Mortgages Trustee and constitutes,
and the other Legal Agreements to which each of Funding and/or
the Mortgages Trustee is a party have been duly authorised by,
as applicable, Funding and the Mortgages Trustee and on the
Closing Date will constitute, valid and legally binding
obligations of each of Funding and the Mortgages Trustee;
(e) Consents
All consents, approvals, authorisations and other orders of all
United States, Jersey, Channel Islands and United Kingdom
regulatory authorities required in connection with the
execution of and performance by, Funding and/or the Mortgages
Trustee, of the transactions contemplated by the Legal
Agreements to which Funding and/or the Mortgages Trustee, as
the case may be, is a party or the compliance by each of them
with the terms of the Legal Agreements are, or will on the
Closing Date be, in full force and effect;
(f) Compliance
The authorisation of the terms and conditions of this
Agreement, the execution and delivery of the Legal Agreements
to which Funding and/or, as the case may be, the Mortgages
Trustee is party and the implementation of the transactions
contemplated
------------------------------------------------------------------------------
18
------------------------------------------------------------------------------
by such Legal Agreements and compliance with the terms of the
Legal Agreements do not, and will not, (i) 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 Funding or the Mortgages Trustee or any
agreement or instrument to which Funding or the Mortgages
Trustee is a party or by which its properties is bound; (ii)
infringe any applicable law, rule, regulation, judgment, order
or decree of any government, governmental body or court, having
jurisdiction over either Funding or the Mortgages Trustee or
any of its properties; or (iii) result in the creation or
imposition of any mortgage, charge, pledge, lien or other
security interest on any of its or their properties, other than
those created in, or imposed by, the Legal Agreements
themselves;
(g) Breach of other agreements
Neither Funding nor the Mortgages Trustee is in breach of or in
default under any agreement to which it is a party or which is
binding on it or any of its assets or revenues;
(h) Events of Default
No event has occurred or circumstance arisen which, had the
Intercompany Loan Agreement been entered into, would (whether
or not with the giving of notice and/or the passage of time
and/or the fulfilment of any other requirement) constitute an
Event of Default as set out in the Intercompany Loan Agreement;
(i) No Subsidiaries
The Mortgages Trustee does not have any subsidiaries or
subsidiary undertakings within the meanings of Sections 258 and
736 of the Companies ▇▇▇ ▇▇▇▇. Funding does not have any
subsidiaries or subsidiary undertakings within the meanings of
Sections 258 and 736 of the Companies ▇▇▇ ▇▇▇▇ save for the
Previous Issuers and the Current Issuer;
(j) No Activities
Neither Funding nor the Mortgages Trustee has engaged in any
activities since its incorporation other than (i) those
incidental to any registration as private limited companies
under the laws of Jersey and (if any) various changes to its
directors, secretary, registered office, Memorandum and
Articles of Association; (ii) the authorisation, execution and
in certain cases, amendment, of the Legal Agreements to which
each is a party; (iii) the activities referred to or
contemplated in the Legal Agreements or in the Prospectus; (iv)
the activities undertaken in connection with the establishment
of the Mortgages Trust pursuant to the Mortgages Trust Deed and
the establishment of a branch in the United Kingdom; (v) the
filing of a notification by the Mortgages Trustee and Funding
under the Data Protection Act 1998 (the "DPA") and the
application for a standard licence under the Consumer Credit
▇▇▇ ▇▇▇▇; and (vi) any activities in connection with or
incidental to the issue of Previous Notes by the Previous
Issuers and the issue of the Notes by the Current Issuer. The
first statutory accounts of Funding were prepared and drawn up
from the date of incorporation to 31 December, 2001. The
Mortgages Trustee has not (other than as set out in the
Prospectus) prepared any accounts. Neither Funding nor the
Mortgages Trustee has paid any dividends nor made any
distributions since their respective dates of incorporation;
------------------------------------------------------------------------------
19
------------------------------------------------------------------------------
(k) Beneficial Owner
As of 18th January, 2004, following (i) the completion of the
assignment of the Additional Assigned Mortgage Portfolio to the
Mortgages Trustee pursuant to or in accordance with the
Mortgage Sale Agreement and (ii) the declaration of trust over
the Additional Assigned Mortgage Portfolio by the Mortgages
Trustee pursuant to and in accordance with the terms of the
Mortgages Trust Deed, the Mortgages Trustee has held the
Additional Assigned Mortgage Portfolio, and has held and will
continue to hold, the Mortgage Portfolio on a bare trust for
the benefit of Funding and NRPLC in undivided shares
absolutely;
(l) Litigation
There are no pending actions, suits or proceedings against or
affecting Funding or the Mortgages Trustee which could
individually or in the aggregate have an adverse effect on the
condition (financial or otherwise), prospects, results of
operations or general affairs of the Mortgages Trustee or
Funding (as the case may be) or could adversely affect the
ability of the Mortgages Trustee or Funding (as the case may
be) to perform their respective obligations under the Legal
Agreements, or which are otherwise material in the context of
the transaction contemplated by the Prospectus and, to the best
of the knowledge of Funding and the Mortgages Trustee, no such
actions, suits or proceedings are threatened or contemplated;
(m) No Prior Security
Save as set out in any of the Legal Agreements there exists no
mortgage, lien, pledge or other charge on or over the assets of
Funding and, other than the Legal Agreements, it has not
entered into any indenture or trust deed;
(n) Security for the Intercompany Loan
Funding's obligations under, inter alia, the Intercompany Loan
Agreement will be secured in the manner provided in the Funding
Deed of Charge and with the benefit of the charges, covenants
and other security provided for therein including, without
limitation, (i) a first fixed charge (which may take effect as
a floating charge) over Funding's share of the Trust Property
(as defined in the Mortgages Trust Deed); (ii) an assignment by
way of first fixed security of all of Funding's right, title,
interest and benefit in the Mortgage Sale Agreement, the
Mortgages Trust Deed, the Administration Agreement, the
Intercompany Loan Agreement, each Previous Intercompany Loan
Agreement, each Start-Up Loan Agreement, the Funding Guaranteed
Investment Contract, the Funding Corporate Services Agreement,
the Funding Cash Management Agreement, the Bank Account
Agreement and any other of the Legal Agreements to which
Funding is a party, save to the extent that the same are
situated in Jersey; (iii) an assignment by way of first fixed
security over Funding's right, title, interest and benefit in
the Funding Bank Accounts; (iv) a first fixed charge (which may
take effect as a floating charge) of Funding's right, title,
interest and benefit in all Authorised Investments purchased
with moneys standing to the credit of the Funding Bank
Accounts; and (v) a first floating charge over all the assets
and the undertaking of Funding which are not effectively
subject to a fixed charge or assignment by way of security;
------------------------------------------------------------------------------
20
------------------------------------------------------------------------------
(o) Capitalisation
The authorised capital of each of Funding and the Mortgages
Trustee is as set out in the Prospectus;
(p) Investment Company Act
Neither Funding nor the Mortgages Trustee is an "investment
company" as defined in the Investment Company Act, and the
offer and sale of the Notes in the United States will not
subject Funding or the Mortgages Trustee to registration under,
or result in a violation of, the Investment Company Act;
(q) United States Income Tax
Neither Funding nor the Mortgages Trustee will engage in any
activities in the United States (directly or through agents),
derive any income from United States sources as determined
under the Code, or hold any property if doing so would cause it
to be engaged or deemed to be engaged in a trade or business
within the United States as determined under the Code;
(r) Financial Statements
(i) The auditor's report by PricewaterhouseCoopers LLP, as
independent auditor to Funding, set out in the
Prospectus presents fairly the financial position of
Funding as at the date at which it has been prepared;
(ii) since the date of each such report there has been no
change (nor any development or event involving a
prospective change of which Funding is or might
reasonably be expected to be aware) which is materially
adverse to the condition (financial or other),
prospects, results of operations or general affairs of
Funding; and
(iii) PricewaterhouseCoopers LLP are independent public
accountants with respect to Funding within the meaning
of the standards established by the American Institute
of Certified Public Accountants; and
(s) Legal Agreements
The representations given by Funding and the Mortgages Trustee
in the Legal Agreements are true and accurate, and the
description of the Legal Agreements as set out in the
Prospectus is materially complete and accurate.
