Exhibit 1.1
UNDERWRITING AGREEMENT
DATED 16th September, 2004
GRANITE MORTGAGES 04-3 PLC
And
NORTHERN ROCK PLC
And
GRANITE FINANCE FUNDING LIMITED
And
GRANITE FINANCE TRUSTEES LIMITED
And
DEUTSCHE BANK SECURITIES INC.
And
▇▇▇▇▇▇ BROTHERS INC.
And
UBS LIMITED
And
BARCLAYS CAPITAL INC.
And
CITIGROUP GLOBAL MARKETS LIMITED
And
HSBC BANK PLC
And
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
London
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
And
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
relating to GRANITE MORTGAGES 04-3 PLC
$981,400,000 Series 1 Class A1 Floating Rate Notes due September 2025
$1,248,100,000 Series 1 Class A3 Floating Rate Notes due September 2044
$59,200,000 Series 1 Class B Floating Rate Notes due September 2044
$31,400,000 Series 1 Class M Floating Rate Notes due September 2044
$62,700,000 Series 1 Class C Floating Rate Notes due September 2044
$713,700,000 Series 2 Class A1 Floating Rate Notes due September 2044
CONTENTS
Clause Page
1. Agreement to Issue and Subscribe....................................................................5
2. Stabilisation.......................................................................................7
3. Agreements by the Underwriters......................................................................7
4. Listing............................................................................................10
5. Representations and Warranties of the Current Issuer...............................................11
6. Representations and Warranties of Funding and the Mortgages Trustee................................16
7. Representations and Warranties of NRPLC............................................................21
8. Covenants of the Current Issuer, Funding, the Mortgages Trustee and NRPLC..........................23
9. Conditions Precedent...............................................................................30
10. Closing............................................................................................34
11. Commissions........................................................................................34
12. Expenses...........................................................................................35
13. Indemnification....................................................................................36
14. Termination........................................................................................40
15. Survival of Representations and Obligations........................................................41
16. Notices............................................................................................41
17. Time...............................................................................................43
18. Non Petition and Limited Recourse..................................................................43
19. Governing Law and Jurisdiction.....................................................................44
20. Counterparts.......................................................................................45
21. Authority of the Lead Underwriters.................................................................45
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THIS AGREEMENT is made as of 16th September, 2004
BETWEEN:
(1) GRANITE MORTGAGES 04-3 PLC, a public limited company incorporated under
the laws of England and Wales, whose registered office is at ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Current Issuer");
(2) NORTHERN ROCK PLC, a public limited company incorporated under the laws
of England and Wales, whose registered office is at ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ("NRPLC");
(3) GRANITE FINANCE FUNDING LIMITED, a private limited company incorporated
under the laws of Jersey, Channel Islands, through its branch at ▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("Funding");
(4) GRANITE FINANCE TRUSTEES LIMITED, a private limited company incorporated
under the laws of Jersey, Channel Islands, whose registered office is at
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Channel Islands (the
"Mortgages Trustee");
(5) DEUTSCHE BANK SECURITIES INC., a corporation organised under the laws of
Delaware whose registered office is at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇ BROTHERS INC., a corporation organised under the
laws of Delaware whose registered office is at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, and UBS LIMITED, a company incorporated
in England and Wales whose registered office is at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Lead Underwriters"); and
(6) BARCLAYS CAPITAL INC., a corporation organised under the laws of
Connecticut whose registered office is at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇, CITIGROUP GLOBAL MARKETS LIMITED, a company
incorporated in England and Wales (registered number 01763297) whose
registered office is at Citigroup Centre, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇, HSBC BANK PLC, a company incorporated in England and Wales
(registered number 00014259) whose registered office is at ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., a corporation
organised under the laws of New York whose registered office is at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, ▇▇▇ and ▇▇▇▇▇▇▇ LYNCH,
PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, a corporation organised under the
laws of Delaware whose registered office is at c/o The Corporation Trust
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (together
with the Lead Underwriters, the "Underwriters" and each an
"Underwriter").
WHEREAS:
(A) The Current Issuer, by resolutions of its Board of Directors passed on
15th September, 2004, has duly authorised and determined to create and
issue $981,400,000 Series 1 Class A1 Floating Rate Notes due September
2025 (the "Series 1 Class A1 Notes"), $1,248,100,000 Series 1 Class A3
Floating Rate Notes due September 2044 (the "Series 1 Class A3 Notes"),
$59,200,000 Series 1 Class B Floating Rate Notes due September 2044 (the
"Series 1 Class B Notes"), $31,400,000 Series 1 Class M Floating Rate
Notes due September 2044 (the "Series 1 Class M Notes"), $62,700,000
Series 1 Class C Floating Rate Notes due September 2044 (the "Series 1
Class C Notes") and $713,700,000 Series 2 Class A1 Floating Rate Notes
due September 2044 (the "Series 2 Class A1 Notes" and together with the
Series 1 Class A1 Notes, the Series 1 Class A3 Notes, the Series 1 Class
B Notes, the Series 1 Class M Notes and the Series 1 Class C Notes, the
"Dollar Notes").
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(B) The Dollar Notes will be denominated in U.S. dollars and in denominations
of $100,000 and increments of $1,000 therafter. The Dollar Notes will be
issued on or about 22nd September, 2004 or at such other time and/or date
as the Current Issuer and the Lead Underwriters on behalf of the
Underwriters may agree acting reasonably (the "Closing Date"). The issue
of the Dollar Notes is referred to in this Agreement as the "Issue".
(C) Simultaneously with the Issue, the Current Issuer intends to issue
(Euro)494,000,000 Series 1 Class A2 Floating Rate Notes due September
2028 (the "Series 1 Class A2 Notes"), (Euro)800,150,000 Series 2 Class A2
Floating Rate Notes due September 2044 (the "Series 2 Class A2 Notes"),
(Euro)74,400,000 Series 2 Class B Floating Rate Notes due September 2044
(the "Series 2 Class B Notes"), (Euro)57,900,000 Series 2 Class M
Floating Rate Notes due September 2044 (the "Series 2 Class M Notes"),
(Euro)139,050,000 Series 2 Class C Floating Rate Notes due September 2044
(the "Series 2 Class C Notes"), (GBP)411,250,000 Series 3 Class A1
Floating Rate Notes due September 2044 (the "Series 3 Class A1 Notes"),
(GBP)600,000,000 Series 3 Class A2 Fixed Rate Notes due September 2044
(the "Series 3 Class A2 Notes" and together with the Series 3 Class A1
Notes, the "Series 3 Class A Notes") (GBP)54,350,000 Series 3 Class B
Floating Rate Notes due September 2044 (the "Series 3 Class B Notes"),
(GBP)42,250,000 Series 3 Class M Floating Rate Notes due September 2044
(the "Series 3 Class M Notes") and (GBP)99,450,000 Series 3 Class C
Floating Rate Notes due September 2044 (the "Series 3 Class C Notes", and
together with the Series 1 Class A2 Notes, the Series 2 Class A2 Notes,
the Series 2 Class B Notes, the Series 2 Class M Notes, the Series 2
Class C Notes, the Series 3 Class A Notes, the Series 3 Class B Notes and
the Series 3 Class M Notes, the "Reg S Notes"). The Reg S Notes and the
Dollar Notes are collectively referred to as the "Notes". By a
subscription agreement dated as of the date hereof (the "Subscription
Agreement") between the Current Issuer, NRPLC, Funding, the Mortgages
Trustee and the respective managers named therein (the "Managers"), such
Managers have agreed to subscribe and pay for the Reg S Notes upon the
terms and subject to the conditions therein contained.
The Notes will be constituted by, issued subject to and have the benefit
of a trust deed (the "Current Issuer Trust Deed") to be entered into on
or before the Closing Date between the Current Issuer and The Bank of New
York, London Branch as trustee for the Noteholders (the "Note Trustee").
(D) The Notes (together with the Current Issuer's obligations to its other
creditors) will be secured by the benefit of security interests created
under a deed of charge and assignment by way of security (the "Current
Issuer Deed of Charge") to be entered into on or before the Closing Date
by the Current Issuer, the Note Trustee, Citibank, N.A., (in its separate
capacities as the "Principal Paying Agent", the "US Paying Agent", the
"Registrar", the "Transfer Agent" and the "Agent Bank"), Barclays Bank
PLC and Swiss Re Financial Products Corporation as dollar currency swap
providers to the Current Issuer in respect of the Dollar Notes (the
"Dollar Currency Swap Providers"), Citibank, N.A., acting through its
London Branch as euro currency swap provider to the Current Issuer (the
"Euro Currency Swap Provider" and together with the Dollar Currency Swap
Providers, the "Currency Rate Swap Providers"), UBS Limited as interest
rate swap provider to the Current Issuer (the "Interest Rate Swap
Provider"), NRPLC in its capacity as cash manager to the Current Issuer
under the Current Issuer cash management agreement (the "Current Issuer
Cash Manager"), NRPLC as basis rate swap provider to the Current Issuer
(the "Basis Rate Swap Provider"), Citibank, N.A. in its capacity as
account bank to the Current Issuer under the Current Issuer Bank Account
Agreement (the "Current Issuer Account Bank") and Law Debenture Corporate
Services Limited in its capacity as corporate services provider to the
Current Issuer under the corporate services provider agreement (the
"Current Issuer Corporate Services Provider").
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(E) Payments of principal of, and interest on, the Dollar Notes will be made
by the Current Issuer to the US Paying Agent and by the US Paying Agent
to Noteholders on behalf of the Current Issuer under a paying agent and
agent bank agreement to be entered into on or before the Closing Date
(the "Current Issuer Paying Agent and Agent Bank Agreement") between the
Current Issuer, the Note Trustee, the Agent Bank, the paying agents named
therein, the Transfer Agent and the Registrar.
(F) Each class of the Dollar Notes will be in fully registered permanent
global form. The Registrar will maintain a register (the "Register") in
respect of the Dollar Notes in accordance with the Current Issuer Paying
Agent and Agent Bank Agreement. The global note certificates representing
the Dollar Notes (the "Dollar Global Note Certificates") will be
deposited on behalf of the beneficial owners of the Dollar Notes with
Citibank N.A. in New York, as custodian for, and registered in the name
of Cede & Co. as nominee of, The Depository Trust Company ("DTC").
(G) The Current Issuer will use an amount in Sterling equal to the gross
proceeds of the Issue as well as an amount in Sterling equal to the gross
proceeds of the Reg S Notes issue to make a loan to Funding pursuant to
an intercompany loan agreement to be entered into on or before the
Closing Date between the Current Issuer, Funding, the Agent Bank and The
Bank of New York, London Branch in its capacity as security trustee (the
"Security Trustee") (the "Intercompany Loan Agreement" and the loan made
thereunder, the "Intercompany Loan"). Reference to the Intercompany Loan
Agreement shall include reference to a loan confirmation in respect of
the Intercompany Loan Agreement to be entered into on or about the
Closing Date and made between Funding, the Current Issuer, the Security
Trustee and the Agent Bank (the "Current Issuer Intercompany Loan
Confirmation"), and the general terms and conditions applicable to the
Intercompany Loan Agreement which has been signed for the purposes of
identification by the Security Trustee, the Agent Bank and Funding on the
Initial Closing Date, as amended and restated, novated, verified or
supplemented from time to time and shall include any additional and/or
replacement intercompany loan terms and conditions entered into from time
to time in accordance with the Legal Agreements (the "Intercompany Loan
Terms and Conditions").
(H) Funding will pay the proceeds of the Intercompany Loan to the Mortgages
Trustee (or to its order) in consideration for the acquisition of part of
the beneficial share of the additional assigned mortgage trust portfolio
of first residential mortgage loans (the "Additional Assigned Mortgage
Loans") and an interest in the related insurances and their related
security (together, the "Related Security").
(I) NRPLC assigned the portfolio of Additional Assigned Mortgage Loans and
their Related Security to the Mortgages Trustee on 23rd August, 2004 and
may assign further Mortgage Loans on subsequent assignment dates pursuant
to a mortgage sale agreement dated 26th March, 2001 between NRPLC, the
Mortgages Trustee, Funding and the Security Trustee (the "Mortgage Sale
Agreement"). Each of the Mortgages Trustee and Funding has appointed
NRPLC as administrator to service the Additional Assigned Mortgage Loans
and their Related Security pursuant to an Administration Agreement dated
26th March, 2001 (the "Administration Agreement").
(J) The Mortgages Trustee holds the Additional Assigned Mortgage Loans and
their Related Security on a bare trust in undivided shares for the
benefit of Funding and NRPLC pursuant to the mortgages trust deed dated
26th March, 2001 entered into by NRPLC, Funding and the Mortgages Trustee
(the "Mortgages Trust Deed"). The Mortgages Trustee also entered into a
guaranteed investment contract dated on or about 26th March, 2001 in
respect of its principal bank account (the "Mortgages Trustee Guaranteed
Investment Contract")
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between the Mortgages Trustee and Lloyds TSB Bank plc, Jersey
International Branch (in such capacity, the "Mortgages Trustee GIC
Provider").
(K) Funding's obligations to the Current Issuer under the Intercompany Loan
Agreement and to Funding's other creditors are secured by the benefit of
security interests created by a deed of charge and assignment dated 26th
March, 2001, which includes any deed of accession entered into in
connection therewith or supplement thereto (the "Funding Deed of Charge")
and entered into by Funding, Granite Mortgages 01-1 plc (the "First
Issuer"), the Mortgages Trustee, the Security Trustee, NRPLC in its
capacity as cash manager to the Mortgages Trustee and Funding (the "Cash
Manager") Lloyds TSB Bank plc, Jersey International Branch in its
capacity as account bank to the Mortgages Trustee, Lloyds TSB Bank plc in
its capacity as account bank to Funding (in such capacities, each an
"Account Bank") and NRPLC in its capacity as Current Issuer start-up loan
provider to Funding (the "Current Issuer Start-up Loan Provider") and
acceded to pursuant to deeds of accession dated 28th September, 2001 by
Granite Mortgages 01-2 plc (the "Second Issuer") and the Current Issuer
Start-up Loan Provider, respectively, 20th March, 2002 by Granite
Mortgages 02-1 plc (the "Third Issuer") and the Current Issuer Start-up
Loan Provider, respectively, 23rd September, 2002 by Granite Mortgages
02-2 plc (the "Fourth Issuer") and the Current Issuer Start-up Loan
Provider, respectively, 27th January, 2003 by Granite 03-1 plc (the
"Fifth Issuer") and the Current Issuer Start-Up Loan Provider,
respectively, 21st May, 2003 by Granite Mortgages 03-2 plc (the "Sixth
Issuer") and the Current Issuer Start-up Loan Provider, respectively,
24th September, 2003 by Granite Mortgages 03-3 plc (the "Seventh Issuer")
and the Current Issuer Start-up Loan Provider, respectively, 28th
January, 2004 by Granite Mortgages 04-1 plc (the "Eighth Issuer") and the
Current Issuer Start-up Loan Provider, respectively, and 26th May, 2004
by Granite Mortgages 04-2 plc (the "Ninth Issuer") and the Current Issuer
Start-up Loan Provider, respectively (together the "Deeds of Accession").
