DRAFT, 21 NOVEMBER, 2005
Exhibit 1.1
UNDERWRITING AGREEMENT
DATED[*] NOVEMBER, 2005
▇▇▇▇▇▇ FINANCING (NO. 9) PLC
AND
ABBEY NATIONAL PLC
AND
▇▇▇▇▇▇ FUNDING LIMITED
AND
▇▇▇▇▇▇ TRUSTEES LIMITED
AND
DEUTSCHE BANK SECURITIES INC.
AND
▇▇▇▇▇▇ BROTHERS INC.
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
RELATING TO ▇▇▇▇▇▇ FINANCING (NO. 9) PLC
US$ [1,800,000,000] FLOATING RATE SERIES 1 CLASS A NINTH ISSUER NOTES DUE
[DECEMBER 2006]
US$ [2,250,000,000] FLOATING RATE SERIES 2 CLASS A NINTH ISSUER NOTES DUE
[JULY 2013]
▇▇▇▇▇ & ▇▇▇▇▇
London
ICM:21599221
CONTENTS
CLAUSE PAGE
1. Issue of the Ninth Issuer Notes........................................6
2. Stabilisation..........................................................7
3. Agreements by the Underwriters.........................................7
4. Listing...............................................................10
5. Representations and Warranties of the Ninth Issuer....................11
6. Representations and Warranties of Funding and the Mortgages
Trustee...............................................................16
7. Representations and Warranties of Abbey...............................23
8. Covenants of the Ninth Issuer, Funding, the Mortgages
Trustee and Abbey.....................................................23
9. Conditions Precedent..................................................29
10. Closing...............................................................33
11. Commissions...........................................................34
12. Expenses..............................................................34
13. Indemnification.......................................................35
14. Termination...........................................................39
15. Survival of Representations and Obligations...........................40
16. Notices...............................................................40
17. Time..................................................................41
18. Governing Law and Jurisdiction........................................41
19. Counterparts..........................................................42
Signatories..................................................................43
THIS AGREEMENT is made on[*], 2005
BETWEEN:
(1) ▇▇▇▇▇▇ FINANCING (NO. 9) PLC (registered number 5115696), a public
limited company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the NINTH ISSUER);
(2) ABBEY NATIONAL PLC (registered number 2294747), a public limited company
incorporated under the laws of England and Wales, whose registered
office is at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (ABBEY);
(3) ▇▇▇▇▇▇ FUNDING LIMITED (registered number 3982428), a private limited
company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (FUNDING);
(4) ▇▇▇▇▇▇ TRUSTEES LIMITED (registered number 3982431), a private limited
company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 2 Triton Square, Regent's
Place, London NW1 3AN (the MORTGAGES TRUSTEE); and
(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 New York whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED, a
corporation organised under the laws of Delaware whose registered office
is at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (the UNDERWRITERS).
WHEREAS:
(A) The Ninth Issuer, by resolutions of its Board of Directors passed on *,
2005, has duly authorised and has determined to create and issue US$
[1,800,000,000] in principal amount of its Floating Rate Series 1 Class
A Ninth Issuer Notes due [December 2006] (the SERIES 1 CLASS A NINTH
ISSUER NOTES) and US$ [2,250,000,000] in principal amount of its
Floating Rate Series 2 Class A Ninth Issuer Notes due [July 2013] (the
SERIES 2 CLASS A NINTH ISSUER NOTES, together with the Series 1 Class A
Ninth Issuer Notes, the NINTH ISSUER NOTES, which expression where the
context so requires shall include the Global Ninth Issuer Notes defined
below).
(B) The Ninth Issuer Notes will be in registered form in denominations of
US$100,000 thereafter each and increments of US$1,000. The Ninth Issuer
Notes will be issued on *, 2005 at 10:00 a.m. (London time) or at such
other time (not being later than 2:00 p.m. (London time)) or on such
other date (not being later than *, 2005) as the Ninth Issuer and the
Underwriters may agree (the CLOSING DATE). The issue of the Ninth Issuer
Notes is referred to in this Agreement as the ISSUE.
(C) Simultaneously with the Issue, the Ninth Issuer intends to issue
[EURO][*] in principal amount of its Floating Rate Series 3 Class A1
Ninth Issuer Notes due [January 2021], [POUND][*] in principal amount of
its Floating Rate Series 3 Class A2 Ninth Issuer Notes due [January
2021] and [POUND][*] in principal amount of its Floating Rate Series 4
Class A Ninth Issuer Notes due [January 2016] (together, the REG S NINTH
ISSUER NOTES). By a Subscription Agreement of today's
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date (the REG S NINTH ISSUER NOTES SUBSCRIPTION AGREEMENT) between the
Ninth Issuer, Abbey, Funding, the Mortgages Trustee and the respective
managers named therein, such managers have agreed to subscribe and pay
for the Reg S Ninth Issuer Notes upon the terms and subject to the
conditions therein contained.
The Ninth Issuer Notes and the Reg S Ninth Issuer Notes will be
constituted by, issued subject to and have the benefit of a trust deed
(the NINTH ISSUER TRUST DEED) to be entered into on or before the
Closing Date between the Ninth Issuer and The Bank of New York, London
Branch as trustee for the Noteholders (the NOTE TRUSTEE).
(D) The Ninth Issuer Notes and the Reg S Ninth Issuer Notes (together with
the Ninth Issuer's obligations to its other creditors) will be secured
with the benefit of security interests created by a deed of charge and
assignment (the NINTH ISSUER DEED OF CHARGE) to be entered into on or
before the Closing Date by the Ninth Issuer, The Bank of New York, London
Branch (in such capacity, the NINTH ISSUER SECURITY TRUSTEE), the Note
Trustee, JPMorgan Chase Bank, N.A., London Branch (the PRINCIPAL PAYING
AGENT and the AGENT BANK), Abbey in its capacity as cash manager to the
Ninth Issuer under the Ninth Issuer Cash Management Agreement (the NINTH
ISSUER CASH MANAGER) and in its capacity as sterling account bank to the
Ninth Issuer under the Ninth Issuer Bank Account Agreement (the NINTH
ISSUER STERLING ACCOUNT BANK), Citibank N.A., London Branch in its
capacity as the non-sterling account bank to the Ninth Issuer (the NINTH
ISSUER NON-STERLING ACCOUNT BANK), JPMorgan Chase Bank, N.A., New York
Branch (the US PAYING AGENT), ▇.▇. ▇▇▇▇▇▇ Bank Luxembourg S.A. as
registrar in respect of the Ninth Issuer Notes and the Reg S Ninth Issuer
Notes (the REGISTRAR), [*] as swap providers to the Ninth Issuer (the
NINTH ISSUER SWAP PROVIDERS) and SPV Management Limited in its capacity
as corporate services provider to the Issuer under the Ninth Issuer
Corporate Services Agreement (the NINTH ISSUER CORPORATE SERVICES
PROVIDER).
(E) Payments of principal and interest on the Ninth Issuer Notes and the Reg
S Ninth Issuer Notes will be made by the Ninth Issuer to the Principal
Paying Agent and by the Principal Paying Agent to Noteholders on behalf
of the Ninth Issuer under a paying agent and agent bank agreement to be
entered into on or before the Closing Date (the NINTH ISSUER PAYING
AGENT AND AGENT BANK AGREEMENT) between the Ninth Issuer, the Principal
Paying Agent, the Agent Bank, the US Paying Agent, the Registrar, the
Transfer Agent and the Ninth Issuer Security Trustee.
(F) The Ninth Issuer Notes will be payable in US dollars. Each class of the
Ninth Issuer Notes will be represented by a global note (each a GLOBAL
NINTH ISSUER NOTE), without interest coupons, substantially in the form
set out in the Ninth Issuer Trust Deed.
(G) The Ninth Issuer will use an amount equal to the gross proceeds of the
Issue and the gross proceeds of the issue of the Reg S Ninth Issuer Notes
(net of underwriting commissions and various out-of-pocket expenses)
converted under the relevant Ninth Issuer Swap Agreements (as defined
below), to make a loan to Funding pursuant to an intercompany loan
agreement to be entered into on or before the Closing Date (the NINTH
ISSUER INTERCOMPANY LOAN AGREEMENT and the loan made thereunder the NINTH
ISSUER INTERCOMPANY LOAN) between the Ninth Issuer, Funding, the Agent
Bank and JPMorgan Chase Bank, N.A., London Branch (the SECURITY TRUSTEE).
(H) Funding will pay the proceeds of the Ninth Issuer Intercompany Loan to
Abbey in consideration for the assignment by Abbey of a part of Abbey's
interest in a portfolio of first residential mortgage loans (the LOANS)
and an interest in the related insurances and their related security
(together, the RELATED SECURITY).
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(I) Abbey transferred by way of equitable assignment the portfolio of Loans
and their Related Security to the Mortgages Trustee on 26th July, 2000
and on subsequent distribution dates, pursuant to a mortgage sale
agreement entered into on 26th July, 2000, amended on 29th November,
2000 and amended and restated on 23rd May, 2001, 5th July, 2001, 8th
November, 2001, 7th November, 2002, 26th March, 2003 and 1st April, 2004
and to be amended and restated prior to or on the Closing Date (the
MORTGAGE SALE AGREEMENT) between Abbey, the Mortgages Trustee, Funding
and the Security Trustee. In relation to Loans secured over properties
in Scotland, the transfer of the beneficial interest therein to the
Mortgages Trustee has been effected by a declaration of trust entered
into on 8th January, 2003 and further declarations of trust in respect
of further loans sold to the Mortgages Trustee (the SCOTTISH TRUST DEED,
the form of which is incorporated into the Mortgage Sale Agreement),
between Abbey, the Mortgages Trustee and Funding. Each of the Mortgages
Trustee, Funding and the Security Trustee appointed Abbey as servicer to
service the Loans and their Related Security pursuant to a servicing
agreement entered into on 26th July, 2000, as amended and restated on
23rd May, 2001 and 7th November, 2002 (the AMENDED AND RESTATED
SERVICING AGREEMENT).
(J) The Mortgages Trustee holds the Loans and their Related Security on a
bare trust in undivided shares for the benefit of Funding and Abbey
pursuant to a mortgages trust deed entered into on 25th July, 2000,
amended on 29th November, 2000 and 23rd May, 2001, amended and restated
on 5th July, 2001, 8th November, 2001, 7th November, 2002, 26th March,
2003 and 1st April, 2004 and to be amended and restated on or before the
Closing Date (the MORTGAGES TRUST DEED) between Abbey, Funding, the
Mortgages Trustee and SPV Management Limited. The Mortgages Trustee
entered into, on 26th July, 2000, a guaranteed investment contract in
respect of its principal bank account (the MORTGAGES TRUSTEE GUARANTEED
INVESTMENT CONTRACT) between the Mortgages Trustee and Abbey (in such
capacity, the MORTGAGES TRUSTEE GIC PROVIDER).
(K) Funding's obligations to the Ninth Issuer under the Ninth Issuer
Intercompany Loan Agreement and to Funding's other creditors will be
secured with the benefit of security interests created by a deed of
charge and assignment entered into on 26th July, 2000 (the FUNDING DEED
OF CHARGE) between Funding, ▇▇▇▇▇▇ Financing (No. 1) PLC (the FIRST
ISSUER), the Security Trustee, Abbey National Treasury Services plc (in
such capacity, the FUNDING SWAP PROVIDER), Abbey in its capacity as cash
manager to the Mortgages Trustee and Funding (the CASH MANAGER) and in
its capacity as account bank to the Mortgages Trustee and Funding (the
ACCOUNT BANK), Abbey in its capacity as start-up loan provider to
Funding in relation to an issue of notes by the First Issuer (the FIRST
START-UP LOAN PROVIDER) and SPV Management Limited (the CORPORATE
SERVICES PROVIDER), acceded to pursuant to a deed of accession dated
29th November, 2000 (the FIRST DEED OF ACCESSION TO THE FUNDING DEED OF
CHARGE) by ▇▇▇▇▇▇ Financing (No. 2) PLC (the SECOND ISSUER) and by Abbey
in its capacity as start-up loan provider to Funding in relation to an
issue of notes by the Second Issuer (the SECOND START-UP LOAN PROVIDER),
acceded to pursuant to a deed of accession dated 23rd May, 2001 (the
SECOND DEED OF ACCESSION TO THE FUNDING DEED OF CHARGE) by ▇▇▇▇▇▇
Financing (No. 3) PLC (the THIRD ISSUER) and by Abbey in its capacity as
start-up loan provider to Funding in relation to an issue of notes by
the Third Issuer (the THIRD START-UP LOAN PROVIDER), acceded to pursuant
to a deed of accession dated 5th July, 2001 (the THIRD DEED OF ACCESSION
TO THE FUNDING DEED OF CHARGE) by ▇▇▇▇▇▇ Financing (No. 4) PLC (the
FOURTH ISSUER) and by Abbey in its capacity as start-up loan provider to
Funding in relation to an issue of notes by the Fourth Issuer (the
FOURTH START-UP LOAN PROVIDER), acceded to pursuant to a deed of
accession dated 8th November, 2001 (the FOURTH DEED OF ACCESSION TO THE
FUNDING DEED OF CHARGE) by ▇▇▇▇▇▇ Financing (No. 5) PLC (the FIFTH
ISSUER) and by Abbey in its capacity as start-up loan provider to
Funding in relation to an issue of notes by the Fifth Issuer (the FIFTH
START-UP LOAN PROVIDER), amended and
3
restated pursuant to the amendment and restatement of the Funding Deed
of Charge dated 7th November, 2002 (the AMENDED AND RESTATED FUNDING
DEED OF CHARGE) between ▇▇▇▇▇▇ Financing (No. 6) PLC (the SIXTH ISSUER)
and Abbey in its capacity as start-up loan provider to Funding in
relation to an issue of notes by the Sixth Issuer (the SIXTH START-UP
LOAN PROVIDER), acceded to pursuant to a deed of accession dated 26th
March, 2003 (the FIRST DEED OF ACCESSION TO THE AMENDED AND RESTATED
FUNDING DEED OF CHARGE) by ▇▇▇▇▇▇ Financing (No. 7) PLC (the SEVENTH
ISSUER) and by Abbey in its capacity as start-up loan provider to
Funding in relation to an issue of notes by the Seventh Issuer (the
SEVENTH START-UP LOAN PROVIDER) and acceded to pursuant to a deed of
accession dated 1st April, 2004 (the SECOND DEED OF ACCESSION TO THE
AMENDED AND RESTATED FUNDING DEED OF CHARGE) by ▇▇▇▇▇▇ Financing (No. 8)
PLC (the EIGHTH ISSUER) and Abbey in its capacity as start-up loan
provider to Funding in relation to an issue of notes by the Eighth
Issuer (the EIGHTH START-UP LOAN PROVIDER). On or before the Closing
Date, the Ninth Issuer and Abbey will, together with the other secured
creditors of Funding, accede to the Amended and Restated Funding Deed of
Charge pursuant to a deed of accession (the THIRD DEED OF ACCESSION TO
THE AMENDED AND RESTATED FUNDING DEED OF CHARGE) and thereby become
secured creditors of Funding.