Unless otherwise indicated, the representations and warranties set out
in this Clause 6 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
7. Representations and Warranties of NRPLC
NRPLC represents and warrants to, and agrees with, the Current Issuer,
Funding, the Mortgages Trustee, the Underwriters and each of them
that:
------------------------------------------------------------------------------
21
------------------------------------------------------------------------------
(a) Incorporation
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power
and authority to conduct its business as described in the
Prospectus, to execute this Agreement and the Legal Agreements
to which it is a party and to undertake and perform the
obligations expressed to be assumed by it herein and therein
and has taken all necessary action to approve and authorise the
same and is lawfully qualified to do business in England and
Wales; and NRPLC has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been
taken or legal proceedings been started or threatened against
it for its winding-up, dissolution or reorganisation or for the
appointment of a receiver, administrator, administrative
receiver or similar officer of it or of any or all of its
assets or revenues; and it is not in liquidation;
(b) Validity of Legal Agreements
This Agreement has been duly authorised, executed and delivered
by NRPLC and constitutes, and the other Legal Agreements to
which NRPLC is a party will be duly authorised by NRPLC prior
to the Closing Date and on the Closing Date will constitute,
valid and legally binding obligations of NRPLC;
(c) Related Security
NRPLC has not received notice of, and no solicitor employed in
the NRPLC Solicitors' Department is actually aware of, any
material litigation or claim, of any pending material
litigation or claim, calling into question NRPLC's title to any
Related Security or the value of any security therefor or its
right to assign any such Related Security to the Mortgages
Trustee;
(d) Consents
All consents, approvals and authorisations of all United
Kingdom regulatory authorities required on the part of NRPLC
for or in connection with the execution and performance of the
transactions contemplated by the Legal Agreements to which
NRPLC is a party have been, or will be prior to the Closing
Date be, obtained and are, or will prior to the Closing Date
be, in full force and effect including, without limiting the
generality of the foregoing, NRPLC having received a standard
licence under the Consumer Credit ▇▇▇ ▇▇▇▇ and NRPLC being
registered under the DPA;
(e) Compliance
The sale on 18th January, 2004, of the Additional Assigned
Mortgage Portfolio and the related property and rights did not
and will not, and the execution and delivery of the Legal
Agreements to which NRPLC is a party, the implementation of the
transactions contemplated by such Legal Agreements and
compliance with the terms of such Legal Agreements do not and
will not (i) 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 NRPLC, or any
agreement or instrument to which NRPLC is a party or by which
it or any of its properties is bound, where such breach or
default might have a material adverse effect in the context of
the issue of the Notes; or (ii) infringe any existing
applicable law, rule, regulation, judgment, order or decree of
any government, governmental body or court having jurisdiction
over NRPLC or any of its properties; or (iii) result in the
creation or imposition of any
------------------------------------------------------------------------------
22
------------------------------------------------------------------------------
mortgage, charge, pledge, lien or other security interest on
any of its properties, other than those created in, or imposed
by, the Legal Agreements themselves;
(f) No Material Misstatements or Omissions
On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the
Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the
Securities Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder; on the Effective Date and
at the date of this Agreement, the Registration Statement did
not or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading; on the Effective Date and the Closing Date the
Current Issuer Trust Deed did or will comply in all material
respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b),
will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that NRPLC makes no representations or
warranties as to the information contained in or omitted from
the Registration Statement, or the Prospectus (or any statement
thereto) in reliance upon and in conformity with information
furnished in writing to NRPLC by or on behalf of any
Underwriter through the Lead Underwriters specifically for
inclusion in the Registration Statement or the Prospectus (or
any supplement thereto), which information is described in
Clause 13.2;
(g) Beneficial Owner
As of 18th January, 2004, following (i) the completion of the
assignment of the Additional Assigned Mortgage Portfolio (as
defined in the Prospectus) to the Mortgages Trustee pursuant to
and in accordance with the Mortgage Sale Agreement and (ii) the
declaration of trust over the Additional Assigned Mortgage
Portfolio by the Mortgages Trustee pursuant to and in
accordance with the terms of the Mortgages Trust Deed, the
Mortgages Trustee has held the Additional Assigned Mortgage
Portfolio and has held and will continue to hold the Mortgage
Portfolio on a bare trust for the benefit of Funding and NRPLC
in undivided shares absolutely;
(h) Litigation
It is not a party to, and no solicitor in NRPLC's Solicitors'
Department is actually aware of, any actions, suits or
proceedings in relation to claims or amounts which could, if
determined adversely to NRPLC, materially adversely affect
NRPLC's ability to perform its obligations under the Legal
Agreements; and
(i) Mortgage Sale Agreement and Mortgages Trust Deed
The representations and warranties given by NRPLC in the
Mortgage Sale Agreement are true and accurate in all material
respects as when stated to be made and the representations and
warranties given by NRPLC in the Mortgages Trust Deed are true
and accurate in all material respects as when stated to be
made.
------------------------------------------------------------------------------
23
------------------------------------------------------------------------------
Unless otherwise indicated, the representations and warranties set out
in this Clause 7 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
8. Covenants of the Current Issuer, Funding, the Mortgages Trustee and
NRPLC
8.1 The Current Issuer and, where expressly provided, Funding, the
Mortgages Trustee and NRPLC severally covenants to, and agrees each
for itself with, the Underwriters and each of them that:
(a) The Registration Statement
The Current Issuer, Funding, the Mortgages Trustee and NRPLC
will use their best efforts to cause the Registration
Statement, if not effective at the date of this Agreement, and
any amendment thereof, to become effective. Prior to the
termination of the offering of the Notes, none of the Current
Issuer, Funding, the Mortgages Trustee or NRPLC will file any
amendment of the Registration Statement or supplement to the
Prospectus or any Rule 462(b) Registration Statement unless the
Current Issuer, Funding, the Mortgages Trustee and NRPLC have
furnished the Lead Underwriters with copies for their review
prior to filing and none of them will file any such proposed
amendment or supplement to which the Lead Underwriters
reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Prospectus is otherwise required
under Rule 424(b), the Current Issuer, Funding, the Mortgages
Trustee and NRPLC will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Lead Underwriters of such timely filing.
The Current Issuer, Funding, the Mortgages Trustee and NRPLC
will promptly advise the Lead Underwriters:
(i) when the Registration Statement, if not effective at the
date of this Agreement, shall have become effective;
(ii) when the Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the
Commission; and
(iii) when, prior to termination of the offering of the Notes,
any amendment to the Registration Statement shall have
been filed or become effective;
(b) Signed Prospectus
The Current Issuer will deliver to the Underwriters, without
charge, on the date of this Agreement, such number of copies of
the Prospectus as the Underwriters may reasonably request, and
the Current Issuer will furnish to the Lead Underwriters on the
date of this Agreement four copies of the Prospectus signed by
a duly authorised director of the Current Issuer. The Current
Issuer will also promptly furnish each Underwriter (to the
extent not already furnished) and its counsel one conformed
copy of the Registration Statement as originally filed and each
amendment or supplement thereto including all consents and
exhibits filed therewith;
------------------------------------------------------------------------------
24
------------------------------------------------------------------------------
(c) Notify Material Omission
If at any time prior to the earlier of (i) completion (in the
reasonable view of the Lead Underwriters) of the distribution
of the Notes and (ii) three months after the Closing Date, any
event shall have occurred as a result of which the Registration
Statement or Prospectus, as then amended or supplemented, would
include a statement of fact which is not true and accurate in
all material respects or omit any fact the omission of which
would make misleading in any material respect any statement
therein whether of fact or opinion, or if for any other reason
it shall be necessary to amend or supplement the Registration
Statement or Prospectus, then: (i) the Current Issuer will
promptly notify the Underwriters; (ii) the Current Issuer shall
promptly prepare and timely file with the Commission any
amendment or supplement to the Registration Statement or any
Prospectus that may, in the reasonable judgement of the Current
Issuer or the Underwriters, be required by the Securities Act
or requested by the Commission; (iii) the Current Issuer will,
without charge, supply to the Underwriters as many copies as
the Lead Underwriters may reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct
such statement or omission; and (iv) the provisions of Clauses
5(a), 5(b), 5(c), 5(h), 5(o), 5(s), 6(a), 6(b), 6(c), 6(o),
6(r), 7(a) and 7(f) shall be deemed to be repeated by, as
applicable, the Current Issuer, Funding, the Mortgages Trustee
and NRPLC as of the date of each such amended Prospectus or
supplement to the Prospectus on the basis that each reference
to "Prospectus" in such provisions of Clauses 5, 6 and 7 shall
be deemed to be a reference to the Prospectus as amended or
supplemented as at such date;
(d) Notify Change
Without prejudice to its obligations under Clause 8.1(c), the
Current Issuer will notify the Underwriters promptly of any
change affecting any of its representations, warranties,
covenants, agreements or indemnities in this Agreement at any
time prior to payment of the gross underwriting proceeds for
the Notes being made to the Current Issuer on the Closing Date
and will take such steps as may be reasonably requested by the
Lead Underwriters to remedy and/or publicise the same;
(e) Official Announcements
Between the date of this Agreement and the Closing Date (both
dates inclusive) none of NRPLC, the Current Issuer, Funding or
the Mortgages Trustee will, without the prior approval of the
Lead Underwriters on behalf of the Underwriters (such approval
not to be unreasonably withheld or delayed), make any official
announcement which would have an adverse effect on the
marketability of the Notes;
(f) Stamp Duty
(i) The Current Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar
nature and duties that it is required to pay under the
Legal Agreements to which it is a party payable in the
United Kingdom, Belgium, Luxembourg or the United
States, including interest and penalties in connection
with the creation, issue, distribution and offering of
the Notes or in connection with the execution, delivery
or enforcement of any of the Legal Agreements to which
it is a party together with any value added, turnover or
similar tax payable in respect of that amount (and
references in this Agreement to such amount shall be
deemed to include any such taxes so payable in addition
to it);
------------------------------------------------------------------------------
25
------------------------------------------------------------------------------
(ii) Funding will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and
duties that it is required to pay under the Legal
Agreements to which it is a party payable in the United
Kingdom, Jersey, Channel Islands or the United States,
including interest and penalties in connection with the
execution, delivery or enforcement of any of the Legal
Agreements to which it is a party (other than in respect
of the execution, delivery or enforcement of the
Mortgages Trust Deed and any Legal Agreement to which
the Current Issuer is a party) together with any value
added, turnover or similar tax payable in respect of
that amount (and references in this Agreement to such
amount shall be deemed to include any such taxes so
payable in addition to it); and
(iii) The Mortgages Trustee will pay any stamp duty, issue,
registration, documentary or other taxes of a similar
nature and duties that it is required to pay under the
Legal Agreements to which it is a party payable in the
United Kingdom, Jersey, Channel Islands or the United
States, including interest and penalties in connection
with the execution, delivery or enforcement of the
Mortgages Trust Deed (including any amendment thereto)
and the Mortgage Sale Agreement (including any amendment
thereto) (together with any value added, turnover or
similar tax payable in respect of that amount (and
references in this Agreement to such amount shall be
deemed to include any such taxes so payable in addition
to it)) but will be promptly reimbursed an amount equal
to any such payments by the Beneficiaries in accordance
with the terms of the Mortgages Trust Deed;
(g) United States Income Tax
The Current Issuer will not engage in any activities in the
United States (directly or through agents), will not derive any
income from United States sources as determined under the Code
and will not hold any property if doing so would cause it to be
engaged or deemed to be engaged in a trade or business within
the United States as determined under the Code;
(h) Payment of Fees, Charges, Costs and Duties
(i) Without prejudice to the generality of Clause 12.1, the
Current Issuer will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or
duties that it is required to pay under the Legal
Agreements to which it is a party, including interest
and penalties, arising from or in connection with the
creation of the security for the Notes and the
obligations of the Current Issuer under the Current
Issuer Trust Deed and for the other amounts to be
secured as contemplated by the Current Issuer Deed of
Charge, and the perfection of such security at any time;
(ii) Without prejudice to the generality of Clause 12.1,
Funding will pay all and any fees, charges, costs and
duties and any stamp and other similar taxes or duties
that it is required to pay under the Legal Agreements to
which it is a party, including interest and penalties,
arising from or in connection with the creation of the
security for the Intercompany Loan and for the other
amounts to be secured as contemplated by the Funding
Deed of Charge the Deeds of Accession and the Current
Deed of Accession and the perfection of such security at
any time; and
------------------------------------------------------------------------------
26
------------------------------------------------------------------------------
(iii) Without prejudice to the generality of Clause 12.1, the
Mortgages Trustee will pay all and any fees, charges,
costs and duties and any stamp and other similar taxes
or duties that it is required to pay under the Legal
Agreements to which it is a party, including interest
and penalties, arising from or in connection with the
purchase of the Related Security (and related property
and rights) excluding H.M. Land Registry fees (it being
agreed that registration or recording at H.M. Land
Registry of the transfer of the Related Security to the
Mortgages Trustee will not be applied for except in the
circumstances specified in the Administration
Agreement); but on the basis that the Mortgages Trustee
will be reimbursed such fees, charges, costs and duties
and any stamp and other similar taxes or duties
(including interest and penalties) by the Beneficiaries
pursuant to the terms of the Mortgages Trust Deed;
(i) Perform all required actions
On or prior to the Closing Date each of NRPLC, the Current
Issuer, Funding and the Mortgages Trustee will do all things
reasonably within each of their respective powers and required
of each of them on such date under the terms of the Legal
Agreements to which each is a party;
(j) Review of Related Security
NRPLC will deliver to the Lead Underwriters on or around the
date of this Agreement a letter addressed to the Underwriters
or their affiliates (relating to the review by
PricewaterhouseCoopers LLP of the Related Security and referred
to in the Signing and Closing Memorandum as the Auditors' pool
audit report letter) dated on or around the date of this
Agreement in the agreed form addressed to NRPLC and the
Underwriters from PricewaterhouseCoopers LLP;
(k) Conditions Precedent
The Current Issuer will use all reasonable endeavours to
procure satisfaction on or before the Closing Date of the
conditions referred to in Clause 9 of this Agreement;
(l) Administration Agreement
Funding and the Mortgages Trustee will use all reasonable
endeavours to procure that NRPLC complies with its obligations
under the Administration Agreement;
(m) Charges and Security Interests
(i) The Current Issuer will procure that each of the charges
and other security interests created by or contained in
the Current Issuer Deed of Charge is registered within
all applicable time limits in all appropriate registers;
and
(ii) Funding will procure that each of the charges and other
security interests created by or contained in the
Funding Deed of Charge, the Deeds of Accession and the
Current Deed of Accession is registered within all
applicable time limits in all appropriate registers;
------------------------------------------------------------------------------
27
------------------------------------------------------------------------------
(n) Ratings
None of NRPLC, the Current Issuer, Funding or the Mortgages
Trustee will take, or cause to be taken, any action and none of
them will permit any action to be taken which it knows or has
reason to believe would result in the Notes not being assigned
a F1+ rating for the Series 1 Class A1 Notes, an AAA rating for
the Series 1 Class A2 Notes and the Series 2 Class A1 Notes, an
AA rating for the Series 1 Class B Notes, an A rating for the
Series 1 Class M Notes, and a BBB rating for the Series 1 Class
C Notes by Fitch Ratings Ltd. ("Fitch Ratings"), a P-1 rating
for the Series 1 Class A1 Notes, an Aaa rating for the Series 1
Class A2 Notes and the Series 2 Class A1 Notes, an Aa3 rating
for the Series 1 Class B Notes, an A2 rating for the Series 1
Class M Notes, and a Baa2 rating for the Series 1 Class C Notes
by ▇▇▇▇▇'▇ Investors Services Limited ("Moody's") and an A-1+
rating for the Series 1 Class A1 Notes, an AAA rating for the
Series 1 Class A2 Notes and the Series 2 Class A1 Notes, an AA
rating for the Series 1 Class B Notes, an A rating for the
Series 1 Class M Notes, and a BBB rating for the Series 1 Class
C Notes by Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's");
(o) Legal Agreements
Prior to closing on the Closing Date none of NRPLC, the Current
Issuer, Funding or the Mortgages Trustee will amend the terms
of the executed Legal Agreements, nor execute any of the other
Legal Agreements other than in the agreed form, without the
consent of the Lead Underwriters (such consent not to be
unreasonably withheld or delayed);
(p) Commission Filings
The Current Issuer, Funding and the Mortgages Trustee will
file, in a timely manner, with the Commission during any period
during which a prospectus relating to the Notes is required to
be delivered under the Securities Act until three months after
the Closing Date (the "Marketing Period"), all documents (and