On or before the Closing Date, the Current Issuer and the Current Issuer
Start-up Loan Provider will, pursuant to a deed of accession (the
"Current Deed of Accession"), accede to the terms of the Funding Deed of
Charge and thereby become secured creditors of Funding.
(L) In connection with the purchase of an initial mortgage portfolio and the
issue of certain notes by the First Issuer, Funding, in addition to the
documents described above, entered into on 26th March, 2001 (the "Initial
Closing Date") (1) a cash management agreement with the Cash Manager, the
Mortgages Trustee and the Security Trustee (the "Cash Management
Agreement"); (2) a bank account agreement with the Account Banks, the
Mortgages Trustee, Funding, the Security Trustee and the Cash Underwriter
(the "Bank Account Agreement"); (3) a guaranteed investment contract
with, inter alios, Lloyds TSB Bank plc as GIC provider to Funding (the
"Funding GIC Provider") (the "Funding Guaranteed Investment Contract");
(4) a corporate services provider agreement (the "Funding Corporate
Services Agreement") with Mourant & Co. Capital (SPV) Limited as
corporate services provider to Funding, each of which will remain in
effect, as applicable, in respect of the Issue; and (5) a start-up loan
agreement made between the Current Issuer Start-up Loan Provider and the
Security Trustee (the "Start-Up Loan Agreement").
(M) In connection with the Issue, the Current Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Notes relating to
each class of the Notes; (2) the Current Issuer Corporate Services
Agreement with respect to the Current Issuer; (3) a cash management
agreement between the Current Issuer, the Current Issuer Cash Manager and
the Note Trustee (the "Current Issuer Cash Management Agreement"); (4) a
bank account agreement between the Current Issuer, the Note Trustee, the
Current Issuer Cash Manager and the Current Issuer Account Bank (the
"Current Issuer Bank Account Agreement"); (5) a post-enforcement call
option agreement (the "Post-Enforcement Call Option Agreement") between
the Current Issuer, the Note Trustee, the Registrar, the Transfer Agent
and GPCH
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Limited; (6) the Start-Up Loan Agreement; (7) ISDA Master Agreements
including the Schedules thereto and confirmations thereunder in respect
of Dollar/Sterling currency swaps between the Current Issuer, the Dollar
Currency Swap Providers and the Note Trustee (the "Dollar Currency Swap
Agreements"); (8) ISDA Master Agreements including the Schedules thereto
and confirmations thereunder in respect of Euro/Sterling currency swaps
between the Current Issuer, the Euro Currency Swap Provider and the Note
Trustee (the "Euro Currency Swap Agreements" and the together with the
Dollar Currency Swap Agreements, the "Currency Swap Agreements"); (9)
ISDA Master Agreement including the Schedule thereto and confirmation
thereunder in respect of the interest rate swap between the Current
Issuer, the Interest Rate Swap Provider and the Note Trustee (the
"Interest Rate Swap Agreement"); and (10) an ISDA Master Agreement
including the Schedule thereto and confirmation thereunder in respect of
a variable rate swap and a fixed rate swap between the Current Issuer,
the Basis Rate Swap Provider and the Note Trustee (the "Basis Rate Swap
Agreement", and together with the Currency Swap Agreements, the "Swap
Agreements").
(N) As required, the Current Issuer, Funding, the Mortgages Trustee and/or
NRPLC have entered or will enter into any other relevant documents to be
signed and delivered on or before the Closing Date (such documents,
together with the Mortgage Sale Agreement, the Mortgages Trust Deed, the
Mortgages Trustee Corporate Services Agreement, the Administration
Agreement, the Mortgages Trustee Guaranteed Investment Contract, the
Intercompany Loan Agreement (including, for the avoidance of doubt, the
Intercompany Loan Terms and Conditions and the Current Issuer
Intercompany Loan Confirmation), the Post-Enforcement Call Option
Agreement, the Funding (Granite 04-3) Guaranteed Investment Contract, the
Funding Guaranteed Investment Contract, the Cash Management Agreement,
the Bank Account Agreement, the Collection Bank Agreement, the Start-up
Loan Agreement with respect to the Current Issuer, the Funding (Granite
04-3) Bank Account Agreement, the Funding Deed of Charge, the Current
Issuer Deed of Charge, the Current Issuer Trust Deed, the Current Issuer
Cash Management Agreement, the Current Issuer Paying Agent and Agent Bank
Agreement, the Current Issuer Bank Account Agreement, the Current Issuer
Corporate Services Agreement, the Swap Agreements, the Funding Corporate
Services Agreement, this Agreement and the Subscription Agreement, each
as they have been or may be amended, restated, varied or supplemented
from time to time are collectively referred to herein as the "Legal
Agreements").
IT IS AGREED as follows:
1. AGREEMENT TO ISSUE AND SUBSCRIBE
1.1 Definitions and Interpretation
(a) Capitalised terms used herein and not otherwise defined herein or
pursuant hereto shall have the meanings given to them in the
Prospectus (as defined below) unless the context otherwise requires.
(b) In this Agreement:
(i) words denoting the singular number only shall include the
plural number also and vice versa;
(ii) words denoting one gender only shall include the other genders;
(iii) words denoting persons only shall include firms and
corporations and vice versa;
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(iv) references to any statutory provision shall be deemed also to
refer to any statutory modification or re-enactment thereof or
any statutory instrument, order or regulation made thereunder
or under any such re-enactment;
(v) references to any agreement or other document (including any of
the Legal Agreements) shall be deemed also to refer to such
agreement or document as amended, varied, supplemented,
restated or novated from time to time;
(vi) clause, paragraph and schedule headings are for ease of
reference only;
(vii) reference to a statute shall be construed as a reference to
such statute as the same may have been, or may from time to
time be, amended or re-enacted to the extent such amendment or
re-enactment is substantially to the same effect as such
statute on the date hereof;
(viii) reference to a time of day, unless otherwise specified, shall
be construed as a reference to London time; and
(ix) references to any person shall include references to his
successors, transferees and assigns and any person deriving
title under or through him.
1.2 Agreement to Issue and Underwrite
Subject to the terms and conditions of this Agreement, the Current Issuer
agrees to issue the Dollar Notes on the Closing Date to the Underwriters
or as they may direct. The Dollar Notes will be issued at a price equal
to the aggregate of 100 per cent. of the aggregate principal amount of
the Series 1 Class A1 Notes, 100 per cent. of the aggregate principal
amount of the Series 1 Class A3 Notes, 100 per cent. of the aggregate
principal amount of the Series 1 Class B Notes, 100 per cent. of the
aggregate principal amount of the Series 1 Class M Notes, 100 per cent.
of the aggregate principal amount of the Series 1 Class C Notes and 100
per cent. of the aggregate principal amount of the Series 2 Class A1
Notes (the "Issue Price").
1.3 The Legal Agreements
To the extent that each of the Current Issuer, Funding, the Mortgages
Trustee and NRPLC is a signatory of the Legal Agreements, each will on or
before the Closing Date, have entered into or enter into each of the
Legal Agreements to which it is a party, substantially in the form of the
draft reviewed by ▇▇▇▇▇ & ▇▇▇▇▇ LLP and Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ (any
draft of any document so reviewed being called an "agreed form"), with
such amendments as the Lead Underwriters, on behalf of the Underwriters,
may agree with the Current Issuer and, if it is a signatory, Funding, the
Mortgages Trustee and/or NRPLC.
1.4 The Notes
The Dollar Notes will be issued on the Closing Date in accordance with
the terms of the Current Issuer Trust Deed and will be in, or
substantially in, the form set out therein.
1.5 Prospectus
The Current Issuer confirms that it has prepared a prospectus dated on or
around today's date (together with the preliminary prospectus of the
Current Issuer dated 31st August, 2004, the "Prospectus") for use in
connection with the issue of the Dollar Notes and hereby authorises
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the Underwriters to distribute copies of the Prospectus in connection
with the offering and sale of the Dollar Notes.
1.6 Authority to Offer
The Current Issuer confirms that it has authorised the Lead Underwriters
to offer the Dollar Notes on its behalf to the Underwriters for
subscription at the Issue Price subject to signature of this Agreement.
Subject to Clause 3.2(a), the Current Issuer acknowledges and agrees that
the Underwriters may offer and sell Dollar Notes to or through any
affiliate of an Underwriter and that any such affiliate may offer and
sell Dollar Notes purchased by it to or through any Underwriter.
2. STABILISATION
2.1 Stabilisation
The Underwriters or their affiliates 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 Dollar Notes with a view to
stabilising or maintaining the respective market prices of the Dollar
Notes at levels other than those which might otherwise prevail in the
open market. Such stabilising, if commenced, may be discontinued at any
time. In doing so the Underwriters or their affiliates shall act as
principal and in no circumstances shall the Current Issuer be obliged to
issue more than (i) $981,400,000 in aggregate principal amount of the
Series 1 Class A1 Notes, (ii) $1,248,100,000 in aggregate principal
amount of the Series 1 Class A3 Notes, (iii) $59,200,000 in aggregate
principal amount of the Series 1 Class B Notes, (iv) $31,400,000 in
aggregate principal amount of the Series 1 Class M Notes, (v) $62,700,000
in aggregate principal amount of the Series 1 Class C Notes or (vi)
$713,700,000 in aggregate principal amount of the Series 2 Class A1
Notes.
2.2 Stabilisation Profits and Losses
As between the Current Issuer and the Underwriters any loss resulting
from stabilisation transactions entered into by the Underwriters or their
affiliates, pursuant to Clause 2.1 shall be borne, and any profit arising
therefrom shall be retained, by the Underwriters.
3. AGREEMENTS BY THE UNDERWRITERS
3.1 Purchase
Each Underwriter severally agrees to purchase and pay for such principal
amount of the Dollar Notes set out against its name in the Schedule
hereto on the Closing Date at the Issue Price, all on the terms set out
in this Agreement.
(a) If any Underwriter shall default on its obligation to purchase
Dollar Notes which it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange to
purchase, or for another party or other parties reasonably
satisfactory to NRPLC to purchase, such Dollar Notes on the terms
contained herein. If within thirty-six hours after such default by
any Underwriter, the non-defaulting Underwriters do not arrange for
the purchase of such Dollar Notes, then NRPLC shall be entitled to a
further period of thirty-six hours within which to procure another
party or other parties satisfactory to the non-defaulting
Underwriters to purchase such
8
Dollar Notes on such terms. In the event that, within the respective
prescribed periods, the Lead Underwriters on behalf of the
non-defaulting Underwriters notify NRPLC that the non-defaulting
Underwriters have so arranged for the purchase of such Dollar Notes,
or NRPLC notifies the non-defaulting Underwriters that it has so
arranged for the purchase of such Dollar Notes, the non-defaulting
Underwriters or NRPLC shall have the right to postpone the Closing
Date for a period of time agreed by the Lead Underwriters and NRPLC
acting reasonably, in order to effect whatever changes may thereby
be made necessary in any documents or arrangements relating to the
offering and sale of the Dollar Notes. Any substitute purchaser of
Notes pursuant to this paragraph shall be deemed to be an
Underwriter, for purposes of this Agreement, in connection with the
offering and sale of the Dollar Notes.
(b) If, after giving effect to any arrangements for the purchase of
Dollar Notes of a defaulting Underwriter by the non-defaulting
Underwriters, as provided in Clause 3.1(a) above, the aggregate
principal amount of the Dollar Notes which remains unpurchased does
not exceed ten per cent. of the aggregate principal amount of the
Dollar Notes, NRPLC shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of the
Dollar Notes which such Underwriter agreed to purchase hereunder
and, in addition to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of the
Dollar Notes which such Underwriter agreed to purchase hereunder) of
the principal amount of the Dollar Notes of such defaulting
Underwriter for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
principal amount of the Dollar Notes of a defaulting Underwriter by
the non-defaulting Underwriters as provided in Clause 3.1(a) above,
the aggregate principal amount of the Dollar Notes which remains
unpurchased exceeds ten per cent. of the aggregate principal amount
of the Dollar Notes, or if NRPLC shall not exercise the right
described in Clause 3.1(b) above to require non-defaulting
Underwriters to purchase the Dollar Notes of a defaulting
Underwriter, then this Agreement shall thereupon terminate, without
liability on the part of the non-defaulting Underwriters; but
nothing herein shall relieve a defaulting Underwriter from liability
for its default.
3.2 Selling
Each Underwriter severally (and not jointly) agrees as follows:
(a) United States
It is understood that several Underwriters propose to offer the
Dollar Notes for sale to the public in the United States as set
forth in the Prospectus. These Underwriters will offer and sell the
Dollar Notes in the United States only through their U.S. registered
broker dealers.
(b) United Kingdom
Each Underwriter represents and agrees that:
(1) it has not offered or sold, and will not offer or sell, any
Dollar Notes to persons in the United Kingdom prior to
admission of the Dollar Notes to listing in accordance with
Part VI of the Financial Services and Markets Act
9
2000, as amended (the "FSMA") except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for 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;
(2) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning
of Section 21 of the FSMA) received by it in connection with
the issue or sale of any Dollar Notes in circumstances in which
Section 21(1) of the FSMA does not apply to the Current Issuer;
and
(3) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to
the Dollar Notes in, from or otherwise involving the United
Kingdom.
(c) Italy
Each Underwriter represents and agrees that the offering of the
Dollar Notes has not been cleared by CONSOB (the Italian Securities
Exchange Commission) pursuant to Italian securities legislation and,
accordingly, the Dollar Notes have not been and will not be offered,
sold or delivered by it, and the copies of the Prospectus or any
other document relating to the Dollar Notes have not been and will
not be distributed in the Republic of Italy, except:
(i) to professional investors (operatori qualificati), as defined
in Article 31, second paragraph, of CONSOB Regulation No. 11522
of 1st July, 1998, as amended; or
(ii) in circumstances which are exempted from the rules on
solicitation of investments pursuant to Article 100 of
Legislative Decree No. 58 of 24th February, 1998 (the
"Financial Services Act") and Article 33, first paragraph of
CONSOB Regulation No. 11971 of 14th May, 1999, as amended.
