GRANITE MORTGAGES 02-2 PLC
And
NORTHERN ROCK PLC
And
GRANITE FINANCE FUNDING LIMITED
And
GRANITE FINANCE TRUSTEES LIMITED
And
SALOMON SMITH BARNEY INC.
And
J.P. MORGAN SECURITIES INC.
And
[o]
UNDERWRITING AGREEMENT
relating to GRANITE MORTGAGES 02-2 PLC
$600,000,000 Series 1 Class A1 Floating Rate Notes due January 2017
$1,050,000,000 Series 1 Class A2 Floating Rate Notes due January 2047
$60,000,000 Series 1 Class B Floating Rate Notes due January 2047
$75,000,000 Series 1 Class C Floating Rate Notes due January 2047
CONTENTS
CLAUSE PAGE
1. Agreement to Issue and Subscribe...........................................4
2. Stabilisation..............................................................6
3. Agreements by the Underwriters.............................................6
4. Listing....................................................................9
5. Representations and Warranties of the Current Issuer.......................9
6. Representations and Warranties of Funding and the Mortgages Trustee.......14
7. Representations and Warranties of NRPLC...................................19
8. Covenants of the Current Issuer, Funding, the Mortgages Trustee and NRPLC.21
9. Conditions Precedent......................................................28
10. Closing...................................................................31
11. Commissions...............................................................32
12. Expenses..................................................................32
13. Indemnification...........................................................34
14. Termination...............................................................38
15. Survival of Representations and Obligations...............................39
16. Notices...................................................................39
17. Time......................................................................41
18. Contracts (Rights of Third Parties) Act 1999..............................41
19. Non Petition and Limited Recourse.........................................41
20. Governing Law and Jurisdiction............................................42
21. Counterparts..............................................................42
THIS AGREEMENT is made as of [o], 2002
BETWEEN:
(1) GRANITE MORTGAGES 02-2 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 "CURRENT 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 LIMITED, a private limited company incorporated
under the laws of Jersey, Channel Islands, through its branch at 4th Floor,
35 New Bridge Street, London EC4V 6BW ("FUNDING");
(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) SALOMON SMITH BARNEY INC., a corporation organised under the laws of New
York whose registered office is at 388 Greenwich Street, New York, New York
10013, USA, and J.P. MORGAN SECURITIES INC., a corporation organised under
the laws of Delaware whose registered office is at 270 Park Avenue, New
York, New York 10017, USA (the "LEAD UNDERWRITERS"); and
(6) [O] (together with the Lead Underwriters, the "UNDERWRITERS" and each an
"UNDERWRITER").
WHEREAS:
(A) The Current Issuer, by resolutions of its Board of Directors passed on [o],
2002, has duly authorised and determined to create and issue $600,000,000
Series 1 Class A1 Floating Rate Notes due January 2017 (the "SERIES 1 CLASS
A1 NOTES"), $1,050,000,000 Series 1 Class A2 Floating Rate Notes due
January 2043 (the "SERIES 1 CLASS A2 NOTES"), $60,000,000 Series 1 Class B
Floating Rate Notes due January 2043 (the "SERIES 1 CLASS B NOTES") and
$75,000,000 Series 1 Class C Floating Rate Notes due January 2043 (the
"SERIES 1 CLASS C NOTES"); (the "DOLLAR NOTES", which expression where the
context so requires shall include the Dollar Global Note Certificates
defined below).
(B) The Dollar Notes will be denominated in U.S. dollars and in denominations
of $100,000 and $10,000. The Dollar Notes will be issued on or about [o],
2002 or at such other time and/or date as the Current Issuer and the Lead
Underwriters on behalf of the Underwriters may agree acting reasonably (the
"CLOSING DATE"). The issue of the Dollar Notes is referred to in this
Agreement as the "ISSUE".
(C) Simultaneously with the Issue, the Current Issuer intends to issue
(euro)1,100,000,000 Series 2 Class A Floating Rate Notes due January 2043
(the "SERIES 2 CLASS A NOTES"), (euro)41,000,000 Series 2 Class B Floating
Rate Notes due January 2043 (the "SERIES 2 CLASS B NOTES") and
(euro)50,000,000 Series 2 Class C Floating Rate Notes due January 2043 (the
"SERIES 2 CLASS C NOTES" and together with the Series 2 Class A Notes and
the Series 2 Class B Notes, the "EURO NOTES"), (pound)660,000,000
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Series 3 Class A Floating Rate Notes due January 2043 (the "SERIES 3 CLASS
A NOTES"), (pound)25,000,000 Series 3 Class B Floating Rate Notes due
January 2043 (the "SERIES 3 CLASS B NOTES") and (pound)31,500,000 Series 3
Class C Floating Rate Notes due January 2043 (the "SERIES 3 CLASS C NOTES"
and together with the Series 3 Class A Notes, the Series 3 Class B Notes,
the "STERLING NOTES", and the Euro Notes, together with the Sterling Notes,
the "REG S NOTES", and together with the Dollar Notes, the "NOTES"). By a
subscription agreement dated as of the date hereof (the "SUBSCRIPTION
AGREEMENT") between the Current Issuer, NRPLC, Funding, the Mortgages
Trustee and the respective managers named therein (the "MANAGERS"), such
Managers have agreed to subscribe and pay for the Reg S Notes upon the
terms and subject to the conditions therein contained.
The Notes will be constituted by, issued subject to and have the benefit of
a trust deed (the "CURRENT ISSUER TRUST DEED") to be entered into on or
before the Closing Date between the Current Issuer and The Bank of New
York, London Branch as trustee for the Noteholders (the "NOTE TRUSTEE").
(D) The Notes (together with the Current Issuer's obligations to its other
creditors will be secured by the benefit of security interests created
under a deed of charge and assignment by way of security (the "CURRENT
ISSUER DEED OF CHARGE") to be entered into on or before the Closing Date by
the Current Issuer, the Note Trustee, [Citibank, N.A.,] (the "PRINCIPAL
PAYING AGENT", the "US PAYING AGENT", the "REGISTRAR", the "TRANSFER AGENT"
and the "AGENT BANK"), [o] as dollar currency swap provider to the Current
Issuer (the "DOLLAR CURRENCY SWAP PROVIDER"), [o] as euro currency swap
provider (the "EURO CURRENCY SWAP PROVIDER"), NRPLC in its capacity as cash
manager to the Current Issuer under the Current Issuer cash management
agreement (the "CURRENT ISSUER CASH MANAGER"), NRPLC as basis rate swap
provider to the Current Issuer (the "BASIS RATE SWAP PROVIDER"), [Citibank,
N.A.] in its capacity as account bank to the Current Issuer under the
Current Issuer Bank Account Agreement (the "CURRENT ISSUER ACCOUNT BANK")
and Law Debenture Corporate Services Limited in its capacity as corporate
services provider to the Current Issuer under the corporate services
provider agreement (the "CURRENT ISSUER CORPORATE SERVICES PROVIDER").
(E) Payments of principal and interest on the Dollar Notes will be made by the
Current Issuer to the US Paying Agent and by the US Paying Agent to
Noteholders on behalf of the Current Issuer under a paying agent and agent
bank agreement to be entered into on or before the Closing Date (the
"CURRENT ISSUER PAYING AGENT AND AGENT BANK AGREEMENT") between the Current
Issuer, the Note Trustee, the Agent Bank, the paying agents named therein,
the Transfer Agent and the Registrar.
(F) Each class of the Dollar Notes will be in fully registered permanent global
form. The Registrar will maintain a register (the "REGISTER") in respect of
the Dollar Notes in accordance with the Paying Agency and Agent Bank
Agreement. The global note certificates representing the Dollar Notes (the
"DOLLAR GLOBAL NOTE CERTIFICATES") will be deposited on behalf of the
beneficial owners of the Dollar Notes with Citibank N.A. in New York, as
custodian for, and registered in the name of Cede & Co. as nominee of, The
Depository Trust Company ("DTC").
(G) The Current Issuer will use an amount equal to the gross proceeds of the
Issue as well as the gross proceeds of the Reg S Notes issue to make a loan
to Funding pursuant to an intercompany loan agreement to be entered into on
or before the Closing Date between the Current Issuer, Funding, the Agent
Bank and The Bank of New York, London Branch as security trustee (in such
capacity, the "SECURITY TRUSTEE") (the "INTERCOMPANY LOAN AGREEMENT" and
the loan made thereunder the "INTERCOMPANY LOAN").
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(H) Funding will pay the proceeds of the Intercompany Loan (net of the amount
retained for the Current Issuer Reserve Fund) to the Mortgages Trustee (or
to its order) in consideration for the acquisition of part of the
beneficial share of the additional mortgage trust portfolio of first
residential mortgage loans (the "ADDITIONAL MORTGAGE LOANS") and an
interest in the related insurances and their related security (together,
the "RELATED SECURITY").
(I) NRPLC will assign the portfolio of Additional Mortgage Loans and their
Related Security to the Mortgages Trustee on or about [o], 2002 and on
subsequent distribution dates pursuant to a mortgage sale agreement dated
26th March, 2001 between NRPLC, the Mortgages Trustee, Funding and the
Security Trustee (the "MORTGAGE SALE AGREEMENT"). Each of the Mortgages
Trustee and Funding has appointed NRPLC as administrator to service the
Mortgage Loans and their Related Security pursuant to a Administration
Agreement dated 26th March, 2001 (the "ADMINISTRATION AGREEMENT").
(J) The Mortgages Trustee holds the Mortgage Loans and their Related Security
on a bare trust in undivided shares for the benefit of Funding and NRPLC
pursuant to the mortgages trust deed dated 26th March, 2001 entered into by
NRPLC, Funding and the Mortgages Trustee (the "MORTGAGES TRUST Deed"). The
Mortgages Trustee also entered into a guaranteed investment contract dated
on or about 26th March, 2001 in respect of its principal bank account (the
"MORTGAGES TRUSTEE GUARANTEED INVESTMENT CONTRACT") between the Mortgages
Trustee and Lloyds TSB Bank plc, Jersey International Branch (in such
capacity, the "MORTGAGES TRUSTEE GIC PROVIDER").
(K) Funding's obligations to the Current Issuer under the Current Issuer
Intercompany Loan Agreement and to Funding's other creditors are secured by
the benefit of security interests created by a deed of charge and
assignment dated 26th March, 2001, which includes any deed of accession
entered into in connection therewith or supplement thereto (the "FUNDING
DEED OF CHARGE") and entered into by Funding, Granite Mortgages 01-1 plc
(the "FIRST ISSUER"), the Mortgages Trustee, the Security Trustee, NRPLC in
its capacity as cash manager to the Mortgages Trustee and Funding (the
"CASH MANAGER") Lloyds TSB Bank plc, Jersey International Branch in its
capacity as account bank to the Mortgages Trustee, Lloyds TSB Bank plc in
its capacity as account bank to Funding (in such capacities, each an
"ACCOUNT BANK") and NRPLC in its capacity as start-up loan provider to
Funding (the "START-UP LOAN PROVIDER") and acceded to pursuant to deeds of
accession dated 28th September, 2001 and 14th March, 2002 respectively (the
"DEEDS OF ACCESSION"). On or before the Closing Date, the Current Issuer
and the Start-up Loan Provider will, pursuant to a deed of accession (the
"CURRENT DEED OF ACCESSION") accede to the terms of the Funding Deed of
Charge and thereby become secured creditors of Funding.
