Exhibit 1.1
DRAFT
UNDERWRITING AGREEMENT
DATED o March, 2004
▇▇▇▇▇▇ FINANCING (NO. 8) PLC
and
ABBEY NATIONAL PLC
and
▇▇▇▇▇▇ FUNDING LIMITED
and
▇▇▇▇▇▇ TRUSTEES LIMITED
and
BARCLAYS CAPITAL INC.
and
▇▇▇▇▇▇ BROTHERS INC.
and
UBS SECURITIES LLC
and
CITIGROUP GLOBAL MARKETS INC.
and
CREDIT SUISSE FIRST BOSTON LLC
and
DEUTSCHE BANK SECURITIES INC.
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
Relating to ▇▇▇▇▇▇ FINANCING (NO. 8) PLC
US$1,850,000,000 Floating Rate Series 1 Class A Eighth Issuer Notes
due April 2005
US$62,900,000 Floating Rate Series 1 Class B Eighth Issuer Notes due July 2040
US$107,300,000 Floating Rate Series 1 Class C Eighth Issuer Notes due July 2040
US$1,500,000,000 Floating Rate Series 2 Class A Eighth Issuer Notes
due April 2011
US$51,000,000 Floating Rate Series 2 Class B Eighth Issuer Notes due July 2040
US$87,000,000 Floating Rate Series 2 Class C Eighth Issuer Notes due July 2040
US$500,000,000 Floating Rate Series 4 Class A2 Eighth Issuer Notes due July 2040
▇▇▇▇▇ & ▇▇▇▇▇
London
CONTENTS
Clause Page
1. Issue of the Eighth Issuer Notes...........................................6
2. Stabilisation..............................................................7
3. Agreements by the Underwriters.............................................7
4. Listing...................................................................11
5. Representations and Warranties of the Eighth Issuer.......................12
6. Representations and Warranties of Funding and the Mortgages Trustee.......17
7. Representations and Warranties of ANPLC...................................22
8. Covenants of the Eighth Issuer, Funding, the Mortgages Trustee
and ANPLC...............................................................24
9. Conditions Precedent......................................................31
10. Closing...................................................................35
11. Commissions...............................................................35
12. Expenses..................................................................36
13. Indemnification...........................................................37
14. Termination...............................................................40
15. Survival of Representations and Obligations...............................41
16. Notices...................................................................42
17. Time......................................................................43
18. Governing Law and Jurisdiction............................................43
19. Counterparts..............................................................43
20. Authority of the Lead Managers............................................43
Signatories...................................................................44
THIS AGREEMENT is made on o March, 2004
BETWEEN:
(1) ▇▇▇▇▇▇ FINANCING (NO. 8) PLC (registered number 4992222), a public limited
company incorporated under the laws of England and Wales, whose registered
office is at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ (the Eighth Issuer);
(2) ABBEY NATIONAL PLC (registered number 2294747), a public limited company
incorporated under the laws of England and Wales, whose registered office
is at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (ANPLC);
(3) ▇▇▇▇▇▇ FUNDING LIMITED (registered number 3982428), a private limited
company incorporated under the laws of England and Wales, whose registered
office is at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ (Funding);
(4) ▇▇▇▇▇▇ TRUSTEES LIMITED (registered number 3982431), a private limited
company incorporated under the laws of England and Wales, whose registered
office is at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ (the Mortgages Trustee);
(5) BARCLAYS CAPITAL INC., a corporation organised under the laws of
Connecticut whose registered office is at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ BROTHERS INC., a corporation organised under the laws
of New York whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ and UBS SECURITIES LLC, a corporation organised under
the laws of Delaware whose registered office is at 1285 Avenue of the
Americas, New York, New York, 10019 (the Lead Managers); and
(6) CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE FIRST BOSTON LLC, DEUTSCHE
BANK SECURITIES INC., ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED (together with the Lead Managers, the Underwriters and each
an Underwriter).
WHEREAS:
(A) The Eighth Issuer, by resolutions of its Board of Directors passed on 12
March, 2004, has duly authorised and has determined to create and issue
US$1,850,000,000 in principal amount of its Floating Rate Series 1 Class A
Eighth Issuer Notes due April 2005 (the Series 1 Class A Eighth Issuer
Notes), US$62,900,000 in principal amount of its Floating Rate Series 1
Class B Eighth Issuer Notes due July 2040 (the Series 1 Class B Eighth
Issuer Notes), US$107,300,000 in principal amount of its Floating Rate
Series 1 Class C Eighth Issuer Notes due July 2040 (the Series 1 Class C
Eighth Issuer Notes and, together with the Series 1 Class A Eighth Issuer
Notes and the Series 1 Class B Eighth Issuer Notes, the Series 1 Eighth
Issuer Notes), US$1,500,000,000 in principal amount of its Floating Rate
Series 2 Class A Eighth Issuer Notes due April 2011 (the Series 2 Class A
Eighth Issuer Notes), US$51,000,000 in principal amount of its Floating
Rate Series 2 Class B Eighth Issuer Notes due July 2040 (the Series 2
Class B Eighth Issuer Notes), US$87,000,000 in principal amount of its
Floating Rate Series 2 Class C Eighth Issuer Notes due July 2040 (the
Series 2 Class C Eighth Issuer Notes and, together with the Series 1 Class
B Eighth Issuer Notes, the Series 1 Class C Eighth Issuer Notes and the
Series 2 Class B Eighth Issuer Notes, the Class B/C Eighth Issuer Notes
and, together with the Series 2 Class A Eighth Issuer Notes and the Series
2 Class B Eighth Issuer Notes, the Series 2 Eighth Issuer Notes), and
US$500,000,000 in principal amount of its Floating Rate Series 4 Class A2
Eighth Issuer Notes due July 2040 (the Series 4 Class A2 Eighth Issuer
Notes and, together with the Series 1 Class A Eighth Issuer Notes and the
Series 2 Class A Eighth Issuer Notes, the Class
1
A Eighth Issuer Notes and, together with the Series 2 Eighth Issuer Notes
and the Series 1 Eighth Issuer Notes, the Eighth Issuer Notes, which
expression where the context so requires shall include the Global Eighth
Issuer Notes defined below).
(B) The Eighth Issuer Notes will be in registered form in denominations of
US$1,000, US$10,000 or US$100,000 each or integral multiples thereof. The
Eighth Issuer Notes will be issued on o, 2004 at 10:00 a.m. or on such
other time (not being later than 2:00 p.m.) (London time) on 1 April, 2004
or on such other date as the Eighth Issuer and the Lead Managers may agree
(the Closing Date). The issue of the Eighth Issuer Notes is referred to in
this Agreement as the Issue.
(C) Simultaneously with the Issue, the Eighth Issuer intends to issue
(euro)990,000,000 in principal amount of its Floating Rate Series 3 Class
A Eighth Issuer Notes due April 2020, (euro)34,000,000 in principal amount
of its Floating Rate Series 3 Class B Eighth Issuer Notes due July 2040,
(euro)57,500,000 in principal amount of its Floating Rate Series 3 Class C
Eighth Issuer Notes due July 2040,(pound)900,000,000 in principal amount
of its Floating Rate Series 4 Class A1 Eighth Issuer Notes due July
2040,(pound)39,900,000 in principal amount of its Floating Rate Series 4
Class B Eighth Issuer Notes due July 2040, and(pound)68,000,000 in
principal amount of its Floating Rate Series 4 Class C Eighth Issuer Notes
due July 2040 (together, the Reg S Eighth Issuer Notes). By a Subscription
Agreement of today's date (the Reg S Eighth Issuer Notes Subscription
Agreement) between the Eighth Issuer, ANPLC, Funding, the Mortgages
Trustee and the respective managers named therein, such managers have
agreed to subscribe and pay for the Reg S Eighth Issuer Notes upon the
terms and subject to the conditions therein contained.
The Eighth Issuer Notes and the Reg S Eighth Issuer Notes will be
constituted by, issued subject to and have the benefit of a trust deed
(the Eighth Issuer Trust Deed) to be entered into on or before the Closing
Date between the Eighth Issuer and The Bank of New York, London Branch as
trustee for the Noteholders (the Note Trustee).
(D) The Eighth Issuer Notes and the Reg S Eighth Issuer Notes (together with
the Eighth Issuer's obligations to its other creditors) will be secured
with the benefit of security interests created by a deed of charge and
assignment (the Eighth Issuer Deed of Charge) to be entered into on or
before the Closing Date by the Eighth Issuer, The Bank of New York, London
Branch (in such capacity, the Eighth Issuer Security Trustee), the Note
Trustee, JPMorgan Chase Bank, London Branch (the Principal Paying Agent
and the Agent Bank), ANPLC in its capacity as cash manager to the Eighth
Issuer under the Eighth Issuer Cash Management Agreement (the Eighth
Issuer Cash Manager) and in its capacity as sterling account bank to the
Eighth Issuer under the Eighth Issuer Bank Account Agreement (the Eighth
Issuer Sterling Account Bank), Citibank N.A., London Branch in its
capacity as the non-sterling account bank to the Eighth Issuer (the Eighth
Issuer Non-Sterling Account Bank), JPMorgan Chase Bank, New York Branch
(the US Paying Agent), ▇.▇. ▇▇▇▇▇▇ Bank Luxembourg S.A. as registrar in
respect of the Eighth Issuer Notes and the Reg S Eighth Issuer Notes (the
Registrar), UBS AG, Citibank, N.A., London Branch, Barclays Bank PLC and
Credit Suisse First Boston International as swap providers to the Eighth
Issuer (the Eighth Issuer Swap Providers) and SPV Management Limited in
its capacity as corporate services provider to the Issuer under the Eighth
Issuer Corporate Services Agreement (the Eighth Issuer Corporate Services
Provider).
(E) Payments of principal and interest on the Eighth Issuer Notes and the Reg
S Eighth Issuer Notes will be made by the Eighth Issuer to the Principal
Paying Agent and by the Principal Paying Agent to Noteholders on behalf of
the Eighth Issuer under a paying agent and agent bank agreement to be
entered into on or before the Closing Date (the Eighth Issuer Paying Agent
and Agent Bank Agreement) between the Eighth Issuer, the Principal Paying
Agent,
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the Agent Bank, the US Paying Agent, the Registrar, the Transfer Agent and
the Eighth Issuer Security Trustee.
(F) The Eighth Issuer Notes will be payable in US dollars. Each class of the
Eighth Issuer Notes will be represented by a global note (a Global Eighth
Issuer Note), without interest coupons, substantially in the form set out
in the Eighth Issuer Trust Deed.
(G) The Eighth Issuer will use an amount equal to the gross proceeds of the
Issue and the gross proceeds of the issue of the Reg S Eighth Issuer Notes
(net of underwriting commissions and various out-of-pocket expenses)
converted under the relevant Eighth Issuer Swap Agreements (as defined
below), to make a loan to Funding pursuant to an intercompany loan
agreement to be entered into on or before the Closing Date (the Eighth
Issuer Intercompany Loan Agreement and the loan made thereunder the Eighth
Issuer Intercompany Loan) between the Eighth Issuer, Funding, JPMorgan
Chase Bank, London Branch (in such capacity, the Security Trustee) and the
Eighth Issuer Security Trustee.
(H) Funding will pay the proceeds of the Eighth Issuer Intercompany Loan to
ANPLC in consideration for the assignment by ANPLC of a part of ANPLC's
interest in a portfolio of first residential mortgage loans (the Loans)
and an interest in the related insurances and their related security
(together, the Related Security).