(L) In connection with the issue of notes by the First Issuer, Funding, in
addition to the documents described above, on 26th July, 2000 entered
into (1) a cash management agreement amended on 29th November, 2000,
amended on 26th March, 2003 and amended on 1st April, 2004 and amended
and restated on the Closing Date (the CASH MANAGEMENT AGREEMENT) with the
Cash Manager, the Mortgages Trustee and the Security Trustee; (2) a bank
account agreement amended on 1st April, 2004 and on the Closing Date (the
BANK ACCOUNT AGREEMENT) with the Account Bank, the Mortgages Trustee and
Funding; (3) a guaranteed investment contract (the FUNDING GUARANTEED
INVESTMENT CONTRACT) with the Account Bank; (4) a start-up loan agreement
(the FIRST START-UP LOAN AGREEMENT) with the First Start-up Loan Provider
and the Security Trustee; and (5) a corporate services agreement amended
and restated on 29th November, 2000 and 23rd May, 2001 (the CORPORATE
SERVICES AGREEMENT) with the Mortgages Trustee, the Security Trustee and
the Corporate Services Provider, each of which will remain in effect, as
applicable, in respect of the Issue. In connection with the issue of
notes by the Second Issuer, Funding, in addition to the documents
described above, on 29th November, 2000 entered into a start-up loan
agreement (the SECOND START-UP LOAN AGREEMENT) with the Second Start-up
Loan Provider and the Security Trustee. In connection with the issue of
notes by the Third Issuer, Funding, in addition to the documents
described above, on 23rd May, 2001 entered into a start-up loan agreement
(the THIRD START-UP LOAN AGREEMENT) with the Third Start-up Loan Provider
and the Security Trustee. In connection with the issue of notes by the
Fourth Issuer, Funding, in addition to the documents described above, on
5th July, 2001 entered into a start-up loan agreement (the FOURTH
START-UP LOAN AGREEMENT) with the Fourth Start-up Loan Provider and the
Security Trustee. In connection with the issue of notes by the Fifth
Issuer, Funding, in addition to the documents described above, on 8th
November, 2001 entered into a start-up loan agreement (the FIFTH START-UP
LOAN AGREEMENT) with the Fifth Start-up Loan Provider and the Security
Trustee. In connection with the issue of notes by the Sixth Issuer,
Funding, in addition to the documents described above, on 7th November,
2002 entered into a start-up loan agreement (the SIXTH START-UP LOAN
AGREEMENT) with the Sixth Start-up Loan Provider and the Security
Trustee. In connection with the issue of notes by the Seventh Issuer,
Funding, in addition to the documents described above, on 26th March,
2003 entered into a start-up loan agreement (the SEVENTH START-UP LOAN
AGREEMENT) with the Seventh Start-up Loan Provider and the Security
Trustee. In connection with the issue of notes by the Eighth Issuer,
Funding, in addition to the documents described above, on 1st April, 2004
entered into a start-up loan agreement (the EIGHTH START-UP LOAN
AGREEMENT) with the Eighth Start-up Loan Provider and the Security
Trustee.
4
(M) In connection with an intercompany loan agreement entered into on 26th
July, 2000 (the FIRST ISSUER INTERCOMPANY LOAN AGREEMENT) between the
First Issuer, Funding and the Security Trustee, Funding entered into an
ISDA Master Agreement (including the schedule thereto) and confirmations
documented between Funding, the Funding Swap Provider and the Security
Trustee (as amended, the FUNDING SWAP AGREEMENT). In connection with an
intercompany loan agreement entered into on 29th November, 2000 (the
SECOND ISSUER INTERCOMPANY LOAN AGREEMENT) between the Second Issuer,
Funding and the Security Trustee, the parties to the Funding Swap
Agreement agreed to amend the terms of that ISDA Master Agreement and to
replace the previous confirmations with a new confirmation that provided
for a variable rate of interest to be paid by Funding to the Funding Swap
Provider (based on the weighted average rates of interest on the Loans in
the Portfolio (as defined below)) and for the Funding Swap Provider to
pay a rate of interest to Funding equal to LIBOR for three-month Sterling
deposits and a margin, in connection with a further intercompany loan
agreement entered into on 23rd May, 2001 (the THIRD ISSUER INTERCOMPANY
LOAN AGREEMENT) between the Third Issuer, Funding and the Security
Trustee, the parties to the Funding Swap Agreement agreed to further
amend the Funding Swap Agreement and in connection with a further
intercompany loan agreement entered into on 26th March, 2003 (the SEVENTH
ISSUER INTERCOMPANY LOAN AGREEMENT) between the Seventh Issuer, Funding
and the Security Trustee, the parties to the Funding Swap Agreement
agreed to further amend the Funding Swap Agreement.
(N) In connection with the Issue, the Ninth Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Ninth Issuer
Notes relating to each class of the Ninth Issuer Notes; (2) a corporate
services agreement (the NINTH ISSUER CORPORATE SERVICES AGREEMENT)
between the Ninth Issuer, the Ninth Issuer Security Trustee and the
Ninth Issuer Corporate Services Provider; (3) a cash management
agreement (the NINTH ISSUER CASH MANAGEMENT AGREEMENT) between the Ninth
Issuer, the Ninth Issuer Security Trustee and the Ninth Issuer Cash
Manager; (4) a bank account agreement (the NINTH ISSUER BANK ACCOUNT
AGREEMENT) between the Ninth Issuer, the Ninth Issuer Sterling Account
Bank, the Ninth Issuer Non-Sterling Account Bank and the Ninth Issuer
Security Trustee; and (5) ISDA Master Agreements (including the schedule
thereto and confirmation thereunder) in respect of currency swap
transactions relating to the Series 1 Class A Ninth Issuer Notes and the
Series 2 Class A Ninth Issuer Notes, between the Ninth Issuer, the Ninth
Issuer Swap Providers and the Ninth Issuer Security Trustee (the NINTH
ISSUER DOLLAR CURRENCY SWAP AGREEMENTS) and, together with the other
swap agreements to be entered into in relation to certain of the Reg S
Ninth Issuer Notes, each as referred to in the Prospectus (as defined
below), the NINTH ISSUER SWAP AGREEMENTS).
(O) On or before the Closing Date, ▇▇▇▇▇ & ▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇ and May
will sign for the purposes of identification an amended and restated
master definitions and construction schedule (the AMENDED AND RESTATED
MASTER DEFINITIONS SCHEDULE) and a master definitions and construction
schedule in respect of the Ninth Issuer (the NINTH ISSUER MASTER
DEFINITIONS SCHEDULE).
(P) As required, the Ninth Issuer, Funding, the Mortgages Trustee and/or
Abbey have entered or will enter into any other relevant documents to be
signed and delivered on or before the Closing Date (such documents,
together with the Mortgage Sale Agreement, the Mortgages Trust Deed, the
Scottish Trust Deed, the Amended and Restated Servicing Agreement, the
Mortgages Trustee Guaranteed Investment Contract, the First Issuer
Intercompany Loan Agreement, the Second Issuer Intercompany Loan
Agreement, the Third Issuer Intercompany Loan Agreement, the Fourth
Issuer Intercompany Loan Agreement, the Fifth Issuer Intercompany Loan
Agreement, the Sixth Issuer Intercompany Loan Agreement, the Seventh
Issuer Intercompany Loan Agreement, the Eighth Issuer Intercompany Loan
Agreement, the Ninth Issuer Intercompany Loan Agreement, the Funding
Swap Agreement, the Funding
5
Guaranteed Investment Contract, the Cash Management Agreement, the Bank
Account Agreement, the First Start-up Loan Agreement, the Second
Start-up Loan Agreement, the Third Start-up Loan Agreement, the Fourth
Start-up Loan Agreement, the Fifth Start-up Loan Agreement, the Sixth
Start-up Loan Agreement, the Seventh Start-up Loan Agreement, the Eighth
Start-up Loan Agreement, the Corporate Services Agreement, the Amended
and Restated Funding Deed of Charge, the Ninth Issuer Deed of Charge,
the Ninth Issuer Trust Deed, the Ninth Issuer Cash Management Agreement,
the Ninth Issuer Paying Agent and Agent Bank Agreement, the Ninth Issuer
Bank Account Agreement, the Ninth Issuer Swap Agreements, the Ninth
Issuer Corporate Services Agreement, this Agreement and the Reg S Ninth
Issuer Notes Subscription Agreement, each as they have been or may be
amended, restated, varied or supplemented from time to time, are
collectively referred to herein as the LEGAL AGREEMENTS).
IT IS AGREED as follows:
1. ISSUE OF THE NINTH ISSUER NOTES
1.1 AGREEMENT TO ISSUE
Subject to the terms and conditions of this Agreement, the Ninth Issuer
agrees to issue theNinth Issuer Notes on the Closing Date to the
Underwriters or as they may direct. The Ninth Issuer Notes will be
issued at a price equal to the aggregate of 100 per cent. of the
principal amount of the Series 1 Class A Ninth Issuer Notes and 100 per
cent. of the principal amount of the Series 2 Class A Ninth Issuer Notes
(the ISSUE PRICE).
1.2 THE LEGAL AGREEMENTS
To the extent that each of the Ninth Issuer, Funding, the Mortgages
Trustee and Abbey is a signatory of the Legal Agreements, each has
entered or will, not later than the Closing Date, enter into each of the
Legal Agreements to which it is a party, substantially in the form of the
draft signed for the purposes of identification by ▇▇▇▇▇ & ▇▇▇▇▇ LLP and
▇▇▇▇▇▇▇▇▇ and May (any draft of any document so signed being called an
AGREED FORM), with such amendments as the [*], on behalf of the
Underwriters, may agree with the Ninth Issuer and, if it is such a
signatory, Funding, the Mortgages Trustee and/or Abbey.
1.3 THE NINTH ISSUER NOTES
The Ninth Issuer Notes will be issued on the Closing Date in accordance
with the terms of the Ninth Issuer Trust Deed and will be in the form
set out therein.
1.4 PROSPECTUS
The Ninth Issuer confirms that it has prepared a preliminary prospectus
dated 14 November, 2005 and a prospectus dated today's date (together,
the PROSPECTUS) for use in connection with the issue of the Ninth Issuer
Notes and hereby authorises the Underwriters to distribute copies of the
Prospectus in connection with the offering and sale of the Ninth Issuer
Notes.
1.5 AUTHORITY TO OFFER
The Ninth Issuer confirms that it has authorised the Underwriters to
offer the Ninth Issuer Notes on its behalf to the Underwriters for
subscription at the Issue Price subject to signature of this Agreement.
6
2. STABILISATION
Deutsche Bank Securities Inc., on behalf of itself and the other
Underwriters, may, to the extent permitted by applicable laws and
regulations, engage in over-allotment transactions, stabilising
transactions, syndicate covering transactions and penalty bids and
otherwise effect transactions in the open market or otherwise in
connection with the distribution of the Ninth Issuer Notes with a view
to stabilising or maintaining the respective market prices of the Ninth
Issuer Notes at levels other than those which might otherwise prevail in
the open market, but in doing so Deutsche Bank Securities Inc.shall act
as principal and in no circumstances shall the Ninth Issuer be obliged
to issue (i) more than US$[1,800,000,000] in principal amount of Series
1 Class A Ninth Issuer Notes; or (ii) more than US$[2,250,000,000] in
principal amount of Series 2 Class A Ninth Issuer Notes.
3. AGREEMENTS BY THE UNDERWRITERS
3.1 PURCHASE
Each Underwriter severally agrees to purchase and pay for such principal
amount of Ninth Issuer Notes set out against its name in the Schedule
hereto on the Closing Date at the Issue Price on the terms set out in
this Agreement.