In addition, each Underwriter represents and agrees that any
offer, sale or delivery of the Dollar Notes or distribution of
copies of the Prospectus or any other document relating to the
Dollar Notes made by it in the Republic of Italy under (i) or
(ii) above has been and will be:
(A) made by an investment firm, bank or financial intermediary
permitted to conduct such activities in the Republic of
Italy in accordance with the Financial Services Act and
Legislative Decree ▇▇. ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ (▇▇▇
"▇▇▇▇▇▇▇ ▇▇▇");
(B) in compliance with Article 129 of the Banking Act and the
implementing guidelines of the Bank of Italy, as amended
from time to time, pursuant to which the issue or the
offer of securities in the Republic of Italy may need to
be preceded and followed by an appropriate notice to be
filed with the Bank of Italy depending, inter alia, on the
aggregate value of the securities issued or offered in the
Republic of Italy and their characteristics; and
10
(C) in accordance with any other applicable laws and
regulations.
(d) Spain
Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not offer or
sell any Dollar Notes in Spain by means of a public offer as
defined and construed by Spanish law unless such public offer
is made in compliance with the requirements of Law 24/1988 of
28th July (as amended by Law 37/1998, of 16th November), on the
Spanish Securities Market and the Royal Decree 291/1992, of
27th March (as amended by Royal Decree 2590/1998, of 7th
December and Royal Decree 705/2002, of 19th July), on issues
and public offers for the sale of securities.
(e) Ireland
Each Underwriter represents and agrees that it has not and will
not, directly or indirectly, offer or sell in Ireland any
Dollar Notes other than to persons whose ordinary business it
is to buy or sell shares or debentures whether as principal or
agent.
(f) The Netherlands
Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not, directly
or indirectly, offer and sell any Dollar Notes in the
Netherlands.
(g) Other
For each jurisdiction outside the United States and the United
Kingdom (a "Relevant Jurisdiction"), each Underwriter
acknowledges that no representation is made by the Current
Issuer or any Underwriter that any action has been or will be
taken in any Relevant Jurisdiction by the Current Issuer or any
Underwriter that would permit a public offering of the Dollar
Notes (other than as described above), or possession or
distribution of the Prospectus or any other offering material,
in any country or Relevant Jurisdiction where action for that
purpose is required. Each Underwriter will comply with all
applicable securities laws and regulations in any Relevant
Jurisdiction in which it purchases, offers, sells or delivers
Dollar Notes or has in its possession or distributes the
Prospectus or any other offering material, in all cases at its
own expense. Each Underwriter represents that it has not and
will not directly or indirectly offer, sell or deliver any
offered notes or publish any prospectus, form of application,
offering circular, advertisement or other offering material
except under circumstances that will, to the best of its
knowledge and belief, result in compliance with any applicable
laws and regulations, and all offers, sales and deliveries of
offered notes by it will be made on the same terms and will
obtain any consent, approval or permission required by it for
the purchase, offer, sale or delivery by it of Dollar Notes
under the laws and regulations in force in any Relevant
Jurisdictions to which it is subject or in which it makes such
purchases, offers, sales or deliveries and the Current Issuer
shall have no responsibility for them.
11
4. LISTING
4.1 Application for Listing
The Current Issuer confirms that it has authorised the Lead Underwriters
to make or cause to be made at the Current Issuer's expense applications
on the Current Issuer's behalf for the Notes to be listed on the Official
List of the UK Listing Authority and for the Notes to be admitted to
trading by the London Stock Exchange plc (the "Stock Exchange").
4.2 Supply of Information
The Current Issuer agrees to supply to the Lead Underwriters for delivery
to the UK Listing Authority and the Stock Exchange copies of the
Prospectus and such other documents, information and undertakings as may
be required for the purpose of obtaining such listing.
4.3 Maintenance of Listing
The Current Issuer agrees to use its reasonable endeavours to maintain a
listing of the Dollar Notes on the Official List of the UK Listing
Authority and the admission of the Notes to trading by the Stock Exchange
for as long as any of the Dollar Notes are outstanding and to pay all
fees and supply all further documents, information and undertakings and
publish all advertisements or other material as may be necessary for such
purpose. However, if such listing becomes impossible, the Current Issuer
will obtain, and will thereafter use its best endeavours to maintain, a
quotation for, or listing of, the Dollar Notes on or by such other stock
exchange, competent listing authority and/or quotation system as is
commonly used for the quotation or listing of debt securities as it may,
with the approval of the Lead Underwriters (such approval not to be
unreasonably withheld or delayed), decide.
5. REPRESENTATIONS AND WARRANTIES OF THE CURRENT ISSUER
The Current Issuer represents and warrants to, and agrees with, Funding,
the Mortgages Trustee, the Underwriters and each of them that:
(a) The Registration Statement
The Current Issuer has prepared and filed with the United States
Securities and Exchange Commission (the "Commission") a registration
statement (file number 333-117465) on Form S-11 (the "Registration
Statement"), including a related preliminary prospectus dated 31st
August, 2004, for registration under the U.S. Securities Act of
1933, as amended (the "Securities Act"), of the offering and sale of
the Dollar Notes. The Current Issuer may have filed one or more
amendments thereto, including a related preliminary prospectus, each
of which has previously been furnished to the Underwriters. The
Current Issuer will next file with the Commission one of the
following, either (1) prior to the date and time that such
Registration Statement becomes effective (the "Effective Date"), a
further amendment to such Registration Statement, including the form
of final prospectus, or (2) after the Effective Date of such
Registration Statement, a final prospectus in accordance with Rules
430A and 424(b) under the Securities Act. In the case of clause (2),
the Current Issuer has included in such Registration Statement, as
amended at the Effective Date, all information (other than
information with respect to the Notes and the Issue permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A ("Rule 430A Information")) required by the
Securities Act and the rules thereunder to be included in such
Registration Statement
12
and the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent that the Lead Underwriters shall agree in
writing to a modification, shall be in all substantive respects in
the form furnished to the Underwriters prior to the date and time
that this Agreement is executed and delivered by the parties hereto
(the "date of this Agreement"), or, to the extent not completed at
the date of this Agreement, shall contain only specific additional
information and other changes (beyond that contained in the latest
preliminary prospectus) as the Current Issuer has advised the Lead
Underwriters, prior to the date of this Agreement, will be included
or made therein;
(b) No Material Misstatements or Omissions
On the Effective Date, the Registration Statement, as amended, did
or will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Prospectus
(and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Securities Act, the U.S.
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the U.S. Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the respective rules thereunder; on the
Effective Date and at the date of this Agreement, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date the
Current Issuer Trust Deed did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act
and the rules thereunder; and on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the Current Issuer makes no representations
or warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any statement thereto)
in reliance upon and in conformity with information furnished in
writing to the Current Issuer by or on behalf of any Underwriter
through the Lead Underwriters specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement
thereto), which information is described in Clause 13.2;
(c) Incorporation, Capacity and Authorisation
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
capacity to conduct its business as described in the Prospectus, has
full power and capacity to create and issue the Notes, to execute
this Agreement and the Legal Agreements to which it is a party and
to undertake and perform the obligations expressed to be assumed by
it herein and therein; and has taken all necessary action to approve
and authorise the same; and the Current Issuer is lawfully qualified
to do business in England and Wales. The Current Issuer has not
taken any corporate action nor (to the best of its knowledge and
belief) have any other steps been taken or legal proceedings been
started or threatened against it for its winding-up, dissolution or
reorganisation or for the appointment of a receiver, administrator,
administrative receiver or similar officer of it or of any or all of
its assets or revenues;
13
(d) Validity of Legal Agreements
This Agreement has been duly authorised, executed and delivered by
the Current Issuer and constitutes, and the other Legal Agreements
to which the Current Issuer is a party have been duly authorised by
the Current Issuer and on the Closing Date will constitute, valid
and legally binding obligations of the Current Issuer;
(e) Validity of Notes
The creation, sale and issue of the Notes have been duly authorised
by the Current Issuer and, when executed and authenticated in
accordance with the Current Issuer Trust Deed and the Current Issuer
Paying Agent and Agent Bank Agreement, the Notes will constitute
valid and legally binding obligations of the Current Issuer and,
upon effectiveness of the Registration Statement, the Current Issuer
Trust Deed will have been duly qualified under the Trust Indenture
Act;
(f) Consents
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required for
the creation, issue and offering of the Notes or in connection with
the execution and performance of the transactions contemplated by
the Legal Agreements or the compliance by the Current Issuer with
the terms of the Notes and the Legal Agreements as the case may be,
except for (i) such consents, approvals, authorisations,
registrations or qualifications as may be required under applicable
United States state securities, Blue Sky or similar laws in
connection with the purchase and distribution of the Notes by the
Underwriters and (ii) those which will on the Closing Date be, in
full force and effect;
(g) Compliance
The authorisation of the Notes and the granting of security
interests in relation thereto under the Current Issuer Deed of
Charge, the offering and issue of the Notes on the terms and
conditions of this Agreement, the Trust Deed and the Prospectus, the
execution and delivery of the Legal Agreements to which it is a
party and the implementation of the transactions contemplated by
such Legal Agreements and compliance with the terms of the Legal
Agreements to which it is a party do not, and will not, (i) conflict
with, or result in a breach of, any of the terms or provisions of,
or constitute a default under, the Memorandum and Articles of
Association of the Current Issuer or any agreement or instrument to
which the Current Issuer is a party or by which its properties is
bound; (ii) infringe any applicable law, rule, regulation, judgment,
order or decree of any government, governmental body or court,
having jurisdiction over the Current Issuer or any of its
properties; or (iii) result in the creation or imposition of any
mortgage, charge, pledge, lien or other security interest on any of
its properties, other than those created in, or imposed by, the
Legal Agreements themselves;
(h) Financial Statements
(i) The auditor's report by PricewaterhouseCoopers LLP, as
independent auditor to the Current Issuer, set out in the
Prospectus presents fairly the financial position of the
Current Issuer as at the date at which it has been prepared;
14
(ii) Since the date of each such report there has been no change
(nor any development or event involving a prospective change of
which the Current Issuer is, or might reasonably be expected to
be, aware) since the date of incorporation of the Current
Issuer which is materially adverse to the condition (financial
or other), prospects, results of operations or general affairs
of the Current Issuer; and
(iii) PricewaterhouseCoopers LLP are independent public accountants
with respect to the Current Issuer within the meaning of the
standards established by the American Institute of Certified
Public Accountants;
(i) Taxation
Save as described in the legal opinions referred to in Clause 9(d)
of this Agreement, no stamp or other similar duty is assessable or
payable in the United Kingdom, and no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever
nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties or
taxes of any kind in connection with the authorisation, execution or
delivery of the Legal Agreements or with the authorisation, issue,
sale or delivery of the Notes and (except as disclosed in the
Prospectus) the performance of the Current Issuer's, Funding's
and/or, as the case may be, the Mortgages Trustee's obligations
under the Legal Agreements and the Notes. This warranty does not
apply to any United Kingdom corporation tax which may be levied,
collected, withheld or assessed in connection with the
authorisation, execution or delivery of the Legal Agreements or with
the authorisation, issue, sale or delivery of the Notes;
(j) Breach of other agreements
The Current Issuer is not in breach of or in default under any
agreement to which it is a party or which is binding on it or any of
its assets or revenues;
(k) Events of Default
No event has occurred or circumstance arisen which, had the Notes
already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfilment of any other
requirement) constitute an Event of Default as set out in the
Conditions of the Notes;
(l) No Subsidiaries
The Current Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies ▇▇▇
▇▇▇▇;
(m) Granite Finance Holdings Limited
The Previous Issuers, the Current Issuer, Funding, the Mortgages
Trustee and GPCH Limited are the only subsidiaries or subsidiary
undertakings of Granite Finance Holdings Limited within the meanings
of Sections 258 and 736 of the Companies ▇▇▇ ▇▇▇▇;
15
(n) No Activities
The Current Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any registration or
re-registration as a public limited company under the Companies Acts
1985 and 1989 and various changes to its directors, secretary,
registered office, Memorandum and Articles of Association; (ii) the
authorisation and execution of the Legal Agreements to which it is a
party; (iii) the activities referred to or contemplated in the Legal
Agreements to which it is a party or in the Prospectus and (iv) the
authorisation and issue by it of the Notes. The Current Issuer has
not (other than as set out in the Prospectus) prepared any accounts
and has neither paid any dividends nor made any distributions since
the date of its incorporation;
(o) Listing Rules
Prior to the delivery of the Prospectus to the Registrar of
Companies in England and Wales, the Prospectus has been approved by
or on behalf of the United Kingdom Listing 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 of the FSMA;
(p) Litigation
There are no pending actions, suits or proceedings against or
affecting the Current Issuer which could individually or in the
aggregate have an adverse effect on the condition (financial or
other), prospects, results of operations or general affairs of the
Current Issuer or could adversely affect the ability of the Current
Issuer to perform its obligations under the Legal Agreements or the
Notes or which are otherwise material in the context of the issue or
offering of the Notes and, to the best of the Current Issuer's
knowledge, no such actions, suits or proceedings are threatened or
contemplated;
(q) No Prior Security
Save as set out in any of the Legal Agreements, there exists no
mortgage, lien, pledge or other charge on or over the assets of the
Current Issuer and, other than the Legal Agreements, the Current
Issuer has not entered into any indenture or trust deed;
(r) Security for the Notes
The Notes and the obligations of the Current Issuer under the
Current Issuer Trust Deed will be secured in the manner provided in
the Current Issuer Deed of Charge and with the benefit of the
charges, covenants and other security interests provided for therein
including, without limitation, (i) an assignment by way of first
fixed security of the Current Issuer's right, title, interest and
benefit in the Intercompany Loan Agreement, the Swap Agreements, the
Funding Deed of Charge (as amended by the Deeds of Accession and the
Current Deed of Accession), the Current Issuer Trust Deed, the
Notes, the Current Issuer Paying Agent and Agent Bank Agreement, the
Current Issuer Cash Management Agreement, the Current Issuer
Corporate Services Agreement, the Current Issuer Bank Account
Agreement, the Post-Enforcement Call Option Agreement, this
Agreement, the Subscription Agreement and any other of the Legal
Agreements to which the Current Issuer is a party; (ii) an
assignment by way of first fixed charge over the Current Issuer
Transaction Accounts; (iii) a first fixed
16
charge (which may take effect as a floating charge) over the Current
Issuer's right, title, interest and benefit to any Authorised
Investments made with moneys standing to the credit of any of the
Current Issuer Bank Accounts; and (iv) a first ranking floating
charge over the whole of the assets and undertaking of the Current
Issuer which are not otherwise effectively subject to any fixed
charge or assignment by way of security;
(s) Capitalisation
The authorised capital of the Current Issuer is as set out in the
Prospectus;
(t) Investment Company Act
The Current Issuer is not an "investment company" as defined in the
U.S. Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the offer and sale of the Notes in the United
States will not subject the Current Issuer to registration under, or
result in a violation of, the Investment Company Act;
(u) United States Income Tax
The Issuer will not engage in any activities in the United States
(directly or through agents), derive any income from United States
sources as determined under the U.S. Internal Revenue Code of 1986,
as amended (the "Code"), or hold any property if doing so would
cause it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under the Code; and
(v) Legal Agreements
The representations and warranties given by the Current Issuer in
the Legal Agreements are true and accurate, and the description of
the Legal Agreements as set out in the Prospectus is materially
complete and accurate.