(I) ANPLC transferred by way of equitable assignment the portfolio of Loans
and their Related Security to the Mortgages Trustee on 26th July, 2000 and
on subsequent distribution dates, pursuant to a mortgage sale agreement
entered into on 26th July, 2000, amended on 29th November, 2000 and
amended and restated on 23rd May, 2001, 5th July, 2001, 8th November,
2001, 7th November, 2002 and 26th March, 2003 and to be amended and
restated prior to or on the Closing Date (the Mortgage Sale Agreement)
between ANPLC, the Mortgages Trustee, Funding and the Security Trustee. In
relation to Loans secured over properties in Scotland, the transfer of the
beneficial interest therein to the Mortgages Trustee has been effected by
a declaration of trust entered into on 8th January, 2003 and further
declarations of trust in respect of further loans sold to the Mortgages
Trustee (the Scottish Trust Deed, the form of which is incorporated into
the Mortgage Sale Agreement), between ANPLC, the Mortgages Trustee and
Funding. Each of the Mortgages Trustee, Funding and the Security Trustee
appointed ANPLC as servicer to service the Loans and their Related
Security pursuant to a servicing agreement entered into on 26th July,
2000, as amended and restated on 23rd May, 2001 and 7th November, 2002
(the Amended and Restated Servicing Agreement).
(J) The Mortgages Trustee holds the Loans and their Related Security on a bare
trust in undivided shares for the benefit of Funding and ANPLC pursuant to
a mortgages trust deed entered into on 25th July, 2000, amended on 29th
November, 2000 and 23rd May, 2001, amended and restated on 5th July, 2001,
8th November, 2001, 7th November, 2002, and 26th March, 2003 and to be
amended and restated on or before the Closing Date (the Mortgages Trust
Deed) between ANPLC, Funding and the Mortgages Trustee. The Mortgages
Trustee entered into, on 26th July, 2000, a guaranteed investment contract
in respect of its principal bank account (the Mortgages Trustee Guaranteed
Investment Contract) between the Mortgages Trustee and ANPLC (in such
capacity, the Mortgages Trustee GIC Provider).
(K) Funding's obligations to the Eighth Issuer under the Eighth Issuer
Intercompany Loan Agreement and to Funding's other creditors will be
secured with the benefit of security interests created by a deed of charge
and assignment entered into on 26th July, 2000 (the Funding Deed of
Charge) between Funding, ▇▇▇▇▇▇ Financing (No. 1) PLC (the First Issuer),
the Security Trustee, Abbey National Treasury Services plc (in such
capacity, the
3
Funding Swap Provider), The Royal Bank of Scotland plc as liquidity
facility provider to Funding (the Funding Liquidity Facility Provider),
ANPLC in its capacity as cash manager to the Mortgages Trustee and Funding
(the Cash Manager) and in its capacity as account bank to the Mortgages
Trustee and Funding (the Account Bank), ANPLC in its capacity as start-up
loan provider to Funding in relation to an issue of notes by the First
Issuer (the First Start-up Loan Provider) and SPV Management Limited (the
Corporate Services Provider), acceded to pursuant to the deed of accession
dated 29th November, 2000 (the First Deed of Accession to the Funding Deed
of Charge) by ▇▇▇▇▇▇ Financing (No. 2) PLC (the Second Issuer) and by
ANPLC in its capacity as start-up loan provider to Funding in relation to
an issue of notes by the Second Issuer (the Second Start-up Loan
Provider), acceded to pursuant to a deed of accession dated 23rd May, 2001
(the Second Deed of Accession to the Funding Deed of Charge) by ▇▇▇▇▇▇
Financing (No. 3) PLC (the Third Issuer) and by ANPLC in its capacity as
start-up loan provider to Funding in relation to an issue of notes by the
Third Issuer (the Third Start-up Loan Provider), acceded to pursuant to a
deed of accession dated 5th July, 2001 (the Third Deed of Accession to the
Funding Deed of Charge) by ▇▇▇▇▇▇ Financing (No. 4) PLC (the Fourth
Issuer) and by ANPLC in its capacity as start-up loan provider to Funding
in relation to an issue of notes by the Fourth Issuer (the Fourth Start-up
Loan Provider), acceded to pursuant to a deed of accession dated 8th
November, 2001 (the Fourth Deed of Accession to the Funding Deed of
Charge) by ▇▇▇▇▇▇ Financing (No. 5) PLC (the Fifth Issuer) and by ANPLC in
its capacity as start-up loan provider to Funding in relation to an issue
of notes by the Fifth Issuer (the Fifth Start-up Loan Provider), amended
and restated pursuant to the amendment and restatement of the Funding Deed
of Charge dated 7th November, 2002 (the Amended and Restated Funding Deed
of Charge) between ▇▇▇▇▇▇ Financing (No. 6) PLC (the Sixth Issuer) and
ANPLC in its capacity as start-up loan provider to Funding in relation to
an issue of notes by the Sixth Issuer (the Sixth Start-up Loan Provider)
and acceded to pursuant to a deed of accession dated 26th March, 2003 (the
First Deed of Accession to the Amended and Restated Funding Deed of
Charge) by ▇▇▇▇▇▇ Financing (No. 7) PLC (the Seventh Issuer) and by ANPLC
in its capacity as start-up loan provider to Funding in relation to an
issue of notes by the Seventh Issuer (the Seventh Start-up Loan Provider).
On or before the Closing Date, the Eighth Issuer and ANPLC in its capacity
as start-up loan provider to Funding in relation to the issue (the Eighth
Start-up Loan Provider) will, together with the other secured creditors of
Funding, accede to the Amended and Restated Funding Deed of Charge and
thereby become secured creditors of Funding.
(L) In connection with the issue of notes by the First Issuer, Funding, in
addition to the documents described above, on 26th July, 2000 entered into
(1) a cash management agreement amended on 29th November, 2000 (the Cash
Management Agreement) with the Cash Manager, the Mortgages Trustee and the
Security Trustee; (2) a bank account agreement (the Funding Bank Account
Agreement) with the Account Bank, the Mortgages Trustee and Funding; (3) a
guaranteed investment contract (the Funding Guaranteed Investment
Contract) with the Account Bank; (4) a liquidity facility agreement
amended on 29th November, 2000 (the Funding Liquidity Facility Agreement)
with the Funding Liquidity Facility Provider and the Security Trustee; (5)
a start-up loan agreement (the First Start-up Loan Agreement) with the
First Start-up Loan Provider and the Security Trustee; and (6) a corporate
services agreement amended and restated on 29th November, 2000 and 23rd
May, 2001 (the Corporate Services Agreement) with the Mortgages Trustee,
the Security Trustee and the Corporate Services Provider, each of which
will remain in effect, as applicable, in respect of the Issue. In
connection with the issue of notes by the Second Issuer, Funding, in
addition to the documents described above, on 29th November, 2000 entered
into a start-up loan agreement (the Second Start-up Loan Agreement) with
the Second Start-up Loan Provider and the Security Trustee. In connection
with the issue of notes by the Third Issuer, Funding, in addition to the
documents described above, on 23rd May, 2001 entered into a
4
start-up loan agreement (the Third Start-up Loan Agreement) with the Third
Start-up Loan Provider and the Security Trustee. In connection with the
issue of notes by the Fourth Issuer, Funding, in addition to the documents
described above, on 5th July, 2001 entered into a start-up loan agreement
(the Fourth Start-up Loan Agreement) with the Fourth Start-up Loan
Provider and the Security Trustee. In connection with the issue of notes
by the Fifth Issuer, Funding, in addition to the documents described
above, on 8th November, 2001 entered into a start-up loan agreement (the
Fifth Start-up Loan Agreement) with the Fifth Start-up Loan Provider and
the Security Trustee. In connection with the issue of notes by the Sixth
Issuer, Funding, in addition to the documents described above, on 7th
November, 2002 entered into a start-up loan agreement (the Sixth Start-up
Loan Agreement) with the Sixth Start-up Loan Provider and the Security
Trustee. In connection with the issue of notes by the Seventh Issuer,
Funding, in addition to the documents described above, on 26th March, 2003
entered into a start-up loan agreement (the Seventh Start-up Loan
Agreement) with the Seventh Start-up Loan Provider and the Security
Trustee. In connection with the Issue, Funding will additionally enter
into a start-up loan agreement (the Eighth Start-up Loan Agreement) with
the Eighth Start-up Loan Provider and the Security Trustee.
(M) In connection with an intercompany loan agreement entered into on 26th
July, 2000 (the First Issuer Intercompany Loan Agreement) between the
First Issuer, Funding and the Security Trustee, Funding entered into an
ISDA Master Agreement (including the schedule thereto) and confirmations
documented between Funding, the Funding Swap Provider and the Security
Trustee (as amended, the Funding Swap Agreement). In connection with an
intercompany loan agreement entered into on 29th November, 2000 (the
Second Issuer Intercompany Loan Agreement) between the Second Issuer,
Funding and the Security Trustee, the parties to the Funding Swap
Agreement agreed to amend the terms of that ISDA Master Agreement and to
replace the previous confirmations with a new confirmation that provided
for a variable rate of interest to be paid by Funding to the Funding Swap
Provider (based on the weighted average rates of interest on the Loans in
the Portfolio (as defined below)) and for the Funding Swap Provider to pay
a rate of interest to Funding equal to LIBOR for three-month Sterling
deposits and a margin, and in connection with a further intercompany loan
agreement entered into on 23rd May, 2001 (the Third Issuer Intercompany
Loan Agreement) between the Third Issuer, Funding and the Security
Trustee, the parties to the Funding Swap Agreement agreed to further amend
the Funding Swap Agreement.
(N) In connection with the Issue, the Eighth Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Eighth Issuer Notes
relating to each class of the Eighth Issuer Notes; (2) a corporate
services agreement (the Eighth Issuer Corporate Services Agreement)
between the Eighth Issuer, the Eighth Issuer Security Trustee and the
Eighth Issuer Corporate Services Provider; (3) a cash management agreement
(the Eighth Issuer Cash Management Agreement) between the Eighth Issuer,
the Eighth Issuer Security Trustee and the Eighth Issuer Cash Manager; (4)
a bank account agreement (the Eighth Issuer Bank Account Agreement)
between the Eighth Issuer, the Eighth Issuer Sterling Account Bank, the
Eighth Issuer Non-Sterling Account Bank and the Eighth Issuer Security
Trustee; (5) ISDA Master Agreements (including the schedule thereto and
confirmation thereunder) in respect of currency swap transactions relating
to the Series 1 Eighth Issuer Notes, the Series 2 Eighth Issuer Notes and
the Series 4 Class A2 Eighth Issuer Notes, between the Eighth Issuer, the
Eighth Issuer Swap Providers and the Eighth Issuer Security Trustee (the
Eighth Issuer Dollar Currency Swap Agreements) and, together with the
other swap agreements to be entered into in relation to certain of the Reg
S Eighth Issuer Notes, each as referred to in the Prospectus (as defined
below), the Eighth Issuer Swap Agreements); and (6) a post-enforcement
call option agreement (the Eighth Issuer Post-
5
Enforcement Call Option Agreement) between the Eighth Issuer, the Eighth
Issuer Security Trustee and PECOH Limited.
(O) On or before the Closing Date, ▇▇▇▇▇ & Overy and ▇▇▇▇▇▇▇▇▇ and May will
sign for the purposes of identification an amended and restated master
definitions and construction schedule (the Amended and Restated Master
Definitions Schedule) and a master definitions and construction schedule
in respect of the Eighth Issuer (the Eighth Issuer Master Definitions
Schedule).