any amendments to previously filed documents) required to be
filed by them pursuant to Sections 13(a), 13(c) or 15(d) of the
Exchange Act, provided that none of the Current Issuer, Funding
or the Mortgages Trustee will file any such document or
amendment unless the Current Issuer, Funding and the Mortgages
Trustee have furnished the Lead Underwriters with copies for
their review prior to filing and none of them will file any
such proposed document or amendment until the Underwriters have
been consulted and given a reasonable opportunity to comment on
such document or amendment;
(q) Copies of Filings and Commission
Prior to filing with the Commission during the Marketing
Period, if there is (i) any amendment or supplement to the
Registration Statement, (ii) any amendment or supplement to any
Prospectus, or (iii) any material document filed by the Current
Issuer, Funding or the Mortgages Trustee with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act including but not limited to (A) any interim or any report
submitted to the Commission on Form 6-K ("Form 6-K") or Form
20-F ("Form 20-F") under the Exchange Act and the rules and
regulations thereunder or (B) any amendment of or supplement to
any such document, the Current Issuer, Funding and the
Mortgages Trustee, as the case may be, will furnish a copy
thereof to each Underwriter, and counsel to the Underwriters;
------------------------------------------------------------------------------
28
------------------------------------------------------------------------------
(r) Notice to Underwriters of Certain Events
During the Marketing Period, the Current Issuer will advise the
Underwriters immediately (i) when any post-effective amendment
to the Registration Statement becomes effective, (ii) of any
request or proposed request by the Commission, whether written
or oral, for an amendment or supplement to the Registration
Statement, to any Rule 462(b) Registration Statement, to any
Prospectus or to any material document filed by the Current
Issuer, Funding or the Mortgages Trustee with or submitted to
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act and the rules and regulations thereunder or
for any additional information and the Current Issuer, Funding
and the Mortgages Trustee will afford the Underwriters a
reasonable opportunity to comment on any such proposed
amendment or supplement, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or any part thereof or any order
directed to the Prospectus or any document incorporated therein
by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of
any document incorporated by reference in the Prospectus, (iv)
of receipt by NRPLC or the Current Issuer of any notification
with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threat
of any proceeding for that purpose and (v) of any downgrading
in the rating of the Notes or any debt securities of NRPLC or
the Current Issuer by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g)
under the Securities Act), or if any such organisation shall
have informed NRPLC or the Current Issuer or made any public
announcement that any such organisation has under surveillance
or review its rating of any debt securities of NRPLC or the
Current Issuer (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading of such rating) as soon as such
announcement is made or NRPLC or the Current Issuer is so
informed;
(s) Stop Orders
The Current Issuer will use its best efforts to prevent the
issuance of any stop order or the suspension of any
qualification referred to in Clause 8.1(q) above and if, during
the Marketing Period, the Commission shall issue a stop order
suspending the effectiveness of the Registration Statement or
such qualification of the Notes for sale in any jurisdiction is
suspended, the Current Issuer will make every reasonable effort
to obtain the lifting of that order or suspension at the
earliest possible time; and
(t) Blue Sky Qualifications
The Current Issuer will co-operate with the Underwriters to
qualify the Dollar Notes for offering and sale under the
securities laws of such jurisdictions of the United States as
the Underwriters may designate, and to maintain such
qualifications in effect for as long as may be required for the
distribution of the Dollar Notes, and to file such statements
and reports as may be required by the laws of each jurisdiction
in which the Dollar Notes have been qualified as above provided
that in connection therewith the Current Issuer shall not be
required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction or to
take any other action that would subject it to service of
process in suits in any jurisdiction other than those arising
out of the offering or sale of the Dollar Notes in such
jurisdiction or to register as a dealer in securities or to
become subject to taxation in any jurisdiction.
------------------------------------------------------------------------------
29
------------------------------------------------------------------------------
8.2 NRPLC covenants to and agrees with the Underwriters and each of them
that:
(a) Notify Change
NRPLC will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time prior
to payment of the gross underwriting proceeds of the Notes
being made to the Current Issuer on the Closing Date and will
take such steps as may be reasonably requested by the Lead
Underwriters to remedy and/or publicise the same. In the event
that the Prospectus is amended or supplemented pursuant to
Clause 8.1(c) above, then the representations and warranties
contained in Clause 7(f) shall be deemed to be repeated by
NRPLC as of the date of such amended Prospectus or supplement
to the Prospectus, on the basis that each reference to
"Prospectus" in Clause 7(f) shall be deemed to be a reference
to the Prospectus as amended or supplemented as at such date;
(b) Perform all required actions
On or prior to the Closing Date, NRPLC will do all things
reasonably within its power and required of it on such date
under the terms of the Legal Agreements to which it is a party;
(c) Ratings
NRPLC will not take, or cause to be taken, any action and will
not permit any action to be taken which it knows or has reason
to believe would result in the Current Issuer not being
assigned a F1+ rating for the Series 1 Class A1 Notes, an AAA
rating for the Series 1 Class A2 Notes and the Series 2 Class
A1 Notes, an AA rating for the Series 1 Class B Notes, an A
rating for the Series 1 Class M Notes, and a BBB rating for the
Series 1 Class C Notes by Fitch Ratings, a P-1 rating for the
Series 1 Class A1 Notes, an Aaa rating for the Series 1 Class
A2 Notes and the Series 2 Class A1 Notes, an Aa3 rating for the
Series 1 Class B Notes, an A2 rating for the Series 1 Class M
Notes, and a Baa2 rating for the Series 1 Class C Notes, and an
A-1+ rating for the Series 1 Class A1 Notes, an AAA rating for
the Series 1 Class A2 Notes and the Series 2 Class A1 Notes, an
AA rating for the Series 1 Class B Notes, an A rating for the
Series 1 Class M Notes, and a BBB rating for the Series 1 Class
C Notes by Standard & Poor's; and
(d) Legal Agreements
Prior to closing on the Closing Date NRPLC will not amend the
terms of any of the already executed Legal Agreements, nor
execute any of the other Legal Agreements other than in the
agreed form, without the consent of the Lead Underwriters (such
consent not to be unreasonably withheld or delayed).
9. Conditions Precedent
9.1 The obligation of the Underwriters under this Agreement to subscribe
for the Dollar Notes is subject to the following conditions precedent:
------------------------------------------------------------------------------
30
------------------------------------------------------------------------------
(a) The Registration Statement
(i) If the Registration Statement has not become effective
prior to the date of this Agreement, unless the Lead
Underwriters agree in writing to a later time, the
Registration Statement will become effective not later
than (i) 6:00 p.m. New York City time on the date of
determination of the public offering price, if such
determination occurred at or prior to 3:00 pm New York
City time on such date or (ii) 9:30 a.m. New York City
time on the next business day in New York following the
day on which the public offering price was determined,
if such determination occurred after 3:00 p.m. New York
City time on such date;
(ii) If filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and
any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and
(iii) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted
or threatened;
(b) Execution of Legal Agreements and the Global Notes
The execution and delivery by all parties thereto of the Legal
Agreements and the Global Notes representing each class of the
Dollar Notes on or prior to the Closing Date;
(c) Admission to Trading
The Dollar Notes having been admitted to the Official List
maintained by UK Listing Authority and the Stock Exchange
having agreed to admission of the Dollar Notes to trading on or
about the Closing Date;
(d) Legal Opinions
On or prior to the Closing Date, there having been delivered to
the Current Issuer, the Underwriters, the Note Trustee and the
Security Trustee copies of opinions and disclosure letters, in
form and substance satisfactory to the Lead Underwriters, the
Note Trustee, the Security Trustee and the Rating Agencies,
dated the Closing Date, of:
(i) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, legal and tax advisers as to
English law and as to US law to NRPLC, the Mortgages
Trustee, Funding and the Current Issuer, addressed to
NRPLC, the Mortgages Trustee, Funding, the Current
Issuer, the Underwriters, the Managers, the Note Trustee
and the Security Trustee;
(ii) Mourant du Feu & Jeune, legal advisers as to Jersey law
to Funding and the Mortgages Trustee, addressed to
Funding, the Mortgages Trustee, the Underwriters, the
Managers, the Note Trustee and the Security Trustee;
(iii) Tods ▇▇▇▇▇▇ ▇▇, legal and tax advisers as to Scots law
to NRPLC, the Mortgages Trustee, Funding and the Current
Issuer, addressed to NRPLC, the Mortgages Trustee,
Funding, the Current Issuer, the Underwriters, the
Managers, the Note Trustee and the Security Trustee;
------------------------------------------------------------------------------
31