(L) Funding, in addition to the documents described above, on 26th March, 2001
entered into (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, the Security Trustee and the Cash Underwriter (the "BANK
ACCOUNT AGREEMENT"); (3) a guaranteed investment contract with, INTER
ALIOS, Lloyds TSB Bank plc as GIC provider to Funding (the "FUNDING GIC
PROVIDER") (the "FUNDING GUARANTEED INVESTMENT CONTRACT"); and (4) a
corporate services provider agreement (the "FUNDING CORPORATE SERVICES
AGREEMENT") with Mourant & Co. Capital (SPV) Limited as corporate services
provider to Funding, each of which will remain in effect, as applicable, in
respect of the Issue.
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(M) In connection with the Issue, the Current Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Notes relating to
each class of the Notes; (2) the Corporate Services Agreement with respect
to the Current Issuer; (3) a cash management agreement between the Current
Issuer, the Note Trustee and NRPLC (the "CURRENT ISSUER CASH MANAGEMENT
AGREEMENT"); (4) a bank account agreement (the "CURRENT ISSUER BANK ACCOUNT
AGREEMENT") between the Current Issuer, the Note Trustee, NRPLC (in such
capacity, the "CURRENT ISSUER CASH MANAGER") and the Current Issuer Account
Bank; (5) a post-enforcement call option agreement (the "POST-ENFORCEMENT
CALL OPTION AGREEMENT") between the Current Issuer, the Note Trustee, the
Registrar, the Transfer Agent and GPCH Limited; (6) a Current Issuer start
up loan agreement between Funding, the Start-Up Loan Provider and the
Security Trustee (the "START-UP LOAN AGREEMENT"); (7) ISDA Master
Agreements including the Schedules thereto and confirmations thereunder in
respect of a Dollar/Sterling currency swaps between the Current Issuer, the
Dollar Currency Swap Provider and the Note Trustee (the "DOLLAR CURRENCY
SWAP AGREEMENT"); (8) ISDA Master Agreements including the Schedules
thereto and confirmations thereunder in respect of a Euro/Sterling currency
swaps between the Current Issuer, the Euro Currency Swap Provider and the
Note Trustee (the "EURO CURRENCY SWAP AGREEMENT" and the together with the
Dollar Currency Swap Agreements, the "CURRENCY SWAP AGREEMENTS"); and (9)
an ISDA Master Agreement including the Schedule thereto and confirmations
thereunder in respect of a variable rate swap and a fixed rate swap between
the Current Issuer, the Basis Rate Swap Provider and the Note Trustee (the
"BASIS RATE SWAP AGREEMENT", and together with the Currency Swap Agreement,
the "SWAP AGREEMENTS").
(N) As required, the Current Issuer, Funding, the Mortgages Trustee and/or
NRPLC have entered or will enter into any other relevant documents to be
signed and delivered on or before the Closing Date (such documents,
together with the Mortgage Sale Agreement, the Mortgages Trust Deed, the
Mortgages Trustee Corporate Services Agreement, the Administration
Agreement, the Mortgages Trustee Guaranteed Investment Contract, the
Intercompany Loan Agreement, the Funding Guaranteed Investment Contract,
the Cash Management Agreement, the Bank Account Agreement, the Start-up
Loan Agreement with respect to the Current Issuer, the Funding 02-2 Bank
Account Agreement, the Funding Deed of Charge, the Current Issuer Deed of
Charge, the Current Issuer Trust Deed, the Current Issuer Cash Management
Agreement, the Current Issuer Paying Agent and Agent Bank Agreement, the
Current Issuer Bank Account Agreement, the Current Issuer Corporate
Services Agreement, the Swap Agreements, the Funding Corporate Services
Agreement, this Agreement and the Subscription Agreement, each as they have
been or may be amended, restated, varied or supplemented from time to time
are collectively referred to herein as the "LEGAL AGREEMENTS").
IT IS AGREED as follows:
1. AGREEMENT TO ISSUE AND SUBSCRIBE
1.1 DEFINITIONS AND INTERPRETATION
(a) Capitalised terms used herein and not otherwise defined herein or
pursuant hereto shall have the meanings given to them in the
Prospectus (as defined below) unless the context otherwise requires.
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(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
(ix) references to any person shall include references to his
successors, transferees and assigns and any person deriving
title under or through him.
1.2 AGREEMENT TO ISSUE AND UNDERWRITE
Subject to the terms and conditions of this Agreement, the Current Issuer
agrees to issue the Dollar Notes on the Closing Date to the Underwriters
or as they may direct. The Dollar Notes will be issued at a price equal to
the aggregate of 100 per cent. of the aggregate principal amount of the
Series 1 Class A1 Notes, 100 per cent. of the aggregate principal amount
of the Series 1 Class A2 Notes, 100 per cent. of the aggregate principal
amount of the Series 1 Class B Notes, and 100 per cent. of the aggregate
principal amount of the Series 1 Class C Notes (the "ISSUE PRICE").
1.3 THE LEGAL AGREEMENTS
To the extent that each of the Current Issuer, Funding, the Mortgages
Trustee and NRPLC is a signatory of the Legal Agreements, each will on or
before the Closing Date, have entered into or enter into each of the Legal
Agreements to which it is a party, substantially in the form of the draft
reviewed by Allen & Overy 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 Current Issuer and, if it is a signatory, Funding, the Mortgages
Trustee and/or NRPLC.
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1.4 THE NOTES
The Dollar Notes will be issued on the Closing Date in accordance with the
terms of the Current Issuer Trust Deed and will be in, or substantially
in, the form set out therein.
1.5 PROSPECTUS
The Current Issuer confirms that it has prepared a prospectus dated
today's date (together with the preliminary prospectus of the Current
Issuer dated [o], 2002, the "PROSPECTUS") for use in connection with the
issue of the Dollar Notes and hereby authorises the Underwriters to
distribute copies of the Prospectus in connection with the offering and
sale of the Dollar Notes.
1.6 AUTHORITY TO OFFER
The Current Issuer confirms that it has authorised the Lead Underwriters
to offer the Dollar Notes on its behalf to the Underwriters for
subscription at the Issue Price subject to signature of this Agreement.
2. STABILISATION
2.1 STABILISATION
Salomon Smith Barney Inc., on behalf of itself and the other Underwriters,
may, to the extent permitted by applicable laws and regulations, engage in
over-allotment transactions, stabilising transactions, syndicate covering
transactions and penalty bids and otherwise effect transactions in the
open market or otherwise in connection with the distribution of the Notes
with a view to stabilising or maintaining the respective market prices of
the Notes at levels other than those which might otherwise prevail in the
open market. Such stabilising, if commenced, may be discontinued at any
time. In doing so Salomon Smith Barney Inc. shall act as principal and in
no circumstances shall the Current Issuer be obliged to issue more than
(i) $600,000,000 in aggregate principal amount of the Series 1 Class A1
Notes, (ii) $1,050,000,000 in aggregate principal amount of the Series 1
Class A2 Notes, (iii) $60,00,000 in aggregate principal amount of the
Series 1 Class B Notes, or (iv) $75,000,000 in aggregate principal amount
of the Series 1 Class C Notes.
2.2 STABILISATION PROFITS AND LOSSES
As between the Current Issuer and Salomon Smith Barney Inc. any loss
resulting from stabilisation transactions entered into by Salomon Smith
Barney Inc., pursuant to Clause 2.1 shall be borne, and any profit arising
therefrom shall be retained, by Salomon Smith Barney Inc..
3. AGREEMENTS BY THE UNDERWRITERS
3.1 PURCHASE
Each Underwriter severally agrees to purchase and pay for such principal
amount of the Dollar Notes set out against its name in the Schedule hereto
on the Closing Date at the Issue Price, all on the terms set out in this
Agreement.
(a) If any Underwriter shall default in its obligation to purchase
Dollar Notes which it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their
7
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.
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.
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(b) UNITED KINGDOM
Each Underwriter represents and agrees that:
(1) it has not offered or sold, and will not offer or sell, any
Dollar Notes to any persons in the United Kingdom prior to
admission of the Dollar Notes to listing in accordance with
Part VI of the Financial Services and Markets Act 2000, as
amended (the "FSMA") except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, as amended, or the
FSMA;
(2) it has 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; and
(3) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or
inducement to engage in investment activities (within the
meaning of Section 21 of the FSMA) in connection with the
issue or sale of any of the Dollar Notes in circumstances in
which Section 21(1) of the FSMA does not apply to the Current
Issuer.
(c) OTHER
For each jurisdiction outside the United States and the United
Kingdom (a "RELEVANT JURISDICTION"), each Underwriter acknowledges
that no representation is made by the Current Issuer or any
Underwriter that any action has been or will be taken in any
Relevant Jurisdiction by the Current Issuer or any Underwriter that
would permit a public offering of the Dollar Notes (other than as
described above), or possession or distribution of the Prospectus or
any other offering material, in any country or Relevant Jurisdiction
where action for that purpose is required. Each Underwriter will
comply with all applicable securities laws and regulations in any
Relevant Jurisdiction in which it purchases, offers, sells or
delivers Dollar Notes or has in its possession or distributes the
Prospectus or any other offering material, in all cases at its own
expense. Each Underwriter represents that it will not directly or
indirectly offer, sell or deliver any offered notes or publish any
prospectus, form of application, offering circular, advertisement or
other offering material except under circumstances that will, to the
best of its knowledge and belief, result in compliance with any
applicable laws and regulations, and all offers, sales and
deliveries of offered notes by it will be made on the same terms and
will obtain any consent, approval or permission required by it for
the purchase, offer, sale or delivery by it of Dollar Notes under
the laws and regulations in force in any Relevant Jurisdictions to
which it is subject or in which it makes such purchases, offers,
sales or deliveries and the Current Issuer shall have no
responsibility for them.
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4. LISTING
4.1 APPLICATION FOR LISTING
The Current Issuer confirms that it has authorised the Lead Underwriters
to make or cause to be made at the Current Issuer's expense applications
on the Current Issuer's behalf for the Notes to be listed on the Official
List of the UK Listing Authority and for the Notes to be admitted to
trading by the London Stock Exchange plc (the "STOCK EXCHANGE").
4.2 SUPPLY OF INFORMATION
The Current Issuer agrees to supply to the Lead Underwriters for delivery
to the UK Listing Authority and the Stock Exchange copies of the
Prospectus and such other documents, information and undertakings as may
be required for the purpose of obtaining such listing.