(P) As required, the Eighth Issuer, Funding, the Mortgages Trustee and/or
ANPLC 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
Scottish Trust Deed, the Amended and Restated Servicing Agreement, the
Mortgages Trustee Guaranteed Investment Contract, the First Issuer
Intercompany Loan Agreement, the Second Issuer Intercompany Loan
Agreement, the Third Issuer Intercompany Loan Agreement, the Fourth Issuer
Intercompany Loan Agreement, the Fifth Issuer Intercompany Loan Agreement,
the Sixth Issuer Intercompany Loan Agreement, the Seventh Issuer
Intercompany Loan Agreement, the Eighth Issuer Intercompany Loan
Agreement, the Funding Swap Agreement, the Funding Guaranteed Investment
Contract, the Funding Liquidity Facility Agreement, the Cash Management
Agreement, the Bank Account Agreement, the First Start-up Loan Agreement,
the Second Start-up Loan Agreement, the Third Start-up Loan Agreement, the
Fourth Start-up Loan Agreement, the Fifth Start-up Loan Agreement, the
Sixth Start-up Loan Agreement, the Seventh Start-up Loan Agreement, the
Eighth Start-up Loan Agreement, the Corporate Services Agreement, the
Amended and Restated Funding Deed of Charge, the Eighth Issuer Deed of
Charge, the Eighth Issuer Trust Deed, the Eighth Issuer Cash Management
Agreement, the Eighth Issuer Paying Agent and Agent Bank Agreement, the
Eighth Issuer Bank Account Agreement, the Eighth Issuer Swap Agreements,
the Eighth Issuer Corporate Services Agreement, the Eighth Issuer
Post-Enforcement Call Option Agreement, this Agreement and the Reg S
Eighth Issuer Notes 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. ISSUE OF THE EIGHTH ISSUER NOTES
1.1 Agreement to Issue
Subject to the terms and conditions of this Agreement, the Eighth Issuer
agrees to issue the Class A Eighth Issuer Notes on the Closing Date to the
Underwriters or as they may direct and the Class B/C Eighth Issuer Notes
on the Closing Date to the Lead Managers (the Class B/C Underwriters) or
as they may direct. The Eighth Issuer Notes will be issued at a price
equal to the aggregate of 100 per cent. of the principal amount of the
Series 1 Eighth Issuer Notes, 100 per cent. of the principal amount of the
Series 2 Eighth Issuer Notes and 100 per cent. of the principal amount of
the Series 4 Class A2 Eighth Issuer Notes (the Issue Price).
1.2 The Legal Agreements
To the extent that each of the Eighth Issuer, Funding, the Mortgages
Trustee and ANPLC is a signatory of the Legal Agreements, each has entered
or will, not later than the Closing Date, enter into each of the Legal
Agreements to which it is a party, substantially in the form of the draft
signed for the purposes of identification by ▇▇▇▇▇ & Overy and ▇▇▇▇▇▇▇▇▇
and May (any draft of any document so signed being called an agreed form),
with such amendments as the
6
Lead Managers, on behalf of the Underwriters, may agree with the Eighth
Issuer and, if it is such a signatory, Funding, the Mortgages Trustee
and/or ANPLC.
1.3 The Eighth Issuer Notes
The Eighth Issuer Notes will be issued on the Closing Date in accordance
with the terms of the Eighth Issuer Trust Deed and will be in the form set
out therein.
1.4 Prospectus
The Eighth Issuer confirms that it has prepared a preliminary prospectus
dated 11 March, 2004 and a prospectus dated today's date (together, the
Prospectus) for use in connection with the issue of the Eighth Issuer
Notes and hereby authorises the Underwriters to distribute copies of the
Prospectus in connection with the offering and sale of the Eighth Issuer
Notes.
1.5 Authority to Offer
The Eighth Issuer confirms that it has authorised the Lead Managers to
offer the Class A Eighth Issuer Notes on its behalf to the Underwriters
for subscription at the Issue Price subject to signature of this
Agreement.
2. STABILISATION
[▇▇▇▇▇▇ Brothers Inc.], on behalf of itself and the other 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 Eighth
Issuer Notes with a view to stabilising or maintaining the respective
market prices of the Eighth Issuer Notes at levels other than those which
might otherwise prevail in the open market, but in doing so [▇▇▇▇▇▇
Brothers Inc.] shall act as principal and in no circumstances shall the
Eighth Issuer be obliged to issue (i) more than US$1,850,000,000 in
principal amount of Series 1 Class A Eighth Issuer Notes; (ii) more than
US$62,900,000 in principal amount of Series 1 Class B Eighth Issuer Notes;
(iii) more than US$107,300,000 in principal amount of Series 1 Class C
Eighth Issuer Notes; (iv) more than US$1,500,000,000 in principal amount
of Series 2 Class A Eighth Issuer Notes; (v) more than US$51,000,000 in
principal amount of Series 2 Class B Eighth Issuer Notes; (vi) more than
US$87,000,000 in principal amount of Series 2 Class C Eighth Issuer Notes;
or (vii) more than US$500,000,000 in principal amount of Series 4 Class A2
Eighth Issuer Notes.
3. AGREEMENTS BY THE UNDERWRITERS
3.1 Purchase
Each Underwriter severally agrees to purchase and pay for such principal
amount of Eighth Issuer Notes set out against its name in the Schedule
hereto on the Closing Date at the Issue Price on the terms set out in this
Agreement.
(a) If any Underwriter shall default in its obligation to purchase Class
A Eighth Issuer 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 ANPLC to purchase, such Class A Eighth Issuer Notes
on the terms contained herein. If within 36 hours after such default
by any Underwriter, the non-defaulting Underwriters do not arrange
for the purchase of such Class A Eighth Issuer Notes, then ANPLC
shall be entitled to a further period of 36 hours
7
within which to procure another party or other parties satisfactory
to the non-defaulting Underwriters to purchase such Class A Eighth
Issuer Notes on such terms. In the event that, within the respective
prescribed periods, the Lead Managers on behalf of the
non-defaulting Underwriters notify ANPLC that the non-defaulting
Underwriters have so arranged for the purchase of such Class A
Eighth Issuer Notes, or ANPLC notifies the non-defaulting
Underwriters that they have so arranged for the purchase of such
Class A Eighth Issuer Notes, the non-defaulting Underwriters or
ANPLC shall have the right to postpone the Closing Date for a period
of not more than seven days, in order to effect whatever changes may
thereby be made necessary in any documents or arrangements relating
to the offering and sale of the Class A Eighth Issuer Notes. Any
substitute purchaser of Class A Eighth Issuer Notes pursuant to this
paragraph shall be deemed to be an Underwriter, for the purposes of
this Agreement, in connection with the offering and sale of the
Class A Eighth Issuer Notes.
If any Class B/C Underwriter shall default in its obligation to
purchase Class B/C Eighth Issuer Notes which it has agreed to
purchase hereunder, the non-defaulting Class B/C Underwriters may in
its discretion arrange to purchase, or for another party or other
parties reasonably satisfactory to ANPLC to purchase, such Class B/C
Eighth Issuer Notes on the terms contained herein. If within 36
hours after such default by any Class B/C Underwriter, the
non-defaulting Class B/C Underwriters do not arrange for the
purchase of such Class B/C Eighth Issuer Notes, then ANPLC shall be
entitled to a further period of 36 hours within which to procure
another party or other parties satisfactory to the non-defaulting
Class B/C Underwriters to purchase such Class B/C Eighth Issuer
Notes on such terms. In the event that, within the respective
prescribed periods, the non-defaulting Class B/C Underwriters notify
ANPLC that the non-defaulting Class B/C Underwriters have so
arranged for the purchase of such Class B/C Eighth Issuer Notes, or
ANPLC notifies the non-defaulting Class B/C Underwriters that they
have so arranged for the purchase of such Class B/C Eighth Issuer
Notes, the non-defaulting Class B/C Underwriters or ANPLC shall have
the right to postpone the Closing Date for a period of not more than
seven days, in order to effect whatever changes may thereby be made
necessary in any documents or arrangements relating to the offering
and sale of the Class B/C Eighth Issuer Notes. Any substitute
purchaser of Class B/C Eighth Issuer Notes pursuant to this
paragraph shall be deemed to be a Class B/C Underwriter, for the
purposes of this Agreement, in connection with the offering and sale
of the Class B/C Eighth Issuer Notes.
(b) If, after giving effect to any arrangements for the purchase of
Class A Eighth Issuer Notes of a defaulting Underwriter by the
non-defaulting Underwriters, as provided in Clause 3.1(a) above, the
aggregate principal amount of the Class A Eighth Issuer Notes which
remains unpurchased does not exceed 10 per cent. of the aggregate
principal amount of the Class A Eighth Issuer Notes, then ANPLC
shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of the Class A Eighth Issuer 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 Class A Eighth
Issuer Notes which such Underwriter agreed to purchase hereunder) of
the principal amount of the Class A Eighth Issuer 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.
If, after giving effect to any arrangements for the purchase of
Class B/C Eighth Issuer Notes of a defaulting Class B/C Underwriter
by the non-defaulting Class B/C
8
Underwriters, as provided in Clause 3.1(a) above, the aggregate
principal amount of the Class B/C Eighth Issuer Notes which remains
unpurchased does not exceed 10 per cent. of the aggregate principal
amount of all Class B/C Eighth Issuer Notes, then ANPLC shall have
the right to require the non-defaulting Class B/C Underwriters to
purchase the principal amount of the Class B/C Eighth Issuer Notes
which such Class B/C Underwriter agreed to purchase hereunder and,
in addition, to require the non-defaulting Class B/C Underwriter to
purchase its pro rata share (based on the principal amount of the
Class B/C Eighth Issuer Notes which such Class B/C Underwriter
agreed to purchase hereunder) of the principal amount of the Class
B/C Eighth Issuer Notes of the defaulting Class B/C Underwriter for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Class B/C Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
principal amount of the Class A Eighth Issuer Notes of a defaulting
Underwriter by the non-defaulting Underwriters as provided in Clause
3.1(a) above, the aggregate principal amount of the Class A Eighth
Issuer Notes which remains unpurchased exceeds 10 per cent. of the
aggregate principal amount of the Class A Eighth Issuer Notes, or if
ANPLC shall not exercise the right described in Clause 3.1(b) above
to require non-defaulting Underwriters to purchase the Class A
Eighth Issuer 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.
If, after giving effect to any arrangements for the purchase of the
principal amount of the Class B/C Eighth Issuer Notes of the
defaulting Class B/C Underwriter by the non-defaulting Class B/C
Underwriters as provided in Clause 3.1(a) above, the aggregate
principal amount of the Class B/C Eighth Issuer Notes which remains
unpurchased exceeds 10 per cent. of the aggregate principal amount
of all Class B/C Eighth Issuer Notes, or if ANPLC shall not exercise
the right described in Clause 3.1(b) above to require the
non-defaulting Class B/C Underwriters to purchase the Class B/C
Eighth Issuer Notes of the defaulting Class B/C Underwriter, then
this Agreement shall thereupon terminate, without liability on the
part of the non-defaulting Class B/C Underwriters; but nothing
herein shall relieve a defaulting Class B/C 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 the several Underwriters propose to offer the Eighth
Issuer 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:
(i) in relation to any Eighth Issuer Notes which have a maturity
of one year or more and which are to be admitted to the
official list maintained by the UK Listing Authority, it has
not offered or sold, and will not offer or sell, any Eighth
Issuer Notes to any persons in the United Kingdom prior to
admission of the Eighth Issuer Notes to listing in accordance
with Part VI of the
9
Financial Services and Markets Act 2000 (the FSMA), except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the 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;
(ii) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to
the Eighth Issuer Notes in, from or otherwise involving the
United Kingdom; and
(iii) 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 activities (within the
meaning of Section 21 of the FSMA) received by it in
connection with the issue or sale of any Eighth Issuer Notes
in circumstances in which Section 21(1) of the FSMA does not
apply to the Eighth Issuer.
(c) Italy
Each Underwriter acknowledges that the Series 1 Class A Eighth
Issuer Notes may not be placed, offered or distributed to Italian
investors at any time. Each Underwriter represents and agrees that
the offering of the Eighth Issuer Notes has not been cleared by
CONSOB (the Italian Securities and Exchange Commission) pursuant to
Italian securities legislation and, accordingly, no Eighth Issuer
Notes may be offered, sold or delivered, nor may copies of the
Offering Circular or of any other document relating to the Eighth
Issuer Notes 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.
115522 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 14 May 1999, as amended; or
(iii) to an Italian resident who submits an unsolicited offer to
purchase the Eighth Issuer Notes.