------------------------------------------------------------------------------
(iv) ▇▇▇▇▇ & ▇▇▇▇▇, legal advisers as to US law to the
Underwriters and the Managers, addressed to the
Underwriters and the Managers;
(v) Dundas & ▇▇▇▇▇▇, legal advisers as to Scots law to the
Underwriters and the Managers, addressed to the
Underwriters and the Managers; and
(vi) Counsel for each of the Currency Rate Swap Providers;
(e) Auditors' Letters
(A) On or around the date of this Agreement, there having
been addressed and delivered to the Underwriters
letters, in form and substance satisfactory to the Lead
Underwriters, dated on or around the date of this
Agreement, from PricewaterhouseCoopers LLP, the
independent auditors of the Current Issuer and Funding;
and
(B) On the Closing Date, there having been addressed and
delivered to the Current Issuer, in form and substance
satisfactory to the Lead Underwriters, a pool report in
respect of agreed upon procedures in connection with the
Northern Rock plc mortgage files (with no material
exceptions to the results stated therein) from
PricewaterhouseCoopers LLP;
(f) Certified Constitutional Documents
On or prior to the Closing Date, there having been delivered to
the Lead Underwriters on behalf of the Underwriters a copy,
certified by a duly authorised director or the company
secretary of, as applicable, the Current Issuer, Funding and
the Mortgages Trustee of: (i) the Memorandum and Articles of
Association of each of the Current Issuer, Funding and the
Mortgages Trustee; (ii) the resolution of the Board of
Directors of each of the Current Issuer, Funding and the
Mortgages Trustee authorising the execution of this Agreement
and the other Legal Agreements and the entry into and
performance of the transactions contemplated thereby; and (iii)
in respect of the Current Issuer, the issue of the Notes and
the entry into and performance of the transactions contemplated
thereby;
(g) Accuracy of Representations
At the Closing Date: (i) the representations and warranties of
the Current Issuer, Funding, the Mortgages Trustee and NRPLC in
this Agreement being true, accurate and correct at, and as if
made on, the Closing Date and the Current Issuer, Funding, the
Mortgages Trustee and NRPLC having performed all of their
obligations in the Legal Agreements to be performed on or
before the Closing Date; and (ii) there having been delivered
to the Underwriters a certificate to that effect signed by a
duly authorised officer of, as applicable, the Current Issuer,
Funding, the Mortgages Trustee and NRPLC, dated the Closing
Date and confirming that, since the date of this Agreement,
there has been no adverse change, nor any development involving
a prospective adverse change, in or affecting the operations,
properties, financial condition or prospects of the Current
Issuer, Funding, the Mortgages Trustee or NRPLC which is
material in the context of the issue of the Notes;
------------------------------------------------------------------------------
32
------------------------------------------------------------------------------
(h) Circumstances for Termination
On or prior to the Closing Date, in the opinion of the Lead
Underwriters (after consultation with NRPLC, if practicable),
none of the circumstances described in Clause 14.1(c) or
14.1(d) having arisen;
(i) Ratings
Receipt of notification from Fitch Ratings, ▇▇▇▇▇'▇ and
Standard & Poor's that the ratings for the Notes described in
the Prospectus have been assigned either without conditions or
subject only to the execution and delivery on or before the
Closing Date of the Legal Agreements and legal opinions in all
material respects in the form in which they shall then have
been executed and delivered on or prior to the Closing Date,
there not having been a public announcement from any of the
above rating agencies that such agency has revised downwards or
withdrawn or placed on review or "creditwatch" with negative
implications or with implications of a possible change that
does not indicate the direction of such possible change (or
other similar publication of formal review by the relevant
rating agency) any existing credit rating assigned to the Notes
or the long term debt of NRPLC;
(j) Other Issues
The Reg S Notes having been or being issued and subscribed and
paid for pursuant to the Subscription Agreement prior to or
contemporaneously with the issue, subscription and payment for
the Dollar Notes hereunder;
(k) Material Adverse Event
There not having been between the date of this Agreement and
the Closing Date any change or any development or event
reasonably likely to involve a prospective change which would,
in the judgment of the Lead Underwriters, be materially adverse
to the financial or trading condition of the Current Issuer,
Funding, the Mortgages Trustee or NRPLC from that set forth in
the Prospectus, or rendering untrue and incorrect any of the
representations and warranties contained in Clauses 5, 6 and 7
as though the said representations and warranties had been
given on the Closing Date with reference to the facts and
circumstances prevailing at that date nor the failure of the
Current Issuer, Funding, the Mortgages Trustee or NRPLC to
perform each and every covenant to be performed by it pursuant
to the Legal Agreements, the Mortgage Loans and the Related
Security on or prior to the Closing Date;
(l) Solvency Certificates
(i) The Current Issuer having furnished or caused to be
furnished to the Underwriters and the Note Trustee at
the Closing Date a solvency certificate, dated the
Closing Date, of a duly authorised director of the
Current Issuer in the agreed form;
(ii) Funding having furnished or caused to be furnished to
the Current Issuer, NRPLC and the Security Trustee a
solvency certificate, dated the Closing Date, of a duly
authorised director of Funding in the agreed form;
(iii) The Mortgages Trustee having furnished or caused to be
furnished to the Underwriters, the Current Issuer, the
Security Trustee and NRPLC a solvency
------------------------------------------------------------------------------
33
------------------------------------------------------------------------------
certificate, dated the Closing Date, of a duly
authorised director of the Mortgages Trustee in the
agreed form; and
(iv) NRPLC having furnished or caused to be furnished to the
Underwriters, the Current Issuer, the Security Trustee,
Funding and the Mortgages Trustee a solvency
certificate, dated the Closing Date, of a duly
authorised officer or director of NRPLC in the agreed
form; and
(m) Mortgage Sale Agreement
All of the steps required by Clause 4 of the Mortgage Sale
Agreement for the purposes of the purchase of a New Mortgage
Portfolio (as defined therein) by the Mortgages Trustee from
NRPLC on 18th January, 2004 and related rights to be acquired
from NRPLC pursuant thereto having been taken.
9.2 Prior to the Closing Date, there shall be furnished to the Lead
Underwriters such further information, certificates, opinions and
documents as the Lead Underwriters may reasonably request.
9.3 If any of the conditions specified in this Clause 9 have not been
fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement shall not be reasonably satisfactory in
all material respects in form and substance to the Lead Underwriters,
this Agreement and all obligations of the Underwriters hereunder may
be cancelled (provided, however, that the liability of the Current
Issuer in relation to expenses as provided under, or under any
arrangements referred to in, Clause 12 and any liability arising
before or in relation to such termination shall not be cancelled) at,
or at any time prior to, the Closing Date by the Lead Underwriters.
Notice of such cancellation shall be given to the Current Issuer in
writing or by telephone or facsimile confirmed in writing.
9.4 The Lead Underwriters, on behalf of the Underwriters, may, in their
discretion, waive compliance with the whole or any part of this Clause
9.
10. Closing
10.1 Issue of Dollar Notes
(a) No later than 3:00 p.m. (London time) on the Closing Date, the Current
Issuer will cause the Global Note Certificate for each of the Series 1
Class A1 Notes, Series 1 Class A2 Notes, Series 1 Class B Notes,
Series 1 Class M Notes, Series 1 Class C Notes, and Series 2 Class A1
Notes to be registered in the name of Cede & Co. as nominee for DTC
for credit on the Closing Date to the account of the Lead Underwriters
with DTC or to such other account with DTC as the Lead Underwriters
may direct; and
(b) Deliver the Global Note Certificate for each of the Series 1 Class A1
Notes, Series 1 Class A2 Notes, Series 1 Class B Notes, Series 1 Class
M Notes, Series 1 Class C Notes, and Series 2 Class A1 Notes duly
executed on behalf of the Current Issuer and authenticated in
accordance with the Paying Agent and Agent Bank Agreement, to Citibank
N.A., as custodian for DTC.
10.2 Payment
Against delivery of the Dollar Notes (i) the Underwriters will pay to
the Lead Underwriters the gross underwriting proceeds for the Dollar
Notes and (ii) the Lead Underwriters will pay
------------------------------------------------------------------------------
34
------------------------------------------------------------------------------
proceeds to the Current Issuer or to a third party, as directed by the
Current Issuer, the gross underwriting proceeds for the Dollar Notes.
Payment for the Dollar Notes shall be made by the Lead Underwriters in
Dollars in immediately available funds to the accounts of the Current
Issuer, account number [o], sort code [o], or such other accounts as
the Current Issuer may direct, and shall be evidenced by a
confirmation from the Lead Underwriters that they have so made that
payment to the Current Issuer.
10.3 Gross Underwriting Proceeds
The Current Issuer undertakes that on the Closing Date it will apply
the gross underwriting proceeds for the Notes forthwith in making a
loan to Funding pursuant to the terms of the Intercompany Loan
Agreement. Funding undertakes that it will apply the proceeds of the
Intercompany Loan to make payment to the Mortgages Trustee or at the
Mortgages Trustee's direction of the purchase price of a portion of
Funding's beneficial share of the Additional Assigned Mortgage
Portfolio and related rights pursuant to the Mortgage Sale Agreement.