4.3 MAINTENANCE OF LISTING
The Current Issuer agrees to use its reasonable endeavours to maintain a
listing of the Dollar Notes on the Official List of the UK Listing
Authority and the admission of the Notes to trading by the Stock Exchange
for as long as any of the Dollar Notes are outstanding and to pay all fees
and supply all further documents, information and undertakings and publish
all advertisements or other material as may be necessary for such purpose.
However, if such listing becomes impossible, the Current Issuer will
obtain, and will thereafter use its best endeavours to maintain, a
quotation for, or listing of, the Dollar Notes on or by such other stock
exchange, competent listing authority and/or quotation system as is
commonly used for the quotation or listing of debt securities as it may,
with the approval of the Lead Underwriters (such approval not to be
unreasonably withheld or delayed), decide.
5. REPRESENTATIONS AND WARRANTIES OF THE CURRENT ISSUER
The Current Issuer represents and warrants to, and agrees with, Funding,
the Mortgages Trustee, the Underwriters and each of them that:
(a) THE REGISTRATION STATEMENT
The Current Issuer has prepared and filed with the United States
Securities and Exchange Commission (the "COMMISSION") a registration
statement (file number 333-97023) on Form S-11 (the "REGISTRATION
STATEMENT"), including a related preliminary prospectus dated [o],
2002, for registration under the U.S. Securities Act of 1933, as
amended (the "SECURITIES ACT") of the offering and sale of the
Dollar Notes. The Current Issuer may have filed one or more
amendments thereto, including a related preliminary prospectus, each
of which has previously been furnished to the Underwriters. The
Current Issuer will next file with the Commission one of the
following either (1) prior to the date and time that such
Registration Statement becomes effective (the "EFFECTIVE DATE"), a
further amendment to such Registration Statement, including the form
of final prospectus or (2) after the Effective Date of such
Registration Statement, a final prospectus in accordance with Rules
430A and 424(b) under the Securities Act. In the case of clause (2),
the Current Issuer has included in such Registration Statement, as
amended at the Effective Date, all information (other than
information with respect to the Notes and the Issue permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A ("RULE 430A INFORMATION")) required by
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the Securities Act and the rules thereunder to be included in such
Registration Statement and the Prospectus. As filed, such amendment
and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such
required information, and, except to the extent that the Lead
Underwriters shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to the Underwriters
prior to the date and time that this Agreement is executed and
delivered by the parties hereto (the "DATE OF THIS AGREEMENT"), or,
to the extent not completed at the date of this Agreement, shall
contain only specific additional information and other changes
(beyond that contained in the latest preliminary prospectus) as the
Current Issuer has advised the Lead Underwriters, prior to the date
of this Agreement, will be included or made therein.
(b) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement, as amended, did
or will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Prospectus
(and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Securities Act, the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and
the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT") and the respective rules thereunder; on the Effective Date and
at the date of this Agreement, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; on the
Effective Date and on the Closing Date the Current Issuer Trust Deed
did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder;
and on the Effective Date, the Prospectus, if not filed pursuant to
Rule 424(b), will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Prospectus (together with
any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, however, that the
Current Issuer makes no representations or warranties as to the
information contained in or omitted from the Registration Statement,
or the Prospectus (or any statement thereto) in reliance upon and in
conformity with information furnished in writing to the Current
Issuer by or on behalf of any Underwriter through the Lead
Underwriters specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto), which
information is described in Clause 13.2;
(c) INCORPORATION, CAPACITY AND AUTHORISATION
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
authority to conduct its business as described in the Prospectus,
has full power and capacity to create and issue the Notes, to
execute this Agreement and the Legal Documents and to undertake and
perform the obligations expressed to be assumed by it herein and
therein; and has taken all necessary action to approve and authorise
the same; and the Current Issuer is lawfully qualified to do
business in England and Wales. The Current Issuer has not taken any
corporate action nor (to the best of its knowledge and belief) have
any other steps been taken or legal proceedings been started or
threatened against it for its winding-up, dissolution or
reorganisation or for the appointment of a receiver, administrator,
administrative receiver or similar officer of it or of any or all of
its assets or revenues;
11
(d) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
the Current Issuer and constitutes, and the other Legal Agreements
to which the Current Issuer is a party have been duly authorised by
the Current Issuer and on the Closing Date will constitute, valid
and legally binding obligations of the Current Issuer;
(e) VALIDITY OF NOTES
The creation, sale and issue of the Notes have been duly authorised
by the Current Issuer and, when executed and authenticated in
accordance with the Current Issuer Trust Deed, the Notes will
constitute valid and legally binding obligations of the Current
Issuer and, upon effectiveness of the Registration Statement, the
Current Issuer Trust Deed will have been duly qualified under the
Trust Indenture Act;
(f) CONSENTS
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required for
the creation, issue and offering of the Notes or in connection with
the execution and performance of the transactions contemplated by
the Legal Agreements or the compliance by the Current Issuer with
the terms of the Notes and the Legal Agreements as the case may be,
except for (i) such consents, approvals, authorisations,
registrations or qualifications as may be required under applicable
United States state securities, Blue Sky or similar laws in
connection with the purchase and distribution of the Notes by the
Underwriters and (ii) those which have been, or will prior to the
Closing Date be taken, fulfilled or done, are, or will on the
Closing Date be, in full force and effect;
(g) COMPLIANCE
The authorisation of the Notes and the granting of security
interests in relation thereto under the Current Issuer Deed of
Charge, the offering and issue of the Notes on the terms and
conditions of this Agreement, the Trust Deed and the Prospectus, the
execution and delivery of the Legal Agreements to which it is a
party and the implementation of the transactions contemplated by
such Legal Agreements and compliance with the terms of the Legal
Agreements to which it is a party do not, and will not, (i) conflict
with, or result in a breach of, any of the terms or provisions of,
or constitute a default under, the Memorandum and Articles of
Association of the Current Issuer or any agreement or instrument to
which the Current Issuer is a party or by which its properties is
bound; (ii) infringe any applicable law, rule, regulation, judgment,
order or decree of any government, governmental body or court,
having jurisdiction over the Current Issuer or any of its
properties; or (iii) result in the creation or imposition of any
mortgage, charge, pledge, lien or other security interest on any of
its properties, other than those created in, or imposed by, the
Legal Agreements themselves;
(h) FINANCIAL STATEMENTS
(i) The auditor's report by PricewaterhouseCoopers, as independent
auditor to the Current Issuer, set out in the Prospectus
presents fairly the
12
financial position of the Current Issuer as at the date at
which it has been prepared;
(ii) since the date of each such report there has been no change
(nor any development or event involving a prospective change
of which the Current Issuer is, or might reasonably be
expected to be, aware) since the date of incorporation of the
Current Issuer which is materially adverse to the condition
(financial or other), prospects, results of operations or
general affairs of the Current Issuer; and
(iii) PricewaterhouseCoopers are independent public accountants with
respect to the Current Issuer within the meaning of the
standards established by the American Institute of Certified
Public Accountants;
(i) TAXATION
Save as described in the legal opinions referred to in Clause 9(d)
of this Agreement, no stamp or other similar duty is assessable or
payable in the United Kingdom, and no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever
nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties or
taxes of any kind in connection with the authorisation, execution or
delivery of the Legal Agreements or with the authorisation, issue,
sale or delivery of the Notes and (except as disclosed in the
Prospectus) the performance of the Current Issuer's, Funding's
and/or, as the case may be, the Mortgages Trustee's obligations
under the Legal Agreements and the Notes. This warranty does not
apply to any United Kingdom corporation tax which may be levied,
collected, withheld or assessed in connection with the
authorisation, execution or delivery of the Legal Agreements or with
the authorisation, issue, sale or delivery of the Notes;
(j) BREACH OF OTHER AGREEMENTS
The Current Issuer is not in breach of or in default under any
agreement to which it is a party or which is binding on it or any of
its assets or revenues;
(k) EVENTS OF DEFAULT
No event has occurred or circumstance arisen which, had the Notes
already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other
requirement) constitute an Event of Default as set out in the
Conditions of the Notes;
(l) NO SUBSIDIARIES
The Current Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies Act
1985;
(m) GRANITE FINANCE HOLDINGS LIMITED
The Previous Issuers, the Current Issuer, Funding, the Mortgages
Trustee and GPCH Limited are the only
13
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 Current Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any registration or
re-registration as a public limited company under the Companies Acts
1985 and 1989 and various changes to its directors, secretary,
registered office, Memorandum and Articles of Association; (ii) the
authorisation and execution of the Legal Agreements to which it is a
party; (iii) the activities referred to or contemplated in the Legal
Agreements to which it is a party or in the Prospectus and (v) the
authorisation and issue by it of the Notes. The Current Issuer has
not (other than as set out in the Prospectus) prepared any accounts
and has neither paid any dividends nor made any distributions since
the date of its incorporation;
(o) LISTING RULES
Prior to the delivery of the Prospectus to the Registrar of
Companies in England and Wales, the Prospectus has been approved by
or on behalf of the competent authority as listing particulars as
required by the listing rules made pursuant to Part IV of the
Financial Services Act 1986 and the Prospectus complies with the
listing rules made under Section 142 of the Financial Services Act
1986;
(p) LITIGATION
There are no pending actions, suits or proceedings against or
affecting the Current Issuer which could individually or in the
aggregate have an adverse effect on the condition (financial or
other), prospects, results of operations or general affairs of the
Current Issuer or could adversely affect the ability of the Current
Issuer to perform its obligations under the Legal Agreements, the
Notes or which are otherwise material in the context of the issue or
offering of the Notes and, to the best of the Current Issuer's
knowledge, no such actions, suits or proceedings are threatened or
contemplated;
(q) NO PRIOR SECURITY
Save as set out in any of the Legal Agreements, there exists no
mortgage, lien, pledge or other charge on or over the assets of the
Current Issuer and, other than the Legal Agreements, the Current
Issuer has not entered into any indenture or trust deed;
(r) SECURITY FOR THE NOTES
The Notes and the obligations of the Current Issuer under the
Current Issuer Trust Deed will be secured in the manner provided in
the Current Issuer Deed of Charge and with the benefit of the
charges, covenants and other security interests provided for therein
including, without limitation, (i) an assignment by way of first
fixed security of the Current Issuer's right, title, interest and
benefit in the Intercompany Loan Agreement, the Swap Agreements, the
Funding Deed of Charge, the Current Issuer Trust Deed, the Paying
Agent and Agent Bank Agreement, the Current Issuer Cash Management
Agreement, the Corporate Services Agreement, the Current Issuer Bank
Account Agreement, the Post-
14
Enforcement Call Option Agreement, this Agreement and the
Subscription Agreement, and any other of the Legal Agreements to
which the Current Issuer is a party; (ii) an assignment by way of
first fixed charge over the Current Issuer Bank Accounts (as defined
in the Current Issuer Deed of Charge); (iii) a first fixed charge
(which may take effect as a floating charge) over the Current
Issuer's right, title, interest and benefit to any Authorised
Investments made with moneys standing to the credit of any of the
Current Issuer Bank Accounts; and (iv) a first ranking floating
charge over the whole of the assets and undertaking of the Current
Issuer which are not otherwise effectively subject to any fixed
charge or assignment by way of security;
(s) CAPITALISATION
The authorised capital of the Current Issuer is as set out in the
Prospectus;
(t) INVESTMENT COMPANY ACT
The Current Issuer is not an "investment company" as defined in the
United States Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"), and the offer and sale for the Notes in
the United States will not subject the Current Issuer to
registration under, or result in a violation of, the Investment
Company Act;
(u) UNITED STATES INCOME TAX
The Issuer will not engage in any activities in the United States
(directly or through agents), derive any income from United States
sources as determined under the U.S. Internal Revenue Code of 1986,
as amended (the "CODE"), or hold any property if doing so would
cause it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under the Code; and
(v) LEGAL AGREEMENTS
The representations given by the Current Issuer in the Legal
Agreements are true and accurate, and the description of the Legal
Agreements as set out in the Prospectus is materially complete and
accurate.