Unless otherwise indicated, the representations and warranties set
out in this Clause 5 shall be made on the date of the Prospectus
and, if different, the date of this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF FUNDING AND THE MORTGAGES TRUSTEE
Each of Funding and the Mortgages Trustee severally represents and
warrants (in respect of itself only) to, and agrees with each other, the
Underwriters, the Current Issuer, NRPLC and each of them that:
(a) The Registration Statement
Together with the Current Issuer they have prepared and filed with
the Commission the Registration Statement, including a related
preliminary prospectus dated 31st August, 2004, for registration
under the Securities Act of the offering and sale of the Dollar
Notes. They may have filed one or more amendments thereto, including
a related preliminary prospectus, each of which has previously been
furnished to the Underwriters. They will next file with the
Commission one of the following either (1) prior to the Effective
Date of such Registration Statement, a further amendment to such
Registration Statement, including the form of final prospectus or
(2) after the Effective Date of such Registration Statement, a final
prospectus in accordance with
17
Rules 430A and 424(b). In the case of clause (2), they have included
in such Registration Statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the
Securities Act and the rules thereunder to be included in such
Registration Statement and the Prospectus. As filed, such amendment
and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such
required information, and, except to the extent that the Lead
Underwriters shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to the Underwriters
prior to the date of this Agreement, or, to the extent not completed
at the date of this Agreement, shall contain only specific
additional information and other changes (beyond that contained in
the latest preliminary prospectus) as they have advised the Lead
Underwriters, prior to the date of this Agreement, will be included
or made therein;
(b) No Material Misstatements or Omissions
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Securities Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the date of this Agreement, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date the
Current Issuer Trust Deed did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act
and the rules thereunder; and on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that neither Funding nor the Mortgages Trustee
makes any representations or warranties as to the information
contained in or omitted from the Registration Statement, or the
Prospectus (or any statement thereto) in reliance upon and in
conformity with information furnished in writing to them by or on
behalf of any Underwriter through the Lead Underwriters specifically
for inclusion in the Registration Statement or the Prospectus (or
any supplement thereto), which information is described in Clause
13.2;
(c) Incorporation, Capacity and Authorisation
Each is duly incorporated and validly existing under the laws of
Jersey, Channel Islands and Funding has lawfully constituted a
branch office in Great Britain in accordance with Ch. I of Part
XXIII of the Companies Act of 1985, as amended, with full power and
authority to conduct its business as described in the Prospectus, is
lawfully qualified to do business in Jersey and has full power and
capacity to execute this Agreement and the Legal Agreements to which
each is respectively a party, and to undertake and perform the
obligations expressed to be assumed by each herein and therein; and
each has taken all necessary action to approve and authorise the
same. Neither Funding nor the Mortgages Trustee has taken any
corporate action nor (to the best of its knowledge and belief) have
any other steps been taken or legal proceedings been started or
threatened against it for its winding-up, dissolution or
reorganisation
18
or for the appointment of a receiver, administrator, administrative
receiver or similar officer of it or of any or all of its assets or
revenues;
(d) Validity of Legal Agreements
This Agreement has been duly authorised, executed and delivered by
each of Funding and the Mortgages Trustee and constitutes, and the
other Legal Agreements to which each of Funding and/or the Mortgages
Trustee is a party have been duly authorised by, as applicable,
Funding and the Mortgages Trustee and on the Closing Date will
constitute, valid and legally binding obligations of each of Funding
and the Mortgages Trustee;
(e) Consents
All consents, approvals, authorisations and other orders of all
United States, Jersey, Channel Islands and United Kingdom regulatory
authorities required in connection with the execution of and
performance by, Funding and/or the Mortgages Trustee, of the
transactions contemplated by the Legal Agreements to which Funding
and/or the Mortgages Trustee, as the case may be, is a party or the
compliance by each of them with the terms of the Legal Agreements
are, or will on the Closing Date be, in full force and effect;
(f) Compliance
The authorisation of the terms and conditions of this Agreement, the
execution and delivery of the Legal Agreements to which Funding
and/or, as the case may be, the Mortgages Trustee is party and the
implementation of the transactions contemplated by such Legal
Agreements and compliance with the terms of the Legal Agreements do
not, and will not, (i) conflict with, or result in a breach of, any
of the terms or provisions of, or constitute a default under, the
Memorandum and Articles of Association of Funding or the Mortgages
Trustee or any agreement or instrument to which Funding or the
Mortgages Trustee is a party or by which its properties is bound;
(ii) infringe any applicable law, rule, regulation, judgment, order
or decree of any government, governmental body or court, having
jurisdiction over either Funding or the Mortgages Trustee or any of
its properties; or (iii) result in the creation or imposition of any
mortgage, charge, pledge, lien or other security interest on any of
its or their properties, other than those created in, or imposed by,
the Legal Agreements themselves;
(g) Breach of other agreements
Neither Funding nor the Mortgages Trustee is in breach of or in
default under any agreement to which it is a party or which is
binding on it or any of its assets or revenues;
(h) Events of Default
No event has occurred or circumstance arisen which, had the
Intercompany Loan Agreement been entered into, would (whether or not
with the giving of notice and/or the passage of time and/or the
fulfilment of any other requirement) constitute an Event of Default
as set out in the Intercompany Loan Agreement;
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(i) No Subsidiaries
The Mortgages Trustee does not have any subsidiaries or subsidiary
undertakings within the meanings of Sections 258 and 736 of the
Companies ▇▇▇ ▇▇▇▇. Funding does not have any subsidiaries or
subsidiary undertakings within the meanings of Sections 258 and 736
of the Companies ▇▇▇ ▇▇▇▇ save for the Previous Issuers and the
Current Issuer;
(j) No Activities
Neither Funding nor the Mortgages Trustee has engaged in any
activities since its incorporation other than (i) those incidental
to any registration as private limited companies under the laws of
Jersey and (if any) various changes to its directors, secretary,
registered office, Memorandum and Articles of Association; (ii) the
authorisation, execution and in certain cases, amendment, of the
Legal Agreements to which each is a party; (iii) the activities
referred to or contemplated in the Legal Agreements or in the
Prospectus; (iv) the activities undertaken in connection with the
establishment of the Mortgages Trust pursuant to the Mortgages Trust
Deed and the establishment of a branch in the United Kingdom; (v)
the filing of a notification by the Mortgages Trustee and Funding
under the Data Protection Act 1998 (the "DPA") and the application
for a standard licence under the Consumer Credit ▇▇▇ ▇▇▇▇; and (vi)
any activities in connection with or incidental to the issue of
Previous Notes by the Previous Issuers and the issue of the Notes by
the Current Issuer. The first statutory accounts of Funding were
prepared and drawn up from the date of incorporation to 31 December,
2001. The Mortgages Trustee has not (other than as set out in the
Prospectus) prepared any accounts. Neither Funding nor the Mortgages
Trustee has paid any dividends nor made any distributions since
their respective dates of incorporation;
(k) Beneficial Owner
As of 23rd August, 2004, following (i) the completion of the
assignment of the Additional Assigned Mortgage Portfolio to the
Mortgages Trustee pursuant to or in accordance with the Mortgage
Sale Agreement and (ii) the declaration of trust over the Additional
Assigned Mortgage Portfolio by the Mortgages Trustee pursuant to and
in accordance with the terms of the Mortgages Trust Deed, the
Mortgages Trustee has held the Additional Assigned Mortgage
Portfolio, and has held and will continue to hold, the Mortgage
Portfolio on a bare trust for the benefit of Funding and NRPLC in
undivided shares absolutely;
(l) Litigation
There are no pending actions, suits or proceedings against or
affecting Funding or the Mortgages Trustee which could individually
or in the aggregate have an adverse effect on the condition
(financial or otherwise), prospects, results of operations or
general affairs of the Mortgages Trustee or Funding (as the case may
be) or could adversely affect the ability of the Mortgages Trustee
or Funding (as the case may be) to perform their respective
obligations under the Legal Agreements, or which are otherwise
material in the context of the transaction contemplated by the
Prospectus and, to the best of the knowledge of Funding and the
Mortgages Trustee, no such actions, suits or proceedings are
threatened or contemplated;
20
(m) No Prior Security
Save as set out in any of the Legal Agreements there exists no
mortgage, lien, pledge or other charge on or over the assets of
Funding and, other than the Legal Agreements, it has not entered
into any indenture or trust deed;
(n) Security for the Intercompany Loan
Funding's obligations under, inter alia, the Intercompany Loan
Agreement will be secured in the manner provided in the Funding Deed
of Charge and with the benefit of the charges, covenants and other
security provided for therein including, without limitation, (i) a
first fixed charge (which may take effect as a floating charge) over
Funding's share of the Trust Property (as defined in the Mortgages
Trust Deed); (ii) an assignment by way of first fixed security of
all of Funding's right, title, interest and benefit in the Mortgage
Sale Agreement, the Mortgages Trust Deed, the Administration
Agreement, the Intercompany Loan Agreement, each Previous
Intercompany Loan Agreement, each Start-Up Loan Agreement, the
Funding Guaranteed Investment Contract, the Funding Corporate
Services Agreement, the Funding Cash Management Agreement, the Bank
Account Agreement and any other of the Legal Agreements to which
Funding is a party, save to the extent that the same are situated in
Jersey; (iii) an assignment by way of first fixed security over
Funding's right, title, interest and benefit in the Funding Bank
Accounts; (iv) a first fixed charge (which may take effect as a
floating charge) of Funding's right, title, interest and benefit in
all Authorised Investments purchased with moneys standing to the
credit of the Funding Bank Accounts; and (v) a first floating charge
over all the assets and the undertaking of Funding which are not
effectively subject to a fixed charge or assignment by way of
security;
(o) Capitalisation
The authorised capital of each of Funding and the Mortgages Trustee
is as set out in the Prospectus;
(p) Investment Company Act
Neither Funding nor the Mortgages Trustee is an "investment company"
as defined in the Investment Company Act, and the offer and sale of
the Notes in the United States will not subject Funding or the
Mortgages Trustee to registration under, or result in a violation
of, the Investment Company Act;
(q) United States Income Tax
Neither Funding nor the Mortgages Trustee will engage in any
activities in the United States (directly or through agents), derive
any income from United States sources as determined under the Code,
or hold any property if doing so would cause it to be engaged or
deemed to be engaged in a trade or business within the United States
as determined under the Code;
(r) Financial Statements
(i) The auditor's report by PricewaterhouseCoopers LLP, as
independent auditor to Funding, set out in the Prospectus
presents fairly the financial position of Funding as at the
date at which it has been prepared;
21
(ii) since the date of each such report there has been no change
(nor any development or event involving a prospective change of
which Funding is or might reasonably be expected to be aware)
which is materially adverse to the condition (financial or
other), prospects, results of operations or general affairs of
Funding; and
(iii) PricewaterhouseCoopers LLP are independent public accountants
with respect to Funding within the meaning of the standards
established by the American Institute of Certified Public
Accountants; and
(s) Legal Agreements
The representations and warranties given by Funding and the
Mortgages Trustee in the Legal Agreements are true and accurate, and
the description of the Legal Agreements as set out in the Prospectus
is materially complete and accurate.
Unless otherwise indicated, the representations and warranties set out in this
Clause 6 shall be made on the date of the Prospectus and, if different, the
date of this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF NRPLC
NRPLC represents and warrants to, and agrees with, the Current Issuer,
Funding, the Mortgages Trustee, the Underwriters and each of them that:
(a) Incorporation
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
authority to conduct its business as described in the Prospectus, to
execute this Agreement and the Legal Agreements to which it is a
party and to undertake and perform the obligations expressed to be
assumed by it herein and therein and has taken all necessary action
to approve and authorise the same and is lawfully qualified to do
business in England and Wales; and NRPLC has not taken any corporate
action nor (to the best of its knowledge and belief) have any other
steps been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution or reorganisation or for
the appointment of a receiver, administrator, administrative
receiver or similar officer of it or of any or all of its assets or
revenues; and it is not in liquidation;
(b) Validity of Legal Agreements
This Agreement has been duly authorised, executed and delivered by
NRPLC and constitutes, and the other Legal Agreements to which NRPLC
is a party will be duly authorised by NRPLC prior to the Closing
Date and on the Closing Date will constitute, valid and legally
binding obligations of NRPLC;
(c) Related Security
NRPLC has not received notice of, and no solicitor employed in the
NRPLC Solicitors' Department is actually aware of, any material
litigation or claim, of any pending material litigation or claim,
calling into question NRPLC's title to any Related Security or the
value of any security therefor or its right to assign any such
Related Security to the Mortgages Trustee;
22
(d) Consents
All consents, approvals and authorisations of all United Kingdom
regulatory authorities required on the part of NRPLC for or in
connection with the execution and performance of the transactions
contemplated by the Legal Agreements to which NRPLC is a party have
been, or will be prior to the Closing Date be, obtained and are, or
will prior to the Closing Date be, in full force and effect
including, without limiting the generality of the foregoing, NRPLC
having received a standard licence under the Consumer Credit ▇▇▇
▇▇▇▇ and NRPLC being registered under the DPA;
(e) Compliance
The sale on 23rd August, 2004, of the Additional Assigned Mortgage
Portfolio and the related property and rights did not and will not,
and the execution and delivery of the Legal Agreements to which
NRPLC is a party, the implementation of the transactions
contemplated by such Legal Agreements and compliance with the terms
of such Legal Agreements do not and will not (i) conflict with, or
result in a breach of, any of the terms or provisions of, or
constitute a default under, the Memorandum and Articles of
Association of NRPLC, or any agreement or instrument to which NRPLC
is a party or by which it or any of its properties is bound, where
such breach or default might have a material adverse effect in the
context of the issue of the Notes; or (ii) infringe any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental body or court having jurisdiction over
NRPLC or any of its properties; or (iii) result in the creation or
imposition of any mortgage, charge, pledge, lien or other security
interest on any of its properties, other than those created in, or
imposed by, the Legal Agreements themselves;
(f) No Material Misstatements or Omissions
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Securities Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the date of this Agreement, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and the Closing Date the
Current Issuer Trust Deed did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act
and the rules thereunder; and on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that NRPLC makes no representations or warranties
as to the information contained in or omitted from the Registration
Statement, or the Prospectus (or any statement thereto) in reliance
upon and in conformity with information furnished in writing to
NRPLC by or on behalf of any Underwriter through the Lead
Underwriters specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto), which
information is described in Clause 13.2;
(g) Beneficial Owner
23
As of 23rd August, 2004, following (i) the completion of the
assignment of the Additional Assigned Mortgage Portfolio to the
Mortgages Trustee pursuant to and in accordance with the Mortgage
Sale Agreement and (ii) the declaration of trust over the Additional
Assigned Mortgage Portfolio by the Mortgages Trustee pursuant to and
in accordance with the terms of the Mortgages Trust Deed, the
Mortgages Trustee has held the Additional Assigned Mortgage
Portfolio and has held and will continue to hold the Mortgage
Portfolio on a bare trust for the benefit of Funding and NRPLC in
undivided shares absolutely;
(h) Litigation
It is not a party to, and no solicitor in NRPLC's Solicitors'
Department is actually aware of, any actions, suits or proceedings
in relation to claims or amounts which could, if determined
adversely to NRPLC, materially adversely affect NRPLC's ability to
perform its obligations under the Legal Agreements; and
(i) Mortgage Sale Agreement and Mortgages Trust Deed
The representations and warranties given by NRPLC in the Mortgage
Sale Agreement are true and accurate in all material respects as
when stated to be made and the representations and warranties given
by NRPLC in the Mortgages Trust Deed are true and accurate in all
material respects as when stated to be made.
