Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
DATED [ ], 2006
GRANITE MASTER ISSUER PLC
And
NORTHERN ROCK PLC
And
GRANITE FINANCE FUNDING 2 LIMITED
And
GRANITE FINANCE TRUSTEES LIMITED
And
[ ]
And
[ ]
And
[ ]
And
[ ]
And
[ ]
relating to GRANITE MASTER ISSUER PLC
U.S.$[ ] Series [ ] Class [ ] Notes due [ ]
CONTENTS
Clause Page
1. Agreement to Issue and Subscribe.......................................................................4
2. Stabilization..........................................................................................6
3. Agreements by the Underwriters.........................................................................7
4. Listing...............................................................................................10
5. Representations and Warranties of the Issuer..........................................................11
6. Representations and Warranties of Funding 2 and the Mortgages Trustee.................................16
7. Representations and Warranties of NRPLC...............................................................21
8. Covenants of the Issuer, Funding 2, the Mortgages Trustee and NRPLC...................................24
9. Conditions Precedent..................................................................................29
10. Expenses..............................................................................................33
11. Indemnification.......................................................................................34
12. Termination...........................................................................................39
13. Survival of Representations and Obligations...........................................................40
14. Notices...............................................................................................40
15. Time..................................................................................................42
16. Non Petition and Limited Recourse.....................................................................42
17. Governing Law and Jurisdiction........................................................................42
18. Counterparts..........................................................................................43
19. Authority of the Lead Underwriters....................................................................43
20. Successors............................................................................................43
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THIS UNDERWRITING AGREEMENT is made as of [ ]
BETWEEN:
(1) GRANITE MASTER ISSUER PLC, a public limited company incorporated
under the laws of England and Wales, whose registered office is at
Fifth Floor, 100 Wood Street, London EC2V 7EX (the "Issuer");
(2) NORTHERN ROCK PLC, a public limited company incorporated under the
laws of England and Wales, whose registered office is at Northern
Rock House, Gosforth, Newcastle upon Tyne NE3 4PL ("NRPLC");
(3) GRANITE FINANCE FUNDING 2 LIMITED, a private limited company
incorporated under the laws of England and Wales, whose registered
office is at Fifth Floor, 100 Wood Street, London EC2V 7EX ("Funding
2");
(4) GRANITE FINANCE TRUSTEES LIMITED, a private limited company
incorporated under the laws of Jersey, Channel Islands, whose
registered office is at 22 Grenville Street, St. Helier, Jersey JE4
8PX, Channel Islands (the "Mortgages Trustee");
(5) [ ], [ ] and [ ] (the "Lead Underwriters"); and
(6) [ ] and [ ](together with the Lead Underwriters, the
"Underwriters" and each an "Underwriter").
WHEREAS:
(A) The Issuer proposes to cause to be issued and to sell to the
Underwriters the mortgage-backed notes of the series and class
specified on Schedule 1 hereto and described in Section 1.3 hereof
(the "Dollar Notes" as set forth on the cover page of the Prospectus
Supplement).
(B) The Dollar Notes will be denominated in U.S. dollars and in minimum
denominations of $[100,000] and integral multiples of $[1,000] in
excess thereof. The Dollar Notes will be issued on the date and at
the time specified in the Prospectus Supplement, which date and time
may be changed by agreement between Issuer and the Lead Underwriters
on behalf of the Underwriters (such date and time of delivery of and
payment for such Dollar Notes being hereinafter referred to as the
"Closing Date"). The issue of the Dollar Notes is referred to in this
Agreement as the "Issue".
(C) Simultaneously with the Issue, the Issuer intends to issue other
classes and series of notes (the "Reg S Notes", and together with the
Dollar Notes, the "Notes") specified in the subscription agreement
dated as of the date hereof (the "Subscription Agreement") among the
Issuer, NRPLC, Funding 2, the Mortgages Trustee and the respective
managers named therein (the "Managers"). Such Managers have agreed to
subscribe and pay for the Reg S Notes upon the terms and subject to
the conditions contained in the Subscription Agreement and the
programme agreement dated as of the date hereof among the Issuer,
NRPLC, Funding 2, the Mortgages Trustee and the respective managers
named therein (the "Programme Agreement").
The Notes will be constituted by, issued subject to and have the
benefit of a trust deed (the "Issuer Trust Deed") to be entered into
on or before the Closing Date between the Issuer and The Bank of New
York, London Branch as trustee for the Noteholders (the "Note
Trustee").
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(D) The Notes (together with the Issuer's obligations to its other
creditors) will be secured by the benefit of security interests
created under a deed of charge and assignment by way of security (the
"Issuer Deed of Charge") to be entered into on or before the Closing
Date by the Issuer, the Note Trustee, the Security Trustee, Citibank,
N.A. (in its separate capacities as the Principal Paying Agent, the
US Paying Agent, the Registrar, the Transfer Agent and the Agent
Bank, NRPLC in its separate capacities as the Issuer Cash Manager
Provider, the Issuer GIC Provider, the Issuer Account Bank and the
Start-up Loan Provider, and Law Debenture Corporate Services Limited
in its capacity as the Issuer Corporate Services Provider.
(E) Payments of principal of, and interest on, the Dollar Notes will be
made by the Issuer to the US Paying Agent and by the US Paying Agent
to Noteholders on behalf of the Issuer under a paying agent and agent
bank agreement to be entered into on or before the Closing Date (the
"Issuer Paying Agent and Agent Bank Agreement") among the Issuer, the
Note Trustee, the Agent Bank, the paying agents named therein, the
Transfer Agent and the Registrar.
(F) Each class of the Dollar Notes will be in fully registered permanent
global form. The Registrar will maintain a register in respect of the
Dollar Notes in accordance with the Issuer Paying Agent and Agent
Bank Agreement. The global note certificates representing the Dollar
Notes (the "Dollar Global Note Certificates") will be deposited on
behalf of the beneficial owners of the Dollar Notes with Citibank
N.A. in New York, as custodian for, and registered in the name of
Cede & Co. as nominee of, The Depository Trust Company ("DTC").
(G) The Issuer will use an amount in Sterling equal to the gross proceeds
of the Issue as well as an amount in Sterling equal to the gross
proceeds of the Reg S Notes issue to make advances (each a loan
tranche) to Funding 2 pursuant to the terms of the global
intercompany loan agreement to be entered into on or before the
Closing Date among the Issuer, Funding 2, the Agent Bank and The Bank
of New York, London Branch in its capacity as security trustee (the
"Security Trustee") (the "Global Intercompany Loan Agreement" and
each loan tranche made thereunder, a "Loan Tranche"). Reference to
the Global Intercompany Loan Agreement shall include reference to a
loan confirmation in respect of the Global Intercompany Loan
Agreement to be entered into on or about the Closing Date and made
among Funding 2, the Issuer, the Security Trustee and the Agent Bank
(the "Intercompany Loan Confirmation"), as amended, restated,
novated, verified or supplemented from time to time and shall include
any additional and/or replacement intercompany loan terms and
conditions entered into from time to time in accordance with the
Legal Agreements (the "Intercompany Loan Terms and Conditions").
(H) Funding 2 will pay the proceeds of each Loan Tranche to the Mortgages
Trustee (or to its order) in consideration for the acquisition of
part of the beneficial share of the mortgage trust portfolio of first
residential mortgage loans (the "Mortgage Loans") and an interest in
the related insurances and their related security (together, the
"Related Security").
(I) On March 26, 2001, NRPLC assigned the initial portfolio of Mortgage
Loans and their Related Security to the Mortgages Trustee and may
assign further Mortgage Loans on subsequent assignment dates pursuant
to a mortgage sale agreement dated 26th March, 2001 among NRPLC, the
Mortgages Trustee, Funding 2 and the Security Trustee (the "Mortgage
Sale Agreement"). Each of the Mortgages Trustee and Funding 2 will
appoint NRPLC as administrator to service the Mortgage Loans and
their Related Security pursuant to an Administration Agreement dated
26th March, 2001 (the "Administration Agreement").
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(J) The Mortgages Trustee holds the Mortgage Loans and their Related
Security on a bare trust in undivided shares for the benefit of
Funding, Funding 2 and NRPLC pursuant to the mortgages trust deed
dated 26th March, 2001 entered into by NRPLC, Funding, Funding 2 and
the Mortgages Trustee (the "Mortgages Trust Deed"). The Mortgages
Trustee also entered into a guaranteed investment contract dated on
or about May 26, 2004 in respect of its principal bank account (the
"Mortgages Trustee Guaranteed Investment Contract") between the
Mortgages Trustee and NRPLC (in such capacity, the "Mortgages Trustee
GIC Provider").
(K) Funding 2's obligations to the Issuer under the Global Intercompany
Loan Agreement and to Funding 2's other creditors will be secured by
the benefit of security interests created by a deed of charge and
assignment to be dated on or before the Closing Date, which will
include any deed of accession to be entered into in connection
therewith or supplement thereto (the "Funding 2 Deed of Charge"), by
and among Funding 2, the Issuer, the Mortgages Trustee, the Security
Trustee, NRPLC in its separate capacities as Cash Manager, Account
Bank and Funding 2 GIC Provider.
(L) In connection with Funding 2's purchase of a beneficial interest in a
mortgage portfolio and the issue of certain notes by the Issuer,
Funding 2, in addition to the documents described above, will enter
into on or before the Closing Date (1) a cash management agreement
with the Cash Manager, the Mortgages Trustee and the Security Trustee
(the "Cash Management Agreement"); (2) a bank account agreement with
the Account Banks, the Mortgages Trustee, Funding 2, the Security
Trustee and the Cash Manager (the "Bank Account Agreement"); (3) a
guaranteed investment contract with, inter alios, NRPLC (the "Funding
2 Guaranteed Investment Contract"); (4) a corporate services provider
agreement (the "Funding 2 Corporate Services Agreement") with Mourant
& Co. Capital (SPV) Limited as corporate services provider to Funding
2; (5) a start-up loan agreement with the Start-up Loan Provider and
the Security Trustee (the "Start-Up Loan Agreement"); and (6) an ISDA
Master Agreement including the Schedule thereto and confirmations
thereunder in the respect of the Funding 2 (mortgage rates) basis
rate swap and Funding 2 (LIBOR rate) basis rate swap with Funding 2,
the Basis Rate Swap Provider and the Note Trustee (the "Basis Rate
Swap Agreements") .
(M) In connection with the Issue, the Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Notes relating
to each class of the Notes; (2) the Issuer Corporate Services
Agreement with respect to the Issuer; (3) a cash management agreement
between the Issuer, the Issuer Cash Manager and the Note Trustee (the
"Issuer Cash Management Agreement"); (4) a bank account agreement
between the Issuer, the Note Trustee, the Issuer Cash Manager and the
Issuer Account Bank (the "Issuer Bank Account Agreement"); (5) a
post-enforcement call option agreement (the "Post-Enforcement Call
Option Agreement") between the Issuer, the Note Trustee, the
Registrar, the Transfer Agent and GPCH Limited; (6) the Start-Up Loan
Agreement; (7) an ISDA Master Agreement, including the Schedule
thereto and confirmations thereunder in respect of Dollar/Sterling
currency swaps between the Issuer, the Dollar Currency Swap Provider
and the Note Trustee (the "Dollar Currency Swap Agreements"); and (8)
an ISDA Master Agreement, including the Schedule thereto and
confirmations thereunder in respect of Euro/Sterling currency swaps
between the Issuer, the Euro Currency Swap Provider and the Note
Trustee (the "Euro Currency Swap Agreements" and the together with
the Dollar Currency Swap Agreements, the "Currency Swap Agreements").
(N) As required, the Issuer, Funding 2, the Mortgages Trustee and/or
NRPLC will enter into any other relevant documents to be signed and
delivered on or before the Closing Date (such
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documents, together with the Mortgage Sale Agreement, the Mortgages
Trust Deed, the Mortgages Trustee Corporate Services Agreement, the
Administration Agreement, the Mortgages Trustee Guaranteed Investment
Contract, the Global Intercompany Loan Agreement, the
Post-Enforcement Call Option Agreement, the Funding 2 Guaranteed
Investment Contract, the Cash Management Agreement, the Bank Account
Agreement, the Collection Bank Agreement, the Start-up Loan Agreement
with respect to the Issuer, the Funding 2 Deed of Charge, the Basis
Rate Swap Agreements, the Issuer Deed of Charge, the Issuer Trust
Deed, the Issuer Cash Management Agreement, the Issuer Paying Agent
and Agent Bank Agreement, the Issuer Bank Account Agreement, the
Issuer Corporate Services Agreement, the Currency Swap Agreements,
the Funding 2 Corporate Services Agreement, this Agreement, the
Programme Agreement and the Subscription Agreement, each as they have
been or may be amended, restated, varied or supplemented from time to
time are collectively referred to herein as the "Legal Agreements").