6. REPRESENTATIONS AND WARRANTIES OF FUNDING AND THE MORTGAGES TRUSTEE
Each of Funding and the Mortgages Trustee severally represents and
warrants (in respect of itself only) to, and agrees with each other, the
Underwriters, the Current Issuer, NRPLC and each of them that:
(a) THE REGISTRATION STATEMENT
Together with the Current Issuer they have prepared and filed with
the Commission the Registration Statement, including a related
preliminary prospectus dated [o], 2002, for registration under the
Securities Act of the offering and sale of the Dollar Notes. They
may have filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been furnished
to the Underwriters. They will next file with the Commission one of
the following either (1) prior to the Effective Date of such
Registration Statement, a further amendment to
15
such Registration Statement, including the form of final prospectus
or (2) after the Effective Date of such Registration Statement, a
final prospectus in accordance with Rules 430A and 424(b). In the
case of clause (2), they have included in such Registration
Statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Securities Act and the
rules thereunder to be included in such Registration Statement and
the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent that the Lead Underwriters shall agree in
writing to a modification, shall be in all substantive respects in
the form furnished to the Underwriters prior to the date of this
Agreement, or, to the extent not completed at the date of this
Agreement, shall contain only specific additional information and
other changes (beyond that contained in the latest preliminary
prospectus) as they have advised the Lead Underwriters, prior to the
date of this Agreement, will be included or made therein.
(b) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Securities Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the date of this Agreement, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date the
Current Issuer Trust Deed did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act
and the rules thereunder; and on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that neither Funding nor the Mortgages Trustee
makes any representations or warranties as to the information
contained in or omitted from the Registration Statement, or the
Prospectus (or any statement thereto) in reliance upon and in
conformity with information furnished in writing to them by or on
behalf of any Underwriter through the Lead Underwriters specifically
for inclusion in the Registration Statement or the Prospectus (or
any supplement thereto), which information is described in Clause
13.2;
(c) INCORPORATION, CAPACITY AND AUTHORISATION
Each is duly incorporated and validly existing under the laws of
Jersey, Channel Islands, with full power and authority to conduct
its business as described in the Prospectus, is lawfully qualified
to do business in Jersey and has full power and capacity to execute
this Agreement and the Legal Documents and to undertake and perform
the obligations expressed to be assumed by it herein and therein;
and each has taken all necessary action to approve and authorise the
same. Neither Funding nor the Mortgages Trustee has taken any
corporate action nor (to the best of its knowledge and belief) have
any other steps been taken or legal proceedings been started or
threatened against it for its winding-up, dissolution or
reorganisation or for
16
the appointment of a receiver, administrator, administrative
receiver or similar officer of it or of any or all of its assets or
revenues;
(d) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
each of Funding and the Mortgages Trustee and constitutes, and the
other Legal Agreements to which each of Funding and/or the Mortgages
Trustee is a party have been duly authorised by, as applicable,
Funding and the Mortgages Trustee and on the Closing Date will
constitute, valid and legally binding obligations of each of Funding
and the Mortgages Trustee;
(e) CONSENTS
All consents, approvals, authorisations and other orders of all
United States, Jersey, Channel Islands and United Kingdom regulatory
authorities required in connection with the execution of and
performance by, Funding and/or the Mortgages Trustee, of the
transactions contemplated by the Legal Agreements to which Funding
and/or the Mortgages Trustee, as the case may be, is a party or the
compliance by each of them with the terms of the Legal Agreements
(except for those which have been, or will prior to the Closing Date
be taken, fulfilled or done), are, or will on the Closing Date be,
in full force and effect;
(f) COMPLIANCE
The authorisation of the terms and conditions of this Agreement, the
execution and delivery of the Legal Agreements to which Funding
and/or, as the case may be, the Mortgages Trustee is party and the
implementation of the transactions contemplated by such Legal
Agreements and compliance with the terms of the Legal Agreements do
not, and will not, (i) conflict with, or result in a breach of, any
of the terms or provisions of, or constitute a default under, the
Memorandum and Articles of Association of Funding or the Mortgages
Trustee or any agreement or instrument to which Funding or the
Mortgages Trustee is a party or by which its properties is bound;
(ii) infringe any applicable law, rule, regulation, judgment, order
or decree of any government, governmental body or court, having
jurisdiction over either Funding or the Mortgages Trustee or any of
its properties; or (iii) result in the creation or imposition of any
mortgage, charge, pledge, lien or other security interest on any of
its or their properties, other than those created in, or imposed by,
the Legal Agreements themselves;
(g) BREACH OF OTHER AGREEMENTS
Neither Funding nor the Mortgages Trustee is in breach of or in
default under any agreement to which it is a party or which is
binding on it or any of its assets or revenues;
(h) EVENTS OF DEFAULT
No event has occurred or circumstance arisen which, had the
Intercompany Loan Agreement been entered into, would (whether or not
with the giving of notice and/or the passage of time and/or the
fulfillment of any other requirement) constitute an Event of Default
as set out in the Intercompany Loan Agreement;
17
(i) NO SUBSIDIARIES
Neither Funding nor the Mortgages Trustee has any subsidiaries or
subsidiary undertakings within the meanings of Sections 258 and 736
of the Companies Act 1985 (save for the Previous Issuers and the
Current Issuer, which are subsidiaries of Funding);
(j) NO ACTIVITIES
Neither Funding or the Mortgages Trustee has engaged in any
activities since its incorporation other than (i) those incidental
to any registration as private limited companies under the laws of
Jersey and (if any) various changes to its directors, secretary,
registered office, Memorandum and Articles of Association; (ii) the
authorisation, execution and in certain cases, amendment, of the
Legal Agreements to which each is a party; (iii) the activities
referred to or contemplated in the Legal Agreements or in the
Prospectus; (iv) the activities undertaken in connection with the
establishment of the Mortgages Trust pursuant to the Mortgages Trust
Deed, the establishment of a branch in the United Kingdom by
Funding; (v) the filing of a notification by the Mortgages Trustee
and Funding under the Data Protection Act 1984 and 1988 (the "DPA")
and the application for a standard licence 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 Current Issuer. Neither Funding nor the
Mortgages Trustee has (other than as set out in the Prospectus)
prepared any accounts and neither has paid any dividends nor made
any distributions since their respective dates of incorporation.
(k) BENEFICIAL OWNER
As of [o], 2002, following (i) the completion of the assignment of
the Additional Mortgage Portfolio (as defined in the Prospectus) to
the Mortgages Trustee pursuant to or in accordance with the Mortgage
Sale Agreement and (ii) the declaration of trust over the Additional
Mortgage Portfolio by the Mortgages Trustee pursuant to and in
accordance with the terms of the Mortgages Trust Deed, the Mortgages
Trustee will hold the Additional Mortgage Portfolio, and held and
will continue to hold, the Existing Mortgage Portfolio (as defined
in the Prospectus) on a bare trust for the benefit of Funding and
NRPLC in undivided shares absolutely;
(l) LITIGATION
There are no pending actions, suits or proceedings against or
affecting Funding or the Mortgages Trustee which could individually
or in the aggregate have an adverse effect on the condition
(financial or other), prospects, results of operations or general
affairs of the Mortgages Trustee or Funding (as the case may be) or
could adversely affect the ability of the Mortgages Trustee or
Funding (as the case may be) to perform their respective obligations
under the Legal Agreements, or which are otherwise material in the
context of the transaction contemplated by the Prospectus and, to
the best of the knowledge of Funding and the Mortgages Trustee, no
such actions, suits or proceedings are threatened or contemplated;
18
(m) NO PRIOR SECURITY
Save as set out in any of the Legal Agreements there exists no
mortgage, lien, pledge or other charge on or over the assets of
Funding and, other than the Legal Agreements, it has not entered
into any indenture or trust deed;
(n) SECURITY FOR THE INTERCOMPANY LOAN
Funding's obligations under, INTER ALIOS, the Intercompany Loan
Agreement will be secured in the manner provided in the Funding Deed
of Charge and with the benefit of the charges, covenants and other
security provided for therein including, without limitation, (i) a
first fixed charge (which may take effect as a floating charge) over
Funding's share of the Trust Property (as defined in the Mortgages
Trust Deed); (ii) an assignment by way of first fixed security of
all of Funding's right, title, interest and benefit in the Mortgage
Sale Agreement, the Mortgages Trust Deed, the Administration
Agreement, the Intercompany Loan Agreement, each Previous
Intercompany Loan Agreement, the Start-Up Loan Agreement, the
Funding Guaranteed Investment Contract, the Funding Corporate
Services Agreement, the Funding Cash Management Agreement, the Bank
Account Agreement and any other of the Legal Agreements to which
Funding is a party, save to the extent that the same are situated in
Jersey; (iii) an assignment by way of first fixed security over
Funding's right, title, interest and benefit in the Funding Bank
Accounts; (iv) a first fixed charge (which may take effect as a
floating charge) of Funding's right, title, interest and benefit in
all Authorised Investments purchased with moneys standing to the
credit of the Funding Bank Accounts; and (v) a first floating charge
over all the assets and the undertaking of Funding which are not
effectively subject to a fixed charge or assignment by way of
security;
(o) CAPITALISATION
The authorised capital of each of Funding and the Mortgages Trustee
is as set out in the Prospectus;
(p) INVESTMENT COMPANY ACT
Neither Funding nor the Mortgages Trustee is an "investment company"
as defined in the Investment Company Act, and the offer and sale for
the Notes in the United States will not subject Funding or the
Mortgages Trustee to registration under, or result in a violation
of, the Investment Company Act;
(q) UNITED STATES INCOME TAX
Neither Funding nor the Mortgages Trustee will engage in any
activities in the United States (directly or through agents), derive
any income from United States sources as determined under the Code,
or hold any property if doing so would cause it to be engaged or
deemed to be engaged in a trade or business within the United States
as determined under the Code;
(r) FINANCIAL STATEMENTS
(i) The auditor's report by PricewaterhouseCoopers, as independent
auditor to Funding, set out in the Prospectus presents fairly
the financial position of Funding as at the date at which it
has been prepared;
19
(ii) since the date of each such report there has been no change
(nor any development or event involving a prospective change
of which Funding, is or might reasonably be expected to be,
aware) which is materially adverse to the condition (financial
or other), prospects, results of operations or general affairs
of Funding; and
(iii) PricewaterhouseCoopers are independent public accountants with
respect to the Funding within the meaning of the standards
established by the American Institute of Certified Public
Accountants; and
(s) LEGAL AGREEMENTS
The representations given by Funding and the Mortgages Trustee in
the Legal Agreements are true and accurate, and the description of
the Legal Agreements as set out in the Prospectus is materially
complete and accurate.