(a) If any Underwriter shall default in its obligation to purchase
Ninth Issuer Notes which it has agreed to purchase hereunder,
the non-defaulting Underwriters may in their discretion arrange
to purchase, or for another party or other parties reasonably
satisfactory to Abbey to purchase, such Ninth Issuer Notes on
the terms contained herein. If within 36 hours after such
default by any Underwriter, the non-defaulting Underwriters do
not arrange for the purchase of such Ninth Issuer Notes, then
Abbey shall be entitled to a further period of 36 hours within
which to procure another party or other parties satisfactory to
the non-defaulting Underwriters to purchase such Ninth Issuer
Notes on such terms. In the event that, within the respective
prescribed periods, the Underwriters on behalf of the
non-defaulting Underwriters notify Abbey that the non-defaulting
Underwriters have so arranged for the purchase of such Ninth
Issuer Notes, or Abbey notifies the non-defaulting Underwriters
that they have so arranged for the purchase of such Ninth Issuer
Notes, the non-defaulting Underwriters or Abbey shall have the
right to postpone the Closing Date for a period of not more than
seven days, in order to effect whatever changes may thereby be
made necessary in any documents or arrangements relating to the
offering and sale of the Ninth Issuer Notes. Any substitute
purchaser of Ninth Issuer Notes pursuant to this paragraph shall
be deemed to be an Underwriter, for the purposes of this
Agreement, in connection with the offering and sale of the Ninth
Issuer Notes.
(b) If, after giving effect to any arrangements for the purchase of
Ninth Issuer Notes of a defaulting Underwriter by the
non-defaulting Underwriters, as provided in Clause 3.1(a) above,
the aggregate principal amount of the Ninth Issuer Notes which
remains unpurchased does not exceed 10 per cent. of the
aggregate principal amount of the Ninth Issuer Notes, then Abbey
shall have the right to require each non-defaulting Underwriter
to purchase the principal amount of the Ninth Issuer Notes which
such Underwriter agreed to purchase hereunder and, in addition,
to require each non-defaulting Underwriter to purchase its pro
rata share (based on the principal amount of the Ninth Issuer
Notes which such Underwriter agreed to purchase hereunder) of
the principal amount of the Ninth Issuer Notes of such
defaulting Underwriter for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
7
(c) If, after giving effect to any arrangements for the purchase of
the principal amount of the Ninth Issuer Notes of a defaulting
Underwriter by the non-defaulting Underwriters as provided in
Clause 3.1(a) above, the aggregate principal amount of the Ninth
Issuer Notes which remains unpurchased exceeds 10 per cent. of
the aggregate principal amount of the Ninth Issuer Notes, or if
Abbey shall not exercise the right described in Clause 3.1(b)
above to require non-defaulting Underwriters to purchase the
Ninth Issuer Notes of a defaulting Underwriter, then this
Agreement shall thereupon terminate, without liability on the
part of the non-defaulting Underwriters; but nothing herein
shall relieve a defaulting Underwriter from liability for its
default.
3.2 SELLING
Each Underwriter severally (and not jointly) agrees as follows:
(a) UNITED STATES
It is understood that the several Underwriters propose to offer
the Ninth Issuer Notes for sale to the public in the United
States as set forth in the Prospectus.
(b) UNITED KINGDOM
Each Underwriter represents and agrees that:
(i) (A) it is a person whose ordinary activities involve it
in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of
its business; and (B)it has not offered or sold, and will
not offer or sell any Ninth Issuer Notes other than to
persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments
(as principal or as agent) for the purposes of their
businesses or who it is reasonable to expect will
acquire, hold, manage or dispose of investments (as
principal or as agent) for the purposes of their
businesses where the issue of the Ninth Issuer Notes
would otherwise constitute a contravention of Section 19
of the FSMA by the Issuer
(ii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by
it in relation to the Ninth Issuer Notes in, from or
otherwise involving the United Kingdom; and
(iii) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any
invitation or inducement to engage in investment
activities (within the meaning of Section 21 of the FSMA)
received by it in connection with the issue or sale of
any Ninth Issuer Notes in circumstances in which Section
21(1) of the FSMA does not apply to the Ninth Issuer.
(c) REPUBLIC OF ITALY
Each Underwriter acknowledges that the Series 1 Class A Ninth
Issuer Notes may not be placed, offered or distributed to
Italian investors at any time. Each Underwriter represents and
agrees that the offering of the Ninth Issuer Notes has not been
cleared by CONSOB (the Italian Securities Exchange Commission)
pursuant to Italian securities legislation and, accordingly, no
Ninth Issuer Notes may be offered, sold or
8
delivered, nor may copies of the Offering Circular or of any
other document relating to the Ninth Issuer Notes be distributed
in the Republic of Italy, except:
(i) to professional investors (operatori qualificati), as
defined in Article 31, second paragraph, of CONSOB
Regulation No. 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 Ninth Issuer Notes or
distribution of copies of the Offering Circular or any other
document relating to the Ninth Issuer Notes in the Republic of
Italy under (i) or (ii) above must be:
(A) made by an investment firm, bank or financial
intermediary permitted to conduct such activities in the
Republic of Italy in accordance with the Financial
Services Act and Legislative Decree ▇▇. ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ (▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇);
(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
(C) in accordance with any other applicable laws and
regulations.
(g) FRANCE
Each Underwriter represents and agrees that:
(i) it has only made and will only make an offer of Notes to
the public (▇▇▇▇▇ public a l'epargne) in France in the
period beginning (i) when a prospectus in relation to
those issuer notes has been approved by the Autorite des
marches financiers ("AMF"), on the date of such
publication or, (ii) when a prospectus has been approved
in another member State of the European Economic Area
which has implemented the EU Prospectus Directive
2003/71/EC, on the date of notification of such approval
to the AMF, all in accordance with articles L.412-1 and
L.621-8 of the French Code monetaire et financier and the
Reglement general of the AMF, and ending at the latest on
the date which is 12 months after the date of such
publication; or
(ii) it has only made and will only make an offer of issuer
notes to the public in France (▇▇▇▇▇ public a lepargne)
and/or it has only required nd will only require the
admission to trading on Euronext Paris S.A. in
circumstances which do not require the publication by the
offeror of a prospectus pursuant to articles L.411-2 and
L.412-1 of the French Code monetaire et finnacier; and
(iii) it has not offered or sold, and will not offer or sell,
directly, or indirectly, the Ninth Issuer Notes to the
public in the Republic of France, and has not distributed
or caused to be distributed and will not distribute or
cause to be distributed to the public in the Republic of
France, the Offering Circular or any other offering
material relating to the Ninth Issuer Notes, and that
such offers, sales and distributions have been made and
shall only be made in France to (i) providers of
investment services relating to portfolio management for
the account of third parties, and/or (ii) qualified
investors (investisseurs qualifies) and/or (iii) a
restricted group of investors (cercle restraint
d'investisseurs), all as defined in, and in accordance
with, Articles L.411-1, L.411-2 and D.411-1 of the French
Code Monetaire et Financier.
9
(h) OTHER
Each Underwriter acknowledges that no representation is made by
the Ninth Issuer or any Underwriter that any action has been or
will be taken in any jurisdiction by the Ninth Issuer or any
Underwriter that would permit a public offering of the Ninth
Issuer Notes (other than as described above), or possession or
distribution of the Prospectus or any other offering material, in
any country or jurisdiction where action for that purpose is
required. Each Underwriter has complied with and will comply with
all applicable securities laws and regulations in each
jurisdiction in which it purchases, offers, sells or delivers the
Ninth Issuer Notes or has in its possession or distributes the
Prospectus or any other offering material, in all cases at its own
expense. Each Underwriter represents that it will not directly or
indirectly offer, sell or deliver any Ninth Issuer Notes or
distribute or publish any prospectus, form of application,
offering circular, advertisement or other offering material except
under circumstances that will, to the best of its
knowledge and belief, result in compliance with any applicable
laws and regulations, and all offers, sales and deliveries of the
Ninth Issuer Notes by it will be made on the same terms, and it
will obtain any consent, approval or permission required by it for
the purchase, offer, sale or delivery by it of the Ninth Issuer
Notes under the laws and regulations in force in any jurisdictions
to which it is subject or in which it makes such purchases,
offers, sales or deliveries, and the Ninth Issuer shall have no
responsibility for them.
4. LISTING
4.1 APPLICATION FOR LISTING
The Ninth Issuer confirms that it has authorised the Underwriters to
make or cause to be made at the Ninth Issuer's expense applications on
the Ninth Issuer's behalf for the Ninth Issuer Notes to be listed on the
official list of the UK Listing Authority and for the Ninth Issuer Notes
and to be admitted to trading on the London Stock Exchange plc (the
STOCK EXCHANGE).
4.2 SUPPLY OF INFORMATION
The Ninth Issuer agrees to supply to the 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 AND TRADING
The Ninth Issuer agrees to use its reasonable endeavours to maintain a
listing of the Ninth Issuer Notes and the Reg S Ninth Issuer Notes on
the official list of the UK Listing Authority and the admission of the
Ninth Issuer Notes and the Reg S Ninth Issuer Notes to trading on the
Stock Exchange for as long as any of the Ninth Issuer Notes and the Reg
S Ninth Issuer 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 Ninth Issuer will
obtain, and will thereafter use its best endeavours to maintain, a
quotation for, or listing of, the Ninth Issuer Notes on such other stock
exchange as is commonly used for the quotation or listing of debt
securities as it may, with the approval of the Underwriters (such
approval not to be unreasonably withheld or delayed), decide.
10
5. REPRESENTATIONS AND WARRANTIES OF THE NINTH ISSUER
The Ninth Issuer represents and warrants to, and agrees with, the Underwriters
and each of them that:
(a) THE REGISTRATION STATEMENT
The Ninth Issuer has prepared and filed with the United States
Securities and Exchange Commission (the COMMISSION) a
registration statement (file number 333-117381) on Form S-11
(the REGISTRATION STATEMENT), including a related preliminary
prospectus, for registration under the U.S. Securities Act of
1933, as amended (the SECURITIES ACT), of the offering and sale
of the Ninth Issuer Notes. The Ninth 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 Ninth Issuer will next file with the
Commission one of the following: either (i) prior to the date
and time that such Registration Statement becomes effective (the
EFFECTIVE DATE), a further amendment to such Registration
Statement, including the form of final prospectus, or (ii) after
the Effective Date of such Registration Statement, a final
prospectus in accordance with Rules 430A and 424(b) under the
Securities Act. In the case of Subparagraph (ii) the Ninth
Issuer has included in such Registration Statement, as amended
at the Effective Date, all information (other than information
with respect to the Ninth Issuer Notes and the Issue permitted
to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A (RULE 430A INFORMATION))
required by the Securities Act and the rules thereunder to be
included in such Registration Statement and the Prospectus. As
filed, such amendment and form of final prospectus, or such
final prospectus, shall contain all Rule 430A Information,
together with all other such required information, and, except
to the extent that the 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 EXECUTION TIME), or, to the extent not completed at the
Execution Time, shall contain only specific additional
information and other changes (beyond that contained in the
latest preliminary prospectus) as the Ninth Issuer has advised
the Underwriters, prior to the Execution Time, will be included
or made therein.
(b) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the
Prospectus (and any amendment or supplement thereto) will,
comply in all material respects with the applicable requirements
of the Securities Act, the Securities Exchange Act of 1934, as
amended (the EXCHANGE ACT), and the Trust Indenture Act of 1939,
as amended (the TRUST INDENTURE ACT), and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on
the Closing Date the Ninth Issuer Trust Deed did or will comply
in all material respects with the applicable requirements of the
Trust Indenture Act and the rules thereunder; and on the
Effective Date, the Prospectus, if not filed pursuant to Rule
424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(together with any amendment or 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
11
they were made, not misleading; provided, however, that the
Ninth Issuer makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Note Trustee or (ii) the
information contained in or omitted from the Registration
Statement or the Prospectus (or any statement thereto) in
reliance upon and in conformity with information furnished in
writing to the Ninth Issuer by or on behalf of any Underwriter
specifically for inclusion in the Registration Statement or the
Prospectus (or any amendment or supplement thereto).
(c) INCORPORATION
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power
and authority to conduct its business as described in the
Prospectus, and is lawfully qualified to do business in England
and Wales, and it has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been
taken or legal proceedings been started or threatened against it
for its winding-up, dissolution or reorganisation or for the
appointment of a receiver, administrator, administrative
receiver or similar officer of it or of any or all of its assets
or revenues.
(d) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered
by the Ninth Issuer and constitutes, and the other Legal
Agreements to which the Ninth Issuer is a party have been duly
authorised by the Ninth Issuer and on the Closing Date will
constitute, valid and legally binding obligations of the Ninth
Issuer, enforceable in accordance with their terms subject to
applicable bankruptcy, insolvency and similar laws affecting the
rights of creditors generally, general equitable principles, the
time barring of claims and, where a fixed security interest has
been granted pursuant to the terms of a deed of charge, the
recharacterization by a relevant court of such security of a
floating charge (such principles and laws being referred to in
this Agreement as the RESERVATIONS).
(e) VALIDITY OF THE NINTH ISSUER NOTES
The Ninth Issuer Notes and the Reg S Ninth Issuer Notes have
been duly authorised by the Ninth Issuer and, when executed and
authenticated in accordance with the Ninth Issuer Trust Deed and
the Ninth Issuer Paying Agent and Agent Bank Agreement, will
constitute valid and legally binding obligations of the Ninth
Issuer, enforceable in accordance with their terms subject to
the Reservations and, upon effectiveness of the Registration
Statement, the Ninth 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 issue and offering of the Ninth Issuer Notes and the Reg
S Ninth Issuer Notes or in connection with the execution and
performance of the transactions contemplated by the Legal
Agreements or the compliance by the Ninth Issuer with the terms
of the Ninth Issuer Notes and the Reg S Ninth Issuer Notes and
the Legal Agreements as the case may be, except for (i) such
consents, approvals, authorisations, registrations or
qualifications as may be required under applicable United States
state securities, Blue Sky or similar laws in connection with
the purchase and distribution of the Ninth Issuer Notes by the
12
Underwriters and (ii) those which have been, or will prior to
the Closing Date be taken, fulfilled or done, are, or will on
the Closing Date be, in full force and effect.