IT IS AGREED as follows:
1. AGREEMENT TO ISSUE AND SUBSCRIBE
1.1 Definitions and Interpretation
(a) Capitalized terms used herein and not otherwise defined herein
or pursuant hereto shall have the meanings given to them in the
Prospectus (as defined below) unless the context otherwise
requires.
(b) In this Agreement:
(i) words denoting the singular number only shall include the
plural number also and vice versa;
(ii) words denoting one gender only shall include the other
genders;
(iii) words denoting persons only shall include firms and
corporations and vice versa;
(iv) references to any statutory provision shall be deemed also
to refer to any statutory modification or re-enactment
thereof or any statutory instrument, order or regulation
made thereunder or under any such re-enactment;
(v) references to any agreement or other document (including
any of the Legal Agreements) shall be deemed also to refer
to such agreement or document as amended, varied,
supplemented, restated or novated from time to time;
(vi) clause, paragraph and schedule headings are for ease of
reference only;
(vii) reference to a statute shall be construed as a reference
to such statute as the same may have been, or may from
time to time be, amended or re-enacted to the extent such
amendment or re-enactment is substantially to the same
effect as such statute on the date hereof;
(viii) reference to a time of day, unless otherwise specified,
shall be construed as a reference to London time; and
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(ix) references to any person shall include references to his
successors, transferees and assigns and any person
deriving title under or through him.
1.2 Offering
Each of the Issuer, Funding 2 and the Mortgages Trustee understands
that the Underwriters intend (i) to make a public offering of their
respective portions of the Dollar Notes as soon after the parties
hereto have executed and delivered this Agreement as in the judgment
of the Lead Underwriters is advisable and (ii) initially to offer the
Dollar Notes upon the terms set forth in the Prospectus, and in
compliance with all applicable laws and regulations.
1.3 Purchase and Sale
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Agreement, the
Issuer agrees to sell the Dollar Notes on the Closing Date to the
Underwriters as hereinafter provided, and each Underwriter agrees to
purchase, severally and not jointly, the Dollar Notes from the Issuer
the respective principal amount of the Dollar Notes set forth
opposite such Underwriter's name in Schedule 1 hereto at a price
equal to the aggregate of [ ] per cent. of the aggregate principal
amount of the Series [ ] Class [ ] Notes (the "Issue Price").
1.4 Commissions
In consideration of the obligations undertaken herein by the
Underwriters, the Issuer agrees to pay to the Underwriters a selling
commission (the "Selling Commission") of [ ] per cent. of the
aggregate principal amount of the Series [ ] Class [ ] Notes, and a
combined management and underwriting commission (the "Management and
Underwriting Commission") of [ ] per cent. of the aggregate principal
amount of the Series [ ] Class [ ] Notes.
The Issuer undertakes and covenants that on the Closing Date it will
pay to the Lead Underwriters on behalf of the Underwriters the
aggregate Selling Commission and aggregate Management and
Underwriting Commission calculated in accordance with this Clause
1.4.
1.5 Delivery and Payment
No later than 3:00 p.m. (London time) on the Closing Date, the Issuer
will (a) cause the Global Note Certificate for each of the Series [ ]
Class [ ] Notes to be registered in the name of Cede & Co. as nominee
for DTC for credit on the Closing Date to the account of the Lead
Underwriters with DTC or to such other account with DTC as the Lead
Underwriters may direct; and (b) deliver the Global Note Certificate
for each of the Series [ ] Class [ ] Notes duly executed on behalf of
the Issuer and authenticated in accordance with the Paying Agent and
Agent Bank Agreement, to Citibank N.A., as custodian for DTC.
Against delivery of the Dollar Notes (i) the Underwriters will pay to
the Lead Underwriters the gross underwriting proceeds for the Dollar
Notes and (ii) the Lead Underwriters will pay to the Issuer or to a
third party, as directed by the Issuer, the gross underwriting
proceeds for the Dollar Notes. Payment for the Dollar Notes shall be
made by the Lead Underwriters in Dollars in immediately available
funds to the account of the Issuer, account number [ ], sort code [
], or such other accounts as the Issuer may direct, and shall be
evidenced by a confirmation from the Lead Underwriters that they have
so made that payment to the Issuer.
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1.6 The Legal Agreements
To the extent that each of the Issuer, Funding 2, the Mortgages
Trustee and NRPLC is a signatory to the Legal Agreements, each will
on or before the Closing Date, have entered into or enter into each
of the Legal Agreements to which it is a party, substantially in the
form of the draft reviewed by Allen & Overy LLP and Sidley Austin
Brown & Wood (any draft of any document so reviewed being called an
"agreed form"), with such amendments as the Lead Underwriters, on
behalf of the Underwriters, may agree with the Issuer and, if it is a
signatory, Funding 2, the Mortgages Trustee and/or NRPLC.
1.7 The Notes
The Dollar Notes will be issued on the Closing Date in accordance
with the terms of the Issuer Trust Deed and will be in, or
substantially in, the form set out therein.
1.8 Prospectus
The Issuer confirms that it has prepared the Prospectus (as more
fully described in Clause 5(a)) for use in connection with the issue
of the Dollar Notes and hereby authorizes the Underwriters to
distribute copies of the Prospectus in connection with the offering
and sale of the Dollar Notes.
1.9 Authority to Offer
The Issuer confirms that it has authorized the Lead Underwriters to
offer the Dollar Notes on its behalf to the Underwriters for
subscription at the Issue Price subject to signature of this
Agreement. Subject to Clause 3.2(a), the Issuer acknowledges and
agrees that the Underwriters may offer and sell Dollar Notes to or
through any affiliate of an Underwriter and that any such affiliate
may offer and sell Dollar Notes purchased by it to or through any
Underwriter.
2. STABILIZATION
2.1 Stabilization
The Underwriters or their affiliates may, to the extent permitted by
applicable laws and regulations, engage in over-allotment
transactions, stabilizing transactions, syndicate covering
transactions and penalty bids and otherwise effect transactions in
the open market or otherwise in connection with the distribution of
the Dollar Notes with a view to stabilizing or maintaining the
respective market prices of the Dollar Notes at levels other than
those which might otherwise prevail in the open market. Such
stabilizing, if commenced, may be discontinued at any time. In doing
so the Underwriters or their affiliates shall act as principal and in
no circumstances shall the Issuer be obliged to issue more than (i)
$[ ] in aggregate principal amount of the Series [ ] Class [ ] Notes.
2.2 Stabilization Profits and Losses
As between the Issuer and the Underwriters any loss resulting from
stabilization transactions entered into by the Underwriters or their
affiliates pursuant to Clause 2.1 shall be borne, and any profit
arising therefrom shall be retained, by the Underwriters.
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3. AGREEMENTS BY THE UNDERWRITERS
3.1 Default of Underwriters
(a) If any Underwriter shall default on its obligation to purchase
Dollar Notes which it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange to
purchase, or for another party or other parties reasonably
satisfactory to NRPLC to purchase, such Dollar Notes on the
terms contained herein. If within thirty-six hours after such
default by any Underwriter, the non-defaulting Underwriters do
not arrange for the purchase of such Dollar Notes, then NRPLC
shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties
satisfactory to the non-defaulting Underwriters to purchase
such Dollar Notes on such terms. In the event that, within the
respective prescribed periods, the Lead Underwriters on behalf
of the non-defaulting Underwriters notify NRPLC that the
non-defaulting Underwriters have so arranged for the purchase
of such Dollar Notes, or NRPLC notifies the non-defaulting
Underwriters that it has so arranged for the purchase of such
Dollar Notes, the non-defaulting Underwriters or NRPLC shall
have the right to postpone the Closing Date for a period of
time agreed by the Lead Underwriters and NRPLC acting
reasonably, in order to effect whatever changes may thereby be
made necessary in any documents or arrangements relating to the
offering and sale of the Dollar Notes. Any substitute purchaser
of Notes pursuant to this paragraph shall be deemed to be an
Underwriter, for purposes of this Agreement, in connection with
the offering and sale of the Dollar Notes.
(b) If, after giving effect to any arrangements for the purchase of
Dollar Notes of a defaulting Underwriter by the non-defaulting
Underwriters, as provided in Clause 3.1(a) above, the aggregate
principal amount of the Dollar Notes which remains unpurchased
does not exceed ten per cent. of the aggregate principal amount
of the Dollar Notes, NRPLC shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
the Dollar Notes which such Underwriter agreed to purchase
hereunder and, in addition to require each non-defaulting
Underwriter to purchase its pro rata share (based on the
principal amount of the Dollar Notes which such Underwriter
agreed to purchase hereunder) of the principal amount of the
Dollar Notes of such defaulting Underwriter for which such
arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the principal amount of the Dollar Notes of a defaulting
Underwriter by the non-defaulting Underwriters as provided in
Clause 3.1(a) above, the aggregate principal amount of the
Dollar Notes which remains unpurchased exceeds ten per cent. of
the aggregate principal amount of the Dollar Notes, or if NRPLC
shall not exercise the right described in Clause 3.1(b) above
to require non-defaulting Underwriters to purchase the Dollar
Notes of a defaulting Underwriter, then this Agreement shall
thereupon terminate, without liability on the part of the
non-defaulting Underwriters; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
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3.2 Selling
Each Underwriter severally (and not jointly) agrees as follows:
(a) United States
It is understood that several Underwriters propose to offer
the Dollar Notes for sale to the public in the United States
as set forth in the Prospectus. The Underwriters will offer
and sell the Dollar Notes in the United States only through
their U.S. registered broker dealers.
(b) United Kingdom
Each Underwriter represents and agrees that:
(1) in relation to Dollar Notes which have a maturity
of one year or more and which are to be admitted to
the Official List, it has not offered or sold, and
will not offer or sell, any Dollar Notes to persons
in the United Kingdom prior to admission of such
Dollar Notes to listing in accordance with Part VI
of the Financial Services and Markets Act 2000, as
amended (the "FSMA") except to persons whose
ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as
principal or agent) for the purposes of their
businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995
(as amended) or the FSMA;
(2) in relation to Dollar Notes which have a maturity
of one year or more and which are not to be
admitted to the Official List, it has not offered
or sold and, prior to the expiry of a period of six
months from the issue date of such Dollar Notes,
will not offer or sell any such notes to persons in
the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding
managing, or disposing of investments (as principal
or agent) for the purposes of their business or
otherwise in circumstances which have not resulted
and will not result in an offer to the public in
the United Kingdom within the meaning of the Public
Offers of the Securities Regulations 1995;
(3) it has only communicated or caused to be
communicated and will only communicate or cause to
be communicated any invitation or inducement to
engage in investment activity (within the meaning
of Section 21 of the FSMA) received by it in
connection with the issue or sale of any Dollar
Notes in circumstances in which Section 21(1) of
the FSMA does not apply to the Issuer; and
(4) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything
done by it in relation to the Dollar Notes in, from
or otherwise involving the United Kingdom.
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[(c) Italy
Each Underwriter represents and agrees that the offering of
the Dollar Notes has not been cleared by CONSOB (the Italian
Securities Exchange Commission) pursuant to Italian
securities legislation and, accordingly, the Dollar Notes
have not been and will not be offered, sold or delivered by
it, and the copies of the Prospectus or any other document
relating to the Dollar Notes have not been and will not be
distributed in the Republic of Italy, except:
(i) to professional investors (operatori qualificati),
as defined in Article 31, second paragraph, of
CONSOB Regulation No. 11522 of 1st July, 1998, as
amended; or
(ii) in circumstances which are exempted from the rules
on solicitation of investments pursuant to Article
100 of Legislative Decree No. 58 of 24th February,
1998 (the "Financial Services Act") and Article 33,
first paragraph of CONSOB Regulation No. 11971 of
14th May, 1999, as amended.
In addition, each Underwriter represents and agrees that any
offer, sale or delivery of the Dollar Notes or distribution
of copies of the Prospectus or any other document relating
to the Dollar Notes made by it in the Republic of Italy
under (i) or (ii) above has been and will be:
(A) made by an investment firm, bank or financial
intermediary permitted to conduct such activities
in the Republic of Italy in accordance with the
Financial Services Act and Legislative Decree No.