In addition, each Underwriter represents and agrees that any offer,
sale or delivery of the Eighth Issuer Notes or distribution of
copies of the Offering Circular or any other document relating to
the Eighth Issuer Notes in the Republic of Italy under (i) or (ii)
above must 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
10
of Italy depending, inter alia, on the aggregate value of the
securities issued or offered in the Republic of Italy and
their characteristics.
(d) The Netherlands
Each Underwriter acknowledges that the Series 1 Eighth Issuer Notes,
the Series 2 Eighth Issuer Notes and the Series 4 Class A2 Eighth
Issuer Notes may not be placed, offered or distributed to investors
in The Netherlands at any time.
(e) Other
Each Underwriter acknowledges that no representation is made by the
Eighth Issuer or any Underwriter that any action has been or will be
taken in any jurisdiction by the Eighth Issuer or any Underwriter
that would permit a public offering of the Eighth Issuer Notes
(other than as described above), or possession or distribution of
the Prospectus or any other offering material, in any country or
jurisdiction where action for that purpose is required. Each
Underwriter will comply with all applicable securities laws and
regulations in each jurisdiction in which it purchases, offers,
sells or delivers the Eighth Issuer 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 will
not directly or indirectly offer, sell or deliver any Eighth Issuer
Notes or distribute 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 the Eighth
Issuer Notes by it will be made on the same terms, and it will
obtain any consent, approval or permission required by it for the
purchase, offer, sale or delivery by it of the Eighth Issuer Notes
under the laws and regulations in force in any jurisdictions to
which it is subject or in which it makes such purchases, offers,
sales or deliveries, and the Eighth Issuer shall have no
responsibility for them.
4. LISTING
4.1 Application for Listing
The Eighth Issuer confirms that it has authorised the Lead Managers to
make or cause to be made at the Eighth Issuer's expense applications on
the Eighth Issuer's behalf for the Eighth Issuer Notes and the Reg S
Eighth Issuer Notes to be listed on the official list of the UK Listing
Authority and for the Eighth Issuer Notes and the Reg S Eighth Issuer
Notes to be admitted to trading on the London Stock Exchange plc (the
Stock Exchange).
4.2 Supply of Information
The Eighth Issuer agrees to supply to the Lead Managers 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 and Trading
The Eighth Issuer agrees to use its reasonable endeavours to maintain a
listing of the Eighth Issuer Notes and the Reg S Eighth Issuer Notes on
the official list of the UK Listing Authority and the admission of the
Eighth Issuer Notes and the Reg S Eighth Issuer Notes to trading on the
Stock Exchange for as long as any of the Eighth Issuer Notes and the Reg S
Eighth Issuer Notes are outstanding and to pay all fees and supply all
further documents, information and
11
undertakings and publish all advertisements or other material as may be
necessary for such purpose. However, if such listing becomes impossible,
the Eighth Issuer will obtain, and will thereafter use its best endeavours
to maintain, a quotation for, or listing of, the Eighth Issuer Notes and
the Reg S Eighth Issuer Notes on such other stock exchange as is commonly
used for the quotation or listing of debt securities as it may, with the
approval of the Lead Managers (such approval not to be unreasonably
withheld or delayed), decide.
5. REPRESENTATIONS AND WARRANTIES OF THE EIGHTH ISSUER
The Eighth Issuer represents and warrants to, and agrees with, the
Underwriters and each of them that:
(a) The Registration Statement
The Eighth Issuer has prepared and filed with the United States
Securities and Exchange Commission (the Commission) a registration
statement (file number 333-112028) on Form S-11 (the Registration
Statement), including a related preliminary prospectus, for
registration under the U.S. Securities Act of 1933, as amended (the
Securities Act), of the offering and sale of the Eighth Issuer
Notes. The Eighth 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 Eighth Issuer
will next file with the Commission one of the following: either (i)
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
(ii) 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 Subparagraph (ii) the Eighth Issuer
has included in such Registration Statement, as amended at the
Effective Date, all information (other than information with respect
to the Eighth Issuer 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 Managers 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 Execution Time), or, to the extent not completed at the
Execution Time, shall contain only specific additional information
and other changes (beyond that contained in the latest preliminary
prospectus) as the Eighth Issuer has advised the Underwriters, prior
to the Execution Time, 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 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
Execution Time, 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
12
therein not misleading; on the Effective Date and on the Closing
Date the Eighth 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), did not or 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 Eighth Issuer
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Note Trustee or (ii) 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 Eighth Issuer by or on
behalf of any Underwriter through the Lead Managers specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
(c) 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,
and is lawfully qualified to do business in England and Wales, and
it 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 Eighth Issuer and constitutes, and the other Legal Agreements to
which the Eighth Issuer is a party have been duly authorised by the
Eighth Issuer and on the Closing Date will constitute, valid and
legally binding obligations of the Eighth Issuer, enforceable in
accordance with their terms subject to applicable bankruptcy,
insolvency and similar laws affecting the rights of creditors
generally, general equitable principles, the time barring of claims
and, where a fixed security interest has been granted pursuant to
the terms of a deed of charge, the recharacterization by a relevant
court of such security of a floating charge (such principles and
laws being referred to in this Agreement as the Reservations).
(e) Validity of the Eighth Issuer Notes
The Eighth Issuer Notes and the Reg S Eighth Issuer Notes have been
duly authorised by the Eighth Issuer and, when executed and
authenticated in accordance with the Eighth Issuer Trust Deed and
the Eighth Issuer Paying Agent and Agent Bank Agreement, will
constitute valid and legally binding obligations of the Eighth
Issuer, enforceable in accordance with their terms subject to the
Reservations and, upon effectiveness of the Registration Statement,
the Eighth Issuer Trust Deed will have been duly qualified under the
Trust Indenture Act.
13
(f) Consents
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required for
the issue and offering of the Eighth Issuer Notes and the Reg S
Eighth Issuer Notes or in connection with the execution and
performance of the transactions contemplated by the Legal Agreements
or the compliance by the Eighth Issuer with the terms of the Eighth
Issuer Notes and the Reg S Eighth Issuer Notes and the Legal
Agreements as the case may be, except for (i) 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 Eighth Issuer Notes by the Underwriters and (ii) those which
have been, or will prior to the Closing Date be taken, fulfilled or
done, are, or will on the Closing Date be, in full force and effect.
(g) Compliance
The authorisation of the Eighth Issuer Notes and the Reg S Eighth
Issuer Notes and the security therefor under the Eighth Issuer Deed
of Charge, the offering and issue of the Eighth Issuer Notes and the
Reg S Eighth Issuer Notes on the terms and conditions of this
Agreement and the Reg S Eighth Issuer Notes Subscription Agreement
(as applicable) and as described in 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 Eighth Issuer or any agreement or instrument to
which the Eighth Issuer is a party or by which any of 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 Eighth 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 Deloitte & Touche LLP, as independent
auditors to the Eighth Issuer, set out in the Prospectus
presents fairly the financial position of the Eighth Issuer as
at the date at which it has been prepared.
(ii) Since the date of such report there has been no change (nor
any development or event involving a prospective change of
which the Eighth Issuer is, or might reasonably be expected to
be, aware) which is materially adverse to the condition
(financial or otherwise), prospects, results of operations or
general affairs of the Eighth Issuer.
(iii) Deloitte & Touche LLP are independent public accountants with
respect to the Eighth Issuer within the meaning of the
standards established by the American Institute of Certified
Public Accountants.
(i) Taxation
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,
14
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 Eighth Issuer Notes and the Reg S Eighth
Issuer Notes and (except as disclosed in the Prospectus) the
performance of the Eighth Issuer's, Funding's and/or, as the case
may be, the Mortgages Trustee's obligations under the Legal
Agreements, the Eighth Issuer Notes and the Reg S Eighth Issuer
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, execution or delivery of the
Legal Agreements or with the authorisation, issue, sale or delivery
of the Eighth Issuer Notes and the Reg S Eighth Issuer Notes.
(j) Breach of Other Agreements
The Eighth 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 Eighth
Issuer Notes and/or the Reg S Eighth Issuer 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
Eighth Issuer Notes.
(l) No Subsidiaries
The Eighth Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies ▇▇▇
▇▇▇▇.
(m) ▇▇▇▇▇▇ Holdings Limited
The First Issuer, the Second Issuer, the Third Issuer, the Fourth
Issuer, the Fifth Issuer, the Sixth Issuer, the Seventh Issuer, the
Eighth Issuer, Funding, the Mortgages Trustee, PECOH Limited, ▇▇▇▇▇▇
Funding ▇▇. ▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇ are the only
subsidiaries or subsidiary undertakings of ▇▇▇▇▇▇ Holdings Limited
within the meanings of Sections 258 and 736 of the Companies ▇▇▇
▇▇▇▇.
(n) No Activities
The Eighth 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 changes to its name, 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 (iv) the
authorisation and issue by it of the Eighth Issuer Notes and the Reg
S Eighth Issuer Notes. The Eighth Issuer has not (other than as set
out in the Prospectus) made up any accounts and has neither paid any
dividends nor made any distributions since its incorporation.
15
(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 74(4) of the FSMA.
(p) Litigation
There are no pending actions, suits or proceedings against or
affecting the Eighth 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
Eighth Issuer or could adversely affect the ability of the Eighth
Issuer to perform its obligations under the Legal Agreements, the
Eighth Issuer Notes and the Reg S Eighth Issuer Notes or which are
otherwise material in the context of the issue or offering of the
Eighth Issuer Notes and the Reg S Eighth Issuer Notes and, to the
best of the Eighth 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 or security interest on or
over the assets of the Eighth Issuer and, other than the Legal
Agreements, the Eighth Issuer has not entered into any indenture or
trust deed.
(r) Security for the Eighth Issuer Notes
The Eighth Issuer Notes and the obligations of the Eighth Issuer
under the Eighth Issuer Trust Deed will be secured in the manner
provided in the Eighth Issuer Deed of Charge and with the benefit of
the charges, covenants and other security provided for therein
including, without limitation, (i) an assignment by way of first
fixed security over its interests in the Eighth Issuer Intercompany
Loan Agreement, the Funding Deed of Charge (as amended by the First
Deed of Accession to the Funding Deed of Charge, the Second Deed of
Accession to the Funding Deed of Charge, the Third Deed of Accession
to the Funding Deed of Charge, the Fourth Deed of Accession to the
Funding Deed of Charge, the Amended and Restated Funding Deed of
Charge, the First Deed of Accession to the Amended and Restated
Funding Deed of Charge and as further acceded to on or before the
Closing Date), the Eighth Issuer Swap Agreements, the Eighth Issuer
Trust Deed, the Eighth Issuer Paying Agent and Agent Bank Agreement,
the Eighth Issuer Cash Management Agreement, the Eighth Issuer
Corporate Services Agreement, the Eighth Issuer Bank Account
Agreement, the Eighth Issuer Post-Enforcement Call Option Agreement
and any other relevant documents to be signed on or before the
Closing Date to which the Eighth Issuer is a party; (ii) a charge by
way of first fixed charge over the Eighth Issuer Accounts (as
defined in the Eighth Issuer Deed of Charge); (iii) a charge by way
of first fixed charge over any authorised investments made with
moneys standing to the credit of any of the Eighth Issuer Accounts;
and (iv) a first ranking floating charge over the other assets of
the Issuer (extending over all of the Issuer's Scottish assets).
(s) Capitalisation
The authorised capital of the Eighth Issuer is as set out in the
Prospectus.
16
(t) Investment Company Act
The Eighth Issuer is not an "investment company" as defined in the
United States Investment Company Act of 1940, as amended (the
Investment Company Act), and the offer and sale of the Eighth Issuer
Notes in the United States will not subject the Eighth Issuer to
registration under, or result in a violation of, the Investment
Company Act.
(u) United States Income Tax
The Eighth 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 United States income tax
principles, 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 United States income
tax principles.