(g) COMPLIANCE
The authorisation of the Ninth Issuer Notes and the Reg S Ninth
Issuer Notes and the security therefor under the Ninth Issuer
Deed of Charge, the offering and issue of the Ninth Issuer Notes
and the Reg S Ninth Issuer Notes on the terms and conditions of
this Agreement and the Reg S Ninth Issuer Notes Subscription
Agreement (as applicable) and as described in the Prospectus,
the execution and delivery of the Legal Agreements to which it
is a party and the implementation of the transactions
contemplated by such Legal Agreements and compliance with the
terms of the Legal Agreements to which it is a party do not, and
will not, (i) conflict with, or result in a breach of, any of
the terms or provisions of, or constitute a default under, the
Memorandum and Articles of Association of the Ninth Issuer or
any agreement or instrument to which the Ninth Issuer is a party
or by which any of its properties is bound; (ii) infringe any
applicable law, rule, regulation, judgment, order or decree of
any government, governmental body or court, having jurisdiction
over the Ninth Issuer or any of its properties; or (iii) result
in the creation or imposition of any mortgage, charge, pledge,
lien or other security interest on any of its properties, other
than those created in, or imposed by, the Legal Agreements
themselves.
(h) FINANCIAL STATEMENTS
(i) The auditor's report by Deloitte & Touche LLP, as
independent auditors to the Ninth Issuer, set out in the
Prospectus presents fairly the financial position of the
Ninth Issuer as at the date at which it has been
prepared.
(ii) Since the date of such report there has been no change
(nor any development or event involving a prospective
change of which the Ninth Issuer is, or might reasonably
be expected to be, aware) which is materially adverse to
the condition (financial or otherwise), prospects,
results of operations or general affairs of the Ninth
Issuer.
(iii) Deloitte & Touche LLP are independent public accountants
with respect to the Ninth Issuer within the meaning of
the standards established by the American Institute of
Certified Public Accountants.
(i) TAXATION
No stamp or other similar duty is assessable or payable in the
United Kingdom, and no withholding or deduction for any taxes,
duties, assessments or governmental charges of whatever nature
is imposed or made for or on account of any income,
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 Ninth
Issuer Notes and the Reg S Ninth Issuer Notes and (except as
disclosed in the Prospectus) the performance of the Ninth
Issuer's, Funding's and/or, as the case may be, the Mortgages
Trustee's obligations under the Legal Agreements, the Ninth
Issuer Notes and the Reg S Ninth Issuer Notes. This warranty
does not apply to any United Kingdom corporation tax which may
be levied, collected, withheld or assessed in connection with
the authorisation, execution or delivery of the Legal Agreements
or with the authorisation, issue, sale or delivery of the Ninth
Issuer Notes and the Reg S Ninth Issuer Notes.
13
(j) BREACH OF OTHER AGREEMENTS
The Ninth 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
Ninth Issuer Notes and/or the Reg S Ninth Issuer Notes already
been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfilment of any other
requirement) constitute an Event of Default as set out in the
Conditions of the Ninth Issuer Notes.
(l) NO SUBSIDIARIES
The Ninth Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies ▇▇▇
▇▇▇▇.
(m) ▇▇▇▇▇▇ HOLDINGS LIMITED
The First Issuer, the Second Issuer, the Third Issuer, the
Fourth Issuer, the Fifth Issuer, the Sixth Issuer, the Seventh
Issuer, the Eighth Issuer, the Ninth Issuer, Funding, the
Mortgages Trustee, PECOH Limited, ▇▇▇▇▇▇ Funding ▇▇. ▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇ are the only subsidiaries or subsidiary
undertakings of ▇▇▇▇▇▇ Holdings Limited within the meanings of
Sections 258 and 736 of the Companies ▇▇▇ ▇▇▇▇.
(n) NO ACTIVITIES
The Ninth Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any
registration or re-registration as a public limited company
under the Companies Acts 1985 and 1989 and changes to its name,
directors, secretary, registered office, Memorandum and Articles
of Association; (ii) the authorisation and execution of the
Legal Agreements to which it is a party; (iii) the activities
referred to or contemplated in the Legal Agreements to which it
is a party or in the Prospectus; and (iv) the authorisation and
issue by it of the Ninth Issuer Notes and the Reg S Ninth Issuer
Notes. The Ninth Issuer has not (other than as set out in the
Prospectus) made up any accounts and has neither paid any
dividends nor made any distributions since its incorporation.
(o) LISTING RULES
Prior to the delivery of the Prospectus to the Registrar of
Companies in England and Wales, the Prospectus (i) has been
approved by or on behalf of the competent authority as listing
particulars each as defined in the FSMA and (2) complies with
the listing rules as set out under Part VI of the FSMA.
(p) LITIGATION
There are no pending actions, suits or proceedings against or
affecting the Ninth 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 Ninth Issuer or could adversely affect the ability of the
Ninth Issuer to perform its obligations under the Legal
Agreements, the Ninth Issuer Notes and the Reg S Ninth
14
Issuer Notes or which are otherwise material in the context of
the issue or offering of the Ninth Issuer Notes and the Reg S
Ninth Issuer Notes and, to the best of the Ninth Issuer's
knowledge, no such actions, suits or proceedings are threatened
or contemplated.
(q) NO PRIOR SECURITY
Save as set out in any of the Legal Agreements, there exists no
mortgage, lien, pledge or other charge or security interest on
or over the assets of the Ninth Issuer and, other than the Legal
Agreements, the Ninth Issuer has not entered into any indenture
or trust deed.
(r) SECURITY FOR THE NINTH ISSUER NOTES
The Ninth Issuer Notes and the obligations of the Ninth Issuer
under the Ninth Issuer Trust Deed will be secured in the manner
provided in the Ninth Issuer Deed of Charge and with the benefit
of the charges, covenants and other security provided for
therein including, without limitation, (i) an assignment by way
of first fixed security over its interests in the Ninth Issuer
Intercompany Loan Agreement, the Funding Deed of Charge (as
amended by the First Deed of Accession to the Funding Deed of
Charge, the Second Deed of Accession to the Funding Deed of
Charge, the Third Deed of Accession to the Funding Deed of
Charge, the Fourth Deed of Accession to the Funding Deed of
Charge, the Amended and Restated Funding Deed of Charge, the
First Deed of Accession to the Amended and Restated Funding Deed
of Charge and the Second Deed of Accession to the Amended and
Restated Funding Deed of Charge and as further acceded to on or
before the Closing Date), the Ninth Issuer Swap Agreements, the
Ninth Issuer Trust Deed, the Ninth Issuer Paying Agent and Agent
Bank Agreement, the Ninth Issuer Cash Management Agreement, the
Ninth Issuer Corporate Services Agreement, the Ninth Issuer Bank
Account Agreement and any other relevant documents to be signed
on or before the Closing Date to which the Ninth Issuer is a
party; (ii) a charge by way of first fixed charge over the Ninth
Issuer Accounts (as defined in the Ninth Issuer Deed of Charge);
(iii) a charge by way of first fixed charge over any authorised
investments made with moneys standing to the credit of any of
the Ninth Issuer Accounts; and (iv) a first ranking floating
charge over the other assets of the Issuer (extending over all
of the Issuer's Scottish assets).
(s) CAPITALISATION
The authorised capital of the Ninth Issuer is as set out in the
Prospectus.
(t) INVESTMENT COMPANY ACT
The Ninth Issuer is not an "investment company" as defined in
the United States Investment Company Act of 1940, as amended
(the INVESTMENT COMPANY ACT), and the offer and sale of the
Ninth Issuer Notes in the United States will not subject the
Ninth Issuer to registration under, or result in a violation of,
the Investment Company Act.
(u) UNITED STATES INCOME TAX
The Ninth Issuer will not engage in any activities in the United
States (directly or through agents), will not derive any income
from United States sources as determined under United States
income tax principles, and will not hold any property if doing
so
15
would cause it to be engaged or deemed to be engaged in a trade
or business within the United States as determined under United
States income tax principles.
(v) REPRESENTATIONS AND WARRANTIES IN THE LEGAL AGREEMENTS
The representations and warranties given by the Ninth
Issuer in the Legal Agreements are true and accurate in all
material respects.
6. REPRESENTATIONS AND WARRANTIES OF FUNDING AND THE MORTGAGES TRUSTEE
Each of Funding and the Mortgages Trustee severally represents and
warrants (in respect of itself only) to, and agrees with, the
Underwriters and each of them that:
(a) THE REGISTRATION STATEMENT
Together with the Ninth Issuer, Funding and the Mortgages
Trustee have prepared and filed with the Commission the
Registration Statement (file number 333-117381) on Form S-11,
including a related preliminary prospectus, for registration
under the Securities Act of the offering and sale of the Ninth
Issuer Notes. The Ninth Issuer, Funding and the Mortgages
Trustee may have filed one or more amendments thereto, including
a related preliminary prospectus, each of which has previously
been furnished to the Underwriters. The Ninth Issuer, Funding
and the Mortgages Trustee will next file with the Commission one
of the following either (i) prior to the Effective Date of such
Registration Statement, a further amendment to such Registration
Statement, including the form of final prospectus, or (ii) after
the Effective Date of such Registration Statement, a final
prospectus in accordance with Rules 430A and 424(b) under the
Securities Act. In the case of Subparagraph (ii), the Ninth
Issuer, Funding and the Mortgages Trustee have included in such
Registration Statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Securities Act and the rules thereunder to be included in such
Registration Statement and the Prospectus. As filed, such
amendment and form of final prospectus, or such final
prospectus, shall contain all Rule 430A Information, together
with all other such required information, and, except to the
extent that the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to the Underwriters prior to the Execution Time, or,
to the extent not completed at the Execution Time, shall contain
only specific additional information and other changes (beyond
that contained in the latest preliminary prospectus) as they
have advised the Underwriters, prior to the Execution Time, will
be included or made therein.
(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 amendment or supplement thereto) will,
comply in all material respects with the applicable requirements
of the Securities Act, the Exchange Act and the Trust Indenture
Act and the respective rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date, the
Ninth 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
16
Prospectus, if not filed pursuant to Rule 424(b), did not or
will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Prospectus (together with any
amendment or supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that neither Funding nor the Mortgages
Trustee makes any representations or warranties as to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Note Trustee or (ii) the information
contained in or omitted from the Registration Statement or the
Prospectus (or any statement thereto) in reliance upon and in
conformity with information furnished in writing to them by or
on behalf of any Underwriter specifically for inclusion in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(c) INCORPORATION
Each is duly incorporated and validly existing under the laws of
England and Wales, with full power and authority to conduct its
business as described in the Prospectus, and is lawfully
qualified to do business in England and Wales and it has not
taken any corporate action nor (to the best of its knowledge and
belief) have any other steps been taken or legal proceedings
been started or threatened against it for its winding-up,
dissolution or reorganisation or for the appointment of a
receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues.
(d) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered
by each of Funding and the Mortgages Trustee and constitutes,
and the other Legal Agreements to which each of Funding and/or
the Mortgages Trustee is a party have been duly authorised by,
as applicable, Funding and the Mortgages Trustee and on the
Closing Date will constitute, valid and legally binding
obligations of each of Funding and the Mortgages Trustee,
enforceable in accordance with their terms subject to the
Reservations.
(e) CONSENTS
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required
in connection with the execution and performance of the
transactions contemplated by the Legal Agreements to which
Funding and/or the Mortgages Trustee, as the case may be, is a
party or the compliance by each of them with the terms of the
Legal Agreements (except for those which have been, or will
prior to the Closing Date be taken, fulfilled or done) are, or
will on the Closing Date be, in full force and effect.
(f) COMPLIANCE
The authorisation of the terms and conditions of this Agreement,
the execution and delivery of the Legal Agreements to which
Funding and/or, as the case may be, the Mortgages Trustee is
party and the implementation of the transactions contemplated by
such Legal Agreements and compliance with the terms of the Legal
Agreements do not, and will not, (i) conflict with, or result in
a breach of, any of the terms or provisions of, or constitute a
default under, the Memorandum and Articles of Association of
Funding or the Mortgages Trustee or any agreement or instrument
to which Funding or the Mortgages Trustee is a party or by which
any of its properties is
17
bound; (ii) infringe any applicable law, rule, regulation,
judgment, order or decree of any government, governmental body
or court, having jurisdiction over either Funding or the
Mortgages Trustee or any of its properties; or (iii) result in
the creation or imposition of any mortgage, charge, pledge, lien
or other security interest on any of its or their properties,
other than those created in, or imposed by, the Legal Agreements
themselves.
(g) BREACH OF OTHER AGREEMENTS
Neither Funding nor the Mortgages Trustee is in breach of or in
default under any agreement to which it is a party or which is
binding on it or any of its assets or revenues.
(h) ▇▇▇▇▇▇ HOLDINGS LIMITED
The First Issuer, the Second Issuer, the Third Issuer, the
Fourth Issuer, the Fifth Issuer, the Sixth Issuer, the Seventh
Issuer, the Eighth Issuer, the Ninth Issuer, Funding, the
Mortgages Trustee, PECOH Limited, ▇▇▇▇▇▇ Funding ▇▇. ▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇ are the only subsidiaries or subsidiary
undertakings of ▇▇▇▇▇▇ Holdings Limited within the meanings of
Sections 258 and 736 of the Companies ▇▇▇ ▇▇▇▇.