Unless otherwise indicated, the representations and warranties set out in this
Clause 7 shall be made on the date of the Prospectus and, if different, the
date of this Agreement.
8. COVENANTS OF THE CURRENT ISSUER, FUNDING, THE MORTGAGES TRUSTEE AND NRPLC
8.1 The Current Issuer and, where expressly provided, Funding, the Mortgages
Trustee and NRPLC severally covenants to, and agrees each for itself
with, the Underwriters and each of them that:
(a) The Registration Statement
The Current Issuer, Funding, the Mortgages Trustee and NRPLC will
use their best efforts to cause the Registration Statement, if not
effective at the date of this Agreement, and any amendment thereof,
to become effective. Prior to the termination of the offering of the
Notes, none of the Current Issuer, Funding, the Mortgages Trustee or
NRPLC will file any amendment of the Registration Statement or
supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Current Issuer, Funding, the Mortgages Trustee
and NRPLC have furnished the Lead Underwriters with copies for their
review prior to filing and none of them will file any such proposed
amendment or supplement to which the Lead Underwriters reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Prospectus is otherwise required under Rule 424(b),
the Current Issuer, Funding, the Mortgages Trustee and NRPLC will
cause the Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Lead Underwriters of such timely
filing. The Current Issuer, Funding, the Mortgages Trustee and NRPLC
will promptly advise the Lead Underwriters:
24
(i) when the Registration Statement, if not effective at the date
of this Agreement, shall have become effective;
(ii) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission; and
(iii) when, prior to termination of the offering of the Notes, any
amendment to the Registration Statement shall have been filed
or become effective;
(b) Signed Prospectus
The Current Issuer will deliver to the Underwriters, without charge,
on the date of this Agreement, such number of copies of the
Prospectus as the Underwriters may reasonably request, and the
Current Issuer will furnish to the Lead Underwriters on the date of
this Agreement four copies of the Prospectus signed by a duly
authorised director of the Current Issuer. The Current Issuer will
also promptly furnish each Underwriter (to the extent not already
furnished) and its counsel one conformed copy of the Registration
Statement as originally filed and each amendment or supplement
thereto including all consents and exhibits filed therewith;
(c) Notify Material Omission
If at any time prior to the earlier of (i) completion (in the
reasonable view of the Lead Underwriters) of the distribution of the
Notes and (ii) three months after the Closing Date, any event shall
have occurred as a result of which the Registration Statement or
Prospectus, as then amended or supplemented, would include a
statement of fact which is not true and accurate in all material
respects or omit any fact the omission of which would make
misleading in any material respect any statement therein whether of
fact or opinion, or if for any other reason it shall be necessary to
amend or supplement the Registration Statement or Prospectus, then:
(i) the Current Issuer will promptly notify the Underwriters; (ii)
the Current Issuer shall promptly prepare and timely file with the
Commission any amendment or supplement to the Registration Statement
or any Prospectus that may, in the reasonable judgement of the
Current Issuer or the Underwriters, be required by the Securities
Act or requested by the Commission; (iii) the Current Issuer will,
without charge, supply to the Underwriters as many copies as the
Lead Underwriters may reasonably request of an amended Prospectus or
a supplement to the Prospectus which will correct such statement or
omission; and (iv) the provisions of Clauses 5(a), 5(b), 5(c), 5(h),
5(o), 5(s), 6(a), 6(b), 6(c), 6(o), 6(r), 7(a) and 7(f) shall be
deemed to be repeated by, as applicable, the Current Issuer,
Funding, the Mortgages Trustee and NRPLC as of the date of each such
amended Prospectus or supplement to the Prospectus on the basis that
each reference to "Prospectus" in such provisions of Clauses 5, 6
and 7 shall be deemed to be a reference to the Prospectus as amended
or supplemented as at such date;
(d) Notify Change
Without prejudice to its obligations under Clause 8.1(c), the
Current Issuer will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time prior to
payment of the gross underwriting proceeds for the Notes being made
to the Current Issuer on the Closing Date and will take such steps
as may be reasonably requested by the Lead Underwriters to remedy
and/or publicise the same;
25
(e) Official Announcements
Between the date of this Agreement and the Closing Date (both dates
inclusive) none of NRPLC, the Current Issuer, Funding or the
Mortgages Trustee will, without the prior approval of the Lead
Underwriters on behalf of the Underwriters (such approval not to be
unreasonably withheld or delayed), make any official announcement
which would have an adverse effect on the marketability of the
Notes;
(f) Stamp Duty
(i) The Current Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties that it is required to pay under any obligation in
the Legal Agreements to which it is a party payable in the
United Kingdom, Belgium, Luxembourg or the United States,
including interest and penalties, in connection with the
creation, issue, distribution and offering of the Notes, or in
connection with the execution, delivery or enforcement of any
of the Legal Agreements to which it is a party together with
any value added, turnover or similar tax payable in respect of
that amount (and references in this Agreement to such amount
shall be deemed to include any such taxes so payable in
addition to it);
(ii) Funding will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and duties that
it is required to pay under any obligation in the Legal
Agreements to which it is a party payable in the United
Kingdom, Jersey, Channel Islands or the United States,
including interest and penalties, or in connection with the
execution, delivery or enforcement of any of the Legal
Agreements to which it is a party (other than in respect of the
execution, delivery or enforcement of the Mortgages Trust Deed
and any Legal Agreement to which the Current Issuer is a party)
together with any value added, turnover or similar tax payable
in respect of that amount (and references in this Agreement to
such amount shall be deemed to include any such taxes so
payable in addition to it); and
(iii) The Mortgages Trustee will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties that it is required to pay under any obligation in
the Legal Agreements to which it is a party payable in the
United Kingdom, Jersey, Channel Islands or the United States,
including interest and penalties, or in connection with the
execution, delivery or enforcement of the Mortgages Trust Deed
(including any amendment thereto) and the Mortgage Sale
Agreement (including any amendment thereto) (together with any
value added, turnover or similar tax payable in respect of that
amount (and references in this Agreement to such amount shall
be deemed to include any such taxes so payable in addition to
it)) but will be promptly reimbursed an amount equal to any
such payments by the Beneficiaries in accordance with the terms
of the Mortgages Trust Deed;
(g) United States Income Tax
The Current Issuer will not engage in any activities in the United
States (directly or through agents), will not derive any income from
United States sources as determined under the Code and will not hold
any property if doing so would cause it to be engaged or deemed to
be engaged in a trade or business within the United States as
determined under the Code;
26
(h) Payment of Fees, Charges, Costs and Duties
(i) Without prejudice to the generality of Clause 12.1, the Current
Issuer will pay all and any fees, charges, costs and duties and
any stamp and other similar taxes or duties that it is required
to pay under the Legal Agreements to which it is a party,
including interest and penalties, arising from or in connection
with the creation of the security for the Notes and the
obligations of the Current Issuer under the Current Issuer
Trust Deed and for the other amounts to be secured as
contemplated by the Current Issuer Deed of Charge, and the
perfection of such security at any time;
(ii) Without prejudice to the generality of Clause 12.1, Funding
will pay all and any fees, charges, costs and duties and any
stamp and other similar taxes or duties that it is required to
pay under the Legal Agreements to which it is a party,
including interest and penalties, arising from or in connection
with the creation of the security for the Intercompany Loan and
for the other amounts to be secured as contemplated by the
Funding Deed of Charge the Deeds of Accession and the Current
Deed of Accession and the perfection of such security at any
time; and
(iii) Without prejudice to the generality of Clause 12.1, the
Mortgages Trustee will pay all and any fees, charges, costs and
duties and any stamp and other similar taxes or duties that it
is required to pay under the Legal Agreements to which it is a
party, including interest and penalties, arising from or in
connection with the purchase of the Related Security (and
related property and rights) excluding H.M. Land Registry fees
(it being agreed that registration or recording at H.M. Land
Registry of the transfer of the Related Security to the
Mortgages Trustee will not be applied for except in the
circumstances specified in the Administration Agreement); but
on the basis that the Mortgages Trustee will be reimbursed such
fees, charges, costs and duties and any stamp and other similar
taxes or duties (including interest and penalties) by the
Beneficiaries pursuant to the terms of the Mortgages Trust
Deed;
(i) Perform All Required Actions
On or prior to the Closing Date each of NRPLC, the Current Issuer,
Funding and the Mortgages Trustee will do all things reasonably
within each of their respective powers and required of each of them
on such date under the terms of the Legal Agreements to which each
is a party;
(j) Review of Related Security
NRPLC will deliver to the Lead Underwriters on or around the date of
this Agreement a letter addressed to the Underwriters or their
affiliates (relating to the review by PricewaterhouseCoopers LLP of
the Related Security and referred to in the Signing and Closing
Memorandum as the Auditors' pool audit report letter) dated on or
around the date of this Agreement in the agreed form addressed to
NRPLC and the Underwriters from PricewaterhouseCoopers LLP;
27
(k) Conditions Precedent
The Current Issuer will use all reasonable endeavours to procure
satisfaction on or before the Closing Date of the conditions
referred to in Clause 9 of this Agreement;
(l) Current Issuer Cash Management Agreement
The Current Issuer will use all reasonable endeavours to procure
that NRPLC complies with its obligations under the Current Issuer
Cash Management Agreement;
(m) Administration Agreement
Funding and the Mortgages Trustee will use all reasonable endeavours
to procure that NRPLC complies with its obligations under the
Administration Agreement;
(n) Charges and Security Interests
(i) The Current Issuer will procure that each of the charges and
other security interests created by or contained in the Current
Issuer Deed of Charge is registered within all applicable time
limits in all appropriate registers; and
(ii) Funding will procure that each of the charges and other
security interests created by or contained in the Funding Deed
of Charge, the Deeds of Accession and the Current Deed of
Accession is registered within all applicable time limits in
all appropriate registers;
(o) Ratings
None of NRPLC, the Current Issuer, Funding or the Mortgages Trustee
will take, or cause to be taken, any action and none of them will
permit any action to be taken which it knows or has reason to
believe would result in the Notes not being assigned an AAA rating
for the Series 1 Class A1 Notes, an AAA rating for the Series 1
Class A3 Notes, an AAA rating for the Series 2 Class A1 Notes, an AA
rating for the Series 1 Class B Notes, an A rating for the Series 1
Class M Notes and a BBB rating for the Series 1 Class C Notes by
Fitch Ratings Ltd. ("Fitch Ratings"), an Aaa rating for the Series 1
Class A1 Notes, an Aaa rating for the Series 1 Class A3 Notes, an
Aaa rating for the Series 2 Class A1 Notes, an Aa3 rating for the
Series 1 Class B Notes, an A2 rating for the Series 1 Class M Notes
and a Baa2 rating for the Series 1 Class C Notes by ▇▇▇▇▇'▇
Investors Services Limited ("Moody's") and an AAA rating for the
Series 1 Class A1 Notes, an AAA rating for the Series 1 Class A3
Notes, an AAA rating for the Series 2 Class A1 Notes, an AA rating
for the Series 1 Class B Notes, an A rating for the Series 1 Class M
Notes and a BBB rating for the Series 1 Class C Notes by Standard &
Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. ("Standard & Poor's");
(p) Legal Agreements
Prior to closing on the Closing Date none of NRPLC, the Current
Issuer, Funding or the Mortgages Trustee will amend the terms of the
executed Legal Agreements, nor execute any of the other Legal
Agreements other than in the agreed form, without the consent of the
Lead Underwriters (such consent not to be unreasonably withheld or
delayed);
28
(q) Commission Filings
The Current Issuer, Funding and the Mortgages Trustee will file, in
a timely manner, with the Commission during any period during which
a prospectus relating to the Notes is required to be delivered under
the Securities Act until three months after the Closing Date (the
"Marketing Period"), all documents (and any amendments to previously
filed documents) required to be filed by them pursuant to Sections
13(a), 13(c) or 15(d) of the Exchange Act, provided that none of the
Current Issuer, Funding or the Mortgages Trustee will file any such
document or amendment unless the Current Issuer, Funding and the
Mortgages Trustee have furnished the Lead Underwriters with copies
for their review prior to filing and none of them will file any such
proposed document or amendment until the Underwriters have been
consulted and given a reasonable opportunity to comment on such
document or amendment;
(r) Copies of Filings and Commission
Prior to filing with the Commission during the Marketing Period, if
there is (i) any amendment or supplement to the Registration
Statement, (ii) any amendment or supplement to any Prospectus, or
(iii) any material document filed by the Current Issuer, Funding or
the Mortgages Trustee with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act including but not
limited to (A) any interim or any report submitted to the Commission
on Form 6-K ("Form 6-K") or Form 20-F ("Form 20-F") under the
Exchange Act and the rules and regulations thereunder or (B) any
amendment of or supplement to any such document, the Current Issuer,
Funding and the Mortgages Trustee, as the case may be, will furnish
a copy thereof to each Underwriter, and counsel to the Underwriters;
(s) Notice to Underwriters of Certain Events
During the Marketing Period, the Current Issuer will advise the
Underwriters immediately (i) when any post-effective amendment to
the Registration Statement becomes effective, (ii) of any request or
proposed request by the Commission, whether written or oral, for an
amendment or supplement to the Registration Statement, to any Rule
462(b) Registration Statement, to any Prospectus or to any material
document filed by the Current Issuer, Funding or the Mortgages
Trustee with or submitted to the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act and the rules and
regulations thereunder or for any additional information and the
Current Issuer, Funding and the Mortgages Trustee will afford the
Underwriters a reasonable opportunity to comment on any such
proposed amendment or supplement, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any part thereof or any order directed to
the Prospectus or any document incorporated therein by reference or
the initiation or threat of any stop order proceeding or of any
challenge to the accuracy or adequacy of any document incorporated
by reference in the Prospectus, (iv) of receipt by NRPLC or the
Current Issuer of any notification with respect to the suspension of
the qualification of the Notes for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose and (v) of
any downgrading in the rating of the Notes or any debt securities of
NRPLC or the Current Issuer by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or if any such organisation shall
have informed NRPLC or the Current Issuer or made any public
announcement that any such organisation has under surveillance or
review its rating of any debt securities of
29
NRPLC or the Current Issuer (other than an announcement with
positive implications of a possible upgrading, and no implication of
a possible downgrading of such rating) as soon as such announcement
is made or NRPLC or the Current Issuer is so informed;
(t) Stop Orders
The Current Issuer will use its best efforts to prevent the issuance
of any stop order or the suspension of any qualification referred to
in Clause 8.1(q) above and if, during the Marketing Period, the
Commission shall issue a stop order suspending the effectiveness of
the Registration Statement or such qualification of the Notes for
sale in any jurisdiction is suspended, the Current Issuer will make
every reasonable effort to obtain the lifting of that order or
suspension at the earliest possible time; and
(u) Blue Sky Qualifications
The Current Issuer will co-operate with the Underwriters to qualify
the Dollar Notes for offering and sale under the securities laws of
such jurisdictions of the United States as the Underwriters may
designate, to maintain such qualifications in effect for as long as
may be required for the distribution of the Dollar Notes and to file
such statements and reports as may be required by the laws of each
jurisdiction in which the Dollar Notes have been qualified as above
provided that in connection therewith the Current Issuer shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction or to take any
other action that would subject it to service of process in suits in
any jurisdiction other than those arising out of the offering or
sale of the Dollar Notes in such jurisdiction or to register as a
dealer in securities or to become subject to taxation in any
jurisdiction.