(v) Representations and Warranties in the Legal Agreements
The representations and warranties given by the Eighth Issuer in the
Legal Agreements are true and accurate.
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, the Underwriters
and each of them that:
(a) The Registration Statement
Together with the Eighth Issuer, Funding and the Mortgages Trustee
have prepared and filed with the Commission the Registration
Statement (file number 333-112028) on Form S-11, including a related
preliminary prospectus, for registration under the Securities Act of
the offering and sale of the Eighth Issuer Notes. The Eighth Issuer,
Funding and the Mortgages Trustee may have filed one or more
amendments thereto, including a related preliminary prospectus, each
of which has previously been furnished to the Underwriters. The
Eighth Issuer, Funding and the Mortgages Trustee will next file with
the Commission one of the following either (i) prior to the
Effective Date of such Registration Statement, a further amendment
to such Registration Statement, including the form of final
prospectus, or (ii) 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 Subparagraph (ii),
the Eighth Issuer, Funding and the Mortgages Trustee 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
Managers shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Underwriters prior
to the Execution Time, or, to the extent not completed at the
Execution Time, shall contain only specific additional information
and other changes (beyond that contained in the latest preliminary
prospectus) as they have advised the Underwriters, prior to the
Execution Time, will be included or made therein.
17
(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 Execution Time, 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 Eighth 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), did not or 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 (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Note Trustee or (ii) 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 Managers specifically for inclusion in
the Registration Statement or the Prospectus (or any supplement
thereto).
(c) Incorporation
Each is 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, and is lawfully qualified
to do business in England and Wales and it 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
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, enforceable in accordance with their
terms subject to the Reservations.
(e) Consents
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required in
connection with the execution and performance 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
18
compliance by each of them with the terms of the Legal Agreements
(except for those which have been, or will prior to the Closing Date
be taken, fulfilled or done) 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 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 any of 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) ▇▇▇▇▇▇ Holdings Limited
The First Issuer, the Second Issuer, the Third Issuer, the Fourth
Issuer, the Fifth Issuer, the Sixth Issuer, the Seventh Issuer, the
Eighth Issuer, Funding, the Mortgages Trustee, PECOH Limited, ▇▇▇▇▇▇
Funding ▇▇. ▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇ are the only
subsidiaries or subsidiary undertakings of ▇▇▇▇▇▇ Holdings Limited
within the meanings of Sections 258 and 736 of the Companies ▇▇▇
▇▇▇▇.
(i) Events of Default
No event has occurred or circumstance arisen which, had the Eighth
Issuer 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 Eighth Issuer Intercompany Loan Agreement.
(j) No Subsidiaries
Neither Funding nor the Mortgages Trustee has any subsidiaries or
subsidiary undertakings within the meanings of Sections 258 and 736
of the Companies ▇▇▇ ▇▇▇▇.
(k) 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 a private limited company under the Companies
Acts 1985 and 1989 and changes to its name,
19
directors, secretary, registered office, Memorandum and Articles of
Association; (ii) the authorisation and execution 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
issue of notes by the First Issuer, the Second Issuer, the Third
Issuer, the Fourth Issuer, the Fifth Issuer, Sixth Issuer, the
Seventh Issuer and the Eighth Issuer; and (v) the registration of
Funding under the Data Protection ▇▇▇ ▇▇▇▇ (the DPA). Neither
Funding nor the Mortgages Trustee has (other than as set out in the
Prospectus or in the prospectuses relating to the notes issued by
the First Issuer, the Second Issuer, the Third Issuer, the Fourth
Issuer, the Fifth Issuer, the Sixth Issuer or the Seventh Issuer and
other than as required by any applicable law) made up any accounts
and neither has paid any dividends or made any distributions since
its respective date of incorporation.
(l) Beneficial Owner
On 25th July, 2000, the Mortgages Trust was established pursuant to
the Mortgages Trust Deed and following the transfer by way of
equitable assignment by ANPLC of its interest in the Portfolio (as
defined in the Prospectus) to the Mortgages Trustee pursuant to or
in accordance with the Mortgage Sale Agreement on 26th July, 2000
and on subsequent distribution dates, or, in relation to Loans
secured over properties in Scotland and their Related Security,
following the granting from time to time of a Scottish Trust Deed,
the Mortgages Trustee held (and continues to hold) the Portfolio on
trust for the benefit of Funding and ANPLC in undivided shares
absolutely.
(m) 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 either one of them or could adversely affect the
ability of the Mortgages Trustee or Funding 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.
(n) No Prior Security
Save as set out in any of the Legal Agreements there exists no
mortgage, lien, pledge or other charge or security interest on or
over the assets of Funding and, other than the Legal Agreements, it
has not entered into any indenture or trust deed.
(o) Security for the Eighth Issuer Intercompany Loan
Funding's obligations under, inter alia, the Eighth Issuer
Intercompany Loan Agreement will be secured in the manner provided
in the Amended and Restated Funding Deed of Charge and with the
benefit of the charges, covenants and other security provided for
therein including, without limitation, (i) a first ranking fixed
charge over Funding's interest in the Trust Property (as defined in
the Mortgages Trust Deed); (ii) an assignment by way of first fixed
security over its interests in the Mortgage Sale Agreement, the
Mortgages Trust Deed, the Scottish Trust Deed, the Amended and
Restated Servicing Agreement, the Funding Swap Agreement, the First
Intercompany Loan Agreement, the Second Issuer Intercompany Loan
Agreement,
20
the Third Issuer Intercompany Loan Agreement, the Fourth Issuer
Intercompany Loan Agreement, the Fifth Issuer Intercompany Loan
Agreement, the Sixth Issuer Intercompany Loan Agreement, the Seventh
Issuer Intercompany Loan Agreement, the Eighth Issuer Intercompany
Loan Agreement, the Funding Liquidity Facility Agreement, the First
Start-up Loan Agreement, the Second Start-up Loan Agreement, the
Third Start-up Loan Agreement, the Fourth Start-up Loan Agreement,
the Fifth Start-up Loan Agreement, the Sixth Start-up Loan
Agreement, the Seventh Start-up Loan Agreement, the Eighth Start-up
Loan Agreement, the Funding Guaranteed Investment Contract, the
Corporate Services Agreement, the Cash Management Agreement, the
Bank Account Agreement and any other relevant documents to be signed
on or before the Closing Date to which Funding is a party; (iii) a
first ranking fixed charge over the Bank Accounts (as defined in the
Amended and Restated Funding Deed of Charge); (iv) a first ranking
fixed charge over any authorised investments made with moneys
standing to the credit of the Bank Accounts; and (v) a first ranking
floating charge over the other assets of Funding (extending over all
of Funding's Scottish assets).
(p) Capitalisation
The authorised capital of each of Funding and the Mortgages Trustee
is as set out in the Prospectus.
(q) 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 Eighth Issuer 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.
(r) 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 United
States income tax principles, 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 United States
income tax principles.
(s) Financial Statements
(i) The auditor's report by Deloitte & Touche 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 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 otherwise), prospects, results of operations or general
affairs of Funding.
(iii) Deloitte & Touche LLP are independent public accountants with
respect to Funding within the meaning of the standards
established by the American Institute of Certified Public
Accountants.
21
(t) Representations and Warranties in the Legal Agreements
The representations and warranties given by Funding and the
Mortgages Trustee in the Legal Agreements are true and accurate.
7. REPRESENTATIONS AND WARRANTIES OF ANPLC
ANPLC represents and warrants to, and agrees with, the Underwriters and
each of them that:
(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,
and is lawfully qualified to do business in England and Wales and it
is not in liquidation.
(b) Validity of Legal Agreements
This Agreement has been duly authorised, executed and delivered by
ANPLC and constitutes, and the other Legal Agreements to which ANPLC
is a party have been duly authorised by ANPLC and on the Closing
Date will constitute, valid and legally binding obligations of
ANPLC, enforceable in accordance with their terms subject to the
Reservations.
(c) Related Security
ANPLC has not received written notice of any litigation or claim
calling into question its title to any Related Security or the value
of any security therefore 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 ANPLC for or in
connection with the execution and performance of the transactions
contemplated by the Legal Agreements to which ANPLC is a party have
been obtained and are in full force and effect including, without
limiting the generality of the foregoing, ANPLC having received a
standard licence under the Consumer Credit ▇▇▇ ▇▇▇▇ and ANPLC being
registered under the DPA.
(e) Compliance
The transfer by way of equitable assignment of ANPLC of its interest
in the Portfolio and the related property and rights, the execution
and delivery of the Legal Agreements to which ANPLC is a party, the
implementation of the transactions contemplated by such Legal
Agreements and compliance with the terms of such Legal Agreements
did 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 ANPLC, or any
agreement or instrument to which ANPLC 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
Eighth Issuer Notes or the Reg S Eighth Issuer Notes; or (ii)
infringe any applicable law, rule, regulation, judgment, order or
decree of any government, governmental body or court having
jurisdiction over ANPLC or any of its properties; or (iii) result in
the
22
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.
(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 Execution Time, 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 Eighth 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), did not or 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 ANPLC makes no representations or warranties
as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Note Trustee or (ii) 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 ANPLC by or on
behalf of any Underwriter through the Lead Managers specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto).
(g) Beneficial Owner
On 25th July, 2000, the Mortgages Trust was established pursuant to
the Mortgages Trust Deed and following the transfer by way of
equitable assignment of ANPLC of its interest in the Portfolio to
the Mortgages Trustee pursuant to, and in accordance with, the
Mortgage Sale Agreement on 26th July, 2000 and on subsequent
distribution dates or, in relation to Loans secured over properties
in Scotland and their Related Security, following the granting from
time to time of a Scottish Trust Deed, the Mortgages Trustee held
(and continues to hold) the Portfolio on trust for the benefit of
Funding and ANPLC in undivided shares absolutely.
(h) Litigation
It is not involved in any actions, suits or proceedings in relation
to claims or amounts which could materially adversely affect its
ability to perform its obligations under the Legal Agreements.
(i) Mortgage Sale Agreement
The representations and warranties given by ANPLC in the Mortgage
Sale Agreement will be true and accurate when made or deemed to be
repeated.
23
(j) Breach of Other Agreements
ANPLC is not in breach of or in default under any agreements to
which it is a party or which is binding on it or any applicable laws
to the extent that such breach or default is material to the
performance by ANPLC of its obligations under the Legal Agreements
to which it is a party, or would be so material, had such Legal
Agreements been entered into.
8. COVENANTS OF THE EIGHTH ISSUER, FUNDING, THE MORTGAGES TRUSTEE AND ANPLC
8.1 The Eighth Issuer and, where expressly provided, Funding, the Mortgages
Trustee and ANPLC covenants to, and agrees with, the Underwriters and each
of them that:
(a) The Registration Statement
The Eighth Issuer, Funding, the Mortgages Trustee and ANPLC will use
their best efforts to cause the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, to
become effective. Prior to the termination of the offering of the
Eighth Issuer Notes, none of the Eighth Issuer, Funding, the
Mortgages Trustee or ANPLC will file any amendment to the
Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Eighth Issuer, Funding, the
Mortgages Trustee and ANPLC have furnished the Lead Managers with a
copy for their review prior to filing and none of them will file any
such proposed amendment or supplement to which the Lead Managers
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 Eighth Issuer, Funding, the Mortgages Trustee and
ANPLC 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
Managers of such timely filing. The Eighth Issuer, Funding, the
Mortgages Trustee and ANPLC will promptly advise the Lead Managers
when:
(i) the Registration Statement, if not effective at the Execution
Time, shall have become effective;
(ii) 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) prior to termination of the offering of the Eighth Issuer
Notes, any amendment to the Registration Statement shall have
been filed or become effective.