7. REPRESENTATIONS AND WARRANTIES OF NRPLC
NRPLC represents and warrants to, and agrees with, the Current Issuer,
Funding, the Mortgages Trustee, the Underwriters and each of them that:
(a) INCORPORATION
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
authority to conduct its business as described in the Prospectus, to
execute this Agreement and the Legal Documents to which it is a
party and to undertake and perform the obligations expressed to be
assumed by it herein and therein and has taken all necessary action
to approve and authorise the same and is lawfully qualified to do
business in England and Wales; and NRPLC has not taken any corporate
action nor (to the best of its knowledge and belief) have any other
steps been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution or reorganisation, and it
is not in liquidation;
(b) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
NRPLC and constitutes, and the other Legal Agreements to which NRPLC
is a party will be duly authorised by NRPLC prior to the Closing
Date and on the Closing Date will constitute, valid and legally
binding obligations of NRPLC;
(c) RELATED SECURITY
NRPLC has not received notice of, and no solicitor employed in the
NRPLC Solicitors' Department is actually aware of, any material
litigation or claim calling into question NRPLC's title to any
Related Security or the value of any security therefor or NRPLC's
right to assign any such Related Security to the Mortgages Trustee;
(d) CONSENTS
All consents, approvals and authorisations of all United Kingdom
regulatory authorities required on the part of NRPLC for or in
connection with the execution and performance of the transactions
contemplated by the Legal Agreements to which
20
NRPLC is a party have been, or will be prior to the Closing Date be,
obtained and are, or will prior to the Closing Date be, in full
force and effect including, without limiting the generality of the
foregoing, NRPLC having received a standard licence under the
Consumer Credit Act 1974 and NRPLC being registered under the DPA;
(e) COMPLIANCE
The sale of the Additional Mortgage Portfolio and the related
property and rights, the execution and delivery of the Legal
Agreements to which NRPLC is a party, the implementation of the
transactions contemplated by such Legal Agreements and compliance
with the terms of such Legal Agreements do not, and will not, (i)
conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, the Memorandum and
Articles of Association of NRPLC, or any agreement or instrument to
which NRPLC is a party or by which it or any of its properties is
bound, where such breach or default might have a material adverse
effect in the context of the issue of the Notes; or (ii) infringe
any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental body or court having
jurisdiction over NRPLC or any of its properties; or (iii) result in
the creation or imposition of any mortgage, charge, pledge, lien or
other security interest on any of its properties, other than those
created in, or imposed by, the Legal Agreements themselves;
(f) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Securities Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the date of this Agreement, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and the Closing Date the
Current Issuer Trust Deed did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act
and the rules thereunder; and on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that NRPLC makes no representations or warranties
as to the information contained in or omitted from the Registration
Statement, or the Prospectus (or any statement thereto) in reliance
upon and in conformity with information furnished in writing to
NRPLC by or on behalf of any Underwriter through the Lead
Underwriters specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto), which
information is described in Clause 13.2;
(g) BENEFICIAL OWNER
As of [o], 2002, following (i) the completion of the assignment of
the Additional Mortgage Portfolio (as defined in the Prospectus) to
the Mortgages Trustee pursuant to and in accordance with the
Mortgage Sale Agreement and (ii) the declaration of trust over the
Additional Mortgage Portfolio by the Mortgages Trustee pursuant to
21
and in accordance with the terms of the Mortgages Trust Deed, the
Mortgages Trustee will hold, and will continue to hold, the Existing
Mortgage Portfolio (as defined in the Prospectus) on a bare trust
for the benefit of Funding and NRPLC in undivided shares absolutely;
(h) LITIGATION
It is not a party to, and no solicitor in NRPLC's Solicitors'
Department is actually aware of, any actions, suits or proceedings
in relation to claims or amounts which could, if determined
adversely to NRPLC, materially adversely affect NRPLC's ability to
perform its obligations under the Legal Agreements; and
(i) MORTGAGE SALE AGREEMENT AND MORTGAGES TRUST DEED
The representations and warranties given by NRPLC in the Mortgage
Sale Agreement are true and accurate in all material respects as
when stated to be made and the representations and warranties given
by NRPLC in the Mortgages Trust Deed are true and accurate in all
material respects as when stated to be made.
8. COVENANTS OF THE CURRENT ISSUER, FUNDING, THE MORTGAGES TRUSTEE AND NRPLC
8.1 The Current Issuer and, where expressly provided, Funding, the Mortgages
Trustee and NRPLC severally covenants to, and agrees each for itself with,
the Underwriters and each of them that:
(a) THE REGISTRATION STATEMENT
The Current Issuer, Funding, the Mortgages Trustee and NRPLC will
use their best efforts to cause the Registration Statement, if not
effective at the date of this Agreement, and any amendment thereof,
to become effective. Prior to the termination of the offering of the
Notes, none of the Current Issuer, Funding, the Mortgages Trustee or
NRPLC will file any amendment of the Registration Statement or
supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Current Issuer, Funding, the Mortgages Trustee
and NRPLC have furnished the Lead Underwriters with copies for their
review prior to filing and none of them will file any such proposed
amendment or supplement to which the Lead Underwriters reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Prospectus is otherwise required under Rule 424(b),
the Current Issuer, Funding, the Mortgages Trustee and NRPLC will
cause the Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Lead Underwriters of such timely
filing. The Current Issuer, Funding, the Mortgages Trustee and NRPLC
will promptly advise the Lead Underwriters:
(i) when the Registration Statement, if not effective at the date
of this Agreement, shall have become effective;
(ii) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission; and
22
(iii) when, prior to termination of the offering of the Notes, any
amendment to the Registration Statement shall have been filed
or become effective;
(b) SIGNED PROSPECTUS
The Current Issuer will deliver to the Underwriters, without charge,
on the date of this Agreement, such number of copies of the
Prospectus as the Underwriters may reasonably request, and the
Current Issuer will furnish to the Lead Underwriters on the date of
this Agreement four copies of the Prospectus signed by a duly
authorised director of the Current Issuer. The Current Issuer will
also promptly furnish each Underwriter (to the extent not already
furnished) and its counsel one conformed copy of the Registration
Statement as originally filed and each amendment or supplement
thereto including all consents and exhibits filed therewith;
(c) NOTIFY MATERIAL OMISSION
If at any time prior to the earlier of (i) completion (in the
reasonable view of the Lead Underwriters) of the distribution of the
Notes and (ii) three months after the Closing Date, any event shall
have occurred as a result of which the Registration Statement or
Prospectus, as then amended or supplemented, would include a
statement of fact which is not true and accurate in all material
respects or omit any fact the omission of which would make
misleading in any material respect any statement therein whether of
fact or opinion, or if for any other reason it shall be necessary to
amend or supplement the Registration Statement or Prospectus, then:
(i) the Current Issuer will promptly notify the Underwriters; (ii)
the Current Issuer shall promptly prepare and timely file with the
Commission any amendment or supplement to the Registration Statement
or any Prospectus that may, in the reasonable judgement of the
Current Issuer or the Underwriters, be required by the Securities
Act or requested by the Commission; (iii) the Current Issuer will,
without charge, supply to the Underwriters as many copies as the
Lead Underwriters may reasonably request of an amended Prospectus or
a supplement to the Prospectus which will correct such statement or
omission; and (iv) the provisions of Clauses [5(a), 5(b), 5(c),
5(h), 5(o), 5(s), 6(a), 6(b), 6(c), 6(o), 6(r), 7(a) and 7(f)] shall
be deemed to be repeated by, as applicable, the Current Issuer,
Funding, the Mortgages Trustee and NRPLC as of the date of each such
amended Prospectus or supplement to the Prospectus on the basis that
each reference to "PROSPECTUS" in such provisions of Clauses 5, 6
and 7 shall be deemed to be a reference to the Prospectus as amended
or supplemented as at such date;
(d) NOTIFY CHANGE
Without prejudice to its obligations under Clause 8.1(c), the
Current Issuer will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time prior to
payment of the net underwriting proceeds for the Notes being made to
the Current Issuer on the Closing Date and will take such steps as
may be reasonably requested by the Lead Underwriters to remedy
and/or publicise the same;
(e) OFFICIAL ANNOUNCEMENTS
Between the date of this Agreement and the Closing Date (both dates
inclusive) none of NRPLC, the Current Issuer, Funding or the
Mortgages Trustee will, without
23
the prior approval of the Lead Underwriters on behalf of the
Underwriters (such approval not to be unreasonably withheld or
delayed), make any official announcement which would have an adverse
effect on the marketability of the Notes;
(f) STAMP DUTY
(i) The Current Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties that it is required to pay under the Legal
Agreements to which it is a party payable in the United
Kingdom, Belgium, Luxembourg or the United States, including
interest and penalties in connection with the creation, issue,
distribution and offering of the Notes or in connection with
the execution, delivery or enforcement of any of the Legal
Agreements to which it is a party together with any value
added, turnover or similar tax payable in respect of that
amount (and references in this Agreement to such amount shall
be deemed to include any such taxes so payable in addition to
it);
(ii) Funding will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and duties that
it is required to pay under the Legal Agreements to which it
is a party payable in the United Kingdom, Jersey, Channel
Islands or the United States, including interest and penalties
in connection with the execution, delivery or enforcement of
any of the Legal Agreements to which it is a party (other than
in respect of the execution, delivery or enforcement of the
Mortgages Trust Deed and any Legal Agreement to which the
Current Issuer is a party) together with any value added,
turnover or similar tax payable in respect of that amount (and
references in this Agreement to such amount shall be deemed to
include any such taxes so payable in addition to it); and
(iii) The Mortgages Trustee will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties that it is required to pay under the Legal
Agreements to which it is a party payable in the United
Kingdom, Jersey, Channel Islands or the United States,
including interest and penalties in connection with the
execution, delivery or enforcement of the Mortgages Trust Deed
(including any amendment thereto) [and the Mortgage Sale
Agreement (including any amendment thereto)] (together with
any value added, turnover or similar tax payable in respect of
that amount (and references in this Agreement to such amount
shall be deemed to include any such taxes so payable in
addition to it)) but will be promptly reimbursed an amount
equal to any such payments by the Beneficiaries in accordance
with the terms of the Mortgages Trust Deed;