385 of 1st September, 1993 (the "Banking Act");
(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.]
[Dollar Notes are not offered in Italy. Consider shortening
the selling restriction, i.e. straight prohibition]
(d) Spain
Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not offer
or sell any Dollar Notes in Spain by means of a public offer
as defined and construed by Spanish law unless such public
offer is made in compliance with the requirements of Law
24/1988 of 28th July (as amended by Law 37/1998, of 16th
November), on the Spanish Securities Market and the Royal
Decree 291/1992, of 27th March (as amended by Royal Decree
2590/1998, of 7th December and Royal Decree 705/2002, of
19th July), on issues and public offers for the sale of
securities.
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(e) Ireland
Each Underwriter represents and agrees that it has not and
will not, directly or indirectly, offer or sell in Ireland
any Dollar Notes other than to persons whose ordinary
business it is to buy or sell shares or debentures whether
as principal or agent.
(f) The Netherlands
Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not,
directly or indirectly, offer and sell any Dollar Notes in
the Netherlands.
(g) Other
For each jurisdiction outside the United States and the
United Kingdom (a "Relevant Jurisdiction"), each Underwriter
acknowledges that no representation is made by the Issuer or
any Underwriter that any action has been or will be taken in
any Relevant Jurisdiction by the Issuer or any Underwriter
that would permit a public offering of the Dollar Notes
(other than as described above), or possession or
distribution of the Prospectus or any other offering
material, in any country or Relevant Jurisdiction where
action for that purpose is required. Each Underwriter will
comply with all applicable securities laws and regulations
in any Relevant Jurisdiction in which it purchases, offers,
sells or delivers Dollar Notes or has in its possession or
distributes the Prospectus or any other offering material,
in all cases at its own expense. Each Underwriter represents
that it has not and will not directly or indirectly offer,
sell or deliver any offered notes or publish any prospectus,
form of application, offering circular, advertisement or
other offering material except under circumstances that
will, to the best of its knowledge and belief, result in
compliance with any applicable laws and regulations, and all
offers, sales and deliveries of offered notes by it will be
made on the same terms and will obtain any consent, approval
or permission required by it for the purchase, offer, sale
or delivery by it of Dollar Notes under the laws and
regulations in force in any Relevant Jurisdictions to which
it is subject or in which it makes such purchases, offers,
sales or deliveries and the Issuer shall have no
responsibility for them.
4. LISTING
4.1 Application for Listing
The Issuer confirms that it has authorized the Lead Underwriters to
make or cause to be made at the Issuer's expense applications on the
Issuer's behalf for the Notes to be listed on the Official List of
the UK Listing Authority and for the Notes to be admitted to trading
by the London Stock Exchange plc (the "Stock Exchange").
4.2 Supply of Information
The Issuer agrees to supply to the Lead Underwriters for delivery to
the UK Listing Authority and the Stock Exchange copies of the
Prospectus and such other documents, information and undertakings as
may be required for the purpose of obtaining such listing.
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4.3 Maintenance of Listing
The Issuer agrees to use its reasonable endeavors to maintain a
listing of the Dollar Notes on the Official List of the UK Listing
Authority and the admission of the Notes to trading by the Stock
Exchange for as long as any of the Dollar Notes are outstanding and
to pay all fees and supply all further documents, information and
undertakings and publish all advertisements or other material as may
be necessary for such purpose. However, if such listing becomes
impossible, the Issuer will obtain, and will thereafter use its best
endeavors to maintain, a quotation for, or listing of, the Dollar
Notes on or by such other stock exchange, competent listing authority
and/or quotation system as is commonly used for the quotation or
listing of debt securities as it may, with the approval of the Lead
Underwriters (such approval not to be unreasonably withheld or
delayed), decide.
5. REPRESENTATIONS AND WARRANTIES OF THE ISSUER
The Issuer represents and warrants to, and agrees with, Funding 2,
the Mortgages Trustee, the Underwriters and each of them that:
(a) The Registration Statement
The Issuer (together with Funding 2 and the Mortgages
Trustee) has prepared and filed with the United States
Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (File No. 333-119671),
including a prospectus, and such registration statement has
become effective under the Securities Act of 1933, as
amended (the "Securities Act"). As of the Closing Date, no
stop order suspending the effectiveness of such registration
statement has been issued and no proceedings for that
purpose have been initiated or to the Issuer's knowledge
threatened by the Commission. The prospectus in the form in
which it will be used in connection with the offering of the
Dollar Notes is proposed to be supplemented by a prospectus
supplement relating to the Dollar Notes and, as so
supplemented, to be filed with the Commission pursuant to
Rule 424 under the Act. (Such registration statement, as
amended at the time it became effective (the "Effective
Date"), or if a post-effective amendment is filed with
respect thereto, as amended by such post-effective amendment
at the time of its effectiveness, is hereinafter referred to
as the "Registration Statement"; such prospectus supplement,
as first filed with the Commission, is hereinafter referred
to as the "Prospectus Supplement"; and such prospectus, in
the form in which it was first be filed with the Commission
in connection with the offering of the Dollar Notes, as
supplemented by the Prospectus Supplement, is hereinafter
referred to as the "Prospectus"). Any reference herein to
the Registration Statement, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, as of the Effective
Date of the Registration Statement or the date of such
preliminary prospectus or the Prospectus, as the case may
be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the filing of any
document under the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") after the
Effective Date of the Registration Statement or the issue
date of any preliminary prospectus or the date on which the
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Prospectus is filed pursuant to Rule 424(b) under the Act,
as the case may be, that deemed to be incorporated therein
by reference.
(b) No Material Misstatements or Omissions
(I) The Registration Statement and the Prospectus (as
amended or supplemented if the Issuer shall have furnished
any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with
the requirements of the Securities Act and the Trust
Indenture Act and do not and will not, as of the Effective
Date as to the Registration Statement and as of the date of
the Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
the Prospectus (as amended or supplemented) as of the
Closing Date will not include any untrue statement of a
material fact and will not omit to state a material fact
necessary in order to make the statements made therein, in
the light of the circumstances under which they were made,
not misleading; provided, however, that the Issuer makes no
representations, warranties or agreements as to: (i) that
part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) of the
Note Trustee under the Trust Indenture Act, and (ii)
statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with
information furnished in writing to the Issuer by or on
behalf of any Underwriter specifically for use therein,
which information is described in Clause 11.2.
(II) the documents incorporated by reference in the
Prospectus, as of the Effective Date or when filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted
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; and any further
documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an 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;
(c) Incorporation, Capacity and Authorization
The Issuer is a public limited company duly incorporated and
validly existing under the laws of England and Wales, with
full power and capacity to conduct its business as described
in the Prospectus, has full power and capacity to create and
issue the Dollar Notes, to execute this Agreement and the
other Legal Agreements to which it is a party and to
undertake and perform the obligations expressed to be
assumed by it herein and therein; and has taken all
necessary action to approve and authorize the same; and the
Issuer is lawfully qualified to do business in England and
Wales. The Issuer has not taken any corporate action nor (to
the best of its knowledge and belief) have any other steps
been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution or reorganization
or for the appointment of a
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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 authorized, executed and
delivered by the Issuer and constitutes, and the other Legal
Agreements to which the Issuer is a party have been duly
authorized by the Issuer and on the Closing Date will
constitute, a legal, valid and binding obligation of the
Issuer, enforceable against the Issuer in accordance with
their respective terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar
laws affecting the enforcement of creditors rights generally
and to general equitable principles;
(e) Validity of Notes
The creation, sale and issue of the Dollar Notes have been
duly authorized by the Current Issuer and, when executed and
authenticated in accordance with the Issuer Trust Deed and
the Issuer Paying Agent and Agent Bank Agreement, the Dollar
Notes will constitute valid and legally binding obligations
of the Issuer and, upon effectiveness of the Registration
Statement, the Issuer Trust Deed will have been duly
qualified under the Trust Indenture Act;
(f) Consents
All consents, approvals, authorizations and other orders of
all United States and United Kingdom regulatory authorities
required for the creation, issue and offering of the Dollar
Notes or in connection with the execution and performance of
the transactions contemplated by the Legal Agreements or the
compliance by the Issuer with the terms of the Dollar Notes
and the Legal Agreements as the case may be, except for (i)
such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable United
States state securities, Blue Sky or similar laws in
connection with the purchase and distribution of the Notes
by the Underwriters and (ii) those which will on the Closing
Date be, in full force and effect;
(g) Compliance
The authorization of the Notes and the granting of security
interests in relation thereto under the Issuer Deed of
Charge, the offering and issue of the Dollar Notes on the
terms and conditions of this Agreement, the Issuer Trust
Deed and the Prospectus, the execution and delivery of the
Legal Agreements to which it is a party and the
implementation of the transactions contemplated by such
Legal Agreements and compliance with the terms of the Legal
Agreements to which it is a party do not, and will not, (i)
conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, the Memorandum
and Articles of Association of the Issuer or any agreement
or instrument to which the Issuer is a party or by which its
properties is bound; (ii) infringe any applicable law, rule,
regulation, judgment, order or decree of any government,
governmental body or court, having jurisdiction over the
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;
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(h) Accountants
[PricewaterhouseCoopers LLP] are independent public
accountants with respect to the Issuer within the meaning of
the Securities Act;
(i) Taxation
Save as described in the legal opinions referred to in
Clause 9.1(d) of this Agreement, no stamp or other similar
duty is assessable or payable in the United Kingdom, and no
withholding or deduction for any taxes, duties, assessments
or governmental charges of whatever nature is imposed or
made for or on account of any income, registration, transfer
or turnover taxes, customs or other duties or taxes of any
kind in connection with the authorization, execution or
delivery of the Legal Agreements or with the authorization,
issue, sale or delivery of the Dollar Notes and (except as
disclosed in the Prospectus) the performance of the
Issuer's, Funding 2's and/or, as the case may be, the
Mortgages Trustee's obligations under the Legal Agreements
and the Notes. This warranty does not apply to any United
Kingdom corporation tax which may be levied, collected,
withheld or assessed in connection with the authorization,
execution or delivery of the Legal Agreements or with the
authorization, issue, sale or delivery of the Notes;
(j) Breach of other agreements
The 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
Dollar Notes already been issued, would (whether or not with
the giving of notice and/or the passage of time and/or the
fulfillment of any other requirement) constitute an Event of
Default as set out in the Conditions of the Notes;
(l) No Subsidiaries
The Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies
Act 1985;
(m) Granite Finance Holdings Limited
The Previous Issuers, the Issuer, Funding, Funding 2, the
Mortgages Trustee and GPCH Limited are the only subsidiaries
or subsidiary undertakings of Granite Finance Holdings
Limited within the meanings of Sections 258 and 736 of the
Companies Act 1985;
(n) No Activities
The Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any
registration or re-registration as a public limited company
under the Companies Acts 1985 and 1989 and various changes
to its directors, secretary, registered office, Memorandum
and Articles of Association; (ii) the authorization and
execution of the Legal Agreements to which it is a party;
(iii) the activities referred to
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or contemplated in the Legal Agreements to which it is a
party and (iv) the authorization and issue by it of the
Notes. The Issuer has not (other than as set out in the
Offering Circular relating to the Reg S Notes) prepared any
accounts and has neither paid any dividends nor made any
distributions since the date of its incorporation;
(o) Listing Rules
Prior to the delivery of the Prospectus to the Registrar of
Companies in England and Wales, the Prospectus has been
approved by or on behalf of the United Kingdom Listing
Authority as listing particulars as required by the listing
rules made pursuant to Part VI of the FSMA and the
Prospectus complies with the listing rules made under
Section 74 of the FSMA;
(p) Litigation
There are no pending actions, suits or proceedings against
or affecting the 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 Issuer or could adversely affect the ability
of the Issuer to perform its obligations under the Legal
Agreements or the Dollar Notes or which are otherwise
material in the context of the issue or offering of the
Dollar Notes and, to the best of the Issuer's knowledge, no
such actions, suits or proceedings are threatened or
contemplated;
(q) No Prior Security
Save as set out in any of the Legal Agreements, there exists
no mortgage, lien, pledge or other charge on or over the
assets of the Issuer and, other than the Legal Agreements,
the Issuer has not entered into any indenture or trust deed;
(r) Security for the Notes
The Notes and the obligations of the Issuer under the Issuer
Trust Deed will be secured in the manner provided in the
Issuer Deed of Charge and with the benefit of the charges,
covenants and other security interests provided for therein
including, without limitation, (i) an assignment by way of
first fixed security of the Issuer's rights and claims in
respect of all security and other rights held on trust by
the Funding 2 Security Trustee pursuant to the Funding 2
Deed of Charge, (ii) an assignment by way of first fixed
security of the Issuer's right, title, interest and benefit
in the Global Intercompany Loan Agreement, the Currency Swap
Agreements, the Funding 2 Deed of Charge, the Issuer Trust
Deed, the Notes, the Issuer Paying Agent and Agent Bank
Agreement, the Issuer Cash Management Agreement, the Issuer
Corporate Services Agreement, the Issuer Bank Account
Agreement, the Post-Enforcement Call Option Agreement, this
Agreement, the Programme Agreement, the Subscription
Agreement and any other agreements to which the Issuer is a
party; (iii) an assignment by way of first fixed charge over
the Issuer Bank Accounts; (iv) a first fixed charge (which
may take effect as a floating charge) over the Issuer's
right, title, interest and benefit to any Authorized
Investments made with moneys standing to the credit of any
of the Issuer Bank Accounts; and (v) a first ranking
floating charge over the whole of the assets and undertaking
of the Issuer which are not otherwise effectively subject to
any fixed charge or assignment by way of security;
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(s) Investment Company Act
The Issuer is not an "investment company" as defined in the
U.S. Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the offer and sale of the
Dollar Notes in the United States will not subject the
Issuer to registration under, or result in a violation of,
the Investment Company Act;
(t) United States Income Tax
The Issuer will not engage in any activities in the United
States (directly or through agents), derive any income from
United States sources as determined under the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), or hold any
property if doing so would cause it to be engaged or deemed
to be engaged in a trade or business within the United
States as determined under the Code; and
(u) Legal Agreements
The representations and warranties given by the Issuer in
the Legal Agreements are true and accurate, and the
description of the Legal Agreements as set out in the
Prospectus is true and correct in all material respects.