11. Commissions
11.1 In consideration of the obligations undertaken herein by the
Underwriters, the Current Issuer agrees to pay to the Underwriters a
selling commission (the "Selling Commission") of [o] per cent. of the
aggregate principal amount of the Series 1 Class A1 Notes, [o] per
cent. of the aggregate principal amount of the Series 1 Class A2
Notes, [o] per cent. of the aggregate principal amount of the Series 1
Class B Notes, [o] per cent. of the aggregate principal amount of the
Series 1 Class M Notes, [o] per cent. of the aggregate principal
amount of the Series 1 Class C Notes, and [o] per cent. of the
aggregate principal amount of the Series 2 Class A1 Notes
respectively, and a combined management and underwriting commission
(the "Management and Underwriting Commission") of [o] per cent. of the
aggregate principal amount of the Series 1 Class A1 Notes, [o] per
cent. of the aggregate principal amount of the Series 1 Class A2
Notes, [o] per cent. of the aggregate principal amount of the Series 1
Class B Notes, [o] per cent. of the aggregate principal amount of the
Series 1 Class M Notes, [o] per cent. of the aggregate principal
amount of the Series 1 Class C Notes, and [o] per cent. of the
aggregate principal amount of the Series 2 Class A1 Notes
respectively.
11.2 The Current Issuer undertakes and covenants that on the Closing Date
it will pay to the Lead Underwriters the aggregate Selling Commission
and aggregate Management and Underwriting Commission calculated in
accordance with Clause 11.1.
12. Expenses
12.1 General Expenses
The Current Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Current
Issuer, any amount in respect of value added tax or similar tax
payable in respect thereof against production of a valid tax invoice
and (ii) in respect of taxable supplies made to a person other than
the Current Issuer, any amount in respect of Irrecoverable VAT (for
the purposes of this Agreement "Irrevocable VAT" means any amount in
respect of VAT incurred by a party to the Transaction Documents (for
the purposes of this definition, a "Relevant Party") as part of a
payment in respect of which it is entitled to be indemnified under the
relevant Transaction Documents to the extent that the Relevant Party
does not or will not receive and retain a credit or repayment of such
VAT as input tax (as that expression is defined in section 24(1) of
the Value Added Tax Act 1994) for the prescribed accounting period (as
that expression is used in section 25(1) of the Value Added Tax Act
1994) to which such input tax relates) or similar tax payable in
respect thereof
------------------------------------------------------------------------------
35
------------------------------------------------------------------------------
against production of a valid tax invoice): (a) the fees,
disbursements and expenses of the Current Issuer's legal advisers and
accountants and all other expenses of the Current Issuer in connection
with the issue (including without limitation any filing fees payable
to the Commission in connection with the registration of the Dollar
Notes under the Securities Act and any fees payable in connection with
the qualification of the Dollar Notes for offering and sale pursuant
to any NASD regulatory provisions or under any applicable United
States state securities, Blue Sky or similar laws) and listing of the
Dollar Notes (including without limitation, any advertisements
required in connection therewith); the preparation and delivery of
each class of the Notes in global form and (if required) definitive
form; the costs of the initial delivery and distribution of the Notes
(including, without limitation, transportation, packaging and
insurance) and the initial fees and expenses of The Depository Trust
Company in relation to the Notes (excluding any such fees and expenses
arising as a result of any transfer of the Notes); the preparation and
printing of the Prospectus (in proof, preliminary and final form) and
any amendments and supplements thereto and the mailing and delivery of
copies of this Agreement to the Underwriters; (b) the cost of printing
or reproducing the Legal Agreements and any other documents prepared
in connection with the offering, issue and initial delivery of the
Notes; (c) the fees and expenses of the Note Trustee and the Security
Trustee (including fees and expenses of legal advisers to the Note
Trustee and the Security Trustee), the US Paying Agent and the Agent
Bank in each case reasonably incurred in connection with the
preparation and execution of the Legal Agreements and any other
relevant documents and the issue of the Notes and compliance with the
Conditions of the Notes; (d) the fees and expenses incurred or payable
in connection with obtaining a rating for the Notes from Fitch
Ratings, ▇▇▇▇▇'▇ and Standard & Poor's and annual fees in connection
with such rating or any other rating from such institution for the
Notes; (e) the fees and expenses payable in connection with obtaining
and maintaining the admission to trading of the Notes on the Stock
Exchange; (f) reasonable out-of-pocket expenses (excluding legal
expenses) incurred by the Lead Underwriters on behalf of the
Underwriters in connection with the transactions contemplated hereby;
(g) any reasonable roadshow expenses incurred by the Lead Underwriters
on behalf of the Underwriters; and (h) any reasonable amount in
respect of the fees and disbursements of the Underwriters' legal
advisers in relation thereto.
12.2 Reimbursement
The Current Issuer will reimburse the Underwriters for all amounts in
connection with the issue of the Notes which it has agreed to pay
pursuant to Clause 12.1.
12.3 For the avoidance of doubt, references to costs and expenses in this
Agreement shall be deemed to include, in addition, references to any
irrecoverable UK value added tax payable in respect of such costs and
expenses.
13. Indemnification
13.1 Current Issuer, Funding, Mortgages Trustee and NRPLC Indemnity
Each of the Current Issuer, Funding, the Mortgages Trustee and NRPLC
jointly and severally agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter (each an
"Indemnified Person") within the meaning of either the Securities Act
or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject, including without limitation any such losses, claims, damages
or liabilities arising under the Securities Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
------------------------------------------------------------------------------
36
------------------------------------------------------------------------------
statement or alleged untrue statement of a material fact contained in
the Registration Statement for the registration of the Dollar Notes as
originally filed or in any amendment thereof, or in any Registration
Statement, any preliminary prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or in any data, table,
computer record, electronic record, e-mail or printed information
provided by or on behalf of NRPLC to the Underwriters for inclusion
(and to the extent included) in the Registration Statement, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other
reasonable expenses incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the Current Issuer, Funding, the Mortgages
Trustee and NRPLC will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission or any representation, warranty or
covenant made by NRPLC, the Current Issuer, Funding or the Mortgages
Trustee in this Agreement, or made in the Registration Statement, any
preliminary prospectus or the Prospectus in reliance upon and in
conformity with written information furnished to the Current Issuer,
Funding, the Mortgages Trustee and NRPLC by or on behalf of any
Underwriter through the Lead Underwriters specifically for inclusion
therein and provided further, that as to any preliminary prospectus or
the Prospectus, this indemnity agreement shall not inure to the
benefit of any Underwriter (or any person controlling such
Underwriter) on account of any loss, claim, damage, liability or
action arising from the sale of Notes to any person by that
Underwriter if that Underwriter failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented (for the
purposes of this Clause 13, the "Final Prospectus"), to that person
within the time required by the Securities Act where required by law
to do so, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
in such preliminary prospectus or Prospectus was corrected in the
Final Prospectus, unless such failure resulted from non-compliance by
the Current Issuer, Funding, the Mortgages Trustee or NRPLC with
Clause 8.1(b) hereof. For purposes of the final proviso to the
immediately preceding sentence, the term Final Prospectus shall not be
deemed to include the documents incorporated therein by reference, and
no Underwriter shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in the Prospectus
or in any Final Prospectus to any person other than a person to whom
such Underwriter has delivered such incorporated documents in response
to a written or oral request therefor. The Current Issuer, Funding,
the Mortgages Trustee and NRPLC further agree to reimburse each
Underwriter and each such controlling person for any legal and other
expenses reasonably incurred by such Underwriter or controlling person
in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action, as such expenses are
incurred. The foregoing indemnity agreement is in addition to any
liability which the Current Issuer, Funding, the Mortgages Trustee and
NRPLC may otherwise have to any Underwriter or any controlling person
of any Underwriter.
No Underwriter or controlling person of any Underwriter shall have any
duty or obligation, whether as fiduciary for any Indemnified Person or
otherwise, to recover any such payment or to account to any other
person for any amounts paid to it under this Clause 13.1.
The foregoing shall be subject to the following:
(a) Any right which at any time either Funding or the Mortgages
Trustee has under the existing or future laws of Jersey whether
by virtue of the droit de discussion or otherwise to require
that recourse be had to the assets of any other person before
any
------------------------------------------------------------------------------
37
------------------------------------------------------------------------------
claim is enforced against such person in respect of the
obligations hereby assumed by such person is hereby abandoned
and waived.
(b) Each of Funding and the Mortgages Trustee undertakes that if at
any time any person indemnified sues such either of Funding or
the Mortgages Trustee in respect of any such obligations and
the person in respect of whose obligations the indemnity is
given is not sued also, Funding or the Mortgages Trustee as the
case may be shall not claim that such person be made a party to
the proceedings and each agrees to be bound by this indemnity
whether or not it is made a party to legal proceedings for the
recovery of the amount due or owing to the person indemnified,
as aforesaid, by the person in respect of whose obligations the
indemnity is given and whether the formalities required by any
law of Jersey whether existing or future in regard to the
rights or obligations of sureties shall or shall not have been
observed.
(c) Any right which either Funding or the Mortgages Trustee may
have under the existing or future laws of Jersey whether by
virtue of the droit de division or otherwise to require that
any liability under this indemnity be divided or apportioned
with any other person or reduced in any manner whatsoever is
hereby abandoned and waived.