(i) EVENTS OF DEFAULT
No event has occurred or circumstance arisen which, had the
Ninth Issuer Intercompany Loan Agreement been entered into,
would (whether or not with the giving of notice and/or the
passage of time and/or the fulfilment of any other requirement)
constitute an Event of Default as set out in the Ninth Issuer
Intercompany Loan Agreement.
(j) NO SUBSIDIARIES
Neither Funding nor the Mortgages Trustee has any subsidiaries
or subsidiary undertakings within the meanings of Sections 258
and 736 of the Companies ▇▇▇ ▇▇▇▇.
(k) NO ACTIVITIES
Neither Funding nor the Mortgages Trustee has engaged in any
activities since its incorporation other than (i) those
incidental to any registration as a private limited company
under the Companies Acts 1985 and 1989 and changes to its name,
directors, secretary, registered office, Memorandum and Articles
of Association; (ii) the authorisation and execution of the
Legal Agreements to which each is a party; (iii) the activities
referred to or contemplated in the Legal Agreements or in the
Prospectus; (iv) the activities undertaken in connection with
the establishment of the Mortgages Trust pursuant to the
Mortgages Trust Deed and the issue of notes by the First Issuer,
the Second Issuer, the Third Issuer, the Fourth Issuer, the
Fifth Issuer, Sixth Issuer, the Seventh Issuer, the Eighth
Issuer and the Ninth Issuer; and (v) the registration of Funding
under the Data Protection ▇▇▇ ▇▇▇▇ (the DPA). Neither Funding
nor the Mortgages Trustee has (other than as set out in the
Prospectus or in the prospectuses relating to the notes issued
by the First Issuer, the Second Issuer, the Third Issuer, the
Fourth Issuer, the Fifth Issuer, the Sixth Issuer, the Seventh
Issuer or the Eighth Issuer and other than as required by any
applicable law) made up any
18
accounts and neither has paid any dividends or made any
distributions since its respective date of incorporation.
(l) BENEFICIAL OWNER
On 25th July, 2000, the Mortgages Trust was established pursuant
to the Mortgages Trust Deed and following the transfer by way of
equitable assignment by Abbey of its interest in the Portfolio
(as defined in the Prospectus) to the Mortgages Trustee pursuant
to or in accordance with the Mortgage Sale Agreement on 26th
July, 2000 and on subsequent distribution dates, or, in relation
to Loans secured over properties in Scotland and their Related
Security, following the granting from time to time of a Scottish
Trust Deed, the Mortgages Trustee held (and continues to hold)
the Portfolio on trust for the benefit of Funding and Abbey in
undivided shares absolutely.
(m) LITIGATION
There are no pending actions, suits or proceedings against or
affecting Funding or the Mortgages Trustee which could
individually or in the aggregate have an adverse effect on the
condition (financial or otherwise), prospects, results of
operations or general affairs of either one of them or could
adversely affect the ability of the Mortgages Trustee or Funding
to perform their respective obligations under the Legal
Agreements, or which are otherwise material in the context of
the transaction contemplated by the Prospectus and, to the best
of the knowledge of Funding and the Mortgages Trustee, no such
actions, suits or proceedings are threatened or contemplated.
(n) NO PRIOR SECURITY
Save as set out in any of the Legal Agreements there exists no
mortgage, lien, pledge or other charge or security interest on
or over the assets of Funding and, other than the Legal
Agreements, it has not entered into any indenture or trust deed.
(o) SECURITY FOR THE NINTH ISSUER INTERCOMPANY LOAN
Funding's obligations under, inter alia, the Ninth Issuer
Intercompany Loan Agreement will be secured in the manner
provided in the Amended and Restated Funding Deed of Charge and
with the benefit of the charges, covenants and other security
provided for therein including, without limitation, (i) a first
ranking fixed charge over Funding's interest in the Trust
Property (as defined in the Mortgages Trust Deed); (ii) an
assignment by way of first fixed security over its interests in
the Mortgage Sale Agreement, the Mortgages Trust Deed, the
Scottish Trust Deed, the Amended and Restated Servicing
Agreement, the Funding Swap Agreement, the First Issuer
Intercompany Loan Agreement, the Second Issuer Intercompany Loan
Agreement, the Third Issuer Intercompany Loan Agreement, the
Fourth Issuer Intercompany Loan Agreement, the Fifth Issuer
Intercompany Loan Agreement, the Sixth Issuer Intercompany Loan
Agreement, the Seventh Issuer Intercompany Loan Agreement, the
Eighth Issuer Intercompany Loan Agreement, the Ninth Issuer
Intercompany Loan Agreement, the First Start-up Loan Agreement,
the Second Start-up Loan Agreement, the Third Start-up Loan
Agreement, the Fourth Start-up Loan Agreement, the Fifth
Start-up Loan Agreement, the Sixth Start-up Loan Agreement, the
Seventh Start-up Loan Agreement, the Eighth Start-up Loan
Agreement, the Funding Guaranteed Investment Contract, the
Corporate Services Agreement, the Cash Management Agreement, the
Bank Account Agreement and any other relevant documents to be
signed on or before the Closing Date to which Funding is a
party;
19
(iii) a first ranking fixed charge over the Bank Accounts (as
defined in the Amended and Restated Funding Deed of Charge);
(iv) a first ranking fixed charge over any authorised
investments made with moneys standing to the credit of the Bank
Accounts; and (v) a first ranking floating charge over the other
assets of Funding (extending over all of Funding's Scottish
assets).
(p) CAPITALISATION
The authorised capital of each of Funding and the Mortgages
Trustee is as set out in the Prospectus.
(q) INVESTMENT COMPANY ACT
Neither Funding nor the Mortgages Trustee is an "investment
company" as defined in the Investment Company Act, and the offer
and sale of the Ninth Issuer Notes in the United States will not
subject Funding or the Mortgages Trustee to registration under,
or result in a violation of, the Investment Company Act.
(r) UNITED STATES INCOME TAX
Neither Funding nor the Mortgages Trustee will engage in any
activities in the United States (directly or through agents),
derive any income from United States sources as determined under
United States income tax principles, or hold any property if
doing so would cause it to be engaged or deemed to be engaged in
a trade or business within the United States as determined under
United States income tax principles.
(s) FINANCIAL STATEMENTS
(i) The auditor's report by Deloitte & Touche LLP, as
independent auditor to Funding, set out in the
Prospectus presents fairly the financial position of
Funding as at the date at which it has been prepared.
(ii) Since the date of such report there has been no change
(nor any development or event involving a prospective
change of which Funding is, or might reasonably be
expected to be, aware) which is materially adverse to
the condition (financial or otherwise), prospects,
results of operations or general affairs of Funding.
(iii) Deloitte & Touche LLP are independent public accountants
with respect to Funding within the meaning of the
standards established by the American Institute of
Certified Public Accountants.
(t) REPRESENTATIONS AND WARRANTIES IN THE LEGAL AGREEMENTS
The representations and warranties given by Funding and the
Mortgages Trustee in the Legal Agreements are true and
accurate in all material respects.
7. REPRESENTATIONS AND WARRANTIES OF ABBEY
Abbey represents and warrants to, and agrees with, the Underwriters and
each of them that:
(a) INCORPORATION
20
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power
and authority to conduct its business as described in the
Prospectus, and is lawfully qualified to do business in England
and Wales and it is not in liquidation.
(b) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered
by Abbey and constitutes, and the other Legal Agreements to
which Abbey is a party have been duly authorised by Abbey and on
the Closing Date will constitute, valid and legally binding
obligations of Abbey, enforceable in accordance with their terms
subject to the Reservations.
(c) RELATED SECURITY
Abbey has not received written notice of any litigation or claim
calling into question its title to any Related Security or the
value of any security therefore or its right to assign any such
Related Security to the Mortgages Trustee.
(d) CONSENTS
All consents, approvals and authorisations of all United Kingdom
regulatory authorities required on the part of Abbey for or in
connection with the execution and performance of the
transactions contemplated by the Legal Agreements to which Abbey
is a party have been obtained and are in full force and effect
including, without limiting the generality of the foregoing,
Abbey having received a standard licence under the Consumer
Credit ▇▇▇ ▇▇▇▇ and Abbey being registered under the DPA.
(e) COMPLIANCE
The transfer by way of equitable assignment of Abbey of its
interest in the Portfolio and the related property and rights,
the execution and delivery of the Legal Agreements to which
Abbey is a party, the implementation of the transactions
contemplated by such Legal Agreements and compliance with the
terms of such Legal Agreements did not, and will not, (i)
conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, the Memorandum and
Articles of Association of Abbey, or any agreement or instrument
to which Abbey 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 Ninth
Issuer Notes or the Reg S Ninth Issuer Notes; or (ii) infringe
any applicable law, rule, regulation, judgment, order or decree
of any government, governmental body or court having
jurisdiction over Abbey 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 amendment or supplement 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
21
the Effective Date and at the Execution Time, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading; on the Effective Date and on the Closing
Date the Ninth Issuer Trust Deed did or will comply in all
material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with
any amendment or 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 Abbey makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Note Trustee or (ii) the information
contained in or omitted from the Registration Statement or the
Prospectus (or any statement thereto) in reliance upon and in
conformity with information furnished in writing to Abbey by or
on behalf of any Underwriter specifically for inclusion in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto).
(g) BENEFICIAL OWNER
On 25th July, 2000, the Mortgages Trust was established pursuant
to the Mortgages Trust Deed and following the transfer by way of
equitable assignment of Abbey of its interest in the Portfolio
to the Mortgages Trustee pursuant to, and in accordance with,
the Mortgage Sale Agreement on 26th July, 2000 and on subsequent
distribution dates or, in relation to Loans secured over
properties in Scotland and their Related Security, following the
granting from time to time of a Scottish Trust Deed, the
Mortgages Trustee held (and continues to hold) the Portfolio on
trust for the benefit of Funding and Abbey in undivided shares
absolutely.
(h) LITIGATION
It is not involved in any actions, suits or proceedings in
relation to claims or amounts which could materially adversely
affect its ability to perform its obligations under the Legal
Agreements.
(i) MORTGAGE SALE AGREEMENT
The representations and warranties given by Abbey in the
Mortgage Sale Agreement will be true and accurate when made or
deemed to be repeated.
(j) BREACH OF OTHER AGREEMENTS
Abbey is not in breach of or in default under any agreements to
which it is a party or which is binding on it or any applicable
laws to the extent that such breach or default is material to
the performance by Abbey of its obligations under the Legal
Agreements to which it is a party, or would be so material, had
such Legal Agreements been entered into.
(k) REPRESENTATIONS AND WARRANTIES IN THE LEGAL AGREEMENTS
The representations and warranties given by Abbey in the Legal
Agreements are true and accurate in all material respects.
22
8. COVENANTS OF THE NINTH ISSUER, FUNDING, THE MORTGAGES TRUSTEE AND ABBEY
8.1 The Ninth Issuer and, where expressly provided, Funding, the Mortgages
Trustee and Abbey covenants to, and agrees with, the Underwriters and
each of them that:
(a) THE REGISTRATION STATEMENT
The Ninth Issuer, Funding, the Mortgages Trustee and Abbey will
use their best efforts to cause the Registration Statement, if
not effective at the Execution Time, and any amendment thereto,
to become effective. Prior to the termination of the offering of
the Ninth Issuer Notes, none of the Ninth Issuer, Funding, the
Mortgages Trustee or Abbey will file any amendment to the
Registration Statement or supplement to the Prospectus or any
Rule 462(b) Registration Statement unless the Ninth Issuer,
Funding, the Mortgages Trustee and Abbey have furnished the
Underwriters with a copy for their review prior to filing and
none of them will file any such proposed amendment or supplement
to which the 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 Ninth
Issuer, Funding, the Mortgages Trustee and Abbey 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 Underwriters of such timely
filing. The Ninth Issuer, Funding, the Mortgages Trustee and
Abbey will promptly advise the Underwriters when:
(i) the Registration Statement, if not effective at the
Execution Time, shall have become effective;
(ii) the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission; and
(iii) prior to termination of the offering of the Ninth Issuer
Notes, any amendment to the Registration Statement shall
have been filed or become effective.
(b) DELIVERY OF COPIES
The Ninth Issuer will deliver to each Underwriter (i) one copy
of the Registration Statement as originally filed and each
amendment thereto, in each case including all exhibits and
consents filed therewith; (ii) a conformed copy of the
Registration Statement as originally filed and each amendment
thereto, in each case including all exhibits and consents filed
therewith and (iii) during the Marketing Period, as many copies
of the Prospectus (including all amendments and supplements
thereto) as each Underwriter may reasonably request. As used
herein, the term MARKETING PERIOD means any period during which
a prospectus relating to the Ninth Issuer Notes is required to
be delivered under the Securities Act.
(c) NOTIFY MATERIAL OMISSION
If at any time during the Marketing Period any event shall have
occurred as a result of which the Registration Statement or
Prospectus, as then amended or supplemented, would include a
statement of fact which is not true and accurate in all material
respects or omit any fact the omission of which would make
misleading in any
23
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 Ninth Issuer will promptly notify the
Underwriters; (ii) the Ninth Issuer shall promptly prepare and
timely file with the Commission any amendment or supplement to
the Registration Statement or any Prospectus that may, in the
reasonable judgment of the Ninth Issuer or the Underwriters, be
required by the Securities Act or requested by the Commission;
(iii) the Ninth Issuer will, without charge, supply to the
Underwriters as many copies as they may reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission; and (iv) the representations
and warranties contained in Clauses 5(a), 5(b), 5(c), 5(h),
5(o), 5(s), 6(a), 6(b), 6(c), 6(p) and 6(s) shall be deemed to
be repeated by, as applicable, the Ninth Issuer, Funding and the
Mortgages Trustee as of the date of each such amended Prospectus
or supplement to the Prospectus on the basis that each reference
to "Prospectus" in such representations and warranties contained
in Clauses 5 and 6 shall be deemed to be a reference to the
Prospectus as amended or supplemented as at such date.