Unless otherwise indicated, the representations and warranties set
out in this Clause 5 shall be made on the date of the Prospectus and,
if different, the date of this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF FUNDING 2 AND THE MORTGAGES TRUSTEE
Each of Funding 2 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
Each of Funding 2 and the Mortgages Trustee (together with
the Issuer) has prepared and filed with the Commission the
Registration Statement, including the Prospectus, and such
registration statement has become effective under the
Securities Act. As of the Closing Date, no stop order
suspending the effectiveness of such registration statement
has been issued and no proceedings for that purpose have
been initiated or to Funding 2 or the Mortgages Trustee
knowledge threatened by the Commission. The prospectus in
the form in which it will be used in connection with the
offering of the Dollar Notes is proposed to be supplemented
by a prospectus supplement relating to the Dollar Notes and,
as so supplemented, to be filed with the Commission pursuant
to Rule 424 under the Act.
(b) No Material Misstatements or Omissions
(I) The Registration Statement and the Prospectus (as
amended or supplemented if the Issuer, the Mortgages Trustee
and Funding 2 shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may
be, in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and do not and
will not, as of the Effective Date as to the Registration
Statement and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state a material
fact
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17
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required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus (as
amended or supplemented) as of the Closing Date will not
include any untrue statement of a material fact and will not
omit to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, that Funding 2 and the Mortgages Trustee makes no
representations, warranties or agreements as to: (i) that
part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) of the
Note Trustee under the Trust Indenture Act, and (ii)
statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with
information furnished in writing to Funding 2 and the
Mortgages Trustee by or on behalf of any Underwriter
specifically for use therein, which information is described
in Clause 11.2.
(II) the documents incorporated by reference in the
Prospectus, as of the Effective Date or when filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted
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; and any further
documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an 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;
(c) Incorporation, Capacity and Authorization
(I) Funding 2 is a private limited company duly incorporated
and validly existing under the laws of England and Wales,
with full power and capacity to conduct its business as
described in the Prospectus, has full power and capacity to
execute this Agreement and the other Legal Agreements to
which it is a party and to undertake and perform the
obligations expressed to be assumed by it herein and
therein; and has taken all necessary action to approve and
authorize the same; and Funding 2 is lawfully qualified to
do business in England and Wales. Funding 2 has not taken
any corporate action or (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 reorganization 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;
(II) The Mortgages Trustee is duly incorporated and validly
existing under the laws of Jersey, Channel Islands, with
full power and authority to conduct its business as
described in the Prospectus, is lawfully qualified to do
business in Jersey and has full power and capacity to
execute this Agreement and the other Legal Agreements to
which it is a party, and to undertake and perform the
obligations expressed to be assumed by it herein and
therein; and it has taken all necessary action to approve
and authorize the same. The Mortgages Trustee has not taken
any corporate action or (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
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reorganization 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 authorized, executed and
delivered by each of Funding 2 and the Mortgages Trustee and
constitutes, and the other Legal Agreements to which the
Issuer is a party have been duly authorized by each of
Funding 2 and the Mortgages Trustee and on the Closing Date
will constitute, a legal, valid and binding obligation of
each of Funding 2 and the Mortgages Trustee, enforceable
against each of Funding 2 and the Mortgages Trustee in
accordance with their respective terms, subject as to
enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation
or other similar laws affecting the enforcement of creditors
rights generally and to general equitable principles;
(e) Consents
All consents, approvals, authorizations and other orders of
all United States, Jersey, Channel Islands and United
Kingdom regulatory authorities required in connection with
the execution of and performance by, Funding 2 and/or the
Mortgages Trustee, of the transactions contemplated by the
Legal Agreements to which Funding 2 and/or the Mortgages
Trustee, as the case may be, is a party or the compliance by
each of them with the terms of the Legal Agreements are, or
will on the Closing Date be, in full force and effect;
(f) Compliance
The authorization of the terms and conditions of this
Agreement, the execution and delivery of the Legal
Agreements to which Funding 2 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
2 or the Mortgages Trustee or any agreement or instrument to
which Funding 2 or the Mortgages Trustee is a party or by
which its properties is bound; (ii) infringe any applicable
law, rule, regulation, judgment, order or decree of any
government, governmental body or court, having jurisdiction
over either Funding 2 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 2 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;
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(h) Events of Default
No event has occurred or circumstance arisen which, had the
Global Intercompany Loan Agreement been entered into, would
(whether or not with the giving of notice and/or the passage
of time and/or the fulfillment of any other requirement)
constitute a Funding 2 Intercompany Loan Event of Default as
set out in the Global Intercompany Loan Agreement;
(i) No Subsidiaries
The Mortgages Trustee does not have any subsidiaries or
subsidiary undertakings within the meanings of Sections 258
and 736 of the Companies Act 1985. Funding 2 does not have
any subsidiaries or subsidiary undertakings within the
meanings of Sections 258 and 736 of the Companies Act 1985
save for the Previous Issuers and the Issuer;
(j) No Activities
(I) Funding 2 has not engaged in any activities since its
incorporation other than (i) those incidental to any
registration or re-registration as a private limited company
under the Companies Acts 1985 and 1989 and various changes
to its directors, secretary, registered office, Memorandum
and Articles of Association; (ii) the authorization,
execution and in certain cases, amendment, of the Legal
Agreements to which each is a party; (iii) the activities
referred to or contemplated in the Legal Agreements; and
(iv) the filing of a notification by Funding 2 under the
Data Protection Act 1998 (the "DPA") and the application for
a standard license under the Consumer Credit Act 1974.
Funding 2 has not (other than as set out in the Offering
Circular relating to the Reg S Notes) prepared any accounts
and has neither paid any dividends nor made any
distributions since the date of its incorporation;
(II) The Mortgages Trustee has engaged in any activities
since its incorporation other than (i) those incidental to
any registration as private limited companies under the laws
of Jersey and (if any) various changes to its directors,
secretary, registered office, Memorandum and Articles of
Association; (ii) the authorization, execution and in
certain cases, amendment, of the Legal Agreements to which
each is a party; (iii) the activities referred to or
contemplated in the Legal Agreements or in the Prospectus;
(iv) the activities undertaken in connection with the
establishment of the Mortgages Trust pursuant to the
Mortgages Trust Deed and the establishment of a branch in
the United Kingdom; (v) the filing of a notification by the
Mortgages Trustee under the DPA and the application for a
standard license under the Consumer Credit Act 1974; and
(vi) any activities in connection with or incidental to the
issue of Previous Notes by the Previous Issuers and the
issue of the Notes by the Issuer. The Mortgages Trustee has
not prepared any accounts and has neither paid any dividends
nor made any distributions since the date of its
incorporation;
(k) Beneficial Owner
As of [ ], 2006, following (i) the completion of the
assignment of the Additional Assigned Mortgage Portfolio to
the Mortgages Trustee pursuant to or in accordance with the
Mortgage Sale Agreement and (ii) the declaration of trust
over the Additional Assigned Mortgage Portfolio by the
Mortgages Trustee pursuant to and in
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accordance with the terms of the Mortgages Trust Deed, the
Mortgages Trustee has held the Additional Assigned Mortgage
Portfolio, and has held and will continue to hold, the
Mortgage Portfolio on a bare trust for the benefit of Funding,
Funding 2 and NRPLC in undivided shares absolutely;
(l) Litigation
There are no pending actions, suits or proceedings against
or affecting Funding 2 or the Mortgages Trustee which could
individually or in the aggregate have an adverse effect on
the condition (financial or otherwise), prospects, results
of operations or general affairs of the Mortgages Trustee or
Funding 2 (as the case may be) or could adversely affect the
ability of the Mortgages Trustee or Funding 2 (as the case
may be) to perform their respective obligations under the
Legal Agreements, or which are otherwise material in the
context of the transaction contemplated by the Prospectus
and, to the best of the knowledge of Funding 2 and the
Mortgages Trustee, no such actions, suits or proceedings are
threatened or contemplated;
(m) No Prior Security
Save as set out in any of the Legal Agreements there exists
no mortgage, lien, pledge or other charge on or over the
assets of Funding 2 and, other than the Legal Agreements, it
has not entered into any indenture or trust deed;
(n) Security for the Loan Tranches under the Global Loan Facility
Funding 2's obligations under, inter alia, the Global
Intercompany Loan Agreement will be secured in the manner
provided in the Funding 2 Deed of Charge and with the
benefit of the charges, covenants and other security
provided for therein including, without limitation, (i) a
first fixed charge over and assignment by way of security of
Funding 2's share of the Trust Property (as defined in the
Mortgages Trust Deed); (ii) an assignment by way of first
fixed security of all of Funding 2's right, title, interest
and benefit in the Mortgage Sale Agreement, the Mortgages
Trust Deed, the Administration Agreement, the Global
Intercompany Loan Agreement, the Start-Up Loan Agreement,
the Funding 2 Guaranteed Investment Contract, the Funding 2
Corporate Services Agreement, the Funding 2 Cash Management
Agreement, the Bank Account Agreement and any other of the
Legal Agreements (excluding all of Funding 2's right, title,
interest and benefit in the Funding 2 Deed of Charge) to
which Funding 2 is a party); (iii) a first fixed charge
(which may take effect as a floating charge) of Funding 2's
right, title, interest and benefit in the Funding 2 Bank
Accounts; (iv) a first fixed charge (which may take effect
as a floating charge) of Funding 2's right, title, interest
and benefit in all Authorized Investments purchased with
moneys standing to the credit of the Funding 2 Bank
Accounts; and (v) a first floating charge over all the
assets and the undertaking of Funding 2 which are not
effectively subject to a fixed charge or assignment by way
of security;
(o) Investment Company Act
Neither Funding 2 nor the Mortgages Trustee is an
"investment company" as defined in the Investment Company
Act, and the offer and sale of the Notes in the United
States will not subject Funding 2 or the Mortgages Trustee
to registration under, or result in a violation of, the
Investment Company Act;
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(p) United States Income Tax
Neither Funding 2 nor the Mortgages Trustee will engage in
any activities in the United States (directly or through
agents), derive any income from United States sources as
determined under the Code, or hold any property if doing so
would cause it to be engaged or deemed to be engaged in a
trade or business within the United States as determined
under the Code;
(q) Accountants
[PricewaterhouseCoopers LLP] are independent public
accountants with respect to Funding 2 within the meaning
of the Securities Act;
(r) Legal Agreements
The representations and warranties given by Funding 2 and
the Mortgages Trustee in the Legal Agreements are true and
accurate, and the description of the Legal Agreements as set
out in the Prospectus is true and correct in all material
respect.