(b) Delivery of Copies
The Eighth Issuer will deliver (i) to the Lead Managers, one copy of
the Registration Statement as originally filed and each amendment
thereto, in each case including all exhibits and consents filed
therewith; and (ii) to each Underwriter (A) a conformed copy of the
Registration Statement as originally filed and each amendment
thereto, in each case including all exhibits and consents filed
therewith and (B) during the Marketing Period, as many copies of the
Prospectus (including all amendments and supplements thereto) as the
Lead Managers may reasonably request. As used herein,
24
the term Marketing Period means any period during which a prospectus
relating to the Eighth Issuer Notes is required to be delivered
under the Securities Act.
(c) Notify Material Omission
If at any time during the Marketing Period 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 Eighth Issuer will promptly notify the Underwriters; (ii)
the Eighth 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 judgment of the Eighth
Issuer or the Underwriters, be required by the Securities Act or
requested by the Commission; (iii) the Eighth Issuer will, without
charge, supply to the Underwriters as many copies as the Lead
Managers may reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission; and (iv) the representations and warranties contained in
Clauses 5(a), 5(b), 5(c), 5(h), 5(o), 5(s), 6(a), 6(b), 6(c), 6(p)
and 6(s) shall be deemed to be repeated by, as applicable, the
Eighth Issuer, Funding and the Mortgages Trustee as of the date of
each such amended Prospectus or supplement to the Prospectus on the
basis that each reference to "Prospectus" in such representations
and warranties contained in Clauses 5 and 6 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(c), the Eighth
Issuer, Funding or the Mortgages Trustee 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 being made to the Eighth
Issuer on the Closing Date and will take such steps as may be
reasonably requested by the Lead Managers 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 the Eighth Issuer, Funding or the Mortgages
Trustee will, without the prior approval of the Lead Managers on
behalf of the Underwriters (such approval not to be unreasonably
withheld), make any official announcement which would have an
adverse effect on the marketability of the Eighth Issuer Notes.
(f) Stamp Duty
(i) The Eighth Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties 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 Eighth Issuer 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
payable in the United Kingdom, Belgium, Luxembourg 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 (including any amendment thereto), the Mortgage
Sale Agreement (including any amendment thereto) and any Legal
Agreement to which the Eighth 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).
(iii) The Mortgages Trustee will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties payable in the United Kingdom, Belgium, Luxembourg
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), the
Mortgage Sale Agreement (including any amendment thereto) and
the Scottish Trust Deed (including any amendment thereto and
any subsequent trust deed in substantially similar form)
(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.
(iv) For the avoidance of doubt, if Funding or the Mortgages
Trustee discharges its obligations to pay any stamp duty,
issue, registration, documentary or other taxes of a similar
nature and duties payable in the United Kingdom, Belgium,
Luxembourg or the United States, including interest and
penalties in each case as described above (together, the
relevant taxes), at any time while amounts are outstanding in
respect of the notes issued by the First Issuer and/or the
Second Issuer and/or the Third Issuer and/or the Fourth Issuer
and/or the Fifth Issuer and/or the Sixth Issuer and/or the
Seventh Issuer and/or the Eighth Issuer and/or any New Issuer,
then Funding and/or (as applicable) the Mortgages Trustee will
not be obliged to pay such relevant taxes multiple times (in
respect of the same obligation), in order to meet its
obligations under (A) the underwriting agreements and
subscription agreements relating to the First Issuer and/or
the Second Issuer and/or the Third Issuer and/or the Fourth
Issuer and/or the Fifth Issuer and/or the Sixth Issuer and/or
the Seventh Issuer and/or the Eighth Issuer and/or any New
Issuer and (B) paragraphs (ii) and/or (iii) (as applicable)
above.
(g) Payment of Fees, Charges, Costs and Duties
(i) Without prejudice to the generality of Clause 12.1, the Eighth
Issuer will pay all and any fees, charges, costs and duties
and any stamp and other similar taxes or duties, including
interest and penalties, arising from or in connection with the
creation of the security for the Eighth Issuer Notes and the
Reg S Eighth Issuer Notes and the obligations of the Eighth
Issuer under the Eighth Issuer Trust Deed and for the other
amounts to be secured as contemplated by the Eighth Issuer
Deed of Charge and the perfection of such security at any
time.
26
(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, including interest
and penalties, arising from or in connection with the creation
of the security for the Eighth Issuer Intercompany Loan and
for the other amounts to be secured as contemplated by the
Funding Deed of Charge, the First Deed of Accession to the
Funding Deed of Charge, the Second Deed of Accession to the
Funding Deed of Charge, the Third Deed of Accession to the
Funding Deed of Charge, the Fourth Deed of Accession to the
Funding Deed of Charge, the Amended and Restated Funding Deed
of Charge, the First Deed of Accession to the Amended and
Restated Funding Deed of Charge and any accession thereto and
the perfection of such security at any time.
(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,
including interest and penalties, arising from or in
connection with the purchase of the Related Security (and
related property and rights) excluding Land Registry and
Registers of Scotland fees (it being agreed that registration
or recording at Land Registry or Registers of Scotland of the
transfer of the Related Security to the Mortgages Trustee will
not be applied for except in the circumstances specified in
the Amended and Restated Servicing 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.
(h) Perform all required actions
On or prior to the Closing Date each of the Eighth Issuer, Funding
and the Mortgages Trustee will do all things 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.
(i) Conditions Precedent
The Eighth 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.
(j) Servicing Agreement
Funding and the Mortgages Trustee will use all reasonable endeavours
to procure that ANPLC complies with its obligations under the
Amended and Restated Servicing Agreement.
(k) Charges and securities
(i) The Eighth Issuer will procure that each of the charges and
other securities created by or pursuant to or contained in the
Eighth Issuer Deed of Charge is registered within all
applicable time limits in all appropriate registers.
(ii) Funding will procure that each of the charges and other
securities created by or pursuant to or contained in the
Funding Deed of Charge, the First Deed of Accession to the
Funding Deed of Charge, the Second Deed of Accession to the
Funding Deed of Charge, the Third Deed of Accession to the
Funding
27
Deed of Charge, the Fourth Deed of Accession to the Funding
Deed of Charge, the Amended and Restated Funding Deed of
Charge, the First Deed of Accession to the Amended and
Restated Funding Deed of Charge and any accession thereto is
registered within all applicable time limits in all
appropriate registers other than at Land Registry.
(l) Ratings
None of the Eighth Issuer, Funding or the Mortgages Trustee will
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 Series 1 Class A Eighth Issuer Notes not being
assigned an F1+ rating by Fitch Ratings Ltd. (Fitch Ratings), a P-1
rating by ▇▇▇▇▇'▇ Investors Service Limited (Moody's) and an A-1+
rating by Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (Standard & Poor's); the Series 2 Class
A Eighth Issuer Notes and the Series 4 Class A2 Eighth Issuer Notes
not being assigned an AAA rating by Fitch Ratings, an Aaa rating by
Moody's and an AAA rating by Standard & Poor's; the Series 1 Class B
Eighth Issuer Notes and the Series 2 Class B Eighth Issuer Notes not
being assigned an AA rating by Fitch Ratings, an Aa3 rating by
Moody's and an AA rating by Standard and Poor's; and the Series 1
Class C Eighth Issuer Notes and the Series 2 Class C Eighth Issuer
Notes not being assigned a BBB rating by Fitch Ratings, a Baa2
rating by Moody's and a BBB rating by Standard and Poor's.
(m) Legal Agreements
Prior to closing on the Closing Date none of the Eighth Issuer,
Funding or the Mortgages Trustee will amend the terms of the
executed Legal Agreements to which they are parties, nor execute any
of the other Legal Agreements other than in the agreed form, without
the consent of the Lead Managers (such consent not to be
unreasonably withheld or delayed).
(n) Commission Filings
The Eighth Issuer, Funding and the Mortgages Trustee will timely
file with the Commission 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
during the Marketing Period none of the Eighth Issuer, Funding or
the Mortgages Trustee will file any such document or amendment
unless the Eighth Issuer, Funding and the Mortgages Trustee have
furnished the Lead Managers with a copy 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.
(o) Copies of Commission Filings
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 Eighth 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 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 any amendment or supplement to any such document, the
Eighth Issuer, Funding and the Mortgages
28
Trustee, as the case may be, will furnish a copy thereof to each
Underwriter, and counsel to the Underwriters, prior to filing with
the Commission.
(p) Notice to Underwriters of Certain Events
During the Marketing Period, the Eighth 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 Eighth 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
Eighth 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 ANPLC or the
Eighth Issuer of any notification with respect to the suspension of
the qualification of the Eighth Issuer 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 Eighth
Issuer Notes or any debt securities of ANPLC or the Eighth 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 ANPLC or the Eighth Issuer
or made any public announcement that any such organisation has under
surveillance or review its rating of any debt securities of ANPLC or
the Eighth 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 ANPLC or the Eighth Issuer is so informed.
(q) Stop Orders
The Eighth 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(p) 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 Eighth
Issuer Notes for sale in any jurisdiction is suspended, the Eighth
Issuer will make every reasonable effort to obtain the lifting of
that order or suspension at the earliest possible time.
(r) Blue Sky Qualifications
The Eighth Issuer will arrange, in co-operation with the
Underwriters, to qualify the Eighth Issuer Notes for offering and
sale under the securities laws of such jurisdictions in 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 Eighth Issuer Notes, and to file such statements
and reports as may be required by the laws of each jurisdiction in
which the Eighth Issuer Notes have been qualified as above, provided
that in connection therewith the Eighth Issuer shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in
29
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 Eighth Issuer Notes in
such jurisdiction or to register as a dealer in securities or to
become subject to taxation in any jurisdiction.
8.2 ANPLC covenants to and agrees with the Underwriters and each of them that:
(a) Notify Change
ANPLC 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 being
made to the Eighth Issuer on the Closing Date and will take such
steps as may be reasonably requested by the Lead Managers 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 ANPLC 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, ANPLC will do all things within its
power and required of it on such date under the terms of the Legal
Agreements.
(c) Review of Related Security
ANPLC will deliver to the Lead Managers on the date of this
Agreement a letter (relating to its review of the Related Security)
dated the date of this Agreement in the agreed form addressed to
ANPLC and the Underwriters from Deloitte & Touche LLP.
(d) Ratings
ANPLC 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 Series 1 Class A Eighth Issuer Notes not
being assigned an F1+ rating by Fitch Ratings, a P-1 rating by
Moody's and an A-1+ rating by Standard & Poor's; the Series 2 Class
A Eighth Issuer Notes and the Series 4 Class A2 Eighth Issuer Notes
not being assigned an AAA rating by Fitch Ratings, an Aaa rating by
Moody's and an AAA rating by Standard & Poor's; the Series 1 Class B
Eighth Issuer Notes and the Series 2 Class B Eighth Issuer Notes not
being assigned an AA rating by Fitch Ratings, an Aa3 rating by
Moody's and an AA rating by Standard and Poor's; and the Series 1
Class C Eighth Issuer Notes and the Series 2 Class C Eighth Issuer
Notes not being assigned a BBB rating by Fitch Ratings, a Baa2
rating by ▇▇▇▇▇'▇ and a BBB rating by Standard and Poor's.
(e) Legal Agreements
Prior to closing on the Closing Date ANPLC will not amend the terms
of any of the already executed Legal Agreements to which it is a
party, nor execute any of the other Legal Agreements other than in
the agreed form, without the consent of the Lead Managers (such
consent not to be unreasonably withheld or delayed).
30
9. CONDITIONS PRECEDENT
The obligation of the Underwriters under this Agreement to subscribe for
the Eighth Issuer Notes is subject to the following conditions precedent:
(a) The Registration Statement
(i) If the Registration Statement has not become effective prior
to the Execution Time, unless the Lead Managers agree in
writing to a later time, the Registration Statement will
become effective not later than (A) 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 p.m.
New York City time on such date, or (B) 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).
(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 Eighth Issuer Notes
The execution and delivery by all parties thereto of the Legal
Agreements and the Global Eighth Issuer Notes representing each
class of the Eighth Issuer Notes on or prior to the Closing Date.