(d) NOTIFY CHANGE
Without prejudice to its obligations under Clause 8(c), the
Ninth Issuer, Funding or the Mortgages Trustee will notify the
Underwriters promptly of any change affecting any of its
representations, warranties, covenants, agreements or
indemnities in this Agreement at any time prior to payment being
made to the Ninth Issuer on the Closing Date and will take such
steps as may be reasonably requested by the Underwriters to
remedy and/or publicise the same.
(e) OFFICIAL ANNOUNCEMENTS
Between the date of this Agreement and the Closing Date (both
dates inclusive) none of the Ninth Issuer, Funding or the
Mortgages Trustee will, without the prior approval of the
Underwriters (such approval not to be unreasonably withheld),
make any official announcement which would have an adverse
effect on the marketability of the Ninth Issuer Notes.
(f) STAMP DUTY
(i) The Ninth Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar
nature and duties payable in the United Kingdom,
Belgium, Luxembourg or the United States, including
interest and penalties, in connection with the creation,
issue, distribution and offering of the Ninth Issuer
Notes or in connection with the execution and delivery
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 payable in the United Kingdom, Belgium,
Luxembourg or the United States, including interest and
penalties, in connection with the execution and delivery
of any of the Legal Agreements to which it is a party
(other than in respect of the execution and delivery of
the Mortgages Trust Deed (including any amendment
24
thereto), the Mortgage Sale Agreement (including any
amendment thereto) and any Legal Agreement to which the
Ninth Issuer is a party) together with any value added,
turnover or similar tax payable in respect of that
amount (and references in this Agreement to such amount
shall be deemed to include any such taxes so payable in
addition to it).
(iii) The Mortgages Trustee will pay any stamp duty, issue,
registration, documentary or other taxes of a similar
nature and duties payable in the United Kingdom,
Belgium, Luxembourg or the United States, including
interest and penalties in connection with the execution
and delivery of the Mortgages Trust Deed (including any
amendment thereto), the Mortgage Sale Agreement
(including any amendment thereto) and the Scottish Trust
Deed (including any amendment thereto and any subsequent
trust deed in substantially similar form) (together with
any value added, turnover or similar tax payable in
respect of that amount (and references in this Agreement
to such amount shall be deemed to include any such taxes
so payable in addition to it)) but will be promptly
reimbursed an amount equal to any such payments by the
Beneficiaries in accordance with the terms of the
Mortgages Trust Deed.
(iv) For the avoidance of doubt, if Funding or the Mortgages
Trustee discharges its obligations to pay any stamp
duty, issue, registration, documentary or other taxes of
a similar nature and duties payable in the United
Kingdom, Belgium, Luxembourg or the United States,
including interest and penalties in each case as
described above (together, the RELEVANT TAXES), at any
time while amounts are outstanding in respect of the
notes issued by the First Issuer and/or the Second
Issuer and/or the Third Issuer and/or the Fourth Issuer
and/or the Fifth Issuer and/or the Sixth Issuer and/or
the Seventh Issuer and/or the Eighth Issuer and/or the
Ninth Issuer and/or any New Issuer, then Funding and/or
(as applicable) the Mortgages Trustee will not be
obliged to pay such relevant taxes multiple times (in
respect of the same obligation), in order to meet its
obligations under (A) the underwriting agreements and
subscription agreements relating to the First Issuer
and/or the Second Issuer and/or the Third Issuer and/or
the Fourth Issuer and/or the Fifth Issuer and/or the
Sixth Issuer and/or the Seventh Issuer and/or the Eighth
Issuer and/or the Ninth Issuer and/or any New Issuer and
(B) paragraphs (ii) and/or (iii) (as applicable) above.
(g) PAYMENT OF FEES, CHARGES, COSTS AND DUTIES
(i) Without prejudice to the generality of Clause 12.1, the
Ninth Issuer will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or
duties, including interest and penalties, arising from
or in connection with the creation of the security for
the Ninth Issuer Notes and the Reg S Ninth Issuer Notes,
the obligations of the Ninth Issuer under the Ninth
Issuer Trust Deed, for the other amounts to be secured
as contemplated by the Ninth Issuer Deed of Charge, 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,
including interest and penalties, arising from or in
connection with the creation of the security for the
Ninth Issuer Intercompany Loan and for the
25
other amounts to be secured as contemplated by the
Funding Deed of Charge, the First Deed of Accession to
the Funding Deed of Charge, the Second Deed of Accession
to the Funding Deed of Charge, the Third Deed of
Accession to the Funding Deed of Charge, the Fourth Deed
of Accession to the Funding Deed of Charge, the Amended
and Restated Funding Deed of Charge, the First Deed of
Accession to the Amended and Restated Funding Deed of
Charge, the Second Deed of Accession to the Amended and
Restated Funding Deed of Charge and any accession
thereto, the perfection of such security at any time.
(iii) Without prejudice to the generality of Clause 12.1, the
Mortgages Trustee will pay all and any fees, charges,
costs and duties and any stamp and other similar taxes
or duties, including interest and penalties, arising
from or in connection with: (a) the purchase of the
Related Security (and related property and rights)
excluding Land Registry and Registers of Scotland fees
(it being agreed that registration or recording at Land
Registry or Registers of Scotland of the transfer of the
Related Security to the Mortgages Trustee will not be
applied for except in the circumstances specified in the
Amended and Restated Servicing Agreement); but on the
basis that the Mortgages Trustee will be reimbursed such
fees, charges, costs and duties, and any stamp and other
similar taxes or duties (including interest and
penalties) by the Beneficiaries pursuant to with the
terms of the Mortgages Trust Deed.
(h) PERFORM ALL REQUIRED ACTIONS
On or prior to the Closing Date each of the Ninth Issuer,
Funding and the Mortgages Trustee will do all things within each
of their respective powers and required of each of them on such
date under the terms of the Legal Agreements to which each is a
party.
(i) CONDITIONS PRECEDENT
The Ninth Issuer will use all reasonable endeavours to procure
satisfaction on or before the Closing Date of the conditions
referred to in Clause 9 of this Agreement.
(j) SERVICING AGREEMENT
Funding and the Mortgages Trustee will use all reasonable
endeavours to procure that Abbey complies with its obligations
under the Amended and Restated Servicing Agreement.
26
(k) CHARGES AND SECURITIES
(i) The Ninth Issuer will procure that each of the charges
and other securities created by or pursuant to or
contained in the Ninth Issuer Deed of Charge is
registered within all applicable time limits in all
appropriate registers.
(ii) Funding will procure that each of the charges and other
securities created by or pursuant to or contained in the
Funding Deed of Charge, the First Deed of Accession to
the Funding Deed of Charge, the Second Deed of Accession
to the Funding Deed of Charge, the Third Deed of
Accession to the Funding Deed of Charge, the Fourth Deed
of Accession to the Funding Deed of Charge, the Amended
and Restated Funding Deed of Charge, the First Deed of
Accession to the Amended and Restated Funding Deed of
Charge, the Second Deed of Accession to the Amended and
Restated Funding Deed of Charge and any accession
thereto is registered within all applicable time limits
in all appropriate registers other than at Land
Registry.
(l) RATINGS
None of the Ninth Issuer, Funding or the Mortgages Trustee will
take, or cause to be taken, any action and will not permit any
action to be taken which it knows or has reason to believe would
result in the Series 1 Class A Ninth Issuer Notes not being
assigned an [F1+] rating by Fitch Ratings Ltd. (FITCH RATINGS),
a [P-1] rating by ▇▇▇▇▇'▇ Investors Service Limited (MOODY'S)
and an [A-1+] rating by Standard & Poor's Rating Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (STANDARD & POOR'S);
and the Series 2 Class A Ninth Issuer Notes not being assigned
an [AAA] rating by Fitch Ratings, an [Aaa] rating by Moody's and
an [AAA] rating by Standard & Poor's..
(m) LEGAL AGREEMENTS
Prior to closing on the Closing Date none of the Ninth Issuer,
Funding or the Mortgages Trustee will amend the terms of the
executed Legal Agreements to which they are parties, nor execute
any of the other Legal Agreements other than in the agreed form,
without the consent of the Underwriters (such consent not to be
unreasonably withheld or delayed).
(n) COMMISSION FILINGS
The Ninth Issuer, Funding and the Mortgages Trustee will timely
file with the Commission all documents (and any amendments to
previously filed documents) required to be filed by them
pursuant to Sections 13(a), 13(c) or 15(d) of the Exchange Act,
provided that during the Marketing Period none of the Ninth
Issuer, Funding or the Mortgages Trustee will file any such
document or amendment unless the Ninth Issuer, Funding and the
Mortgages Trustee have furnished the Underwriters with a copy
for their review prior to filing and none of them will file any
such proposed document or amendment until the Underwriters have
been consulted and given a reasonable opportunity to comment on
such document or amendment.
(o) COPIES OF COMMISSION FILINGS
During the Marketing Period, if there is (i) any amendment or
supplement to the Registration Statement, (ii) any amendment or
supplement to any Prospectus, or (iii) any material document
filed by the Ninth Issuer, Funding or the Mortgages Trustee
27
with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act including but not limited to any
interim or any report submitted to the Commission on Form 6-K
(FORM 6-K) or Form 20-F (FORM 20-F) under the Exchange Act and
the rules and regulations thereunder or any amendment or
supplement to any such document, the Ninth Issuer, Funding and
the Mortgages Trustee, as the case may be, will furnish a copy
thereof to each Underwriter, and counsel to the Underwriters,
prior to filing with the Commission.
(p) NOTICE TO UNDERWRITERS OF CERTAIN EVENTS
During the Marketing Period, the Ninth 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 Ninth
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 Ninth 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 Abbey or the
Ninth Issuer of any notification with respect to the suspension
of the qualification of the Ninth Issuer Notes for sale in any
jurisdiction or the initiation or threat of any proceeding for
that purpose, and (v) of any downgrading in the rating of the
Ninth Issuer Notes or any debt securities of Abbey or the Ninth
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
Abbey or the Ninth Issuer or made any public announcement that
any such organisation has under surveillance or review its
rating of any debt securities of Abbey or the Ninth 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 Abbey or
the Ninth Issuer is so informed.
(q) STOP ORDERS
The Ninth Issuer will use its best efforts to prevent the
issuance of any stop order or the suspension of any
qualification referred to in Clause 8.1(p) above and if, during
the Marketing Period, the Commission shall issue a stop order
suspending the effectiveness of the Registration Statement or
such qualification of the Ninth Issuer Notes for sale in any
jurisdiction is suspended, the Ninth Issuer will make every
reasonable effort to obtain the lifting of that order or
suspension at the earliest possible time.
(r) BLUE SKY QUALIFICATIONS
The Ninth Issuer will arrange, in co-operation with the
Underwriters, to qualify the Ninth Issuer Notes for offering and
sale under the securities laws of such jurisdictions in the
United States as the Underwriters may designate, and to maintain
such qualifications in effect for as long as may be required for
the distribution of the Ninth Issuer Notes, and to file such
statements and reports as may be required by the laws
28
of each jurisdiction in which the Ninth Issuer Notes have been
qualified as above, provided that in connection therewith the
Ninth 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
Ninth Issuer Notes in such jurisdiction or to register as a
dealer in securities or to become subject to taxation in any
jurisdiction.
8.2 Abbey covenants to and agrees with the Underwriters and each of them
that:
(a) NOTIFY CHANGE
Abbey will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time prior to
payment being made to the Ninth Issuer on the Closing Date and
will take such steps as may be reasonably requested by the
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 Abbey
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, Abbey will do all things within
its power and required of it on such date under the terms of the
Legal Agreements.
(c) REVIEW OF RELATED SECURITY
Abbey will deliver to the Underwriters on the date of this
Agreement a letter (relating to its review of the Related
Security) dated the date of this Agreement in the agreed form
addressed to Abbey and the Underwriters from Deloitte & Touche
LLP.
(d) RATINGS
Abbey will not take, or cause to be taken, any action and will
not permit any action to be taken which it knows or has reason
to believe would result in the Series 1 Class A Ninth Issuer
Notes not being assigned an [F1+] rating by Fitch Ratings, a
[P-1] rating by Moody's and an [A-1+] rating by Standard &
Poor's; and the Series 2 Class A Ninth Issuer Notes not being
assigned an [AAA] rating by Fitch Ratings, an [Aaa] rating by
Moody's and an [AAA] rating by Standard & Poor's..
(e) LEGAL AGREEMENTS
Prior to closing on the Closing Date Abbey will not amend the
terms of any of the already executed Legal Agreements to which
it is a party, nor execute any of the other Legal Agreements
other than in the agreed form, without the consent of the
Underwriters (such consent not to be unreasonably withheld or
delayed).
9. CONDITIONS PRECEDENT
The obligation of the Underwriters under this Agreement to subscribe for
the Ninth Issuer Notes is subject to the following conditions precedent:
29
(a) THE REGISTRATION STATEMENT
(i) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriters
agree in writing to a later time, the Registration
Statement will become effective not later than (A) 6:00
p.m. New York City time on the date of determination of
the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on
such date, or (B) 9:30 a.m. New York City time on the
next business day in New York following the day on which
the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City
time on such date.
(ii) If filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and
any such supplement, will be filed in the manner and
within the time period required by Rule 424(b).