Unless otherwise indicated, the representations and warranties set
out in this Clause 6 shall be made on the date of the Prospectus and,
if different, the date of this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF NRPLC
NRPLC represents and warrants to, and agrees with, the Underwriters
and each of them that:
(a) Incorporation
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full
power and authority to conduct its business as described in
the Prospectus, to execute this Agreement and the Legal
Agreements to which it is a party and to undertake and
perform the obligations expressed to be assumed by it herein
and therein and has taken all necessary action to approve
and authorize the same and is lawfully qualified to do
business in England and Wales; and NRPLC has not taken any
corporate action nor (to the best of its knowledge and
belief) have any other steps been taken or legal proceedings
been started or threatened against it for its winding-up,
dissolution or reorganization or for the appointment of a
receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues;
and it is not in liquidation;
(b) Validity of Legal Agreements
This Agreement has been duly authorized, executed and
delivered by NRPLC and constitutes, and the other Legal
Agreements to which NRPLC is a party will be duly authorized
by NRPLC prior to the Closing Date and on the Closing Date
will constitute, a legal, valid and binding obligation of
NRPLC, enforceable against NRPLC in accordance with their
respective terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting
the enforcement of creditors rights generally and to general
equitable principles;
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(c) Related Security
NRPLC has not received notice of, and no solicitor employed
in the NRPLC Solicitors' Department is actually aware of,
any material litigation or claim, of any pending material
litigation or claim, calling into question NRPLC's title to
any Related Security or the value of any security therefor
or its right to assign any such Related Security to the
Mortgages Trustee;
(d) Consents
All consents, approvals and authorizations of all United
Kingdom regulatory authorities required on the part of NRPLC
for or in connection with the execution and performance of
the transactions contemplated by the Legal Agreements to
which NRPLC is a party have been, or will be prior to the
Closing Date be, obtained and are, or will prior to the
Closing Date be, in full force and effect including, without
limiting the generality of the foregoing, NRPLC having
received a standard license under the Consumer Credit Act
1974 and NRPLC being registered under the DPA;
(e) Compliance
The sale on [ ], 2006 of the Additional Assigned Mortgage
Portfolio and the related property and rights did not and
will not, and the execution and delivery of the Legal
Agreements to which NRPLC is a party, the implementation of
the transactions contemplated by such Legal Agreements and
compliance with the terms of such Legal Agreements do not
and will not (i) conflict with, or result in a breach of,
any of the terms or provisions of, or constitute a default
under, the Memorandum and Articles of Association of NRPLC,
or any agreement or instrument to which NRPLC is a party or
by which it or any of its properties is bound, where such
breach or default might have a material adverse effect in
the context of the issue of the Notes; or (ii) infringe any
existing applicable law, rule, regulation, judgment, order
or decree of any government, governmental body or court
having jurisdiction over NRPLC or any of its properties; or
(iii) result in the creation or imposition of any mortgage,
charge, pledge, lien or other security interest on any of
its properties, other than those created in, or imposed by,
the Legal Agreements themselves;
(f) No Material Misstatements or Omissions
(I) The Registration Statement and the Prospectus (as
amended or supplemented if the Issuer, the Mortgages Trustee
and Funding 2 shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may
be, in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and do not and
will not, as of the Effective Date as to the Registration
Statement and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus (as
amended or supplemented) as of the Closing Date will not
include any untrue statement of a material fact and will not
omit to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, that NRPLC makes no representations, warranties or
agreements as to: (i) that part of the Registration Statement
which constitutes the Statement of Eligibility and
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Qualification (Form T-1) of the Note Trustee under the Trust
Indenture Act, and (ii) statements or omissions in the
Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished in writing
to NRPLC by or on behalf of any Underwriter specifically for
use therein, which information is described in Clause 11.2;
(II) the documents incorporated by reference in the
Prospectus, as of the Effective Date or when filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted
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; and any further
documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an 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;
(g) Beneficial Owner
As of [ ], 2006, following (i) the completion of the
assignment of the Additional Assigned Mortgage Portfolio to
the Mortgages Trustee pursuant to and in accordance with the
Mortgage Sale Agreement and (ii) the declaration of trust
over the Additional Assigned Mortgage Portfolio by the
Mortgages Trustee pursuant to and in accordance with the
terms of the Mortgages Trust Deed, the Mortgages Trustee has
held the Additional Assigned Mortgage Portfolio and has held
and will continue to hold the Mortgage Portfolio on a bare
trust for the benefit of Funding 2 and NRPLC in undivided
shares absolutely;
(h) Litigation
It is not a party to, and no solicitor in NRPLC's
Solicitors' Department is actually aware of, any actions,
suits or proceedings in relation to claims or amounts which
could, if determined adversely to NRPLC, materially
adversely affect NRPLC's ability to perform its obligations
under the Legal Agreements; and
(i) Mortgage Sale Agreement and Mortgages Trust Deed
The representations and warranties given by NRPLC in the
Mortgage Sale Agreement are true and accurate in all
material respects as when stated to be made and the
representations and warranties given by NRPLC in the
Mortgages Trust Deed are true and accurate in all material
respects as when stated to be made.
Unless otherwise indicated, the representations and warranties set
out in this Clause 7 shall be made on the date of the Prospectus and,
if different, the date of this Agreement.
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8. COVENANTS OF THE ISSUER, FUNDING 2, THE MORTGAGES TRUSTEE AND NRPLC
8.1 The Issuer and, where expressly provided, Funding 2, the Mortgages
Trustee and NRPLC severally (and not jointly) covenants to, and
agrees each for itself with, the Underwriters and each of them that:
(a) The Registration Statement
The Issuer, Funding 2 and the Mortgages Trustee will (i)
file with the Commission the final Prospectus (in a form
approved by the Lead Underwriters) pursuant to Rule 424(b)
under the Securities Act not later than the time periods
specified therein, (ii) make no further amendment to the
Registration Statement or supplement to the Prospectus prior
to the Closing Date except as permitted herein, (iii) advise
the Lead Underwriters, promptly after they receive notice
thereof, of the time, during the period a Prospectus is
required to be delivered in connection with the offer and
sale of the Dollar Notes, when any amendment to the
Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission and (iv)
furnish the Lead Underwriters with copies thereof for their
review prior to filing and not to file any such proposed
amendment or supplement to which the Lead Underwriters
reasonably object.
(b) Signed Prospectus
The Issuer will deliver to the Underwriters, without charge,
on the date of this Agreement, such number of copies of the
Prospectus as the Underwriters may reasonably request, and
the Issuer will furnish to the Lead Underwriters on the date
of this Agreement four copies of the Prospectus signed by a
duly authorized director of the Issuer. The Issuer will also
promptly furnish each Underwriter (to the extent not already
furnished) and its counsel one signed copy of the
Registration Statement as originally filed and each
amendment or supplement thereto. including all consents,
exhibits and documents incorporated by reference, filed
therewith;
(c) Notify Material Omission
If, during such period of time after the first date of the
public offering of the Dollar Notes a prospectus is required
by law to be delivered in connection with sales by the
Underwriters or a dealer, (i) any event shall have occurred
as a result of which the Prospectus, as then amended or
supplemented, would 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 when such
Prospectus is delivered, not misleading, or (ii) if for any
other reason it shall be necessary to amend or supplement
the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act,
then the Issuer will promptly (A) notify the Underwriters,
(B) prepare and file with the Commission an amended or
supplemented Prospectus which corrects such statement or
omission or effects such compliance, and (C) furnish without
charge to the Underwriters as many copies as the Lead
Underwriters may reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance. The
provisions of Clauses 5(a), 5(b), 5(c), 5(o), 6(a), 6(b),
6(c),
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7(a) and 7(f) shall be deemed to be repeated by, as
applicable, the Issuer, Funding 2, the Mortgages Trustee and
NRPLC (as applicable) as of the date of each such amended or
supplemented Prospectus on the basis that each reference to
"Prospectus" in such provisions of Clauses 5, 6 and 7 shall
be deemed to be a reference to the Prospectus as amended or
supplemented as of such date;
(d) Notify Change
Without prejudice to its obligations under Clause 8.1(c),
the Issuer will notify the Underwriters promptly of any
change affecting any of its representations, warranties,
covenants, agreements or indemnities in this Agreement at
any time prior to payment of the gross underwriting proceeds
for the Notes being made to the Issuer on the Closing Date
and will take such steps as may be reasonably requested by
the Lead Underwriters to remedy and/or publicize the same;
(e) Official Announcements
Between the date of this Agreement and the Closing Date
(both dates inclusive) none of NRPLC, the Issuer, Funding 2
or the Mortgages Trustee will, without the prior approval of
the Lead Underwriters on behalf of the Underwriters (such
approval not to be unreasonably withheld or delayed), make
any official announcement which would have an adverse effect
on the marketability of the Dollar Notes;
(f) Stamp Duty
(i) The Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a
similar nature and duties that it is required to pay
under any obligation in the Legal Agreements to
which it is a party payable in the United Kingdom or
the United States, including interest and penalties,
in connection with the creation, issue, distribution
and offering of the Notes, or in connection with the
execution, delivery or enforcement of any of the
Legal Agreements to which it is a party together
with any value added, turnover or similar tax
payable in respect of that amount (and references in
this Agreement to such amount shall be deemed to
include any such taxes so payable in addition to
it);
(ii) Funding 2 will pay any stamp duty, issue,
registration, documentary or other taxes of a
similar nature and duties that it is required to pay
under any obligation in the Legal Agreements to
which it is a party payable in the United Kingdom or
the United States, including interest and penalties,
or in connection with the execution, delivery or
enforcement of any of the Legal Agreements to which
it is a party (other than in respect of the
execution, delivery or enforcement of the Mortgages
Trust Deed and any Legal Agreement to which the
Issuer is a party) together with any value added,
turnover or similar tax payable in respect of that
amount (and references in this Agreement to such
amount shall be deemed to include any such taxes so
payable in addition to it); and
(iii) The Mortgages Trustee will pay any stamp duty,
issue, registration, documentary or other taxes of a
similar nature and duties that it is required to pay
under any obligation in the Legal Agreements to
which it is a party
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payable in the United Kingdom, Jersey, Channel
Islands or the United States, including interest and
penalties, or in connection with the execution,
delivery or enforcement of the Mortgages Trust Deed
(including any amendment thereto) and the Mortgage
Sale Agreement (including any amendment thereto)
(together with any value added, turnover or similar
tax payable in respect of that amount (and
references in this Agreement to such amount shall be
deemed to include any such taxes so payable in
addition to it)) but will be promptly reimbursed an
amount equal to any such payments by the
Beneficiaries in accordance with the terms of the
Mortgages Trust Deed;
(g) United States Income Tax
The Issuer will not engage in any activities in the United
States (directly or through agents), will not derive any
income from United States sources as determined under the
Code and will not hold any property if doing so would cause
it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under the
Code;
(h) Payment of Fees, Charges, Costs and Duties
(i) Without prejudice to the generality of Clause 10.1,
the Issuer will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or
duties that it is required to pay under the Legal
Agreements to which it is a party, including
interest and penalties, arising from or in
connection with the creation of the security for the
Notes and the obligations of the Issuer under the
Issuer Trust Deed and for the other amounts to be
secured as contemplated by the Issuer Deed of
Charge, and the perfection of such security at any
time;
(ii) Without prejudice to the generality of Clause 10.1,
Funding 2 will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or
duties that it is required to pay under the Legal
Agreements to which it is a party, including
interest and penalties, arising from or in
connection with the creation of the security for the
Loan Tranches under the Global Loan Facility and for
the other amounts to be secured as contemplated by
the Funding 2 Deed of Charge the Deeds of Accession
and the Current Deed of Accession and the perfection
of such security at any time; and
(iii) Without prejudice to the generality of Clause 10.1,
the Mortgages Trustee will pay all and any fees,
charges, costs and duties and any stamp and other
similar taxes or duties that it is required to pay
under the Legal Agreements to which it is a party,
including interest and penalties, arising from or in
connection with the purchase of the Related Security
(and related property and rights) excluding H.M.