(c) Admission to Listing and Trading
The UK Listing Authority having agreed to admit the Eighth Issuer
Notes and the Reg S Eighth Issuer Notes to the official list of the
UK Listing Authority and the Stock Exchange having agreed to
admission of the Eighth Issuer Notes and the Reg S Eighth Issuer
Notes to trading, in each case on or prior to the Closing Date.
(d) Legal Opinions
On or prior to the Closing Date, there having been delivered to the
Eighth Issuer, the Underwriters, the Note Trustee, the Eighth Issuer
Security Trustee and the Security Trustee copies of opinions and
disclosure letters, in form and substance satisfactory to the Lead
Managers, the Note Trustee, the Eighth Issuer Security Trustee, the
Security Trustee and the Rating Agencies, dated the Closing Date,
of:
(i) ▇▇▇▇▇▇▇▇▇ and May, legal advisers to the Eighth Issuer as to
English law, addressed to the Eighth Issuer and the
Underwriters, substantially to the effect set forth in Annex A
hereto;
(ii) Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, legal advisers to the
Eighth Issuer as to US law, addressed to the Eighth Issuer and
the Underwriters, substantially to the effect set forth in
Annex B hereto;
31
(iii) ▇▇▇▇▇ & Overy, legal advisers to the Underwriters, the Note
Trustee, the Eighth Issuer Security Trustee and the Security
Trustee, addressed to the Underwriters, the Note Trustee, the
Eighth Issuer Security Trustee and the Security Trustee,
substantially to the effect set forth in Annex C hereto;
(iv) Tods ▇▇▇▇▇▇ ▇▇, legal advisers to the Underwriters, the Note
Trustee, the Eighth Issuer Security Trustee, the Security
Trustee, the Eighth Issuer and ANPLC as to Scots law,
addressed to the Underwriters, the Note Trustee, the Eighth
Issuer Security Trustee, the Security Trustee, the Eighth
Issuer and ANPLC, substantially to the effect set forth in
Annex E hereto; and
(v) In-house legal counsel of each Eighth Issuer Swap Provider,
addressed to the Eighth Issuer, the Eighth Issuer Security
Trustee, the Security Trustee and the Lead Managers.
(e) Auditors' Letters
On the date of this Agreement and (in the event that a new portfolio
of Loans and their Related Security is transferred to the Mortgages
Trustee, or as reasonably requested by the Lead Managers) on the
Closing Date, there having been addressed and delivered to the
Underwriters letters, in form and substance satisfactory to the Lead
Managers, dated the date of this Agreement and the Closing Date,
respectively, from Deloitte & Touche LLP, the independent auditors
of the Eighth Issuer and Funding.
(f) Certified Constitutional Documents
On or prior to the Closing Date, there having been delivered to the
Lead Managers on behalf of the Underwriters a copy, certified by a
duly authorised director of, as applicable, the Eighth Issuer,
Funding and the Mortgages Trustee, of: (i) the Memorandum and
Articles of Association of each of the Eighth Issuer, Funding and
the Mortgages Trustee; (ii) the resolution of the Board of Directors
of each of the Eighth 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 Eighth Issuer, the
issue of the Eighth Issuer Notes and the Reg S Eighth Issuer Notes
and the entry into and performance of the transactions contemplated
thereby.
(g) Compliance
At the Closing Date: (i) the representations and warranties of the
Eighth Issuer, Funding, the Mortgages Trustee and ANPLC in this
Agreement being true, accurate and correct at, and as if made on,
the Closing Date and the Eighth Issuer, Funding, the Mortgages
Trustee and ANPLC 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 Eighth Issuer, Funding, the Mortgages Trustee and
ANPLC, 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
Eighth Issuer, Funding, the Mortgages Trustee or ANPLC which is
material in the context of the issue of the Eighth Issuer Notes or
the Reg S Eighth Issuer Notes.
32
(h) Circumstances for Termination
On or prior to the Closing Date, in the opinion of the Lead
Managers, none of the circumstances described in Clause 14.1(c),
14.1(d), 14.1(f) or 14.1(g) having arisen.
(i) Ratings
Receipt of notification from Fitch Ratings, ▇▇▇▇▇'▇ and Standard &
Poor's that the ratings for the Eighth Issuer Notes and the Reg S
Eighth Issuer 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 "credit watch" 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 Eighth Issuer Notes and the
Reg S Eighth Issuer Notes or the long term debt of ANPLC.
(j) Reg S Eighth Issuer Notes Subscription Agreement
The Reg S Eighth Issuer Notes Subscription Agreement having been
entered into.
(k) Other Issues
The Reg S Eighth Issuer Notes having been or being issued and
subscribed and paid for pursuant to the Reg S Eighth Issuer Notes
Subscription Agreement prior to or contemporaneously with the issue,
subscription and payment for the Eighth Issuer Notes hereunder.
(l) 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 Managers, be materially adverse to the financial or
trading condition of the Eighth Issuer, Funding, the Mortgages
Trustee or ANPLC 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 Eighth Issuer, Funding, the Mortgages Trustee or ANPLC to
perform each and every covenant and obligation to be performed by it
pursuant to the Legal Agreements, the Loans and the Related Security
on or prior to the Closing Date.
(m) Solvency Certificates
(i) The Eighth Issuer having furnished or caused to be furnished
to the Underwriters at the Closing Date a solvency
certificate, dated the Closing Date, of a duly authorised
director of the Eighth Issuer in the agreed form.
(ii) Funding having furnished or caused to be furnished to the
Eighth Issuer and the Security Trustee a solvency certificate,
dated the Closing Date, of a duly authorised director of
Funding in the agreed form.
33
(iii) ANPLC having furnished or caused to be furnished to Funding
and the Security Trustee a solvency certificate, dated the
Closing Date, of a duly authorised officer of ANPLC in the
agreed form.
(n) 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 Portfolio (as defined
therein) by the Mortgages Trustee from ANPLC on the Closing Date and
related rights to be acquired from ANPLC pursuant thereto having
been taken.
(o) Certificate of Note Trustee
The Note Trustee having furnished to the Underwriters a certificate
stating that that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Note Trustee 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.
Prior to the Closing Date, there shall be furnished to the Lead Managers
such further information, certificates and documents as the Lead Managers
may reasonably request.
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 Managers, this Agreement and
all obligations of the Underwriters hereunder may be cancelled at, or at
any time prior to, the Closing Date by the Lead Managers. Notice of such
cancellation shall be given to the Eighth Issuer in writing or by
telephone or facsimile confirmed in writing.
The Lead Managers, on behalf of the Underwriters, may, at their
discretion, waive compliance with the whole or any part of this Clause 9.
10. CLOSING
10.1 Issue of Eighth Issuer Notes
Not later than 4:00 p.m. (London time) on the Closing Date, the Eighth
Issuer will issue and deliver (a) to the Underwriters, or to their order,
a Global Eighth Issuer Note for each of the Series 1 Class A Eighth Issuer
Notes, the Series 2 Class A Eighth Issuer Notes and the Series 4 Class A2
Eighth Issuer Notes, and (b) to the Class B/C Underwriters, or to their
order, a Global Eighth Issuer Note for each of the Series 1 Class B Eighth
Issuer Notes, the Series 1 Class C Eighth Issuer Notes, the Series 2 Class
B Eighth Issuer Notes and the Series 2 Class C Eighth Issuer Notes.
10.2 Payment
Against such delivery o on behalf of the Underwriters will pay to the
Eighth Issuer the gross subscription moneys for the Eighth Issuer Notes
(being the Issue Price). Such payment shall be made by o in respect of the
Eighth Issuer Notes in Dollars in immediately available funds to the
account of the Eighth Issuer, Citibank, N.A., New York, ABA. ▇▇▇▇▇▇▇▇▇,
SWIFT CODE ▇▇▇▇▇▇▇▇ account of Citibank, N.A., London, sort code 18-50-04,
IBAN No. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ reference for account 0010143723
▇▇▇▇▇▇ Financing (No. 8) PLC.
34
Such payment shall be evidenced by a confirmation by o that it has so made
that payment to the Eighth Issuer.
10.3 Gross Subscription Moneys
The Eighth Issuer undertakes that on the Closing Date it will apply the
gross subscription moneys for the Eighth Issuer Notes and the gross
subscription moneys for the Reg S Eighth Issuer Notes (net of underwriting
commissions and various out-of-pocket expenses) converted under the
relevant Eighth Issuer Swap Agreement, forthwith in making a loan to
Funding pursuant to the terms of the Eighth Issuer Intercompany Loan
Agreement. Funding undertakes that it will apply the proceeds of the
Eighth Issuer Intercompany Loan to make payment to ANPLC or at ANPLC's
direction of the purchase price of an addition to Funding's already
existing share of the 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 Eighth Issuer agrees to pay to the Lead Managers a selling commission
(the Selling Commission) of oper cent. of the aggregate principal amount
of the Series 1 Class A Eighth Issuer Notes, of o per cent. of the
aggregate principal amount of the Series 1 Class B Eighth Issuer Notes, of
o per cent. of the aggregate principal amount of the Series 1 Class C
Eighth Issuer Notes, of o per cent. of the aggregate principal amount of
the Series 2 Class A Eighth Issuer Notes, of o per cent. of the aggregate
principal amount of the Series 2 Class B Eighth Issuer Notes, of o per
cent. of the aggregate principal amount of the Series 2 Class C Eighth
Issuer Notes and of o per cent. of the aggregate principal amount of the
Series 4 Class A2 Eighth Issuer Notes 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 A Eighth
Issuer Notes, of o per cent. of the aggregate principal amount of the
Series 1 Class B Eighth Issuer Notes, of o per cent. of the aggregate
principal amount of the Series 1 Class C Eighth Issuer Notes, of o per
cent. of the aggregate principal amount of the Series 2 Class A Eighth
Issuer Notes, of o per cent. of the aggregate principal amount of the
Series 2 Class B Eighth Issuer Notes, of o per cent. of the aggregate
principal amount of the Series 2 Class C Eighth Issuer Notes and of o per
cent. of the aggregate principal amount of the Series 4 Class A2 Eighth
Issuer Notes.
11.2 The Eighth Issuer undertakes that on the Closing Date it will pay to the
Lead Managers the aggregate Selling Commission and aggregate Management
and Underwriting Commission calculated in accordance with Clause 11.1, in
sterling, in immediately available funds to o (SWIFT: o) sort code o,
account number o for account of o (SWIFT: o) for further credit to o
(SWIFT: o), account number o reference ▇▇▇▇▇▇ Financing (No. 8) PLC.
12. EXPENSES
12.1 General Expenses
The Eighth Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Eighth
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 Eighth Issuer,
any amount in respect of Irrecoverable VAT or similar tax payable in
respect thereof against production of a valid tax invoice): (a) the fees,
disbursements and expenses of the Eighth Issuer's legal advisers and
accountants and all other expenses of the Eighth Issuer in connection with
the issue (including, without limitation, any filing fees payable to the
Commission in connection
35
with the registration of the Eighth Issuer Notes under the Securities Act
and any fees payable in connection with the qualification of the Eighth
Issuer 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 Eighth Issuer Notes (including,
without limitation, any advertisements required in connection therewith),
the preparation and delivery of each class of the Eighth Issuer Notes in
global form and (if required) definitive form, the costs of the initial
delivery and distribution of the Eighth Issuer Notes (including, without
limitation, transportation, packaging and insurance) and the initial fees
and expenses of The Depository Trust Company, Euroclear and Clearstream,
Luxembourg in relation to the Eighth Issuer Notes (excluding any such fees
and expenses arising as a result of any transfer of the Eighth Issuer
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 Eighth Issuer Notes; (c) the fees and expenses of the Note
Trustee, the Security Trustee and the Eighth Issuer Security Trustee
(including fees and expenses of legal advisers to the Note Trustee, the
Security Trustee and the Eighth Issuer Security Trustee), the Principal
Paying Agent, the US Paying Agent, the Registrar, the Transfer Agent and
the Agent Bank in connection with the preparation and execution of the
Legal Agreements and any other relevant documents and the issue of the
Eighth Issuer Notes and compliance with the Conditions of the Eighth
Issuer Notes; (d) the fees and expenses incurred or payable in connection
with obtaining a rating for the Eighth Issuer 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 Eighth Issuer
Notes; (e) the fees and expenses payable in connection with obtaining and
maintaining the admission to trading of the Eighth Issuer Notes on the
Stock Exchange; (f) out-of-pocket expenses (excluding legal expenses)
incurred by the Lead Managers on behalf of the Underwriters in connection
with the transactions contemplated hereby; (g) any roadshow expenses
incurred by the Lead Managers on behalf of the Underwriters; and (h) any
amount in respect of the fees and disbursements of the Underwriters' legal
advisers in relation thereto.