(iii) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted
or threatened.
(b) EXECUTION OF LEGAL AGREEMENTS AND THE GLOBAL NINTH ISSUER NOTES
The execution and delivery by all parties thereto of the Legal
Agreements and the Global Ninth Issuer Notes representing each
class of the Ninth Issuer Notes on or prior to the Closing Date.
(c) ADMISSION TO LISTING AND TRADING
The UK Listing Authority having agreed to admit the Ninth Issuer
Notes and the Reg S Ninth Issuer Notes to the official list of
the UK Listing Authority and the Stock Exchange having agreed to
admission of the Ninth Issuer Notes and the Reg S Ninth Issuer
Notes to trading, in each case on or prior to the Closing Date.
(d) LEGAL OPINIONS
On or prior to the Closing Date, there having been delivered to
the Ninth Issuer, the Underwriters, the Note Trustee, the Ninth
Issuer Security Trustee and the Security Trustee copies of
opinions and disclosure letters, in form and substance
satisfactory to the Underwriters, the Note Trustee, the Ninth
Issuer Security Trustee, the Security Trustee and the Rating
Agencies, dated the Closing Date, of:
(i) ▇▇▇▇▇▇▇▇▇ and May, legal advisers to the Ninth Issuer as
to English law, addressed to the Ninth Issuer and the
Underwriters, substantially to the effect set forth in
Annex A hereto;
(ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, legal advisers to
the Ninth Issuer as to US law, addressed to the Ninth
Issuer and the Underwriters, substantially to the effect
set forth in Annex B hereto;
(iii) ▇▇▇▇▇ & Overy LLP, legal advisers to the Underwriters,
the Note Trustee, the Ninth Issuer Security Trustee and
the Security Trustee, addressed to the Underwriters, the
Note Trustee, the Ninth Issuer Security Trustee and the
Security Trustee, substantially to the effect set forth
in Annex C hereto;
30
(iv) Tods ▇▇▇▇▇▇ LLP, legal advisers to the Underwriters, the
Note Trustee, the Ninth Issuer Security Trustee, the
Security Trustee, the Ninth Issuer and Abbey as to Scots
law, addressed to the Underwriters, the Note Trustee,
the Ninth Issuer Security Trustee, the Security Trustee,
the Ninth Issuer and Abbey, substantially to the effect
set forth in Annex E hereto; and
(v) In-house legal counsel of each Ninth Issuer Swap
Provider, addressed to the Ninth Issuer, the Ninth
Issuer Security Trustee, the Security Trustee and the
Underwriters.
(e) AUDITORS' LETTERS
On the date of this Agreement and (in the event that a new
portfolio of Loans and their Related Security is transferred to
the Mortgages Trustee, or as reasonably requested by the
Underwriters) on the Closing Date, there having been addressed
and delivered to the Underwriters letters, in form and substance
satisfactory to them, dated the date of this Agreement and the
Closing Date, respectively, from Deloitte & Touche LLP, the
independent auditors of the Ninth Issuer and Funding.
(f) CERTIFIED CONSTITUTIONAL DOCUMENTS
On or prior to the Closing Date, there having been delivered to
the Underwriters a copy, certified by a duly authorised director
of, as applicable, the Ninth Issuer, Funding and the Mortgages
Trustee, of: (i) the Memorandum and Articles of Association of
each of the Ninth Issuer, Funding and the Mortgages Trustee;
(ii) the resolution of the Board of Directors of each of the
Ninth 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 Ninth Issuer, the issue of
the Ninth Issuer Notes and the Reg S Ninth Issuer Notes and the
entry into and performance of the transactions contemplated
thereby.
(g) COMPLIANCE
At the Closing Date: (i) the representations and warranties of
the Ninth Issuer, Funding, the Mortgages Trustee and Abbey in
this Agreement being true, accurate and correct at, and as if
made on, the Closing Date and the Ninth Issuer, Funding, the
Mortgages Trustee and Abbey having performed all of their
obligations and complied with all of their undertakings 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 Ninth Issuer, Funding, the Mortgages
Trustee and Abbey, 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 Ninth Issuer, Funding, the
Mortgages Trustee or Abbey which is material in the context of
the issue of the Ninth Issuer Notes or the Reg S Ninth Issuer
Notes.
(h) CIRCUMSTANCES FOR TERMINATION
On or prior to the Closing Date, in the opinion of the
Underwriters, none of the circumstances described in Clause
14.1(c), 14.1(d), 14.1(f) or 14.1(g) having arisen.
31
(i) RATINGS
Receipt of notification from Fitch Ratings, ▇▇▇▇▇'▇ and
Standard & Poor's that the ratings for the Ninth Issuer
Notes and the Reg S Ninth Issuer Notes described in the
Prospectus have been assigned either without conditions or
subject only to the execution and delivery on or before the
Closing Date of the Legal Agreements and legal opinions in
all material respects in the form in which they shall then
have been executed and delivered on or prior to the Closing
Date there not having been a public announcement from any
of the above rating agencies that such agency has revised
downwards or withdrawn or placed on review or "credit
watch" with negative implications or with implications of a
possible change that does not indicate the direction of
such possible change (or other similar publication of
formal review by the relevant rating agency) any existing
credit rating assigned to the Ninth Issuer Notes and the
Reg S Ninth Issuer Notes or the long term debt of Abbey.
(j) REG S NINTH ISSUER NOTES SUBSCRIPTION AGREEMENT
The Reg S Ninth Issuer Notes Subscription Agreement having been
entered into.
(k) OTHER ISSUES
The Reg S Ninth Issuer Notes having been or being issued and
subscribed and paid for pursuant to the Reg S Ninth Issuer Notes
Subscription Agreement prior to or contemporaneously with the
issue, subscription and payment for the Ninth Issuer Notes
hereunder.
(l) MATERIAL ADVERSE EVENT
There not having been between the date of this Agreement and the
Closing Date any change or any development or event reasonably
likely to involve a prospective change which would, in the
judgment of the Underwriters, be materially adverse to the
financial or trading condition of the Ninth Issuer, Funding, the
Mortgages Trustee or Abbey, 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 Ninth
Issuer, Funding, the Mortgages Trustee or Abbey to perform each
and every covenant and obligation to be performed by it pursuant
to the Legal Agreements, the Loans and the Related Security on or
prior to the Closing Date.
(m) SOLVENCY CERTIFICATES
(i) The Ninth Issuer having furnished or caused to be
furnished to the Underwriters at the Closing Date a
solvency certificate, dated the Closing Date, of a duly
authorised director of the Ninth Issuer in the agreed
form.
(ii) Funding having furnished or caused to be furnished to
the Ninth Issuer and the Security Trustee a solvency
certificate, dated the Closing Date, of a duly
authorised director of Funding in the agreed form.
(iii) Abbey having furnished or caused to be furnished to
Funding and the Security Trustee a solvency certificate,
dated the Closing Date, of a duly authorised officer of
Abbey in the agreed form.
32
(n) MORTGAGE SALE AGREEMENT
All of the steps required by Clause 4 of the Mortgage Sale
Agreement for the purposes of the purchase of a New Portfolio
(as defined therein) by the Mortgages Trustee from Abbey on the
Closing Date and related rights to be acquired from Abbey
pursuant thereto having been taken.
(o) CERTIFICATE OF NOTE TRUSTEE
The Note Trustee having furnished to the Underwriters a
certificate stating that that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Note Trustee did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein not misleading.
Prior to the Closing Date, there shall be furnished to the Underwriters
such further information, certificates and documents as the Underwriters
may reasonably request.
If any of the conditions specified in this Clause 9 have not been
fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be reasonably satisfactory in all
material respects in form and substance to the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Ninth
Issuer in writing or by telephone or facsimile confirmed in writing.
The Underwriters may, at their discretion, waive compliance with the
whole or any part of this Clause 9.
10. CLOSING
10.1 ISSUE OF NINTH ISSUER NOTES
Not later than 4:00 p.m. (London time) on the Closing Date, the Ninth
Issuer will issue and deliver (a) to the Underwriters, or to their
order, a Global Ninth Issuer Note for each of the Series 1 Class A Ninth
Issuer Notes and the Series 2 Class A Ninth Issuer Notes.
10.2 PAYMENT
Against such delivery [Deutsche Bank Securities Inc.] on behalf of the
Underwriters will pay to the Ninth Issuer the gross subscription moneys
for the Ninth Issuer Notes (being the Issue Price). Such payment shall
be made by [Deutsche Bank Securities Inc.] in respect of the Ninth
Issuer Notes in Dollars in immediately available funds to the account of
the Ninth Issuer, Citibank, N.A., New York, ABA. *, SWIFT CODE * account
of Citibank, N.A., London, sort code *, IBAN No. * reference for account
* ▇▇▇▇▇▇ Financing (No. 9) PLC.
Such payment shall be evidenced by a confirmation by *, that it has so
made that payment to the Ninth Issuer.
10.3 GROSS SUBSCRIPTION MONEYS
The Ninth Issuer undertakes that on the Closing Date it will apply the
gross subscription moneys for the Ninth Issuer Notes and the gross
subscription moneys for the Reg S Ninth
33
Issuer Notes (net of underwriting commissions and various out-of-pocket
expenses) converted under the relevant Ninth Issuer Swap Agreement,
forthwith in making a loan to Funding pursuant to the terms of the Ninth
Issuer Intercompany Loan Agreement. Funding undertakes that it will
apply the proceeds of the Ninth Issuer Intercompany Loan to make payment
to Abbey or at Abbey's direction of the purchase price of an addition to
Funding's already existing share of the portfolio and related rights
pursuant to the Mortgage Sale Agreement.
11. COMMISSIONS
11.1 In consideration of the obligations undertaken herein by the
Underwriters, the Ninth Issuer agrees to pay to the Underwriters a
selling commission (the SELLING COMMISSION) of [*] per cent. of the
aggregate principal amount of the Series 1 Class A Ninth Issuer Notes
and of [*] per cent. of the aggregate principal amount of the Series 2
Class A Ninth Issuer Notes and a combined management and underwriting
commission (the MANAGEMENT AND UNDERWRITING COMMISSION) of [*] per cent.
of the aggregate principal amount of the Series 1 Class A Ninth Issuer
Notes and of [*] per cent. of the aggregate principal amount of the
Series 2 Class A Ninth Issuer Notes.
11.2 The Ninth Issuer undertakes that on the Closing Date it will pay to the
Underwriters the aggregate Selling Commission and aggregate Management
and Underwriting Commission calculated in accordance with Clause 11.1,
in sterling, in immediately available funds to *(BIC: *) sort code *,
account number * in favor of *(BIC: *) reference ▇▇▇▇▇▇ Financing (No.
9) PLC.
12. EXPENSES
12.1 GENERAL EXPENSES
The Ninth Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Ninth
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 Ninth
Issuer, any amount in respect of Irrecoverable VAT or similar tax
payable in respect thereof against production of a valid tax invoice):
(a) the fees, disbursements and expenses of the Ninth Issuer's legal
advisers and accountants and all other expenses of the Ninth Issuer in
connection with the issue (including, without limitation, any filing
fees payable to the Commission in connection with the registration of
the Ninth Issuer Notes under the Securities Act and any fees payable in
connection with the qualification of the Ninth Issuer Notes for offering
and sale pursuant to any NASD regulatory provisions or under any
applicable United States state securities, Blue Sky or similar laws) and
listing of the Ninth Issuer Notes (including, without limitation, any
advertisements required in connection therewith), the preparation and
delivery of each class of the Ninth Issuer Notes in global form and (if
required) definitive form, the costs of the initial delivery and
distribution of the Ninth Issuer Notes (including, without limitation,
transportation, packaging and insurance) and the initial fees and
expenses of The Depository Trust Company, Euroclear and Clearstream,
Luxembourg in relation to the Ninth Issuer Notes (excluding any such
fees and expenses arising as a result of any transfer of the Ninth
Issuer Notes), the preparation and printing of the Prospectus (in proof,
preliminary and final form) and any amendments and supplements thereto
and the mailing and delivery of copies of this Agreement to the
Underwriters; (b) the cost of printing or reproducing the Legal
Agreements and any other documents prepared in connection with the
offering, issue and initial delivery of the Ninth Issuer Notes; (c) the
fees and expenses of the Note Trustee, the Security Trustee and the
Ninth Issuer Security Trustee (including fees and expenses of legal
advisers to the Note Trustee, the Security Trustee and the Ninth Issuer
Security Trustee), the Principal
34
Paying Agent, the US Paying Agent, the Registrar, the Transfer Agent and
the Agent Bank in connection with the preparation and execution of the
Legal Agreements and any other relevant documents and the issue of the
Ninth Issuer Notes and compliance with the Conditions of the Ninth
Issuer Notes; (d) the fees and expenses incurred or payable in
connection with obtaining a rating for the Ninth Issuer Notes from Fitch
Ratings, ▇▇▇▇▇'▇ and Standard & Poor's and annual fees in connection
with such rating or any other rating from such institution for the Ninth
Issuer Notes; (e) the fees and expenses payable in connection with
obtaining and maintaining the admission to trading of the Ninth Issuer
Notes on the Stock Exchange; (f) out-of-pocket expenses (excluding legal
expenses) incurred by the Underwriters in connection with the
transactions contemplated hereby; (g) any roadshow expenses incurred by
the Underwriters; and (h) any amount in respect of the fees and
disbursements of the Underwriters' legal advisers in relation thereto.
12.2 REIMBURSEMENT
The Ninth Issuer will reimburse the Underwriters for all amounts
incurred by them in connection with the issue of the Ninth Issuer Notes
which it has agreed to pay pursuant to Clause 12.1.