(g) UNITED STATES INCOME TAX
The Current Issuer will not engage in any activities in the United
States (directly or through agents), will not derive any income from
United States sources as determined under the Code and will not hold
any property if doing so would cause it to be engaged or deemed to
be engaged in a trade or business within the United States as
determined under the Code;
24
(h) PAYMENT OF FEES, CHARGES, COSTS AND DUTIES
(i) Without prejudice to the generality of Clause 12.1, the
Current Issuer will pay all and any fees, charges, costs and
duties and any stamp and other similar taxes or duties that it
is required to pay under the Legal Agreements to which it is a
party, including interest and penalties, arising from or in
connection with the creation of the security for the Notes and
the obligations of the Current Issuer under the Current Issuer
Trust Deed and for the other amounts to be secured as
contemplated by the Current Issuer Deed of Charge, the Deeds
of Accession and the Current Deed of Accession and the
perfection of such security at any time;
(ii) Without prejudice to the generality of Clause 12.1,
Funding will pay all and any fees, charges, costs and
duties and any stamp and other similar taxes or duties
that it is required to pay under the Legal Agreements to
which it is a party, including interest and penalties,
arising from or in connection with the creation of the
security for the Current Issuer Intercompany Loan and
for the other amounts to be secured as contemplated by
the Funding Deed of Charge and the perfection of such
security at any time; and
(iii) Without prejudice to the generality of Clause 12.1, the
Mortgages Trustee will pay all and any fees, charges,
costs and duties and any stamp and other similar taxes
or duties that it is required to pay under the Legal
Agreements to which it is a party, including interest
and penalties, arising from or in connection with the
purchase of the Related Security (and related property
and rights) excluding H.M. Land Registry fees (it being
agreed that registration or recording at H.M. Land
Registry of the transfer of the Related Security to the
Mortgages Trustee will not be applied for except in the
circumstances specified in the Administration
Agreement); but on the basis that the Mortgages Trustee
will be reimbursed such fees, charges, costs and duties
and any stamp and other similar taxes or duties
(including interest and penalties) by the Beneficiaries
pursuant to the terms of the Mortgages Trust Deed;
(i) PERFORM ALL REQUIRED ACTIONS
On or prior to the Closing Date each of NRPLC, the Current Issuer,
Funding and the Mortgages Trustee will do all things reasonably
within each of their respective powers and required of each of them
on such date under the terms of the Legal Agreements to which each
is a party;
(j) REVIEW OF RELATED SECURITY
NRPLC will deliver to the Lead Underwriters on the date of this
Agreement a letter (relating to the review by PricewaterhouseCoopers
of the Related Security) dated the date of this Agreement in the
agreed form addressed to NRPLC and the Underwriters from
PricewaterhouseCoopers;
(k) CONDITIONS PRECEDENT
The Current Issuer will use all reasonable endeavours to procure
satisfaction on or before the Closing Date of the conditions
referred to in Clause 9 of this Agreement;
25
(l) ADMINISTRATION AGREEMENT
Funding and the Mortgages Trustee will use all reasonable endeavours
to procure that NRPLC complies with its obligations under the
Administration Agreement;
(m) CHARGES AND SECURITY INTERESTS
(i) The Current Issuer will procure that each of the charges and
other security interests created by or contained in the
Current Issuer Deed of Charge is registered within all
applicable time limits in all appropriate registers; and
(ii) Funding will procure that each of the charges and other
security interests created by or contained in the Funding Deed
of Charge, the Deeds of Accession and the Current Deed of
Accession is registered within all applicable time limits in
all appropriate registers;
(n) RATINGS
None of NRPLC, the Current Issuer, Funding or the Mortgages Trustee
will take, or cause to be taken, any action and none of them will
permit any action to be taken which it knows or has reason to
believe would result in the Notes not being assigned an AAA rating
for the Series 1 Class A1 Notes and the Series 1 Class A2 Notes, an
AA rating for the Series 1 Class B Notes and a BBB rating for the
Series 1 Class C Notes by Fitch Ratings Ltd. ("FITCH RATINGS"), an
Aaa rating for the Series 1 Class A1 Notes and the Series 1 Class A2
Notes, an Aa3 rating for the Series 1 Class B Notes and a Baa2
rating for the Series 1 Class C Notes by Moody's Investors Service
("MOODY'S") and an AAA rating for the Series 1 Class A1 Notes and
the Series 1 Class A2, an AA rating for the Series 1 Class B Notes
and a BBB rating for the Series 1 Class C Notes by Standard & Poor's
Rating Services, a division of The McGraw-Hill Companies, Inc.
("STANDARD & POOR'S");
(o) LEGAL AGREEMENTS
Prior to closing on the Closing Date none of NRPLC, the Current
Issuer, Funding or the Mortgages Trustee will amend the terms of the
executed Legal Agreements, nor execute any of the other Legal
Agreements other than in the agreed form, without the consent of the
Lead Underwriters (such consent not to be unreasonably withheld or
delayed);
(p) COMMISSION FILINGS
The Current Issuer, Funding and the Mortgages Trustee will file, in
a timely manner, with the Commission during any period during which
a prospectus relating to the Notes is required to be delivered under
the Securities Act until three months after the Closing Date (the
"MARKETING PERIOD"), all documents (and any amendments to previously
filed documents) required to be filed by them pursuant to Sections
13(a), 13(c) or 15(d) of the Exchange Act, provided that none of the
Current Issuer, Funding or the Mortgages Trustee will file any such
document or amendment unless the Current Issuer, Funding and the
Mortgages Trustee have furnished the Lead Underwriters with copies
for their review prior to filing and none of them will file any such
proposed document or amendment until the
26
Underwriters have been consulted and given a reasonable opportunity
to comment on such document or amendment;
(q) COPIES OF FILINGS AND COMMISSION
Prior to filing with the Commission during the Marketing Period, if
there is (i) any amendment or supplement to the Registration
Statement, (ii) any amendment or supplement to any Prospectus, or
(iii) any material document filed by the Current Issuer, Funding or
the Mortgages Trustee with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act including but not
limited to (A) any interim or any report submitted to the Commission
on Form 6-K ("FORM 6-K") or Form 20-F ("FORM 20-F") under the
Exchange Act and the rules and regulations thereunder or (B) any
amendment of or supplement to any such document, the Current Issuer,
Funding and the Mortgages Trustee, as the case may be, will furnish
a copy thereof to each Underwriter, and counsel to the Underwriters;
(r) NOTICE TO UNDERWRITERS OF CERTAIN EVENTS
During the Marketing Period, the Current Issuer will advise the
Underwriters immediately (i) when any post-effective amendment to
the Registration Statement becomes effective, (ii) of any request or
proposed request by the Commission, whether written or oral, for an
amendment or supplement to the Registration Statement, to any Rule
462(b) Registration Statement, to any Prospectus or to any material
document filed by the Current Issuer, Funding or the Mortgages
Trustee with or submitted to the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act and the rules and
regulations thereunder or for any additional information and the
Current Issuer, Funding and the Mortgages Trustee will afford the
Underwriters a reasonable opportunity to comment on any such
proposed amendment or supplement, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any part thereof or any order directed to
the Prospectus or any document incorporated therein by reference or
the initiation or threat of any stop order proceeding or of any
challenge to the accuracy or adequacy of any document incorporated
by reference in the Prospectus, (iv) of receipt by NRPLC or the
Current Issuer of any notification with respect to the suspension of
the qualification of the Notes for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose and (v) of
any downgrading in the rating of the Notes or any debt securities of
NRPLC or the Current Issuer by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or if any such organisation shall
have informed NRPLC or the Current Issuer or made any public
announcement that any such organisation has under surveillance or
review its rating of any debt securities of NRPLC or the Current
Issuer (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading of
such rating) as soon as such announcement is made or NRPLC or the
Current Issuer is so informed;
(s) STOP ORDERS
The Current Issuer will use its best efforts to prevent the issuance
of any stop order or the suspension of any qualification referred to
in Clause 8.1(q) above and if, during the Marketing Period, the
Commission shall issue a stop order suspending the effectiveness of
the Registration Statement or such qualification of the Notes for
sale
27
in any jurisdiction is suspended, the Current Issuer will make every
reasonable effort to obtain the lifting of that order or suspension
at the earliest possible time; and
(t) BLUE SKY QUALIFICATIONS
The Current Issuer will co-operate with the Underwriters to qualify
the Dollar Notes for offering and sale under the securities laws of
such jurisdictions of the United States as the Underwriters may
designate, and to maintain such qualifications in effect for as long
as may be required for the distribution of the Dollar Notes, and to
file such statements and reports as may be required by the laws of
each jurisdiction in which the Dollar Notes have been qualified as
above provided that in connection therewith the Current Issuer shall
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction or to take
any other action that would subject it to service of process in
suits in any jurisdiction other than those arising out of the
offering or sale of the Dollar Notes in such jurisdiction or to
register as a dealer in securities or to become subject to taxation
in any jurisdiction.
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
net underwriting proceeds of the Notes being made to the Current
Issuer on the Closing Date and will take such steps as may be
reasonably requested by the Lead Underwriters to remedy and/or
publicise the same. In the event that the Prospectus is amended or
supplemented pursuant to Clause 8.1(c) above, then the
representations and warranties contained in Clause 7(f) shall be
deemed to be repeated by NRPLC as of the date of such amended
Prospectus or supplement to the Prospectus, on the basis that each
reference to "Prospectus" in Clause 7(f) shall be deemed to be a
reference to the Prospectus as amended or supplemented as at such
date;
(b) PERFORM ALL REQUIRED ACTIONS
On or prior to the Closing Date, NRPLC will do all things reasonably
within its power and required of it on such date under the terms of
the Legal Agreements to which it is a party;
(c) RATINGS
NRPLC will not take, or cause to be taken, any action and will not
permit any action to be taken which it knows or has reason to
believe would result in the Current Issuer not being assigned an AAA
rating for the Series 1 Class A1 Notes and the Series 1 Class A2
Notes, an AA rating for the Series 1 Class B Notes and a BBB rating
for the Series 1 Class C Notes by Fitch Ratings, an Aaa rating for
the Series 1 Class A1 Notes and the Series 1 Class A2 Notes, an Aa3
rating for the Series 1 Class B Notes and a Baa2 rating for the
Series 1 Class C Notes by Moody's and an AAA rating for the Series 1
Class A1 Notes and the Series 1 Class A2 Notes, an AA rating for the
Series 1 Class B Notes and a BBB rating for the Series 1 Class C
Notes by Standard & Poor's; and
28
(d) LEGAL AGREEMENTS
Prior to closing on the Closing Date NRPLC will not amend the terms
of any of the already executed Legal Agreements, nor execute any of
the other Legal Agreements other than in the agreed form, without
the consent of the Lead Underwriters (such consent not to be
unreasonably withheld or delayed).