8.2 NRPLC covenants to and agrees with the Underwriters and each of them
that:
(a) Notify Change
NRPLC will notify the Underwriters promptly of any change affecting
any of its representations, warranties, covenants, agreements or
indemnities in this Agreement at any time prior to payment of the
gross underwriting proceeds of the Notes being made to the Current
Issuer on the Closing Date and will take such steps as may be
reasonably requested by the Lead Underwriters to remedy and/or
publicise the same. In the event that the Prospectus is amended or
supplemented pursuant to Clause 8.1(c) above, then the
representations and warranties contained in Clause 7(f) shall be
deemed to be repeated by NRPLC as of the date of such amended
Prospectus or supplement to the Prospectus, on the basis that each
reference to "Prospectus" in Clause 7(f) shall be deemed to be a
reference to the Prospectus as amended or supplemented as at such
date;
(b) Perform All Required Actions
On or prior to the Closing Date, NRPLC will do all things reasonably
within its power and required of it on such date under the terms of
the Legal Agreements to which it is a party;
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(c) Ratings
NRPLC will not take, or cause to be taken, any action and will not
permit any action to be taken which it knows or has reason to
believe would result in the Current Issuer not being assigned an AAA
rating for the Series 1 Class A1 Notes, an AAA rating for the Series
1 Class A3 Notes, an AAA rating for the Series 2 Class A1 Notes, an
AA rating for the Series 1 Class B Notes, an A rating for the Series
1 Class M Notes and a BBB rating for the Series 1 Class C Notes by
Fitch Ratings, an Aaa rating for the Series 1 Class A1 Notes, an Aaa
rating for the Series 1 Class A3 Notes, an Aaa rating for the Series
2 Class A1 Notes, an Aa3 rating for the Series 1 Class B Notes, an
A2 rating for the Series 1 Class M Notes and a Baa2 rating for the
Series 1 Class C Notes by Moody's, and an AAA rating for the Series
1 Class A1 Notes, an AAA rating for the Series 1 Class A3 Notes, an
AAA rating for the Series 2 Class A1 Notes, an AA rating for the
Series 1 Class B Notes, an A rating for the Series 1 Class M Notes
and a BBB rating for the Series 1 Class C Notes by Standard &
Poor's; and
(d) Legal Agreements
Prior to closing on the Closing Date NRPLC will not amend the terms
of any of the already executed Legal Agreements, nor execute any of
the other Legal Agreements other than in the agreed form, without
the consent of the Lead Underwriters (such consent not to be
unreasonably withheld or delayed).
9. CONDITIONS PRECEDENT
9.1 The obligation of the Underwriters under this Agreement to subscribe for
the Dollar Notes is subject to the following conditions precedent:
(a) The Registration Statement
(i) If the Registration Statement has not become effective prior to
the date of this Agreement, unless the Lead Underwriters agree
in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 p.m. New York City
time on the date of determination of the public offering price,
if such determination occurred at or prior to 3:00 pm New York
City time on such date or (ii) 9:30 a.m. New York City time on
the next business day in New York following the day on which
the public offering price was determined, if such determination
occurred after 3:00 p.m. New York City time on such date;
(ii) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed in the manner and within the time
period required by Rule 424(b); and
(iii) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened;
(b) Execution of Legal Agreements and the Global Notes
The execution and delivery by all parties thereto of the Legal
Agreements and the Global Notes representing each class of the
Dollar Notes on or prior to the Closing Date;
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(c) Admission to Trading
The Dollar Notes having been admitted to the Official List
maintained by UK Listing Authority and the Stock Exchange having
agreed to admission of the Dollar Notes to trading on or about the
Closing Date;
(d) Legal Opinions
On or prior to the Closing Date, there having been delivered to the
Current Issuer, the Underwriters, the Note Trustee and the Security
Trustee copies of opinions and disclosure letters, in form and
substance satisfactory to the Lead Underwriters, the Note Trustee,
the Security Trustee and the Rating Agencies, dated the Closing
Date, of:
(i) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, legal and tax advisers as to
English law and as to US law to NRPLC, the Mortgages Trustee,
Funding and the Current Issuer, addressed to NRPLC, the
Mortgages Trustee, Funding, the Current Issuer, the
Underwriters, the Managers, the Note Trustee and the Security
Trustee;
(ii) Mourant du Feu & Jeune, legal advisers as to Jersey law to
Funding and the Mortgages Trustee, addressed to Funding, the
Mortgages Trustee, the Underwriters, the Managers, the Note
Trustee and the Security Trustee;
(iii) Tods ▇▇▇▇▇▇ ▇▇, legal and tax advisers as to Scots law to
NRPLC, the Mortgages Trustee, Funding and the Current Issuer,
addressed to NRPLC, the Mortgages Trustee, Funding, the Current
Issuer, the Underwriters, the Managers, the Note Trustee and
the Security Trustee;
(iv) ▇▇▇▇▇ & ▇▇▇▇▇ LLP, legal advisers as to English law and as to
US law to the Underwriters and the Managers, addressed to the
Underwriters and the Managers;
(v) Dundas & ▇▇▇▇▇▇, legal advisers as to Scots law to the
Underwriters and the Managers, addressed to the Underwriters
and the Managers; and
(vi) Counsel for each of the Currency Rate Swap Providers;
(e) Auditors' Letters
(i) On or around the date of this Agreement, there having been
addressed and delivered to the Underwriters letters, in form
and substance satisfactory to the Lead Underwriters, dated on
or around the date of this Agreement, from
PricewaterhouseCoopers LLP, the independent auditors of the
Current Issuer and Funding; and
(ii) On the Closing Date, there having been addressed and delivered
to the Current Issuer, in form and substance satisfactory to
the Lead Underwriters, a pool report in respect of agreed upon
procedures in connection with the Northern Rock plc mortgage
files (with no material exceptions to the results stated
therein) from PricewaterhouseCoopers LLP;
32
(f) Certified Constitutional Documents
On or prior to the Closing Date, there having been delivered to the
Lead Underwriters on behalf of the Underwriters a copy, certified by
a duly authorised director or the company secretary of, as
applicable, the Current Issuer, Funding and the Mortgages Trustee
of: (i) the Memorandum and Articles of Association of each of the
Current Issuer, Funding and the Mortgages Trustee; (ii) the
resolution of the Board of Directors of each of the Current Issuer,
Funding and the Mortgages Trustee authorising the execution of this
Agreement and the other Legal Agreements and the entry into and
performance of the transactions contemplated thereby; and (iii) in
respect of the Current Issuer, the issue of the Notes and the entry
into and performance of the transactions contemplated thereby;
(g) Accuracy of Representations
At the Closing Date: (i) the representations and warranties of the
Current Issuer, Funding, the Mortgages Trustee and NRPLC in this
Agreement being true, accurate and correct at, and as if made on,
the Closing Date and the Current Issuer, Funding, the Mortgages
Trustee and NRPLC having performed all of their obligations in the
Legal Agreements to be performed on or before the Closing Date; and
(ii) there having been delivered to the Underwriters a certificate
to that effect signed by a duly authorised officer of, as
applicable, the Current Issuer, Funding, the Mortgages Trustee and
NRPLC, dated the Closing Date and confirming that, since the date of
this Agreement, there has been no adverse change, nor any
development involving a prospective adverse change, in or affecting
the operations, properties, financial condition or prospects of the
Current Issuer, Funding, the Mortgages Trustee or NRPLC which is
material in the context of the issue of the Notes;
(h) Circumstances for Termination
On or prior to the Closing Date, in the opinion of the Lead
Underwriters (after consultation with NRPLC, if practicable), none
of the circumstances described in Clause 14.1(c) or 14.1(d) having
arisen;
(i) Ratings
Receipt of notification from Fitch Ratings, Moody's and Standard &
Poor's that the ratings for the Notes described in the Prospectus
have been assigned either without conditions or subject only to the
execution and delivery on or before the Closing Date of the Legal
Agreements and legal opinions in all material respects in the form
in which they shall then have been executed and delivered on or
prior to the Closing Date, there not having been a public
announcement from any of the above rating agencies that such agency
has revised downwards or withdrawn or placed on review or
"creditwatch" with negative implications or with implications of a
possible change that does not indicate the direction of such
possible change (or other similar publication of formal review by
the relevant rating agency) any existing credit rating assigned to
the Notes or the long term debt of NRPLC;
(j) Other Issues
The Reg S Notes having been or being issued and subscribed and paid
for pursuant to the Subscription Agreement prior to or
contemporaneously with the issue, subscription and payment for the
Dollar Notes hereunder;
33
(k) Material Adverse Event
There not having been between the date of this Agreement and the
Closing Date any change or any development or event reasonably
likely to involve a prospective change which would, in the judgment
of the Lead Underwriters, be materially adverse to the financial or
trading condition of the Current Issuer, Funding, the Mortgages
Trustee or NRPLC from that set forth in the Prospectus, or rendering
untrue and incorrect any of the representations and warranties
contained in Clauses 5, 6 and 7 as though the said representations
and warranties had been given on the Closing Date with reference to
the facts and circumstances prevailing at that date nor the failure
of the Current Issuer, Funding, the Mortgages Trustee or NRPLC to
perform each and every covenant to be performed by it pursuant to
the Legal Agreements, the Mortgage Loans and the Related Security on
or prior to the Closing Date;
(l) Solvency Certificates
(i) The Current Issuer having furnished or caused to be furnished
to the Underwriters and the Note Trustee at the Closing Date a
solvency certificate, dated the Closing Date, of a duly
authorised director of the Current Issuer in the agreed form;
(ii) Funding having furnished or caused to be furnished to the
Current Issuer, NRPLC and the Security Trustee a solvency
certificate, dated the Closing Date, of a duly authorised
director of Funding in the agreed form;
(iii) The Mortgages Trustee having furnished or caused to be
furnished to the Underwriters, the Current Issuer, the Security
Trustee and NRPLC a solvency certificate, dated the Closing
Date, of a duly authorised director of the Mortgages Trustee in
the agreed form; and
(iv) NRPLC having furnished or caused to be furnished to the
Underwriters, the Current Issuer, the Security Trustee, Funding
and the Mortgages Trustee a solvency certificate, dated the
Closing Date, of a duly authorised officer or director of NRPLC
in the agreed form; and
(m) Mortgage Sale Agreement
All of the steps required by Clause 4 of the Mortgage Sale Agreement
for the purposes of the purchase of a New Mortgage Portfolio (as
defined therein) by the Mortgages Trustee from NRPLC on 23rd August,
2004 and related rights to be acquired from NRPLC pursuant thereto
having been taken.
9.2 Prior to the Closing Date, there shall be furnished to the Lead
Underwriters such further information, certificates, opinions and
documents as the Lead Underwriters may reasonably request.
9.3 If any of the conditions specified in this Clause 9 have not been
fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be reasonably satisfactory in all
material respects in form and substance to the Lead Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be
cancelled (provided, however, that the liability of the Current Issuer in
relation to expenses as provided under, or under any arrangements
referred to in, Clause 12 and any liability arising before or in relation
to such
34
termination shall not be cancelled) at, or at any time prior to, the
Closing Date by the Lead Underwriters. Notice of such cancellation shall
be given to the Current Issuer in writing or by telephone or facsimile
confirmed in writing.
9.4 The Lead Underwriters, on behalf of the Underwriters, may, in their
discretion, waive compliance with the whole or any part of this Clause 9.