For the avoidance of doubt, references to costs and expenses in this
Agreement shall be deemed to include, in addition, references to any
Irrecoverable VAT payable in respect of such costs and expenses.
13. INDEMNIFICATION
13.1 NINTH ISSUER, FUNDING, MORTGAGES TRUSTEE AND ABBEY INDEMNITY
Each of the Ninth Issuer, Funding, the Mortgages Trustee and Abbey agrees
to indemnify and hold harmless each Underwriter (including, for the
purposes of this Clause 13.1, the directors, officers, employees and
agents of each Underwriter) and each person who controls such Underwriter
within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject, including
without limitation any such losses, claims, damages or liabilities
arising under the Securities Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or 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 Ninth Issuer Notes as originally
filed or in any amendment thereto, or in any Registration Statement, any
preliminary prospectus or the Prospectus, or in any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other reasonable expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Ninth Issuer, Funding, the Mortgages
Trustee and Abbey will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission (a) made in the Registration Statement or the Prospectus
in reliance upon and in conformity with written information furnished to
the Ninth Issuer, Funding, the Mortgages Trustee and Abbey by or on
behalf of any Underwriter through the Lead Managers specifically for
inclusion therein or (b) contained in that part of the Registration
Statement constituting the Statement of Eligibility and Qualification
under the Trust Indenture Act (Form T-1) of the Note Trustee; and
provided further, that as to any preliminary prospectus or as to the
Prospectus, this
35
indemnity agreement shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) on account of any loss,
claim, damage, liability or action arising from the sale of Notes to any
person by that Underwriter if that Underwriter failed to send or give a
copy of the Prospectus, as the same may be amended or supplemented (for
the purposes of this Clause 13, the FINAL PROSPECTUS), to that person
within the time required by the Securities Act, and the
untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such
preliminary prospectus or Prospectus was corrected in the Final
Prospectus unless such failure resulted from
non-compliance by the Ninth Issuer, Funding, the Mortgages Trustee or
Abbey with Clause 8.1(c) hereof. For purposes of the final proviso to
the immediately preceding sentence, the term Final Prospectus shall not
be deemed to include the documents incorporated therein by reference,
and no Underwriter shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in the Prospectus or
in any Final Prospectus to any person other than a person to whom such
Underwriter has delivered such incorporated documents in response to a
written or oral request therefor. The Ninth Issuer, Funding, the
Mortgages Trustee and Abbey 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
Ninth Issuer, Funding, the Mortgages Trustee and Abbey may otherwise
have to any Underwriter or any controlling person of any Underwriter.
No Underwriter or controlling person of any Underwriter shall have any
duty or obligation, whether as fiduciary for any Underwriter,
controlling person or otherwise, to recover any such payment or to
account to any other person for any amounts paid to it under this Clause
13.1.
13.2 UNDERWRITERS' INDEMNITY
Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Ninth Issuer and Abbey, each of their directors and
each of their officers who signs the Registration Statement, and each
person who controls the Ninth Issuer or Abbey within the meaning of
either the Securities Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Ninth Issuer to each Underwriter, but only
with reference to written information relating to such Underwriter
furnished to the Ninth Issuer or Abbey by or on behalf of such
Underwriter specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. It is
acknowledged that the statements set forth under the heading
Underwriting that specify (a) the list of Underwriters and their
respective participation in the sale of the Ninth Issuer Notes, (b) the
sentences related to concessions and reallowances and (c) the paragraph
related to short sales, stabilisation, short covering transactions and
penalty bids in any preliminary prospectus and the Prospectus constitute
the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in any preliminary prospectus, the Prospectus
or the Registration Statement.
13.3 PROCEEDINGS
Promptly after receipt by an indemnified party under this Clause 13 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Clause 13, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying
party (a)
36
will not relieve it from liability under Clause 13.1 or 13.2 above
unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of
substantial rights and defences and (b) will not in any event relieve
the indemnifying party from any obligation to any indemnified party
other than the indemnification obligation provided in Clause 13.1 or
13.2 above. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein, and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defence thereof with counsel
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defence of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Clause 13 for any legal or
other expenses subsequently incurred by the indemnified party in
connection with the defence thereof other than reasonable costs of
investigation; provided that each Underwriter, the Underwriters as a
group, or the Ninth Issuer, Funding, the Mortgages Trustee and Abbey, 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 Ninth Issuer, Funding,
the Mortgages Trustee and Abbey and their respective controlling
persons, as the case may be, who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by such
indemnified parties under this Clause 13 if, in the reasonable judgment
of any Underwriter, the Underwriters acting together, or the Ninth
Issuer, Funding, the Mortgages Trustee and Abbey, as the case may be, it
is advisable for such indemnified parties to be represented by separate
counsel, and in that event the fees and expenses of such separate
counsel (and local counsel) shall be paid by the indemnifying party.
Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defence of such action and
approval by the indemnified party of counsel selected by the
indemnifying party, the indemnifying party will not be liable to such
indemnified party under this Clause 13 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defence thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defences in
accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one such separate counsel (and local counsel)
representing the indemnified parties under Clause 13.1 or 13.2 hereof),
(ii) the indemnifying party shall not be liable for the expenses of more
than one such separate counsel (and local counsel) representing the
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action or (iii) the indemnifying party has authorised the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if Subparagraph (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such Subparagraph (i) or (iii). The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, such consent not to be unreasonably
withheld or delayed, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by this Clause 13, the indemnifying
party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (A) such settlement
is entered into more than 60 days after receipt by such indemnifying
party of such request and (B) such indemnifying party shall not have
either reimbursed the indemnified party in accordance with such request
or objected to such request in writing prior to the date of such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or
could have been a party and in respect of which
37
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 Ninth Issuer, Abbey 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
Ninth Issuer, Abbey and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Ninth Issuer, Abbey and the Underwriters from the
offering of the Ninth Issuer Notes. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Ninth
Issuer, Abbey 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 Ninth Issuer, Abbey 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 Ninth Issuer and Abbey shall be
deemed to be equal to the Issue Price (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the
total Selling Commission and the Management and Underwriting Commission,
in each case as set forth in Clause 11.1. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
Ninth Issuer, or Abbey 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 Ninth Issuer, Abbey and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the foregoing, in no case shall an Underwriter (except as
may be provided in any agreement among underwriters relating to the
offering of the Ninth Issuer Notes) be responsible for any amount in
excess of the Selling Commission or Management and Underwriting
Commission applicable to the Ninth Issuer Notes purchased by such
Underwriter hereunder. Notwithstanding the provisions of this Clause
13.4, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) 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 Ninth Issuer, Funding, the
Mortgages Trustee or Abbey within the meaning of either the Securities
Act or the Exchange Act, each officer of the Ninth Issuer who shall have
signed the Registration Statement and each director of the Ninth Issuer,
or Abbey, shall have the same rights to contribution as the Ninth Issuer,
or Abbey, as the case may be, subject in each case to the applicable
terms and conditions of this Clause 13.4.
38
14. TERMINATION
14.1 UNDERWRITERS' ABILITY TO TERMINATE
Notwithstanding any other provision of this Agreement, [*] on behalf of
the Underwriters may, by notice to the Ninth Issuer given at any time
prior to payment of the gross subscription moneys for the Ninth Issuer
Notes to the Ninth 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 Ninth Issuer's or
Abbey's covenants or agreements in this Agreement; or
(b) if any condition specified in Clause 9 has not been satisfied or
waived by the Underwriters; or
(c) if, in the opinion of the Underwriters, circumstances shall be
such as: (i) to prevent or to a material extent restrict payment
for the Ninth Issuer Notes in the manner contemplated in this
Agreement or (ii) to a material extent prevent or restrict
settlement of transactions in the Ninth Issuer Notes in the
market or otherwise; or
(d) if, in the opinion of the Underwriters, (i) there shall have
been any change in national or international political, legal,
tax or regulatory conditions or (ii) there shall have occurred
any outbreak or escalation of hostilities or any change in
financial markets or any calamity or emergency, either within or
outside the United States, in each case that in the judgment of
the Underwriters is material and adverse and makes it
impracticable or inadvisable to market the Ninth Issuer Notes on
the terms and in the manner contemplated by this Agreement and
the Prospectus; or
(e) upon termination of the Reg S Ninth Issuer Notes Subscription
Agreement; or
(f) trading generally shall have been suspended or materially
limited on or by any of the New York Stock Exchange, the London
Stock Exchange or the over-the-counter market or a material
disruption has occurred in commercial banking or securities
settlement or clearance services in the United States or with
respect to Clearstream, Luxembourg, or Euroclear systems in
Europe; or
(g) a general moratorium on commercial banking activities shall have
been declared by US federal or New York State authorities.
Upon such notice being given this Agreement shall terminate and be of no
further effect.
14.2 CONSEQUENCES OF TERMINATION
In the event that this Agreement terminates, no party hereto shall be
under any liability to any other in respect of this Agreement except that
(a) the Ninth Issuer shall remain liable under Clause 12 for the payment
of the costs and expenses already incurred or incurred in consequence of
such termination, (b) the indemnity agreement and contribution provisions
set forth in Clause 13 shall survive and (c) the obligations of the Ninth
Issuer and Abbey that would have continued in accordance with Clause 15
had the arrangements for the underwriting and issue of the Ninth Issuer
Notes been completed shall so continue.
39
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 Ninth Issuer Notes or any investigation made by or on
behalf of any Underwriter or any controlling person or any of its
representatives, directors, officers, agents or employees or any of
them.
15.2 Save for their respective responsibilities to comply with Clauses 5(f),
5(t), 6(e), 6(q) and 7(d), neither the Ninth Issuer, Funding, the
Mortgages Trustee nor Abbey shall have any responsibility in respect of
the legality of the Underwriters or other persons offering and selling
the Ninth Issuer Notes in any jurisdiction or in respect of the Ninth
Issuer Notes qualifying for sale in any jurisdiction.
16. NOTICES
16.1 All communications pursuant to this Agreement will be in writing and
will be delivered at or sent by facsimile transmission to the following
addresses:
(a) if to the Ninth Issuer,
Abbey ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Regent's Place
London NW1 3AN
Attention: Company Secretary
Facsimile: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
(b) if to Abbey,
c/o Abbey House (AAM 126)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Securitisation Team, Consumer Risk
Facsimile: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
with a copy to:
Attention: Company Secretary
Facsimile: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
(c) if to the Underwriters,
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Securitized Products Group
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
40
With a copy to:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Head of Mortgage Securitization Group
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Securitised Products Group - Head of Residential
Mortgage Products
Facsimile: *
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Legal Deparment
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
16.2 Any communication so sent by letter shall take effect at the time of
actual delivery, and any communication so sent by facsimile transmission
shall take effect upon acknowledgement of receipt by the recipient. Any
communication to be delivered to any party under this Agreement which is
to be sent by facsimile transmission will be written legal evidence.
17. TIME
Time shall be of the essence of this Agreement.
18. GOVERNING LAW AND JURISDICTION
18.1 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance
with, the laws of the State of New York.
18.2 JURISDICTION
Each of the parties hereto irrevocably agrees that, except as otherwise
set forth in this Clause 18.2, any state or federal court sitting in the
City of New York shall have exclusive jurisdiction to hear and determine
any suit, action or proceeding and to settle any dispute arising out of
or based upon this Agreement and, for such purposes, irrevocably submits
to the jurisdiction of such courts. Each of the Ninth Issuer, Funding,
the Mortgages Trustee and Abbey hereby appoints CT Corporation System at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or, if otherwise, its principal
place of business in the City of New York from time to time, as its
agent for service of process, and agrees that service of any process,
summons, notice or document by hand delivery or registered mail upon
such agent shall be effective service of process for any suit, action or
proceeding brought in any such court. Each of the Ninth Issuer, Funding,
the Mortgages Trustee and Abbey 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 Ninth Issuer, Funding, the Mortgages Trustee and Abbey
41
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 Ninth Issuer, Funding, the Mortgages Trustee and Abbey and may be
enforced in any other court to whose jurisdiction each of the Ninth
Issuer, Funding, the Mortgages Trustee and Abbey is or may in the future
be subject, by suit upon judgment. Each of the Ninth Issuer, Funding,
the Mortgages Trustee and Abbey further agrees that nothing herein shall
affect the Underwriters' right to effect service of process in any other
manner permitted by law or to bring a suit, action or proceeding
(including a proceeding for enforcement of a judgment) in any other
court or jurisdiction in accordance with applicable law.
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
42
SIGNATORIES
▇▇▇▇▇▇ FINANCING (NO. 9) PLC
By:
Authorized Signatory
ABBEY NATIONAL PLC
By:
Authorized Signatory
▇▇▇▇▇▇ FUNDING LIMITED
By:
Authorized Signatory
▇▇▇▇▇▇ TRUSTEES LIMITED
By:
Authorized Signatory
DEUTSCHE BANK SECURITIES INC.
By:
Authorized Signatory
▇▇▇▇▇▇ BROTHERS INC.
By:
Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
Authorized Signatory
43
SCHEDULE
-------------------------------------------------------------------------------
UNDERWRITERS PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
SERIES 1 CLASS A SERIES 2 CLASS A
NINTH ISSUER NOTES NINTH ISSUER NOTES
-------------------------------------------------------------------------------
Deutsche Bank Securities Inc. US$ * US$ *
-------------------------------------------------------------------------------
▇▇▇▇▇▇ Brothers Inc. US$ * US$ *
-------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated US$ * US$ *
-------------------------------------------------------------------------------
TOTAL US$ [1,800,000,000] US$ [2,250,000,000]
-------------------------------------------------------------------------------
44