9. CONDITIONS PRECEDENT
9.1 The obligation of the Underwriters under this Agreement to subscribe for
the Dollar Notes is subject to the following conditions precedent:
(a) THE REGISTRATION STATEMENT
(i) If the Registration Statement has not become effective prior
to the date of this Agreement, unless the Lead Underwriters
agree in writing to a later time, the Registration Statement
will become effective not later than (i) 6:00 pm New York City
time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 pm
New York City time on such date or (ii) 9:30 am 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 pm New York City time on
such date;
(ii) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed in the manner and within the time
period required by Rule 424(b); and
(iii) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened;
(b) EXECUTION OF LEGAL AGREEMENTS AND THE GLOBAL NOTES
The execution and delivery by all parties thereto of the Legal
Agreements and the Global Notes representing each class of the
Dollar Notes on or prior to the Closing Date;
(c) ADMISSION TO TRADING
The Dollar Notes having been admitted to the Official List
maintained by UK Listing Authority and the Stock Exchange having
agreed to admission of the Dollar Notes to trading on or about the
Closing Date;
(d) LEGAL OPINIONS
On or prior to the Closing Date, there having been delivered to the
Current Issuer, the Underwriters, the Note Trustee and the Security
Trustee copies of opinions and disclosure letters, in form and
substance satisfactory to the Lead Underwriters, the Note Trustee,
the Security Trustee and the Rating Agencies, dated the Closing
Date, of:
29
(i) Sidley Austin Brown & Wood, legal and tax advisers as to
English law and as to US law to NRPLC, the Mortgages Trustee,
Funding and the Current Issuer, addressed to NRPLC, the
Mortgages Trustee, Funding, the Current Issuer, the
Underwriters, the Managers, the Note Trustee and the Security
Trustee;
(ii) Mourant du Feu & Jeune, legal advisers as to Jersey law to
Funding and the Mortgages Trustee, addressed to Funding, the
Mortgages Trustee, the Underwriters, the Managers, the Note
Trustee and the Security Trustee;
(iii) Allen & Overy, legal advisers as to US law to the Underwriters
and the Managers, addressed to the Underwriters; and
(iv) [In-house] legal counsel of [swap provider], addressed to the
Underwriters, the Current Issuer and NRPLC;
(e) AUDITORS' LETTERS
(A) On 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 the date of this
Agreement, from PricewaterhouseCoopers, the independent
auditors of the Current Issuer and Funding; and
(B) On the Closing Date, there having been addressed and delivered
to the Current Issuer, in form and substance satisfactory to
the Lead Underwriters, a pool report in respect of agreed upon
procedures in connection with the Northern Rock plc mortgage
files (with no material exceptions to the results stated
therein) from PricewaterhouseCoopers;
(f) CERTIFIED CONSTITUTIONAL DOCUMENTS
On or prior to the Closing Date, there having been delivered to the
Lead Underwriters on behalf of the Underwriters a copy, certified by
a duly authorised director or the company secretary of, as
applicable, the Current Issuer, Funding and the Mortgages Trustee
of: (i) the Memorandum and Articles of Association of each of the
Current Issuer, Funding and the Mortgages Trustee; (ii) the
resolution of the Board of Directors of each of the Current Issuer,
Funding and the Mortgages Trustee authorising the execution of this
Agreement and the other Legal Agreements and the entry into and
performance of the transactions contemplated thereby; and (iii) in
respect of the Current Issuer, the issue of the Notes and the entry
into and performance of the transactions contemplated thereby;
(g) ACCURACY OF REPRESENTATIONS
At the Closing Date: (i) the representations and warranties of the
Current Issuer, Funding, the Mortgages Trustee and NRPLC in this
Agreement being true, accurate and correct at, and as if made on,
the Closing Date and the Current Issuer, Funding, the Mortgages
Trustee and NRPLC having performed all of their obligations in the
Legal Agreements to be performed on or before the Closing Date; and
(ii) there having been delivered to the Underwriters a certificate
to that effect signed by a duly authorised officer of, as
applicable, the Current Issuer, Funding, the Mortgages Trustee and
NRPLC, dated the Closing Date and confirming
30
that, since the date of this Agreement, there has been no adverse
change, nor any development involving a prospective adverse change,
in or affecting the operations, properties, financial condition or
prospects of the Current Issuer, Funding, the Mortgages Trustee or
NRPLC which is material in the context of the issue of the Notes;
(h) CIRCUMSTANCES FOR TERMINATION
On or prior to the Closing Date, in the opinion of the Lead
Underwriters (after consultation with NRPLC, if practicable), none
of the circumstances described in Clause 14.1(c) or 14.1(d) having
arisen;
(i) RATINGS
Receipt of notification from Fitch Ratings, Moody's and Standard &
Poor's that the ratings for the Notes described in the Prospectus
have been assigned either without conditions or subject only to the
execution and delivery on or before the Closing Date of the Legal
Agreements and legal opinions in all material respects in the form
in which they shall then have been executed and delivered on or
prior to the Closing Date, there not having been a public
announcement from any of the above rating agencies that such agency
has revised downwards or withdrawn or placed on review or
"creditwatch" with negative implications or with implications of a
possible change that does not indicate the direction of such
possible change (or other similar publication of formal review by
the relevant rating agency) any existing credit rating assigned to
the Notes or the long term debt of NRPLC;
(j) OTHER ISSUES
The Reg S Notes having been or being issued and subscribed and paid
for pursuant to the Subscription Agreement prior to or
contemporaneously with the issue, subscription and payment for the
Dollar Notes hereunder;
(k) MATERIAL ADVERSE EVENT
There not having been between the date of this Agreement and the
Closing Date any change or any development or event reasonably
likely to involve a prospective change which would, in the judgment
of the Lead Underwriters, be materially adverse to the financial or
trading condition of the Current Issuer, Funding, the Mortgages
Trustee or NRPLC from that set forth in the Prospectus, or rendering
untrue and incorrect any of the representations and warranties
contained in Clauses 5, 6 and 7 as though the said representations
and warranties had been given on the Closing Date with reference to
the facts and circumstances prevailing at that date nor the failure
of the Current Issuer, Funding, the Mortgages Trustee or NRPLC to
perform each and every covenant to be performed by it pursuant to
the Legal Agreements, the Mortgage Loans and the Related Security on
or prior to the Closing Date;
(l) SOLVENCY CERTIFICATES
(i) The Current Issuer having furnished or caused to be furnished
to the Underwriters and the Note Trustee at the Closing Date a
solvency certificate, dated the Closing Date, of a duly
authorised director of the Current Issuer in the agreed form;
31
(ii) Funding having furnished or caused to be furnished to the
Current Issuer, NRPLC and the Security Trustee a solvency
certificate, dated the Closing Date, of a duly authorised
director of Funding in the agreed form;
(iii) The Mortgages Trustee having furnished or caused to be
furnished to the Underwriters, the Current Issuer, the
Security Trustee and NRPLC a solvency certificate, dated the
Closing Date, of a duly authorised director of the Mortgages
Trustee in the agreed form; and
(iv) NRPLC having furnished or caused to be furnished to the
Underwriters, the Current Issuer, the Security Trustee,
Funding and the Mortgages Trustee a solvency certificate,
dated the Closing Date, of a duly authorised officer or
director of NRPLC in the agreed form;
(m) POLICY STATEMENT 104 APPLICATION
On or prior to the Closing Date, all reasonable efforts having been
taken by the Current Issuer to procure that the Policy Statement 104
Application of the Current Issuer has been approved by the relevant
New York state authority; and
(n) MORTGAGE SALE AGREEMENT
All of the steps required by Clause 4 of the Mortgage Sale Agreement
for the purposes of the purchase of a New Mortgage Portfolio by the
Mortgages Trustee from NRPLC on the Closing 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 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 at, or
at any time prior to, the Closing Date by the Lead Underwriters. Notice of
such cancellation shall be given to the Current Issuer in writing or by
telephone or facsimile confirmed in writing.
9.4 The Lead Underwriters, on behalf of the Underwriters, may, in their
discretion, waive compliance with the whole or any part of this Clause 9.
10. CLOSING
10.1 Issue of Dollar Notes
(a) Not later than 4:00 p.m. (London time) on the Closing Date, the
Current Issuer will cause the Global Note Certificate for each of
the Series 1 Class A1 Notes, Series 1 Class A2 Notes, Series 1 Class
B Notes and the Series 1 Class C 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
32
(b) Deliver the Global Note Certificate for each of the Series 1 Class A
Notes, Series 1 Class B Notes and the Series 1 Class C Notes, duly
executed on behalf of the Current Issuer and authenticated in
accordance with the Paying Agent and Agent Bank Agreement, to
Citibank N.A., as custodian for DTC.
10.2 PAYMENT
Against delivery of the Dollar Notes (i) the Underwriters will pay to the
Lead Underwriters the net underwriting proceeds for the Dollar Notes
(being the Issue Price less the Selling Commission and Management and
Underwriting Commission payable to the Underwriters pursuant to Clause 11
hereof) and (ii) the Lead Underwriters will pay to the Current Issuer the
gross underwriting proceeds for the Dollar Notes. Such payment shall be
made by the Lead Underwriters in Dollars in immediately available funds to
the account of the Current Issuer, account number [o], and shall be
evidenced by a confirmation from the Lead Underwriters that they have so
made that payment to the Current Issuer.
10.3 NET UNDERWRITING PROCEEDS
The Current Issuer undertakes that on the Closing Date it will apply the
gross underwriting proceeds for the Notes (net of the relevant
underwriting and selling commissions and the management and underwriting
fees) forthwith in making a loan to Funding pursuant to the terms of the
Intercompany Loan Agreement. Funding undertakes that it will apply the
proceeds of the Intercompany Loan to make payment to the Mortgages Trustee
or at the Mortgages Trustee's direction of the purchase price of a portion
of Funding's beneficial share of the Portfolio and related rights pursuant
to the Mortgage Sale Agreement and to fund the Current Issuer Reserve
Fund.
11. COMMISSIONS
11.1 In consideration of the obligations undertaken herein by the Underwriters,
the Current Issuer agrees to pay to the Underwriters a selling commission
(the "SELLING COMMISSION") of 10.1 per cent. of the aggregate principal
amount of the Series 1 Class A1 Notes, 33.4 per cent. of the aggregate
principal amount of the Series 1 Class A2 Notes, 1.5 per cent. of the
aggregate principal amount of the Series 1 Class B Notes, and 2.0 per
cent. of the aggregate principal amount of the Series 1 Class C Notes,
respectively, and a combined management and underwriting commission (the
"MANAGEMENT AND UNDERWRITING COMMISSION") of [o] per cent. of the
aggregate principal amount of the Series 1 Class A Notes, [o] per cent. of
the aggregate principal amount of the Series 1 Class B Notes and [o] per
cent. of the aggregate principal amount of the Series 1 Class C Notes
respectively.