12.2 Reimbursement
The Eighth Issuer will reimburse the Underwriters for all amounts incurred
by them in connection with the issue of the Eighth Issuer Notes which it
has agreed to pay pursuant to Clause 12.1.
For the avoidance of doubt, references to costs and expenses in this
Agreement shall be deemed to include, in addition, references to any
Irrecoverable VAT payable in respect of such costs and expenses.
13. INDEMNIFICATION
13.1 Eighth Issuer, Funding, Mortgages Trustee and ANPLC Indemnity
Each of the Eighth Issuer, Funding, the Mortgages Trustee and ANPLC agrees
to indemnify and hold harmless each Underwriter (including, for the
purposes of this Clause 13.1, the directors, officers, employees and
agents of each Underwriter) and each person who controls such Underwriter
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
36
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Eighth
Issuer Notes as originally filed or in any amendment thereto, or in any
Registration Statement, any preliminary prospectus or the Prospectus, or
in any amendment or supplement thereto, 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 Eighth Issuer, Funding,
the Mortgages Trustee and ANPLC 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 (a) made in the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Eighth Issuer, Funding, the Mortgages Trustee and ANPLC
by or on behalf of any Underwriter through the Lead Managers specifically
for inclusion therein or (b) contained in that part of the Registration
Statement constituting the Statement of Eligibility and Qualification
under the Trust Indenture Act (Form T-1) of the Note Trustee; and provided
further, that as to any preliminary prospectus or as to 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, 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 Eighth Issuer, Funding, the Mortgages
Trustee or ANPLC with Clause 8.1(c) 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 Eighth Issuer,
Funding, the Mortgages Trustee and ANPLC 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
Eighth Issuer, Funding, the Mortgages Trustee and ANPLC 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 Underwriter, controlling
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.
13.2 Underwriters' Indemnity
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Eighth Issuer and ANPLC, each of their directors and each of
their officers who signs the Registration Statement, and each person who
controls the Eighth Issuer or ANPLC within the meaning of either the
Securities Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Eighth Issuer to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the Eighth Issuer or ANPLC by or on
37
behalf of such Underwriter through the Lead Managers 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. It is acknowledged that the statements set
forth under the heading Underwriting that specify (a) the list of
Underwriters and their respective participation in the sale of the Eighth
Issuer Notes, (b) the sentences related to concessions and reallowances
and (c) 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, the Prospectus or the Registration Statement.
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
(a) 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 (b) 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
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 Eighth Issuer, Funding, the Mortgages
Trustee and ANPLC, 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
Eighth Issuer, Funding, the Mortgages Trustee and ANPLC 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 judgment of any Underwriter, the Underwriters acting together,
or the Eighth Issuer, Funding, the Mortgages Trustee and ANPLC, 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 shall not be liable for the expenses of more
than one such separate counsel (and local counsel) representing the
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or
38
(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 Subparagraph (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such Subparagraph (i) or
(iii). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, such consent not to
be unreasonably withheld or delayed, but if settled with such consent or
if there be a final judgment 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 judgment. 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 (A) such settlement
is entered into more than 60 days after receipt by such indemnifying party
of such request and (B) 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 Eighth Issuer, ANPLC 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
Eighth Issuer, ANPLC and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Eighth Issuer, ANPLC and the Underwriters from the
offering of the Eighth Issuer Notes. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Eighth
Issuer, ANPLC 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 Eighth Issuer, ANPLC 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 Eighth Issuer and ANPLC 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 Commission 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 Eighth Issuer or
ANPLC 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
Eighth Issuer, ANPLC 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 considerations referred to above. Notwithstanding the foregoing,
in no case shall an Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Eighth Issuer
Notes) be responsible for any amount in excess of the Selling Commission
or Management and Underwriting Commission applicable to the Eighth Issuer
Notes purchased by such Underwriter hereunder. 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)
39
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 Eighth Issuer or ANPLC
within the meaning of either the Securities Act or the Exchange Act, each
officer of the Eighth Issuer who shall have signed the Registration
Statement and each director of the Eighth Issuer or ANPLC, shall have the
same rights to contribution as the Eighth Issuer or ANPLC, as the case may
be, subject in each case to the applicable terms and conditions of this
Clause 13.4.
14. TERMINATION
14.1 Lead Managers' Ability to Terminate
Notwithstanding any other provision of this Agreement, the Lead Managers
on behalf of the Underwriters may, by notice to the Eighth Issuer given at
any time prior to payment of the gross subscription moneys for the Eighth
Issuer Notes to the Eighth 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 representations
contained in Clause 5 or 6 or 7 (or any deemed repetition thereof)
or failure to perform any of the Eighth Issuer's or ANPLC's
covenants or agreements in this Agreement; or
(b) if any condition specified in Clause 9 has not been satisfied or
waived by the Lead Managers on behalf of the Underwriters; or
(c) if, in the opinion of the Lead Managers, circumstances shall be such
as: (i) to prevent or to a material extent restrict payment for the
Eighth Issuer Notes in the manner contemplated in this Agreement or
(ii) to a material extent prevent or restrict settlement of
transactions in the Eighth Issuer Notes in the market or otherwise;
or
(d) if, in the opinion of the Lead Managers, (i) there shall have been
any change in national or international political, legal, tax or
regulatory conditions or (ii) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or
any calamity or emergency, either within or outside the United
States, in each case that in the judgment of the Lead Managers is
material and adverse and makes it impracticable or inadvisable to
market the Eighth Issuer Notes on the terms and in the manner
contemplated by this Agreement and the Prospectus; or
(e) upon termination of the Reg S Eighth Issuer Notes Subscription
Agreement; or
(f) trading generally shall have been suspended or materially limited on
or by any of the New York Stock Exchange or the over-the-counter
market or a material disruption has occurred in commercial banking
or securities settlement or clearance services in the United States
or with respect to Clearstream or Euroclear systems in Europe; or
(g) a general moratorium on commercial banking activities shall have
been declared by US federal or New York State authorities.
40
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 Eighth Issuer shall
remain liable under Clause 12 for the payment of the costs and expenses
already incurred or incurred in consequence of such termination, (b) the
indemnity agreement and contribution provisions set forth in Clause 13
shall survive and (c) the obligations of the Eighth Issuer and ANPLC that
would have continued in accordance with Clause 15 had the arrangements for
the underwriting and issue of the Eighth Issuer 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
Eighth Issuer 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.
15.2 Save for their respective responsibilities to comply with Clauses 5(f),
5(t), 6(e), 6(q) and 7(d), neither the Eighth Issuer, Funding, the
Mortgages Trustee nor ANPLC shall have any responsibility in respect of
the legality of the Underwriters or other persons offering and selling the
Eighth Issuer Notes in any jurisdiction or in respect of the Eighth Issuer
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:
(a) if to the Eighth Issuer,
Abbey ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Regent's Place
London NW1 3AN
Attention: Company Secretary
Facsimile: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
(b) if to ANPLC,
c/o Abbey House (AAM 126)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Securitisation Team, Consumer Risk
Facsimile: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
with a copy to:
Attention: Company Secretary
Facsimile: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
41
(c) if to the Underwriters,
c/o Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Syndicate Desk
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Head of Mortgage Securitization Group
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
UBS Securities LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Head of Asset-Backed Securitization
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
16.2 Any communication so sent by letter shall take effect at the time of
actual delivery, 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.
17. TIME
Time shall be of the essence of this Agreement.
18. GOVERNING LAW AND JURISDICTION
18.1 Governing Law
This Agreement is governed by, and shall be construed in accordance with,
the laws of the State of New York.
18.2 Jurisdiction
Each of the parties hereto irrevocably agrees that, except as otherwise
set forth in this Clause 18.2, 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
based upon this Agreement and, for such purposes, irrevocably submits to
the jurisdiction of such courts. Each of the Eighth Issuer, Funding, the
Mortgages Trustee and ANPLC hereby appoints 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 Eighth Issuer, Funding, the
Mortgages Trustee and ANPLC irrevocably and unconditionally
42
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 Eighth Issuer, Funding, the Mortgages Trustee and ANPLC 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 Eighth Issuer,
Funding, the Mortgages Trustee and ANPLC and may be enforced in any other
court to whose jurisdiction each of the Eighth Issuer, Funding, the
Mortgages Trustee and ANPLC is or may in the future be subject, by suit
upon judgment. Each of the Eighth Issuer, Funding, the Mortgages Trustee
and ANPLC 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 judgment) in any other court or
jurisdiction in accordance with applicable law.
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
20. AUTHORITY OF THE LEAD MANAGERS
Any action by the Underwriters hereunder may be taken by the Lead Managers
on behalf of the Underwriters, and any such action taken by the Lead
Managers shall be binding upon the Underwriters.
IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
43
SIGNATORIES
▇▇▇▇▇▇ FINANCING (NO. 8) PLC
By:
Authorized Signatory
ABBEY NATIONAL PLC
By:
Authorized Signatory
▇▇▇▇▇▇ FUNDING LIMITED
By:
Authorized Signatory
▇▇▇▇▇▇ TRUSTEES LIMITED
By:
Authorized Signatory
BARCLAYS CAPITAL INC.
[For itself and on behalf of the
several Underwriters listed
in the Schedule hereto.]
By:
Authorized Signatory
▇▇▇▇▇▇ BROTHERS INC.
[For itself and on behalf of the
several Underwriters listed
in the Schedule hereto.]
By:
Authorized Signatory
UBS SECURITIES LLC
[For itself and on behalf of the
several Underwriters listed
44
in the Schedule hereto.]
By:
Authorized Signatory
By:
Authorized Signatory
[o]
By:
Authorized Signatory
45
SCHEDULE
---------------------------------------------------------------------------------------------------------------
Underwriters Principal Amount of Principal Amount of Principal Amount of
Series 1 Class A Eighth Series 1 Class B Eighth Series 1 Class C Eighth
Issuer Notes Issuer Notes Issuer Notes
---------------------------------------------------------------------------------------------------------------
Barclays Capital Inc.
---------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Brothers Inc.
---------------------------------------------------------------------------------------------------------------
UBS Securities LLC
---------------------------------------------------------------------------------------------------------------
Total US$1,850,000,000 US$62,900,000 US$107,300,000
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Underwriters Principal Amount of Principal Amount of Principal Amount of
Series 2 Class A Eighth Series 2 Class B Eighth Series 2 Class C Eighth
Issuer Notes Issuer Notes Issuer Notes
---------------------------------------------------------------------------------------------------------------
Barclays Capital Inc.
---------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Brothers Inc.
---------------------------------------------------------------------------------------------------------------
UBS Securities LLC
---------------------------------------------------------------------------------------------------------------
Total US$1,500,000,000 US$51,000,000 US$87,000,000
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------
Underwriters Principal Amount of
Series 4 Class A2 Eighth
Issuer Notes
---------------------------------------------------------
Barclays Capital Inc.
---------------------------------------------------------
▇▇▇▇▇▇ Brothers Inc.
---------------------------------------------------------
UBS Securities LLC
---------------------------------------------------------
Total US$500,000,000
---------------------------------------------------------
46