Land Registry fees (it being agreed that
registration or recording at H.M. Land Registry of
the transfer of the Related Security to the
Mortgages Trustee will not be applied for except in
the circumstances specified in the Administration
Agreement); but on the basis that the Mortgages
Trustee will be reimbursed such fees, charges, costs
and duties and any stamp and other similar taxes or
duties (including interest and penalties) by the
Beneficiaries pursuant to the terms of the Mortgages
Trust Deed;
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(i) Perform All Required Actions
On or prior to the Closing Date each of NRPLC, the Issuer,
Funding 2 and the Mortgages Trustee will do all things
reasonably within each of their respective powers and
required of each of them on such date under the terms of the
Legal Agreements to which each is a party;
(j) Review of Related Security
NRPLC will deliver to the Lead Underwriters on or around the
date of this Agreement a letter addressed to the
Underwriters or their affiliates (relating to the review by
[PricewaterhouseCoopers LLP] of the Related Security and
referred to in the Signing and Closing Memorandum as the
Auditors' pool audit report letter) dated on or around the
date of this Agreement in the agreed form addressed to NRPLC
and the Underwriters from [PricewaterhouseCoopers LLP];
(k) Conditions Precedent
The Issuer will use all reasonable endeavors to procure
satisfaction on or before the Closing Date of the conditions
referred to in Clause 9 of this Agreement;
(l) Issuer Cash Management Agreement
The Issuer will use all reasonable endeavors to procure that
NRPLC complies with its obligations under the Issuer Cash
Management Agreement;
(m) Administration Agreement
Funding 2 and the Mortgages Trustee will use all reasonable
endeavors to procure that NRPLC complies with its
obligations under the Administration Agreement;
(n) Charges and Security Interests
(i) The Issuer will procure that each of the charges and
other security interests created by or contained in
the Issuer Deed of Charge is registered within all
applicable time limits in all appropriate registers;
and
(ii) Funding 2 will procure that each of the charges and
other security interests created by or contained in
the Funding 2 Deed of Charge, the Deeds of Accession
and the Current Deed of Accession is registered
within all applicable time limits in all appropriate
registers;
(o) Ratings
None of NRPLC, the Issuer, Funding 2 or the Mortgages
Trustee will take, or cause to be taken, any action and none
of them will permit any action to be taken which it knows or
has reason to believe would result in the Dollar Notes not
being assigned an [ ] rating for the Series [ ] Class [ ]
Notes by Fitch Ratings Ltd. ("Fitch Ratings"), an [ ] rating
for the Series [ ] Class [ ] Notes by Moody's Investors
Services Limited ("Moody's") and an [ ] rating for the
Series [ ] Class [ ] Notes by Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc.
("Standard & Poor's");
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(p) Legal Agreements
Prior to closing on the Closing Date none of NRPLC, the
Issuer, Funding 2 or the Mortgages Trustee will amend the
terms of the executed Legal Agreements, nor execute any of
the other Legal Agreements other than in the agreed form,
without the consent of the Lead Underwriters (such consent
not to be unreasonably withheld or delayed);
(q) Copies of Filings and Commission
If during any period during which a prospectus relating to
the Dollar Notes is required to be delivered under the
Securities Act until three months after the Closing Date
(the "Marketing Period"), there is (i) any amendment to the
Registration Statement, (ii) any amendment or supplement to
the Prospectus, or (iii) any material document filed by the
Issuer, Funding 2 or the Mortgages Trustee with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act including but not limited to (A) any
interim or any report submitted to the Commission on Form
6-K ("Form 6-K") or Form 20-F ("Form 20-F") under the
Exchange Act and the rules and regulations thereunder or (B)
any amendment of or supplement to any such document, the
Issuer, Funding 2 and the Mortgages Trustee, as the case may
be, will furnish a copy thereof to each Underwriter, and
counsel to the Underwriters;
(r) Notice to Underwriters of Certain Events
If a post-effective amendment is required to be filed under
the Securities Act, such post-effective amendment shall have
become effective, not later than [ ], [New York City time],
on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no
proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; all requests for
additional information shall have been complied with to the
satisfaction of the Lead Underwriter;
(s) Stop Orders
The Issuer will use its best efforts to prevent the issuance
of any stop order or the suspension of any qualification 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 Dollar
Notes for sale in any jurisdiction is suspended, the Issuer
will make every reasonable effort to obtain the lifting of
that order or suspension at the earliest possible time; and
(t) Blue Sky Qualifications
The Issuer will co-operate with the Underwriters to qualify
the Dollar Notes for offering and sale under the securities
laws of such jurisdictions of the United States as the
Underwriters may designate, to maintain such qualifications
in effect for as long as may be required for the
distribution of the Dollar Notes and to file such statements
and reports as may be required by the laws of each
jurisdiction in which the Dollar
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Notes have been qualified as above provided that in
connection therewith the Issuer shall not be required to
qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction or to take
any other action that would subject it to service of process
in suits in any jurisdiction other than those arising out of
the offering or sale of the Dollar Notes in such
jurisdiction or to register as a dealer in securities or to
become subject to taxation in any jurisdiction.
8.2 NRPLC covenants to and agrees with the Underwriters and each of them
that:
(a) Notify Change
NRPLC will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time
prior to payment of the gross underwriting proceeds of the
Notes being made to the Issuer on the Closing Date and will
take such steps as may be reasonably requested by the Lead
Underwriters to remedy and/or publicize the same. In the
event that the Prospectus is amended or supplemented
pursuant to Clause 8.1(c) above, then the representations
and warranties contained in Clause 7(f) shall be deemed to
be repeated by NRPLC as of the date of such amended
Prospectus or supplement to the Prospectus, on the basis
that each reference to "Prospectus" in Clause 7(f) shall be
deemed to be a reference to the Prospectus as amended or
supplemented as at such date;
(b) Perform All Required Actions
On or prior to the Closing Date, NRPLC will do all things
reasonably within its power and required of it on such date
under the terms of the Legal Agreements to which it is a
party;
(c) Ratings
NRPLC will not take, or cause to be taken, any action and
will not permit any action to be taken which it knows or has
reason to believe would result in the Issuer not being
assigned an [ ] rating for the Series [ ] Class [ ] Notes by
Fitch Ratings, an [ ] rating for the Series [ ] Class [ ]
Notes by Moody's, and an [ ] rating for the Series [ ] Class
[ ] Notes by Standard & Poor's; and
(d) Legal Agreements
Prior to closing on the Closing Date NRPLC will not amend
the terms of any of the already executed Legal Agreements,
nor execute any of the other Legal Agreements other than in
the agreed form, without the consent of the Lead
Underwriters (such consent not to be unreasonably withheld
or delayed).
9. CONDITIONS PRECEDENT
9.1 The obligation of the Underwriters under this Agreement to subscribe
for the Dollar Notes is subject to the following conditions
precedent:
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(a) The Registration Statement
(i) If the Registration Statement has not become
effective prior to the date of this Agreement,
unless the Lead Underwriters agree in writing to a
later time, the Registration Statement will become
effective not later than (i) 6:00 p.m. New York City
time on the date of determination of the public
offering price, if such determination occurred at or
prior to 3:00 p.m. New York City time on such date
or (ii) 9:30 a.m. New York City time on the next
business day in New York following the day on which
the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City
time on such date;
(ii) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, will be filed
in the manner and within the time period required by
Rule 424(b); and
(iii) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been
instituted or threatened;
(b) Execution of Legal Agreements and the Global Notes
The execution and delivery by all parties thereto of the
Legal Agreements and the Global Notes representing each
class of the Dollar Notes on or prior to the Closing Date;
(c) Admission to Trading
The Dollar Notes having been admitted to the Official List
maintained by UK Listing Authority and the Stock Exchange
having agreed to admission of the Dollar Notes to trading on
or about the Closing Date;
(d) Legal Opinions
On or prior to the Closing Date, there having been delivered
to the Issuer, the Underwriters, the Note Trustee and the
Security Trustee copies of opinions and disclosure letters,
in form and substance satisfactory to the Lead Underwriters,
the Note Trustee, the Security Trustee and the Rating
Agencies, dated the Closing Date, of:
(i) Sidley Austin Brown & Wood, legal and tax advisers
as to English law and as to US law to NRPLC, the
Mortgages Trustee, Funding 2 and the Issuer,
addressed to NRPLC, the Mortgages Trustee, Funding
2, the Issuer, the Underwriters, the Managers, the
Note Trustee and the Security Trustee;
(ii) Mourant du Feu & Jeune, legal advisers as to Jersey
law to the Mortgages Trustee, addressed to Funding
2, the Mortgages Trustee, the Underwriters, the
Managers, the Note Trustee and the Security Trustee;
(iii) Tods Murray WS, legal and tax advisers as to Scots
law to NRPLC, the Mortgages Trustee, Funding 2 and
the Issuer, addressed to NRPLC, the
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Mortgages Trustee, Funding 2, the Issuer, the
Underwriters, the Managers, the Note Trustee and the
Security Trustee;
(iv) Allen & Overy LLP, legal advisers as to English law
and as to US law to the Underwriters and the
Managers, addressed to the Underwriters and the
Managers;
(v) Dundas & Wilson, legal advisers as to Scots law to
the Underwriters and the Managers, addressed to the
Underwriters and the Managers; and
(vi) Counsel for the Issuer Swap Provider;
(e) Auditors' Letters
(i) On or around the date of this Agreement, there
having been addressed and delivered to the
Underwriters letters, in form and substance
satisfactory to the Lead Underwriters, dated on or
around the date of this Agreement, from
[PricewaterhouseCoopers LLP], the independent
auditors of the Issuer and Funding 2; and
(ii) On the Closing Date, there having been addressed
and delivered to the Issuer, in form and substance
satisfactory to the Lead Underwriters, a pool
report in respect of agreed upon procedures in
connection with the Northern Rock plc mortgage
files (with no material exceptions to the results
stated therein) from [PricewaterhouseCoopers LLP];
(f) Certified Constitutional Documents
On or prior to the Closing Date, there having been delivered
to the Lead Underwriters on behalf of the Underwriters a
copy, certified by a duly authorized director or the company
secretary of, as applicable, the Issuer, Funding 2 and the
Mortgages Trustee of: (i) the Memorandum and Articles of
Association of each of the Issuer, Funding 2 and the
Mortgages Trustee; (ii) the resolution of the Board of
Directors of each of the Issuer, Funding 2 and the Mortgages
Trustee authorizing 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 Issuer, the issue of the Notes and the entry into and
performance of the transactions contemplated thereby;
(g) Accuracy of Representations
At the Closing Date: (i) the representations and warranties
of the Issuer, Funding 2, the Mortgages Trustee and NRPLC in
this Agreement being true, accurate and correct at, and as
if made on, the Closing Date and the Issuer, Funding 2, the
Mortgages Trustee and NRPLC having performed all of their
obligations in the Legal Agreements to be performed on or
before the Closing Date; and (ii) there having been
delivered to the Underwriters a certificate to that effect
signed by a duly authorized officer of, as applicable, the
Issuer, Funding 2, the Mortgages Trustee and NRPLC, dated
the Closing Date and confirming that, since the date of this
Agreement, there has been no adverse change, nor any
development involving a prospective adverse change, in or
affecting the operations, properties, financial condition or
prospects of
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the Issuer, Funding 2, the Mortgages Trustee or NRPLC which
is material in the context of the issue of the Notes;
(h) Circumstances for Termination
On or prior to the Closing Date, in the opinion of the Lead
Underwriters (after consultation with NRPLC, if
practicable), none of the circumstances described in Clause
12.1(c) or 12.1(d) having arisen;
(i) Ratings
Receipt of notification from Fitch Ratings, Moody's and
Standard & Poor's that the ratings for the Notes described
in the Prospectus have been assigned either without
conditions or subject only to the execution and delivery on
or before the Closing Date of the Legal Agreements and legal
opinions in all material respects in the form in which they
shall then have been executed and delivered on or prior to
the Closing Date, there not having been a public
announcement from any of the above rating agencies that such
agency has revised downwards or withdrawn or placed on
review or "creditwatch" with negative implications or with
implications of a possible change that does not indicate the
direction of such possible change (or other similar
publication of formal review by the relevant rating agency)
any existing credit rating assigned to the Notes or the long
term debt of NRPLC;
(j) Other Issues
The Reg S Notes having been or being issued and subscribed
and paid for pursuant to the Subscription Agreement and the
Programme Agreement prior to or contemporaneously with the
issue, subscription and payment for the Dollar Notes
hereunder;
(k) Material Adverse Event
There not having been between the date of this Agreement and
the Closing Date any change or any development or event
reasonably likely to involve a prospective change which
would, in the judgment of the Lead Underwriters, be
materially adverse to the financial or trading condition of
the Issuer, Funding 2, the Mortgages Trustee or NRPLC from
that set forth in the Prospectus, or rendering untrue and
incorrect any of the representations and warranties
contained in Clauses 5, 6 and 7 as though the said
representations and warranties had been given on the Closing
Date with reference to the facts and circumstances
prevailing at that date nor the failure of the Issuer,
Funding 2, the Mortgages Trustee or NRPLC to perform each
and every covenant to be performed by it pursuant to the
Legal Agreements, the Mortgage Loans and the Related
Security on or prior to the Closing Date;
(l) Solvency Certificates
(i) The Issuer having furnished or caused to be
furnished to the Underwriters and the Note Trustee
at the Closing Date a solvency certificate, dated
the Closing Date, of a duly authorized director of
the Issuer in the agreed form;
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(ii) Funding 2 having furnished or caused to be furnished
to the Issuer, NRPLC and the Security Trustee a
solvency certificate, dated the Closing Date, of a
duly authorized director of Funding 2 in the agreed
form;
(iii) The Mortgages Trustee having furnished or caused to
be furnished to the Underwriters, the Issuer, the
Security Trustee and NRPLC a solvency certificate,
dated the Closing Date, of a duly authorized
director of the Mortgages Trustee in the agreed
form; and
(iv) NRPLC having furnished or caused to be furnished to
the Underwriters, the Issuer, the Security Trustee,
Funding 2 and the Mortgages Trustee a solvency
certificate, dated the Closing Date, of a duly
authorized officer or director of NRPLC in the
agreed form; and
(m) Mortgage Sale Agreement
All of the steps required by Clause 4 of the Mortgage Sale
Agreement for the purposes of the purchase of a New Mortgage
Portfolio (as defined therein) by the Mortgages Trustee from
NRPLC on the applicable Assignment Date and related rights
to be acquired from NRPLC pursuant thereto having been
taken.