13.2 Underwriters' Indemnity
Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Current Issuer, Funding, the Mortgages Trustee and
NRPLC, each of their directors and each of their officers who signs
the Registration Statement, their employees and each person who
controls the Current Issuer or NRPLC within the meaning of either the
Securities Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Current Issuer to each Underwriter, but
only with reference to written information relating to such
Underwriter furnished to the Current Issuer, Funding, the Mortgages
Trustee or NRPLC by or on behalf of such Underwriter through the Lead
Underwriters specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
For purposes of this Clause 13, the Current Issuer, Funding, the
Mortgages Trustee and NRPLC acknowledge that the statements set forth
under the heading "Underwriting" that specify, (i) the list of
Underwriters and their respective participation in the sale of the
Dollar Notes, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to short sales,
stabilisation, short covering transactions and penalty bids in any
preliminary prospectus and the Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any preliminary prospectus or the
Prospectus.
13.3 Proceedings
Promptly after receipt by an indemnified party under this Clause 13 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Clause 13, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under Clause
13.1 or 13.2 above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defences and (ii) will
not, in any event relieve the indemnifying party from any obligation
to any indemnified party other than the indemnification obligation
provided in Clause 13.1 or 13.2 above. If any such claim or action
shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it
------------------------------------------------------------------------------
38
------------------------------------------------------------------------------
wishes, jointly with any other similarly notified indemnifying party,
to assume the defence thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defence of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Clause 13 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defence thereof other than reasonable costs of investigation; provided
that each Underwriter, the Underwriters as a group, or the Current
Issuer, Funding, the Mortgages Trustee and NRPLC, as the case may be,
shall have the right to employ separate counsel to represent such
Underwriter and its controlling persons, the Underwriters and their
respective controlling persons or the Current Issuer, Funding, the
Mortgages Trustee and NRPLC and their respective controlling persons,
as the case may be, who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by such indemnified
parties under this Clause 13 if in the reasonable judgement of any
Underwriter, the Underwriters acting together, or any of the Current
Issuer, Funding, the Mortgages Trustee and NRPLC, as the case may be,
it is advisable for such indemnified parties to be represented by
separate counsel, and in that event the fees and expenses of such
separate counsel (and local counsel) shall be paid by the indemnifying
party. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defence of such
action and approval by the indemnified party of counsel selected by
the indemnifying party, the indemnifying party will not be liable to
such indemnified party under this Clause 13 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defence thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal
defences in accordance with the proviso to the preceding sentence (it
being understood, however that the indemnifying party shall not be
liable for the expenses of more than one such separate counsel (and
local counsel) representing the indemnified parties under Clause 13.1
or 13.2 hereof), (ii) the indemnifying party has authorised (acting
reasonably) the employment of more than one such separate counsel (and
local counsel) representing the employed counsel satisfactory to the
indemnified party to represent the indemnified party, or (iii) the
indemnifying party has authorised the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clause (i) or
(iii). The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgement for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by this Clause 13, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than
60 days after receipt by such indemnifying party of such request and
(ii) such indemnifying party shall not have either reimbursed the
indemnified party in accordance with such request or objected to such
request in writing prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and in respect of which indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
13.4 Contribution
In the event that the indemnity provided in Clause 13.1 or 13.2 is
unavailable to or insufficient to hold harmless an indemnified party
for any reason, the Current Issuer, NRPLC,
------------------------------------------------------------------------------
39
------------------------------------------------------------------------------
Funding, the Mortgages Trustee and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which
the Current Issuer, NRPLC, Funding, the Mortgages Trustee and one or
more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Current
Issuer, NRPLC, Funding, the Mortgages Trustee and the Underwriters
from the offering of the Dollar Notes. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
Current Issuer, NRPLC, Funding, the Mortgages Trustee and the
Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Current Issuer, NRPLC, Funding, the Mortgages
Trustee and the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Current Issuer,
Funding, the Mortgages Trustee and NRPLC shall be deemed to be equal
to the Issue Price (before deducting expenses), and benefits received
by the Underwriters shall be deemed to be equal to the total Selling
Commissions and the Management and Underwriting Commission, in each
case as set forth in Clause 11.1. Relative fault shall be determined
by reference to among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by
the Current Issuer, Funding, the Mortgages Trustee or NRPLC on the one
hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Current
Issuer, NRPLC, Funding, the Mortgages Trustee and the Underwriters
agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation
which does not take account of the equitable consideration referred to
above. Notwithstanding the provisions of this Clause 13.4, no person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Clause 13, each person who controls an
Underwriter within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Current Issuer, Funding,
the Mortgages Trustee or NRPLC within the meaning of either the
Securities Act or the Exchange Act, each officer of the Current Issuer
who shall have signed the Registration Statement, each employee and
each director of the Current Issuer, Funding, the Mortgages Trustee or
NRPLC shall have the same rights to contribution as the Current
Issuer, Funding, the Mortgages Trustee or NRPLC, as the case may be,
subject in each case to the applicable terms and conditions of this
Clause 13.4. Notwithstanding the foregoing, in no case shall the
Underwriter (except as may be provided in any agreement among
Underwriters relating to the offering of the Notes) be responsible for
any amount in excess of the Selling Commission or Management and
Underwriting Commission applicable to the Notes purchased by such
Underwriter hereunder.
14. Termination
14.1 Lead Underwriters' Ability to Terminate
Notwithstanding any other provision of this Agreement, the Lead
Underwriters on behalf of the Underwriters may, by notice to the
Current Issuer given at any time prior to payment of the gross
underwriting proceeds for the Dollar Notes to the Current Issuer,
terminate this Agreement in any of the following circumstances:
(a) if there shall have come to the notice of the Underwriters any
breach of, or any event rendering untrue or incorrect in any
material respect, any of the warranties and
------------------------------------------------------------------------------
40
------------------------------------------------------------------------------
representations contained in Clause 5 or 6 or 7 (or any deemed
repetition thereof) or failure to perform any of the Current
Issuer's or NRPLC's covenants or agreements in this Agreement
in any material respect; or
(b) if any condition specified in Clause 9 has not been satisfied
or waived by the Lead Underwriters on behalf of the
Underwriters; or
(c) if in the opinion of the Lead Underwriters, circumstances shall
be such as: (i) to prevent or to a material extent restrict
payment for the Dollar Notes in the manner contemplated in this
Agreement or (ii) to a material extent prevent or restrict
settlement of transactions in the Dollar Notes in the market or
otherwise; or
(d) if in the opinion of the Lead Underwriters, there shall have
been (i) any change in national or international political,
legal, tax or regulatory conditions or (ii) any calamity or
emergency, which has in its view caused a substantial
deterioration in the price and/or value of the Dollar Notes; or
(e) upon termination of the Subscription Agreement; or
(f) if (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the London Stock
Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on such
exchanges or such market; (ii) a banking moratorium shall have
been declared by US federal or New York State or UK regulatory
authorities; (iii) there shall have occurred any change or any
development involving a prospective change, in or affecting
particularly the business or properties of the Current Issuer,
Funding, the Mortgages Trustee or NRPLC, which, in the
judgement of the Lead Underwriters materially impairs the
investment quality of the Dollar Notes or makes it
impracticable or inadvisable to market the Dollar Notes or (iv)
if in the judgement of the Lead Underwriters, it otherwise
becomes impracticable or inadvisable to proceed with the
offering of the Dollar Notes.
14.2 Consequences of Termination
Upon such notice being given this Agreement shall terminate and be of
no further effect and no party hereto shall be under any liability to
any other in respect of this Agreement except that (a) the Current
Issuer shall remain liable under Clause 12 for the payment of the
costs and expenses already incurred or incurred in consequence of such
termination and (b) (i) the indemnity agreement and contribution
provisions set forth in Clause 13, (ii) the obligations of the Current
Issuer and NRPLC and (iii) the representations and warranties of the
Underwriters made in Clause 3.2(b) of this Agreement, which would have
continued in accordance with Clause 15 had the arrangements for the
underwriting and issue of the Dollar Notes been completed, shall so
continue.
15. Survival of Representations and Obligations
15.1 The representations, warranties, agreements, undertakings and
indemnities in this Agreement will continue in full force and effect
notwithstanding completion of the arrangements for the subscription
and issue of the Dollar Notes or any investigation made by or on
behalf of any Underwriter or any controlling person or any of its
representatives, directors, officers, agents or employees or any of
them.
------------------------------------------------------------------------------
41
------------------------------------------------------------------------------
15.2 Save for their respective responsibilities to comply with the relevant
representations set forth herein, neither the Current Issuer, Funding,
the Mortgages Trustee nor NRPLC shall have any responsibility in
respect of the legality of the Underwriters or other persons offering
and selling the Dollar Notes in any jurisdiction or in respect of the
Dollar Notes qualifying for sale in any jurisdiction.