10. CLOSING
10.1 Issue of Dollar Notes
(a) No later than 3:00 p.m. (London time) on the Closing Date, the
Current Issuer will cause the Global Note Certificate for each of
the Series 1 Class A1 Notes, Series 1 Class A3 Notes, Series 1 Class
B Notes, Series 1 Class M Notes, Series 1 Class C Notes and Series 2
Class A1 Notes to be registered in the name of Cede & Co. as nominee
for DTC for credit on the Closing Date to the account of the Lead
Underwriters with DTC or to such other account with DTC as the Lead
Underwriters may direct; and
(b) Deliver the Global Note Certificate for each of the Series 1 Class
A1 Notes, Series 1 Class A3 Notes, Series 1 Class B Notes, Series 1
Class M Notes, Series 1 Class C Notes and Series 2 Class A1 Notes
duly executed on behalf of the Current Issuer and authenticated in
accordance with the Paying Agent and Agent Bank Agreement, to
Citibank N.A., as custodian for DTC.
10.2 Payment
Against delivery of the Dollar Notes (i) the Underwriters will pay to the
Lead Underwriters the gross underwriting proceeds for the Dollar Notes
and (ii) the Lead Underwriters will pay to the Current Issuer or to a
third party, as directed by the Current Issuer, the gross underwriting
proceeds for the Dollar Notes. Payment for the Dollar Notes shall be made
by the Lead Underwriters in Dollars in immediately available funds to the
account of the Current Issuer, account number ▇▇▇▇▇▇▇▇, sort code
18-50-08, or such other accounts as the Current Issuer may direct, and
shall be evidenced by a confirmation from the Lead Underwriters that they
have so made that payment to the Current Issuer.
10.3 Gross Underwriting Proceeds
The Current Issuer undertakes that on the Closing Date it will apply the
gross underwriting proceeds for the Notes forthwith in making a loan to
Funding pursuant to the terms of the Intercompany Loan Agreement. Funding
undertakes that it will apply the proceeds of the Intercompany Loan to
make payment to the Mortgages Trustee or at the Mortgages Trustee's
direction of the purchase price of a portion of Funding's beneficial
share of the Additional Assigned Mortgage Portfolio and related rights
pursuant to the Mortgage Sale Agreement.
11. COMMISSIONS
11.1 In consideration of the obligations undertaken herein by the
Underwriters, the Current Issuer agrees to pay to the Underwriters a
selling commission (the "Selling Commission") of 0.0304 per cent. of the
aggregate principal amount of the Series 1 Class A1 Notes, 0.0405 per
cent. of the aggregate principal amount of the Series 1 Class A3 Notes,
0.1013 per cent. of the aggregate principal amount of the Series 1 Class
B Notes, 0.1406 per cent. of the aggregate principal amount of the Series
1 Class M Notes, 0.1800 per cent. of the aggregate principal amount of
the Series 1 Class C Notes and 0.0720 per cent. of the aggregate
principal amount of the Series 2 Class A1 Notes, respectively, and a
combined management and underwriting
35
commission (the "Management and Underwriting Commission") of 0.0203 per
cent. of the aggregate principal amount of the Series 1 Class A1 Notes,
0.0270 per cent. of the aggregate principal amount of the Series 1 Class
A3 Notes, 0.0675 per cent. of the aggregate principal amount of the
Series 1 Class B Notes, 0.0938 per cent. of the aggregate principal
amount of the Series 1 Class M Notes, 0.1200 per cent. of the aggregate
principal amount of the Series 1 Class C Notes and 0.0480 per cent. of
the aggregate principal amount of the Series 2 Class A1 Notes,
respectively.
11.2 The Current Issuer undertakes and covenants that on the Closing Date it
will pay to the Lead Underwriters on behalf of the Underwriters the
aggregate Selling Commission and aggregate Management and Underwriting
Commission calculated in accordance with Clause 11.1.
12. EXPENSES
12.1 General Expenses
The Current Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Current
Issuer, any amount in respect of value added tax or similar tax payable
in respect thereof against production of a valid tax invoice and (ii) in
respect of taxable supplies made to a person other than the Current
Issuer, any amount in respect of Irrecoverable VAT (for the purposes of
this Agreement "Irrevocable VAT" means any amount in respect of VAT
incurred by a party to the Transaction Documents (for the purposes of
this definition, a "Relevant Party") as part of a payment in respect of
which it is entitled to be indemnified under the relevant Transaction
Documents to the extent that the Relevant Party does not or will not
receive and retain a credit or repayment of such VAT as input tax (as
that expression is defined in section 24(1) of the Value Added Tax Act
1994) for the prescribed accounting period (as that expression is used in
section 25(1) of the Value Added Tax Act 1994) to which such input tax
relates) or similar tax payable in respect thereof against production of
a valid tax invoice): (a) the fees, disbursements and expenses of the
Current Issuer's legal advisers and accountants and all other expenses of
the Current Issuer in connection with the issue (including without
limitation any filing fees payable to the Commission in connection with
the registration of the Dollar Notes under the Securities Act and any
fees payable in connection with the qualification of the Dollar Notes for
offering and sale pursuant to any NASD regulatory provisions or under any
applicable United States state securities, Blue Sky or similar laws) and
listing of the Dollar Notes (including without limitation, any
advertisements required in connection therewith); the preparation and
delivery of each class of the Notes in global form and (if required)
definitive form; the costs of the initial delivery and distribution of
the Notes (including, without limitation, transportation, packaging and
insurance) and the initial fees and expenses of The Depository Trust
Company in relation to the Notes (excluding any such fees and expenses
arising as a result of any transfer of the Notes); the preparation and
printing of the Prospectus (in proof, preliminary and final form) and any
amendments and supplements thereto and the mailing and delivery of copies
of this Agreement to the Underwriters; (b) the cost of printing or
reproducing the Legal Agreements and any other documents prepared in
connection with the offering, issue and initial delivery of the Notes;
(c) the fees and expenses of the Note Trustee and the Security Trustee
(including fees and expenses of legal advisers to the Note Trustee and
the Security Trustee), the US Paying Agent and the Agent Bank in each
case reasonably incurred in connection with the preparation and execution
of the Legal Agreements and any other relevant documents and the issue of
the Notes and compliance with the Conditions of the Notes; (d) the fees
and expenses incurred or payable in connection with obtaining a rating
for the Notes from Fitch Ratings, ▇▇▇▇▇'▇ and Standard & Poor's and
annual fees in connection with such rating or any other rating from such
institution for the Notes; (e) the fees and expenses payable in
connection with obtaining and maintaining the admission to trading of
36
the Notes on the Stock Exchange; (f) reasonable out-of-pocket expenses
(excluding legal expenses) incurred by the Lead Underwriters on behalf of
the Underwriters in connection with the transactions contemplated hereby;
(g) any reasonable roadshow expenses incurred by the Lead Underwriters on
behalf of the Underwriters; and (h) any reasonable amount in respect of
the fees and disbursements of the Underwriters' legal advisers in
relation thereto.
12.2 Reimbursement
The Current Issuer will reimburse the Underwriters for all amounts in
connection with the issue of the Notes which it has agreed to pay
pursuant to Clause 12.1.
12.3 For the avoidance of doubt, references to costs and expenses in this
Agreement shall be deemed to include, in addition, references to any
irrecoverable UK value added tax payable in respect of such costs and
expenses.
13. INDEMNIFICATION
13.1 Current Issuer, Funding, Mortgages Trustee and NRPLC Indemnity
Each of the Current Issuer, Funding, the Mortgages Trustee and NRPLC
jointly and severally agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter (each an
"Indemnified Person") within the meaning of either the Securities Act or
the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject, including without limitation any such losses, claims, damages or
liabilities arising under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Dollar Notes as originally filed or
in any amendment thereof, or in any Registration Statement, any
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or in any data, table, computer record, electronic
record, e-mail or printed information provided by or on behalf of NRPLC
to the Underwriters for inclusion (and to the extent included) in the
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other reasonable expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Current Issuer, Funding, the
Mortgages Trustee and NRPLC will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission or any representation, warranty or covenant
made by NRPLC, the Current Issuer, Funding or the Mortgages Trustee in
this Agreement, or made in the Registration Statement, any preliminary
prospectus or the Prospectus in reliance upon and in conformity with
written information furnished to the Current Issuer, Funding, the
Mortgages Trustee and NRPLC by or on behalf of any Underwriter through
the Lead Underwriters specifically for inclusion therein and provided
further, that as to any preliminary prospectus or the Prospectus, this
indemnity agreement shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) on account of any loss, claim,
damage, liability or action arising from the sale of Notes to any person
by that Underwriter if that Underwriter failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented (for the
purposes of this Clause 13, the "Final Prospectus"), to that person
within the time required by the Securities Act where required by
37
law to do so, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in
such preliminary prospectus or Prospectus was corrected in the Final
Prospectus, unless such failure resulted from non-compliance by the
Current Issuer, Funding, the Mortgages Trustee or NRPLC with Clause
8.1(b) hereof. For purposes of the final proviso to the immediately
preceding sentence, the term Final Prospectus shall not be deemed to
include the documents incorporated therein by reference, and no
Underwriter shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in the Prospectus or
in any Final Prospectus to any person other than a person to whom such
Underwriter has delivered such incorporated documents in response to a
written or oral request therefor. The Current Issuer, Funding, the
Mortgages Trustee and NRPLC further agree to reimburse each Underwriter
and each such controlling person for any legal and other expenses
reasonably incurred by such Underwriter or controlling person in
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action, as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which the
Current Issuer, Funding, the Mortgages Trustee and NRPLC may otherwise
have to any Underwriter or any controlling person of any Underwriter.
No Underwriter or controlling person of any Underwriter shall have any
duty or obligation, whether as fiduciary for any Indemnified Person or
otherwise, to recover any such payment or to account to any other person
for any amounts paid to it under this Clause 13.1.
The foregoing shall be subject to the following:
(a) Any right which at any time either Funding or the Mortgages Trustee
has under the existing or future laws of Jersey whether by virtue of
the droit de discussion or otherwise to require that recourse be had
to the assets of any other person before any claim is enforced
against such person in respect of the obligations hereby assumed by
such person is hereby abandoned and waived.
(b) Each of Funding and the Mortgages Trustee undertakes that if at any
time any person indemnified sues such either of Funding or the
Mortgages Trustee in respect of any such obligations and the person
in respect of whose obligations the indemnity is given is not sued
also, Funding or the Mortgages Trustee as the case may be shall not
claim that such person be made a party to the proceedings and each
agrees to be bound by this indemnity whether or not it is made a
party to legal proceedings for the recovery of the amount due or
owing to the person indemnified, as aforesaid, by the person in
respect of whose obligations the indemnity is given and whether the
formalities required by any law of Jersey whether existing or future
in regard to the rights or obligations of sureties shall or shall
not have been observed.
(c) Any right which either Funding or the Mortgages Trustee may have
under the existing or future laws of Jersey whether by virtue of the
droit de division or otherwise to require that any liability under
this indemnity be divided or apportioned with any other person or
reduced in any manner whatsoever is hereby abandoned and waived.
13.2 Underwriters' Indemnity
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Current Issuer, Funding, the Mortgages Trustee and NRPLC,
each of their directors and each of their officers who signs the
Registration Statement, their employees and each person who controls the
Current Issuer or NRPLC within the meaning of either the Securities Act
or the
38
Exchange Act, to the same extent as the foregoing indemnity from the
Current Issuer to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Current Issuer,
Funding, the Mortgages Trustee or NRPLC by or on behalf of such
Underwriter through the Lead Underwriters specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. For purposes of this Clause 13, the Current Issuer,
Funding, the Mortgages Trustee and NRPLC acknowledge that the statements
set forth under the heading "Underwriting" that specify, (i) the list of
Underwriters and their respective participation in the sale of the Dollar
Notes, (ii) the sentences related to concessions and reallowances and
(iii) the paragraph related to short sales, stabilisation, short covering
transactions and penalty bids in any preliminary prospectus and the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any preliminary
prospectus or the Prospectus.
13.3 Proceedings
Promptly after receipt by an indemnified party under this Clause 13 of
notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Clause 13, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under Clause 13.1 or 13.2 above
unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of
substantial rights and defences and (ii) will not, in any event relieve
the indemnifying party from any obligation to any indemnified party other
than the indemnification obligation provided in Clause 13.1 or 13.2
above. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein, and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defence thereof with counsel
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defence of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Clause 13 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defence thereof other than reasonable costs of investigation; provided
that each Underwriter, the Underwriters as a group, or the Current
Issuer, Funding, the Mortgages Trustee and NRPLC, as the case may be,
shall have the right to employ separate counsel to represent such
Underwriter and its controlling persons, the Underwriters and their
respective controlling persons or the Current Issuer, Funding, the
Mortgages Trustee and NRPLC and their respective controlling persons, as
the case may be, who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by such indemnified parties
under this Clause 13 if in the reasonable judgement of any Underwriter,
the Underwriters acting together, or any of the Current Issuer, Funding,
the Mortgages Trustee and NRPLC, as the case may be, it is advisable for
such indemnified parties to be represented by separate counsel, and in
that event the fees and expenses of such separate counsel (and local
counsel) shall be paid by the indemnifying party. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so
to assume the defence of such action and approval by the indemnified
party of counsel selected by the indemnifying party, the indemnifying
party will not be liable to such indemnified party under this Clause 13
for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defence thereof unless (i) the indemnified
party shall have employed separate counsel in connection with the
assertion of legal defences in accordance with the proviso to the
preceding sentence (it being understood, however that the indemnifying
party shall not be liable for the expenses of more than one such separate
counsel (and local counsel) representing the indemnified parties under
Clause 13.1 or 13.2 hereof), (ii) the indemnifying
39
party has authorised (acting reasonably) the employment of more than one
such separate counsel (and local counsel) representing the employed
counsel satisfactory to the indemnified party to represent the
indemnified party, or (iii) the indemnifying party has authorised the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgement for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by reason of
such settlement or judgement. Notwithstanding the foregoing sentence, if
at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel
as contemplated by this Clause 13, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days
after receipt by such indemnifying party of such request and (ii) such
indemnifying party shall not have either reimbursed the indemnified party
in accordance with such request or objected to such request in writing
prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and in respect of
which indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding.