9.2 Prior to the Closing Date, there shall be furnished to the Lead
Underwriters such further information, certificates, opinions and
documents as the Lead Underwriters may reasonably request.
9.3 If any of the conditions specified in this Clause 9 have not been
fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement shall not be reasonably satisfactory
in all material respects in form and substance to the Lead
Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be cancelled (provided, however, that the liability of
the Issuer in relation to expenses as provided under, or under any
arrangements referred to in, Clause 10 and any liability arising
before or in relation to such termination shall not be cancelled) at,
or at any time prior to, the Closing Date by the Lead Underwriters.
Notice of such cancellation shall be given to the Issuer in writing
or by telephone or facsimile confirmed in writing.
9.4 The Lead Underwriters, on behalf of the Underwriters, may, in their
discretion, waive compliance with the whole or any part of this
Clause 9.
10. EXPENSES
10.1 General Expenses
The Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the 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 Issuer,
any amount in respect of Irrecoverable VAT (for the purposes of this
Agreement "Irrevocable VAT" means any amount in respect of VAT
incurred by a party to the Transaction Documents (for the purposes of
this definition, a "Relevant Party") as part of a payment in respect
of which it is entitled to be indemnified under the relevant
Transaction Documents to the extent that the Relevant
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Party does not or will not receive and retain a credit or
repayment of such VAT as input tax (as that expression is
defined in section 24(1) of the Value Added Tax Act 1994)
for the prescribed accounting period (as that expression is
used in section 25(1) of the Value Added Tax Act 1994) to
which such input tax relates) or similar tax payable in
respect thereof against production of a valid tax invoice):
(a) the fees, disbursements and expenses of the Issuer's
legal advisers and accountants and all other expenses of the
Issuer in connection with the issue (including without
limitation any filing fees payable to the Commission in
connection with the registration of the Dollar Notes under
the Securities Act and any fees payable in connection with
the qualification of the Dollar Notes for offering and sale
pursuant to any NASD regulatory provisions or under any
applicable United States state securities, Blue Sky or
similar laws) and listing of the Dollar Notes (including
without limitation, any advertisements required in
connection therewith); the preparation and delivery of each
class of the Notes in global form and (if required)
definitive form; the costs of the initial delivery and
distribution of the Notes (including, without limitation,
transportation, packaging and insurance) and the initial
fees and expenses of The Depository Trust Company in
relation to the Notes (excluding any such fees and expenses
arising as a result of any transfer of the Notes); the
preparation and printing of the Prospectus (in proof,
preliminary and final form) and any amendments and
supplements thereto and the mailing and delivery of copies
of this Agreement to the Underwriters; (b) the cost of
printing or reproducing the Legal Agreements and any other
documents prepared in connection with the offering, issue
and initial delivery of the Notes; (c) the fees and expenses
of the Note Trustee and the Security Trustee (including fees
and expenses of legal advisers to the Note Trustee and the
Security Trustee), the US Paying Agent and the Agent Bank in
each case reasonably incurred in connection with the
preparation and execution of the Legal Agreements and any
other relevant documents and the issue of the Notes and
compliance with the Conditions of the Notes; (d) the fees
and expenses incurred or payable in connection with
obtaining a rating for the Notes from Fitch Ratings, Moody's
and Standard & Poor's and annual fees in connection with
such rating or any other rating from such institution for
the Notes; (e) the fees and expenses payable in connection
with obtaining and maintaining the admission to trading of
the Notes on the Stock Exchange; (f) reasonable
out-of-pocket expenses (excluding legal expenses) incurred
by the Lead Underwriters on behalf of the Underwriters in
connection with the transactions contemplated hereby; (g)
any reasonable roadshow expenses incurred by the Lead
Underwriters on behalf of the Underwriters; and (h) any
reasonable amount in respect of the fees and disbursements
of the Underwriters' legal advisers in relation thereto.
10.2 Reimbursement
The Issuer will reimburse the Underwriters for all amounts in
connection with the issue of the Notes which it has agreed to pay
pursuant to Clause 10.1.
10.3 For the avoidance of doubt, references to costs and expenses in this
Agreement shall be deemed to include, in addition, references to any
irrecoverable UK value added tax payable in respect of such costs and
expenses.
11. INDEMNIFICATION
11.1 Issuer, Funding 2, Mortgages Trustee and NRPLC Indemnity
Each of the Issuer, Funding 2, the Mortgages Trustee and NRPLC
jointly and severally agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter (each an
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"Indemnified Person") within the meaning of either Section 15 of the
Securities Act or Section 20 of 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 or the Prospectus (as amended or supplemented
if the Issuer, Funding 2 and the Mortgages Trustee have furnished any
amendment or supplement thereto) or any preliminary prospectus, or in
any data, table, computer record, electronic record, e-mail or
printed information provided by or on behalf of NRPLC to the
Underwriters for inclusion (and to the extent included) in the
Registration Statement or the Prospectus (as amended or supplemented
if the Issuer, Funding 2 and the Mortgages Trustee have furnished any
amendment or supplement thereto) or any preliminary prospectus, 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 Issuer, Funding 2, the Mortgages
Trustee and NRPLC will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission or any representation, warranty or
covenant made by NRPLC, the Issuer, Funding 2 or the Mortgages
Trustee in this Agreement, or made in the Registration Statement or
the Prospectus (as amended or supplemented if the Issuer, Funding 2
and the Mortgages Trustee have furnished any amendment or supplement
thereto) or any preliminary prospectus in reliance upon and in
conformity with written information furnished to the Issuer, Funding
2, the Mortgages Trustee and NRPLC by or on behalf of any Underwriter
through the Lead Underwriters specifically for inclusion therein and
provided further, that as to any preliminary prospectus or the
Prospectus, this indemnity agreement shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) on
account of any loss, claim, damage, liability or action arising from
the sale of Notes to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the
same may be amended or supplemented (for the purposes of this Clause
11, the "Final Prospectus"), to that person within the time required
by the Securities Act where required by law to do so, and the untrue
statement or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact in such preliminary
prospectus or Prospectus was corrected in the Final Prospectus,
unless such failure resulted from non-compliance by the Issuer,
Funding 2, the Mortgages Trustee or NRPLC with Clause 8.1(b) hereof.
For purposes of the final proviso to the immediately preceding
sentence, the term Final Prospectus shall not be deemed to include
the documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to any
document incorporated by reference in the Prospectus or in any Final
Prospectus to any person other than a person to whom such Underwriter
has delivered such incorporated documents in response to a written or
oral request therefor. The Issuer, Funding 2, the Mortgages Trustee
and NRPLC further agree to reimburse each Underwriter and each such
controlling person for any legal and other expenses reasonably
incurred by such Underwriter or controlling person in investigating
or defending or preparing to defend against any such loss, claim,
damage, liability or action, as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which
the Issuer, Funding 2, the Mortgages Trustee and NRPLC may otherwise
have to any Underwriter or any controlling person of any Underwriter.
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No Underwriter or controlling person of any Underwriter shall have
any duty or obligation, whether as fiduciary for any Indemnified
Person or otherwise, to recover any such payment or to account to any
other person for any amounts paid to it under this Clause 11.1.
The foregoing shall be subject to the following:
(a) Any right which at any time the Mortgages Trustee has under
the existing or future laws of Jersey whether by virtue of
the droit de discussion or otherwise to require that
recourse be had to the assets of any other person before any
claim is enforced against such person in respect of the
obligations hereby assumed by such person is hereby
abandoned and waived.
(b) The Mortgages Trustee undertakes that if at any time any
person indemnified sues the Mortgages Trustee in respect of
any such obligations and the person in respect of whose
obligations the indemnity is given is not sued also, the
Mortgages Trustee shall not claim that such person be made a
party to the proceedings and each agrees to be bound by this
indemnity whether or not it is made a party to legal
proceedings for the recovery of the amount due or owing to
the person indemnified, as aforesaid, by the person in
respect of whose obligations the indemnity is given and
whether the formalities required by any law of Jersey
whether existing or future in regard to the rights or
obligations of sureties shall or shall not have been
observed.
(c) Any right which the Mortgages Trustee may have under the
existing or future laws of Jersey whether by virtue of the
droit de division or otherwise to require that any liability
under this indemnity be divided or apportioned with any
other person or reduced in any manner whatsoever is hereby
abandoned and waived.
11.2 Underwriters' Indemnity
Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Issuer, Funding 2, the Mortgages Trustee and NRPLC,
each of their directors and each of their officers who signs the
Registration Statement, their employees and each person who controls
the Issuer or NRPLC within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Issuer to each Underwriter, but
only with reference to written information relating to such
Underwriter furnished to the Issuer, Funding 2, the Mortgages Trustee
or NRPLC by or on behalf of such Underwriter through the Lead
Underwriters specifically for inclusion in the Registration Statement
or the Prospectus (as amended or supplemented if the Issuer, Funding
2 and the Mortgages Trustee have furnished any amendment or
supplement thereto) or any preliminary prospectus. This indemnity
agreement will be in addition to any liability which any Underwriter
may otherwise have. For purposes of this Clause 11.1, the Issuer,
Funding 2, the Mortgages Trustee and NRPLC acknowledge that the
statements set forth under the heading "Underwriting" that specify,
(i) the list of Underwriters and their respective participation in
the sale of the Dollar Notes, (ii) the sentences related to
concessions and reallowances and (iii) the paragraph related to short
sales, stabilization, short covering transactions and penalty bids in
any preliminary prospectus and the Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any preliminary prospectus or the
Prospectus.
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11.3 Proceedings
Promptly after receipt by an indemnified party under this Clause 11
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 11, notify the indemnifying
party in writing of the commencement thereof; but the failure so to
notify the indemnifying party (i) will not relieve it from liability
under Clause 11.1 or 11.2 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
defenses and (ii) will not, in any event relieve the indemnifying
party from any obligation to any indemnified party other than the
indemnification obligation provided in Clause 11.1 or 11.2 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 defense thereof with counsel
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Clause 11 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided that each Underwriter, the Underwriters as a
group, or the Issuer, Funding 2, the Mortgages Trustee and NRPLC, as
the case may be, shall have the right to employ separate counsel to
represent such Underwriter and its controlling persons, the
Underwriters and their respective controlling persons or the Issuer,
Funding 2, the Mortgages Trustee and NRPLC and their respective
controlling persons, as the case may be, who may be subject to
liability arising out of any claim in respect of which indemnity may
be sought by such indemnified parties under this Clause 11 if in the
reasonable judgement of any Underwriter, the Underwriters acting
together, or any of the Issuer, Funding 2, the Mortgages Trustee and
NRPLC, as the case may be, it is advisable for such indemnified
parties to be represented by separate counsel, and in that event the
fees and expenses of such separate counsel (and local counsel) shall
be paid by the indemnifying party. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
assume the defense 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
11 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i)
the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses 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 11.1 or 11.2 hereof), (ii) the
indemnifying party has authorized (acting reasonably) the employment
of more than one such separate counsel (and local counsel)
representing the employed counsel satisfactory to the indemnified
party to represent the indemnified party, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii). The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgement for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or
judgement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by this Clause 11, the indemnifying party agrees that it
shall be liable for any settlement of any
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proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such
indemnifying party of such request and (ii) such indemnifying party
shall not have either reimbursed the indemnified party in accordance
with such request or objected to such request in writing prior to the
date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and in respect of
which indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the
subject matter of such proceeding.