16. Notices
16.1 All communications pursuant to this Agreement will be in writing and
will be delivered at or sent by facsimile transmission to the
following addresses:
(i) if to the Current Issuer,
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: The Company Secretary
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇
Attention: Securitisation, Risk Operations
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(ii) if to NRPLC,
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇
Attention: Securitisation, Risk Operations
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(iii) if to the Underwriters,
Barclays Capital, Inc.
Attention:
Facsimile:
and
------------------------------------------------------------------------------
42
------------------------------------------------------------------------------
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
London
E14 5LB
Attention: Debt Syndicate Desk
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
and
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
(iv) if to Funding,
▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: The Company Secretary
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(v) if to the Mortgages Trustee,
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: The Company Secretary
Facsimile: ▇▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
16.2 Any communication so sent by letter shall take effect at the time of
actual delivery to the addressee, and any communication so sent by
facsimile transmission shall take effect upon acknowledgement of
receipt by the recipient. Any communication to be delivered to any
party under this Agreement which is to be sent by facsimile
transmission will be written legal evidence.
16.3 The Mortgages Trustee agrees that the process by which any proceedings
in England are begun may be secured on it by being delivered to
Granite Finance Trustees Limited c/o Mourant & Co. Capital (SPV)
Limited, ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, or otherwise at the
registered office of Mourant & Co. Capital (SPV) Limited, attn: The
Company Secretary. If such person is not or ceases to be effectively
appointed to accept service of process on the Mortgages Trustee's
behalf the Mortgages Trustee shall, on the written demand of the Lead
Underwriters, appoint a further person in England to accept service of
------------------------------------------------------------------------------
43
------------------------------------------------------------------------------
process on its behalf and, failing such appointment within 15 days,
the Lead Underwriters shall be entitled to appoint such a person by
written notice to the Mortgages Trustee. Nothing in this sub-clause
shall affect the right of the Lead Underwriters to serve process in
any other manner permitted by law.
16.4 Funding agrees that the process by which any proceedings in England
are begun may be secured on it by being delivered to Granite Finance
Funding Limited c/o Mourant & Co. Capital (SPV) Limited, ▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, or otherwise at the registered office of
Mourant & Co. Capital (SPV) Limited, attn: The Company Secretary. If
such person is not or ceases to be effectively appointed to accept
service of process on Funding's behalf Funding shall, on the written
demand of the Lead Underwriters, appoint a further person in England
to accept service of process on its behalf and, failing such
appointment within 15 days, the Lead Underwriters shall be entitled to
appoint such a person by written notice to Funding. Nothing in this
sub-clause shall affect the right of the Lead Underwriters to serve
process in any other manner permitted by law.
17. Time
Time shall be of the essence of this Agreement.
18. Non Petition and Limited Recourse
Each of the Underwriters agrees with the Current Issuer, Funding and
the Mortgages Trustee, that it shall not, until the expiry of one year
and one day after the payment of all sums outstanding and owing under
the Notes (in respect of the Current Issuer) and until the expiry of
one year and one day after the payment of all sums outstanding and
owing under any intercompany loan made to Funding by the Current
Issuer or any other company (in respect of the Mortgages Trustee and
Funding) take any corporate action or other steps or legal proceedings
for the winding-up, dissolution, arrangement, reconstruction or
re-organisation or for the appointment of a liquidator, receiver,
manager, administrator, administrative receiver or similar officer of
the Current Issuer, the Mortgages Trustee or Funding or any, or all
of, their respective assets or revenues.
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 Current
Issuer, Funding or the Mortgages Trustee, 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 each of the Current Issuer,
Funding and the Mortgages Trustee expressed to be a party hereto and
no personal liability shall attach to 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 Current Issuer, Funding or the Mortgages Trustee
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.
------------------------------------------------------------------------------
44
------------------------------------------------------------------------------
19. Governing Law and Jurisdiction
19.1 Governing Law
This Agreement shall be governed by, and shall be construed in
accordance with, the laws of New York.
19.2 Jurisdiction
Each of the parties hereto irrevocably agrees that, except as
otherwise set forth in this paragraph, any state or federal court
sitting in the City of New York shall have exclusive jurisdiction to
hear and determine any suit, action or proceeding and to settle any
dispute arising out of or relating to this Agreement and, for such
purposes, irrevocably submits to the jurisdiction of such courts. Each
of the Mortgages Trustee, Funding, the Current Issuer and NRPLC hereby
appoints the CT Corporation System at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, or, if otherwise, its principal place of business in the City
of New York from time to time, as its agent for service of process and
agrees that service of any process, summons, notice or document by
hand delivery or registered mail upon such agent shall be effective
service of process for any suit, action or proceeding brought in any
such court. Each of the Mortgages Trustee, Funding, the Current Issuer
and NRPLC irrevocably and unconditionally waives any objection to the
laying of venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum. Each of the Mortgages Trustee,
Funding, the Current Issuer and NRPLC agrees that a final judgment in
any such suit, action or proceeding brought in any such court shall be
conclusive and binding upon each of the Mortgages Trustee, Funding,
the Current Issuer and NRPLC and may be enforced in any other court to
whose jurisdiction each of the Mortgages Trustee, Funding, the Current
Issuer and NRPLC is or may in the future be subject, by suit upon
judgment. Each of the Mortgages Trustee, Funding, the Current Issuer
and NRPLC further agrees that nothing herein shall affect the
Underwriters' right to effect service of process in any other manner
permitted by law or to bring a suit, action or proceeding (including a
proceeding for enforcement of a judgement) in any other court or
jurisdiction in accordance with applicable law.
20. Counterparts
This Agreement may be executed in any number of counterparts (manually
or by facsimile) all of which, taken together, shall constitute one
and the same agreement and any party may enter into this Agreement by
executing a counterpart.
21. AUTHORITY OF THE LEAD UNDERWRITERS
Any action by the Underwriters hereunder may be taken by Barclays
Capital, Inc., Citigroup Global Markets Limited, and ▇.▇. ▇▇▇▇▇▇
Securities Inc. as representatives on behalf of the Underwriters, and
any such action taken Barclays Capital, Inc., Citigroup Global Markets
Limited, and ▇.▇. ▇▇▇▇▇▇ Securities Inc. shall be binding upon the
Underwriters.
------------------------------------------------------------------------------
45
------------------------------------------------------------------------------
IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
GRANITE MORTGAGES 04-1 PLC
By:
NORTHERN ROCK PLC
By:
GRANITE FINANCE FUNDING LIMITED
By:
GRANITE FINANCE TRUSTEES LIMITED
By:
BARCLAYS CAPITAL INC.
For itself and on behalf of the several Underwriters
listed in Schedule 1 hereto
By:
CITIGROUP GLOBAL MARKETS LIMITED
For itself and on behalf of the several Underwriters
listed in Schedule 1 hereto
By:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the several Underwriters
listed in Schedule 1 hereto
By:
------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
SCHEDULE 1
Underwriters $[1,000,000,000] $[920,000,000] $[900,000,000]
of Series 1 of Series 1 of Series 2
Class A1 Notes Class A2 Notes Class A1 Notes
Barclays Capital, Inc.
Citigroup Global Markets Limited
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Total $[1,000,000,000] $[920,000,000] $[900,000,000]
Underwriters $[60,000,000] of $[50,000,000] $[60,000,000]
Series 1 Class B of Series 1 of Series 1
Notes Class M Notes Class C Notes
Barclays Capital, Inc.
Citigroup Global Markets Limited
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Total $[60,000,000] $[50,000,000] $[60,000,000]
-------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------
CONTENTS
Clause Page
1. Agreement to Issue and Subscribe.....................................5
2. Stabilisation........................................................7
3. Agreements by the Underwriters.......................................7
4. Listing.............................................................10
5. Representations and Warranties of the Current Issuer................11
6. Representations and Warranties of Funding and the Mortgages
Trustee.............................................................16
7. Representations and Warranties of NRPLC.............................20
8. Covenants of the Current Issuer, Funding, the Mortgages Trustee
and NRPLC...........................................................23
9. Conditions Precedent................................................29
10. Closing.............................................................33
11. Commissions.........................................................34
12. Expenses............................................................34
13. Indemnification.....................................................35
14. Termination.........................................................39
15. Survival of Representations and Obligations.........................40
16. Notices.............................................................41
17. Time................................................................43
18. Non Petition and Limited Recourse...................................43
19. Governing Law and Jurisdiction......................................44
20. Counterparts........................................................44
21. Authority of the Lead Underwriters..................................44