13.4 Contribution
In the event that the indemnity provided in Clause 13.1 or 13.2 is
unavailable to or insufficient to hold harmless an indemnified party for
any reason, the Current Issuer, NRPLC, Funding, the Mortgages Trustee and
the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Current Issuer, NRPLC, Funding, the
Mortgages Trustee and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Current Issuer, NRPLC, Funding, the Mortgages Trustee and
the Underwriters from the offering of the Dollar Notes. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Current Issuer, NRPLC, Funding, the Mortgages Trustee and the
Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Current Issuer, NRPLC, Funding, the Mortgages
Trustee and the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Current Issuer,
Funding, the Mortgages Trustee and NRPLC shall be deemed to be equal to
the Issue Price (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total Selling Commissions
and the Management and Underwriting Commission, in each case as set forth
in Clause 11.1. Relative fault shall be determined by reference to among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information provided by the Current Issuer, Funding, the
Mortgages Trustee or NRPLC on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The Current Issuer, NRPLC, Funding, the Mortgages Trustee
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable consideration
referred to above. Notwithstanding the provisions of this Clause 13.4, no
person guilty of fraudulent
40
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Clause 13,
each person who controls an Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee
and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Current Issuer,
Funding, the Mortgages Trustee or NRPLC within the meaning of either the
Securities Act or the Exchange Act, each officer of the Current Issuer
who shall have signed the Registration Statement, each employee and each
director of the Current Issuer, Funding, the Mortgages Trustee or NRPLC
shall have the same rights to contribution as the Current Issuer,
Funding, the Mortgages Trustee or NRPLC, as the case may be, subject in
each case to the applicable terms and conditions of this Clause 13.4.
Notwithstanding the foregoing, in no case shall the Underwriter (except
as may be provided in any agreement among Underwriters relating to the
offering of the Notes) be responsible for any amount in excess of the
Selling Commission or Management and Underwriting Commission applicable
to the Notes purchased by such Underwriter hereunder.
14. TERMINATION
14.1 Lead Underwriters' Ability to Terminate
Notwithstanding any other provision of this Agreement, the Lead
Underwriters on behalf of the Underwriters may, by notice to the Current
Issuer given at any time prior to payment of the gross underwriting
proceeds for the Dollar Notes to the Current Issuer, terminate this
Agreement in any of the following circumstances:
(a) if there shall have come to the notice of the Underwriters any
breach of, or any event rendering untrue or incorrect in any
material respect, any of the warranties and representations
contained in Clause 5 or 6 or 7 (or any deemed repetition thereof)
or failure to perform any of the Current Issuer's or NRPLC's
covenants or agreements in this Agreement in any material respect;
or
(b) if any condition specified in Clause 9 has not been satisfied or
waived by the Lead Underwriters on behalf of the Underwriters; or
(c) if in the opinion of the Lead Underwriters, circumstances shall be
such as: (i) to prevent or to a material extent restrict payment for
the Dollar Notes in the manner contemplated in this Agreement or
(ii) to a material extent prevent or restrict settlement of
transactions in the Dollar Notes in the market or otherwise; or
(d) if in the opinion of the Lead Underwriters, there shall have been
(i) any change in national or international political, legal, tax or
regulatory conditions or (ii) any calamity or emergency, which has
in its view caused a substantial deterioration in the price and/or
value of the Dollar Notes; or (e) upon termination of the
Subscription Agreement; or
(f) if (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the London Stock Exchange or
the over-the-counter market shall have been suspended or minimum
prices shall have been established on such exchanges or such market;
(ii) a banking moratorium shall have been declared by US federal or
New York State or UK regulatory authorities; (iii) there shall have
occurred any change or any development involving a prospective
change, in or affecting particularly the business or properties of
the Current Issuer, Funding, the Mortgages
41
Trustee or NRPLC, which in the judgement of the Lead Underwriters
materially impairs the investment quality of the Dollar Notes or
makes it impracticable or inadvisable to market the Dollar Notes or
(iv) if in the judgement of the Lead Underwriters, it otherwise
becomes impracticable or inadvisable to proceed with the offering of
the Dollar Notes.
14.2 Consequences of Termination
Upon such notice being given this Agreement shall terminate and be of no
further effect and no party hereto shall be under any liability to any
other in respect of this Agreement except that (a) the Current Issuer
shall remain liable under Clause 12 for the payment of the costs and
expenses already incurred or incurred in consequence of such termination
and (b) (i) the indemnity agreement and contribution provisions set forth
in Clause 13, (ii) the obligations of the Current Issuer and NRPLC and
(iii) the representations and warranties of the Underwriters made in
Clause 3.2(b) of this Agreement, which would have continued in accordance
with Clause 15 had the arrangements for the underwriting and issue of the
Dollar Notes been completed, shall so continue.
15. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
15.1 The representations, warranties, agreements, undertakings and indemnities
in this Agreement will continue in full force and effect notwithstanding
completion of the arrangements for the subscription and issue of the
Dollar Notes or any investigation made by or on behalf of any Underwriter
or any controlling person or any of its representatives, directors,
officers, agents or employees or any of them.
15.2 Save for their respective responsibilities to comply with the relevant
representations set forth herein, neither the Current Issuer, Funding,
the Mortgages Trustee nor NRPLC shall have any responsibility in respect
of the legality of the Underwriters or other persons offering and selling
the Dollar Notes in any jurisdiction or in respect of the Dollar Notes
qualifying for sale in any jurisdiction.
16. NOTICES
16.1 All communications pursuant to this Agreement will be in writing and will
be delivered at or sent by facsimile transmission to the following
addresses:
(i) if to the Current Issuer,
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: The Company Secretary
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇ ▇▇▇
Attention: Securitisation, Risk Operations
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(ii) if to NRPLC,
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇
Attention: Securitisation, Risk Operations
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(iii) if to the Underwriters,
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: Securitized Products Group
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ - 6801
USA
Attention: Head of Structured Finance
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
and
UBS Limited
Asset Backed Finance Team
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Securitisation Team
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
(iv) if to Funding,
▇▇ ▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: The Company Secretary
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
(v) if to the Mortgages Trustee,
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: The Company Secretary
Facsimile: ▇▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
16.2 Any communication so sent by letter shall take effect at the time of
actual delivery to the addressee, and any communication so sent by
facsimile transmission shall take effect upon acknowledgement of receipt
by the recipient. Any communication to be delivered to any party under
this Agreement which is to be sent by facsimile transmission will be
written legal evidence.
16.3 The Mortgages Trustee agrees that the process by which any proceedings in
England are begun may be secured on it by being delivered to Granite
Finance Trustees Limited c/o Mourant & Co. Capital (SPV) Limited, ▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, or otherwise at the registered office of Mourant &
Co. Capital (SPV) Limited, attn: The Company Secretary. If such person is
not or ceases to be effectively appointed to accept service of process on
the Mortgages Trustee's behalf the Mortgages Trustee shall, on the
written demand of the Lead Underwriters, appoint a further person in
England to accept service of process on its behalf and, failing such
appointment within 15 days, the Lead Underwriters shall be entitled to
appoint such a person by written notice to the Mortgages Trustee. Nothing
in this sub-clause shall affect the right of the Lead Underwriters to
serve process in any other manner permitted by law.
16.4 Funding agrees that the process by which any proceedings in England are
begun may be secured on it by being delivered to Granite Finance Funding
Limited c/o Mourant & Co. Capital (SPV) Limited, ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇, or otherwise at the registered office of Mourant & Co. Capital
(SPV) Limited, attn: The Company Secretary. If such person is not or
ceases to be effectively appointed to accept service of process on
Funding's behalf Funding shall, on the written demand of the Lead
Underwriters, appoint a further person in England to accept service of
process on its behalf and, failing such appointment within 15 days, the
Lead Underwriters shall be entitled to appoint such a person by written
notice to Funding. Nothing in this sub-clause shall affect the right of
the Lead Underwriters to serve process in any other manner permitted by
law.
17. TIME
Time shall be of the essence of this Agreement.
44
18. NON PETITION AND LIMITED RECOURSE
Each of the Underwriters agrees with the Current Issuer, Funding and the
Mortgages Trustee, that it shall not, until the expiry of one year and
one day after the payment of all sums outstanding and owing under the
Notes (in respect of the Current Issuer) and until the expiry of one year
and one day after the payment of all sums outstanding and owing under any
intercompany loan made to Funding by the Current Issuer or any other
company (in respect of the Mortgages Trustee and Funding) take any
corporate action or other steps or legal proceedings for the winding-up,
dissolution, arrangement, reconstruction or re-organisation or for the
appointment of a liquidator, receiver, manager, administrator,
administrative receiver or similar officer of the Current Issuer, the
Mortgages Trustee or Funding or any, or all of, their respective assets
or revenues.
To the extent permitted by law, no recourse under any obligation,
covenant or agreement of any person contained in this Agreement shall be
had against any shareholder, officer or director of the Current Issuer,
Funding or the Mortgages Trustee, by the enforcement of any assessment or
by any legal proceedings, by virtue of any statute or otherwise; it being
expressly agreed and understood that this Agreement is a corporate
obligation of each of the Current Issuer, Funding and the Mortgages
Trustee expressed to be a party hereto and no personal liability shall
attach to or be incurred by the shareholders, officers, agents or
directors of such person as such, or any of them, under or by reason of
any of the obligations, covenants or agreements of the Current Issuer,
Funding or the Mortgages Trustee contained in this Agreement, or implied
therefrom, and that any and all personal liability for breaches by such
person of any such obligations, covenants or agreements, either under any
applicable law or by statute or constitution, of every such shareholder,
officer, agent or director is hereby expressly waived by each person
expressed to be a party hereto as a condition of and consideration for
the execution of this Agreement.
19. GOVERNING LAW AND JURISDICTION
19.1 Governing Law
This Agreement shall be governed by, and shall be construed in accordance
with, the laws of New York.
19.2 Jurisdiction
Each of the parties hereto irrevocably agrees that, except as otherwise
set forth in this paragraph, any state or federal court sitting in the
City of New York shall have exclusive jurisdiction to hear and determine
any suit, action or proceeding and to settle any dispute arising out of
or relating to this Agreement and, for such purposes, irrevocably submits
to the jurisdiction of such courts. Each of the Mortgages Trustee,
Funding, the Current Issuer and NRPLC hereby appoints the CT Corporation
System at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or, if otherwise, its
principal place of business in the City of New York from time to time, as
its agent for service of process and agrees that service of any process,
summons, notice or document by hand delivery or registered mail upon such
agent shall be effective service of process for any suit, action or
proceeding brought in any such court. Each of the Mortgages Trustee,
Funding, the Current Issuer and NRPLC irrevocably and unconditionally
waives any objection to the laying of venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit,
action or proceeding has been brought in an inconvenient forum. Each of
the Mortgages Trustee, Funding, the Current Issuer and NRPLC agrees that
a final judgment in any such suit, action or proceeding brought in any
such court shall be conclusive and binding upon each of the Mortgages
Trustee, Funding, the Current
45
Issuer and NRPLC and may be enforced in any other court to whose
jurisdiction each of the Mortgages Trustee, Funding, the Current Issuer
and NRPLC is or may in the future be subject, by suit upon judgment. Each
of the Mortgages Trustee, Funding, the Current Issuer and NRPLC further
agrees that nothing herein shall affect the Underwriters' right to effect
service of process in any other manner permitted by law or to bring a
suit, action or proceeding (including a proceeding for enforcement of a
judgement) in any other court or jurisdiction in accordance with
applicable law.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually or
by facsimile) all of which, taken together, shall constitute one and the
same agreement and any party may enter into this Agreement by executing a
counterpart.
21. AUTHORITY OF THE LEAD UNDERWRITERS
Any action by the Underwriters hereunder may be taken by Deutsche Bank
Securities Inc.,, ▇▇▇▇▇▇ Brothers Inc. and UBS Limited as representatives
on behalf of the Underwriters, and any such action taken by Deutsche Bank
Securities Inc., ▇▇▇▇▇▇ Brothers Inc. and UBS Limited shall be binding
upon the Underwriters.
46
IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
GRANITE MORTGAGES 04-3 PLC
By:
NORTHERN ROCK PLC
By:
GRANITE FINANCE FUNDING LIMITED
By:
GRANITE FINANCE TRUSTEES LIMITED
By:
DEUTSCHE BANK SECURITIES INC.
By:
UBS LIMITED
By:
▇▇▇▇▇▇ BROTHERS INC.
For itself and on behalf of the several Underwriters
listed in Schedule 1 hereto
By:
SCHEDULE 1
--------------------------------------------------------------------- ---------------------------- -------------------------
Underwriters $981,400,000 of Series 1 $1,248,100,000 of Series 1 $713,700,000 of Series 2
Class A1 Notes Class A3 Notes Class A1 Notes
--------------------------------------------------------------------- ---------------------------- -------------------------
Deutsche Bank Securities Inc. $272,245,007 $363,679,970 $221,060,335
--------------------------------------------------------------------- ---------------------------- -------------------------
▇▇▇▇▇▇ Brothers Inc. $272,245,006 $363,679,970 $221,060,335
--------------------------------------------------------------------- ---------------------------- -------------------------
UBS Limited $272,245,007 $363,679,970 $221,060,335
--------------------------------------------------------------------- ---------------------------- -------------------------
Barclays Capital Inc. $32,932,996 $31,412,018 $10,103,799
--------------------------------------------------------------------- ---------------------------- -------------------------
Citigroup Global Markets Limited $32,932,996 $31,412,018 $10,103,799
--------------------------------------------------------------------- ---------------------------- -------------------------
HSBC Bank plc $32,932,996 $31,412,018 $10,103,799
--------------------------------------------------------------------- ---------------------------- -------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. $32,932,996 $31,412,018 $10,103,799
--------------------------------------------------------------------- ---------------------------- -------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & $32,932,996 $31,412,018 $10,103,799
▇▇▇▇▇ Incorporated
--------------------------------------------------------------------- ---------------------------- -------------------------
Total $981,400,000 $1,248,100,000 $713,700,000
--------------------------------------------------------------------- ---------------------------- -------------------------
------------------------------------------- ------------------------ ------------------------ -----------------------
Underwriters $59,200,000 of Series $31,400,000 of Series $62,700,000 of Series
1 Class B Notes 1 Class M Notes 1 Class C Notes
------------------------------------------- ------------------------ ------------------------ -----------------------
Deutsche Bank Securities Inc. $19,733,333 $10,466,667 $20,900,000
------------------------------------------- ------------------------ ------------------------ -----------------------
▇▇▇▇▇▇ Brothers Inc. $19,733,334 $10,466,666 $20,900,000
------------------------------------------- ------------------------ ------------------------ -----------------------
2
------------------------------------------- ------------------------ ------------------------ -----------------------
UBS Limited $19,733,333 $10,466,667 $20,900,000
------------------------------------------- ------------------------ ------------------------ -----------------------
Total $59,200,000 $31,400,000 $62,700,000
------------------------------------------- ------------------------ ------------------------ -----------------------