11.4 Contribution
In the event that the indemnity provided in Clause 11.1 or 11.2 is
unavailable to or insufficient to hold harmless an indemnified party
for any reason, the Issuer, NRPLC, Funding 2, the Mortgages Trustee
and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Issuer, NRPLC,
Funding 2, the Mortgages Trustee and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Issuer, NRPLC, Funding 2, the
Mortgages Trustee and the Underwriters from the offering of the
Dollar Notes. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Issuer, NRPLC, Funding 2,
the Mortgages Trustee and the Underwriters severally shall contribute
in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Issuer, NRPLC,
Funding 2, the Mortgages Trustee and the Underwriters in connection
with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits
received by the Issuer, Funding 2, the Mortgages Trustee and NRPLC
shall be deemed to be equal to the Issue Price (before deducting
expenses), and benefits received by the Underwriters shall be deemed
to be equal to the total Selling Commissions and the Management and
Underwriting Commission, in each case as set forth in Clause 1.4.
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 Issuer, Funding 2, the
Mortgages Trustee or NRPLC on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. The Issuer, NRPLC, Funding 2, the Mortgages
Trustee and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the
equitable consideration referred to above. Notwithstanding the
provisions of this Clause 11.4, 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 11, each person who controls an Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of
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 Issuer, Funding 2, the
Mortgages Trustee or NRPLC within the meaning of either the
Securities Act or the Exchange Act, each officer of the Issuer who
shall have signed the Registration Statement, each employee and each
director of the Issuer, Funding 2, the Mortgages Trustee or NRPLC
shall have the same rights to contribution as the Issuer, Funding 2,
the Mortgages Trustee or NRPLC, as the case may be, subject in each
case to the applicable terms and conditions of this Clause 11.4.
Notwithstanding the foregoing, in no case shall the
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Underwriter (except as may be provided in any agreement among
Underwriters relating to the offering of the Notes) be responsible
for any amount in excess of the Selling Commission or Management and
Underwriting Commission applicable to the Notes purchased by such
Underwriter hereunder.
12. TERMINATION
12.1 Lead Underwriters' Ability to Terminate
Notwithstanding any other provision of this Agreement, the Lead
Underwriters on behalf of the Underwriters may, by notice to the
Issuer given at any time after the execution and delivery of this
Agreement and prior to the Closing Date, 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
Issuer's or NRPLC's covenants or agreements in this
Agreement in any material respect; or
(b) if any condition specified in Clause 9 has not been
satisfied or waived by the Lead Underwriters on behalf of
the Underwriters; or
(c) if in the opinion of the Lead Underwriters, circumstances
shall be such as: (i) to prevent or to a material extent
restrict payment for the Dollar Notes in the manner
contemplated in this Agreement or (ii) to a material extent
prevent or restrict settlement of transactions in the Dollar
Notes in the market or otherwise; or
(d) if in the opinion of the Lead Underwriters, there shall have
been (i) any change in national or international political,
legal, tax or regulatory conditions or (ii) any calamity or
emergency, which has in its view caused a substantial
deterioration in the price and/or value of the Dollar Notes;
or
(e) upon termination of the Subscription Agreement; or
(f) if (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the London Stock
Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on
such exchanges or such market; (ii) a banking moratorium
shall have been declared by US federal or New York State or
UK regulatory authorities; (iii) there shall have occurred
any change or any development involving a prospective
change, in or affecting particularly the business or
properties of the Issuer, Funding 2, the Mortgages Trustee
or NRPLC, which in the judgement of the Lead Underwriters
materially impairs the investment quality of the Dollar
Notes or makes it impracticable or inadvisable to market the
Dollar Notes or (iv) if in the judgement of the Lead
Underwriters, it otherwise becomes impracticable or
inadvisable to proceed with the offering of the Dollar
Notes.
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12.2 Consequences of Termination
Upon such notice being given this Agreement shall terminate and be of
no further effect and no party hereto shall be under any liability to
any other in respect of this Agreement except that (a) the Issuer
shall remain liable under Clause 10 for the payment of the costs and
expenses already incurred or incurred in consequence of such
termination and (b) (i) the indemnity agreement and contribution
provisions set forth in Clause 11, (ii) the obligations of the Issuer
and NRPLC and the representations and warranties of the Underwriters
made in Clause 3.2(b) of this Agreement, which would have continued
in accordance with Clause 13 had the arrangements for the
underwriting and issue of the Dollar Notes been completed, shall so
continue.
13. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
13.1 The representations, warranties, agreements, undertakings and
indemnities in this Agreement will continue in full force and effect
notwithstanding completion of the arrangements for the subscription
and issue of the Dollar Notes or any investigation made by or on
behalf of any Underwriter or any controlling person or any of its
representatives, directors, officers, agents or employees or any of
them.
13.2 Save for their respective responsibilities to comply with the
relevant representations set forth herein, neither the Issuer,
Funding 2, the Mortgages Trustee nor NRPLC shall have any
responsibility in respect of the legality of the Underwriters or
other persons offering and selling the Dollar Notes in any
jurisdiction or in respect of the Dollar Notes qualifying for sale in
any jurisdiction.
14. NOTICES
14.1 All communications pursuant to this Agreement will be in writing and
will be delivered at or sent by facsimile transmission to the
following addresses:
(i) if to the Issuer,
Fifth Floor
100 Wood Street
London
EC2V 7EX
Attention: The Company Secretary
Facsimile: +44 (0) 207 606 0643
With a copy to:
Northern Rock House
Gosforth
Newcastle upon Tyne
NE3 4PL
Attention: Securitization, Risk Operations
Facsimile: +44 (0) 191 279 4929
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(ii) if to NRPLC,
Northern Rock House
Gosforth
Newcastle upon Tyne
NE3 4PL
Attention: Securitization, Risk Operations
Facsimile: +44 (0) 191 279 4929
(iii) if to the Underwriters,
[ ]
(iv) if to Funding 2,
Fifth Floor
100 Wood Street
London
EC2V 7EX
Attention: The Company Secretary
Facsimile: +44 (0) 207 606 0643
(v) if to the Mortgages Trustee,
22 Grenville Street
St. Helier
Jersey
JE4 8PX
Attention: The Company Secretary
Facsimile: +44 (0) 1534 609 333
14.2 Any communication so sent by letter shall take effect at the time of
actual delivery to the addressee, and any communication so sent by
facsimile transmission shall take effect upon acknowledgement of
receipt by the recipient. Any communication to be delivered to any
party under this Agreement which is to be sent by facsimile
transmission will be written legal evidence.
14.3 The Mortgages Trustee agrees that the process by which any
proceedings in England are begun may be secured on it by being
delivered to Granite Finance Trustees Limited c/o Mourant & Co.
Capital (SPV) Limited, 69 Park Lane, Croydon CR9 1TQ, or otherwise at
the registered office of Mourant & Co. Capital (SPV) Limited, attn:
The Company Secretary. If such person is not or ceases to be
effectively appointed to accept service of process on the Mortgages
Trustee's behalf the Mortgages Trustee shall, on the written demand
of the Lead Underwriters, appoint a further person in England to
accept service of process on its behalf and, failing such appointment
within 15 days, the Lead Underwriters shall be entitled to appoint
such a person by written notice to the Mortgages Trustee. Nothing in
this sub-clause
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shall affect the right of the Lead Underwriters to serve process in
any other manner permitted by law.
15. TIME
Time shall be of the essence of this Agreement.
16. NON PETITION AND LIMITED RECOURSE
Each of the Underwriters agrees with the Issuer, Funding 2 and the
Mortgages Trustee, that it shall not, until the expiry of one year
and one day after the payment of all sums outstanding and owing under
the Notes (in respect of the Issuer) and until the expiry of one year
and one day after the payment of all sums outstanding and owing under
any Loan Tranche made to Funding 2 by the Issuer or any other company
(in respect of the Mortgages Trustee) take any corporate action or
other steps or legal proceedings for the winding-up, dissolution,
arrangement, reconstruction or re-organization or for the appointment
of a liquidator, receiver, manager, administrator, administrative
receiver or similar officer of the Issuer, the Mortgages Trustee or
Funding 2 or any, or all of, their respective assets or revenues.
To the extent permitted by law, no recourse under any obligation,
covenant or agreement of any person contained in this Agreement shall
be had against any shareholder, officer or director of the Issuer,
Funding 2 or the Mortgages Trustee, by the enforcement of any
assessment or by any legal proceedings, by virtue of any statute or
otherwise; it being expressly agreed and understood that this
Agreement is a corporate obligation of each of the Issuer, Funding 2
and the Mortgages Trustee expressed to be a party hereto and no
personal liability shall attach to or be incurred by the
shareholders, officers, agents or directors of such person as such,
or any of them, under or by reason of any of the obligations,
covenants or agreements of the Issuer, Funding 2 or the Mortgages
Trustee contained in this Agreement, or implied therefrom, and that
any and all personal liability for breaches by such person of any
such obligations, covenants or agreements, either under any
applicable law or by statute or constitution, of every such
shareholder, officer, agent or director is hereby expressly waived by
each person expressed to be a party hereto as a condition of and
consideration for the execution of this Agreement.
17. GOVERNING LAW AND JURISDICTION
17.1 Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the
conflict of laws provisions thereof.
17.2 Jurisdiction
Each of the parties hereto irrevocably agrees that, except as
otherwise set forth in this paragraph, any state or federal court
sitting in the City of New York shall have exclusive jurisdiction to
hear and determine any suit, action or proceeding and to settle any
dispute arising out of or relating to this Agreement and, for such
purposes, irrevocably submits to the jurisdiction of such courts.
Each of the Mortgages Trustee, Funding 2, the Issuer and NRPLC hereby
appoints the CT Corporation System at 111 Eighth Avenue, New York, NY
10011, 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
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document by hand delivery or registered mail upon such agent shall be
effective service of process for any suit, action or proceeding
brought in any such court. Each of the Mortgages Trustee, Funding 2,
the Issuer and NRPLC irrevocably and unconditionally waives any
objection to the laying of venue of any such suit, action or
proceeding brought in any such court and any claim that any such
suit, action or proceeding has been brought in an inconvenient forum.
Each of the Mortgages Trustee, Funding 2, the Issuer and NRPLC agrees
that a final judgment in any such suit, action or proceeding brought
in any such court shall be conclusive and binding upon each of the
Mortgages Trustee, Funding 2, the Issuer and NRPLC and may be
enforced in any other court to whose jurisdiction each of the
Mortgages Trustee, Funding 2, the Issuer and NRPLC is or may in the
future be subject, by suit upon judgment. Each of the Mortgages
Trustee, Funding 2, the Issuer and NRPLC further agrees that nothing
herein shall affect the Underwriters' right to effect service of
process in any other manner permitted by law or to bring a suit,
action or proceeding (including a proceeding for enforcement of a
judgement) in any other court or jurisdiction in accordance with
applicable law.
18. COUNTERPARTS
This Agreement may be executed in any number of counterparts
(manually or by facsimile) all of which, taken together, shall
constitute one and the same agreement and any party may enter into
this Agreement by executing a counterpart.
19. AUTHORITY OF THE LEAD UNDERWRITERS
Any action by the Underwriters hereunder may be taken by [ ],
[ ] and [ ] as representatives on behalf of the Underwriters,
and any such action taken by [ ], [ ] and [ ] shall be
binding upon the Underwriters.
20. SUCCESSORS
This Agreement shall inure to the benefit of and be binding upon each
of the parties hereto, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give
any other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Dollar Notes from the
Underwriters shall be deemed to be a successor by reason merely of
such purchase.
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IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
GRANITE MASTER ISSUER PLC
By:
NORTHERN ROCK PLC
By:
GRANITE FINANCE FUNDING 2 LIMITED
By:
GRANITE FINANCE TRUSTEES LIMITED
By:
[ ]
By:
[ ]
By:
[ ]
[For itself and on behalf of the several Underwriters
listed in Schedule 1 hereto]
By:
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SCHEDULE 1