11.2 The Current Issuer undertakes and covenants that on the Closing Date it
will pay to the Lead Underwriters the aggregate Selling Commission and
aggregate Management and Underwriting Commission calculated in accordance
with Clause 11.1 (and hereby authorises the Lead Underwriters to deduct
such amounts from the gross subscription moneys for the Dollar Notes on
the Current Issuer's behalf).
12. EXPENSES
12.1 GENERAL EXPENSES
The Current Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Current
Issuer, any amount in respect of
33
value added tax or similar tax payable in respect thereof against
production of a valid tax invoice and (ii) in respect of taxable supplies
made to a person other than the Current Issuer, any amount in respect of
Irrecoverable VAT (for the purposes of this Agreement "IRREVOCABLE VAT"
means any amount in respect of VAT incurred by a party to the Transaction
Documents (for the purposes of this definition, a "RELEVANT PARTY") as
part of a payment in respect of which it is entitled to be indemnified
under the relevant Transaction Documents to the extent that the Relevant
Party does not or will not receive and retain a credit or repayment of
such VAT as input tax (as that expression is defined in section 24(1) of
the Value Added Tax Act 1994) for the prescribed accounting period (as
that expression is used in section 25(1) of the Value Added Tax Act 1994)
to which such input tax relates) or similar tax payable in respect thereof
against production of a valid tax invoice): (a) the fees, disbursements
and expenses of the Current Issuer's legal advisers and accountants and
all other expenses of the Current Issuer in connection with the issue
(including without limitation any filing fees payable to the Commission in
connection with the registration of the Dollar Notes under the Securities
Act and any fees payable in connection with the qualification of the
Dollar Notes for offering and sale pursuant to any NASD regulatory
provisions or under any applicable United States state securities, Blue
Sky or similar laws) and listing of the Dollar Notes (including without
limitation, any advertisements required in connection therewith); the
preparation and delivery of each class of the Notes in global form and (if
required) definitive form; the costs of the initial delivery and
distribution of the Notes (including, without limitation, transportation,
packaging and insurance) and the initial fees and expenses of The
Depository Trust Company in relation to the Notes (excluding any such fees
and expenses arising as a result of any transfer of the Notes); the
preparation and printing of the Prospectus (in proof, preliminary and
final form) and any amendments and supplements thereto and the mailing and
delivery of copies of this Agreement to the Underwriters; (b) the cost of
printing or reproducing the Legal Agreements and any other documents
prepared in connection with the offering, issue and initial delivery of
the Notes; (c) the fees and expenses of the Note Trustee and the Security
Trustee (including fees and expenses of legal advisers to the Note Trustee
and the Security Trustee), the US Paying Agent and the Agent Bank in each
case reasonably incurred in connection with the preparation and execution
of the Legal Agreements and any other relevant documents and the issue of
the Notes and compliance with the Conditions of the Notes; (d) the fees
and expenses incurred or payable in connection with obtaining a rating for
the Notes from Fitch Ratings, 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.
12.2 REIMBURSEMENT
The Current Issuer will reimburse the Underwriters for all amounts in
connection with the issue of the Notes which it has agreed to pay pursuant
to Clause 12.1.
12.3 For the avoidance of doubt, references to costs and expenses in this
Agreement shall be deemed to include, in addition, references to any
irrecoverable UK value added tax payable in respect of such costs and
expenses.
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13. INDEMNIFICATION
13.1 CURRENT ISSUER, FUNDING, MORTGAGES TRUSTEE AND NRPLC INDEMNITY
Each of the Current Issuer, Funding, the Mortgages Trustee and NRPLC
jointly and severally agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter (each an
"INDEMNIFIED PERSON") within the meaning of either the Securities Act or
the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject, including without limitation any such losses, claims, damages or
liabilities arising under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Dollar Notes as originally filed or
in any amendment thereof, or in any Registration Statement, any
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or in any data, table, computer record, electronic
record, e-mail or [printed information] provided by or on behalf of NRPLC
to the Underwriters for inclusion (and to the extent included) in the
Registration Statement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other reasonable expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Current Issuer, Funding, the Mortgages
Trustee and NRPLC will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission or any representation, warranty or covenant made by
NRPLC, the Current Issuer, Funding or the Mortgages Trustee in this
Agreement, or made in the Registration Statement, any preliminary
prospectus or the Prospectus in reliance upon and in conformity with
written information furnished to the Current Issuer, Funding, the
Mortgages Trustee and NRPLC by or on behalf of any Underwriter through the
Lead Underwriters specifically for inclusion therein and provided further,
that as to any preliminary prospectus or the Prospectus, this indemnity
agreement shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) on account of any loss, claim, damage,
liability or action arising from the sale of Notes to any person by that
Underwriter if that Underwriter failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented (for the purposes
of this Clause 13, the "FINAL PROSPECTUS"), to that person within the time
required by the Securities Act where required by law to do so, and the
untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such preliminary
prospectus or Prospectus was corrected in the Final Prospectus, unless
such failure resulted from non-compliance by the Current Issuer, Funding,
the Mortgages Trustee or NRPLC with Clause 8.1(b) hereof. For purposes of
the final proviso to the immediately preceding sentence, the term Final
Prospectus shall not be deemed to include the documents incorporated
therein by reference, and no Underwriter shall be obligated to send or
give any supplement or amendment to any document incorporated by reference
in the Prospectus or in any Final Prospectus to any person other than a
person to whom such Underwriter has delivered such incorporated documents
in response to a written or oral request therefor. The Current Issuer,
Funding, the Mortgages Trustee and NRPLC further agree to reimburse each
Underwriter and each such controlling person for any legal and other
expenses reasonably incurred by such Underwriter or controlling person in
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action, as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability
35
which the Current Issuer, Funding, the Mortgages Trustee and NRPLC may
otherwise have to any Underwriter or any controlling person of any
Underwriter.
No Underwriter or controlling person of any Underwriter shall have any
duty or obligation, whether as fiduciary for any Indemnified Person or
otherwise, to recover any such payment or to account to any other person
for any amounts paid to it under this Clause 13.1.
The foregoing shall be subject to the following:
(a) Any right which at any time either Funding or the Mortgages Trustee
has under the existing or future laws of Jersey whether by virtue of
the DROIT DE DISCUSSION or otherwise to require that recourse be had
to the assets of any other person before any claim is enforced
against such person in respect of the obligations hereby assumed by
such person is hereby abandoned and waived.
(b) Each of Funding and the Mortgages Trustee undertakes that if at any
time any person indemnified sues such either of Funding or the
Mortgages Trustee in respect of any such obligations and the person
in respect of whose obligations the indemnity is given is not sued
also, Funding or the Mortgages Trustee as the case may be shall not
claim that such person be made a party to the proceedings and each
agrees to be bound by this indemnity whether or not it is made a
party to legal proceedings for the recovery of the amount due or
owing to the person indemnified, as aforesaid, by the person in
respect of whose obligations the indemnity is given and whether the
formalities required by any law of Jersey whether existing or future
in regard to the rights or obligations of sureties shall or shall
not have been observed.
(c) Any right which either Funding or the Mortgages Trustee may have
under the existing or future laws of Jersey whether by virtue of the
DROIT DE DIVISION or otherwise to require that any liability under
this indemnity be divided or apportioned with any other person or
reduced in any manner whatsoever is hereby abandoned and waived.
13.2 UNDERWRITERS' INDEMNITY
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Current Issuer, Funding, the Mortgages Trustee and NRPLC,
each of their directors and each of their officers who signs the
Registration Statement, their employees and each person who controls the
Current Issuer or NRPLC within the meaning of either the Securities Act or
the Exchange Act, to the same extent as the foregoing indemnity from the
Current Issuer to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Current Issuer,
Funding, the Mortgages Trustee or NRPLC by or on behalf of such
Underwriter through the Lead Underwriters specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Current Issuer, Funding, the Mortgages Trustee and
NRPLC acknowledge that the statements set forth under the heading
"Underwriting" that specify, (i) the list of Underwriters and their
respective participation in the sale of the Dollar Notes, (ii) the
sentences related to concessions and reallowances and (iii) the paragraph
related to short sales, stabilisation, short covering transactions and
penalty bids in any preliminary prospectus and the Prospectus constitute
the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in any preliminary prospectus or the
Prospectus.
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13.3 PROCEEDINGS
Promptly after receipt by an indemnified party under this Clause 13 of
notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Clause 13, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under Clause 13.1 or 13.2 above
unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of
substantial rights and defences and (ii) will not, in any event relieve
the indemnifying party from any obligation to any indemnified party other
than the indemnification obligation provided in Clause 13.1 or 13.2 above.
If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein, and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defence thereof with counsel satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party
of its election to assume the defence of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Clause 13 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defence thereof other than
reasonable costs of investigation; provided that each Underwriter, the
Underwriters as a group, or the Current Issuer, Funding, the Mortgages
Trustee and NRPLC, as the case may be, shall have the right to employ
separate counsel to represent such Underwriter and its controlling
persons, the Underwriters and their respective controlling persons or the
Current Issuer, Funding, the Mortgages Trustee and NRPLC and their
respective controlling persons, as the case may be, who may be subject to
liability arising out of any claim in respect of which indemnity may be
sought by such indemnified parties under this Clause 13 if in the
reasonable judgement of any Underwriter, the Underwriters acting together,
or any of the Current Issuer, Funding, the Mortgages Trustee and NRPLC, as
the case may be, it is advisable for such indemnified parties to be
represented by separate counsel, and in that event the fees and expenses
of such separate counsel (and local counsel) shall be paid by the
indemnifying party. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defence of such
action and approval by the indemnified party of counsel selected by the
indemnifying party, the indemnifying party will not be liable to such
indemnified party under this Clause 13 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defence thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defences in
accordance with the proviso to the preceding sentence (it being
understood, however that the indemnifying party shall not be liable for
the expenses of more than one such separate counsel (and local counsel)
representing the indemnified parties under Clause 13.1 or 13.2 hereof),
(ii) the indemnifying party has authorised (acting reasonably) the
employment of more than one such separate counsel (and local counsel)
representing the employed counsel satisfactory to the indemnified party to
represent the indemnified party, or (iii) the indemnifying party has
authorised the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgement for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by reason of
such settlement or judgement. Notwithstanding the foregoing sentence, if
at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel
as contemplated by this Clause 13, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days
after receipt by such
37
indemnifying party of such request and (ii) such indemnifying party shall
not have either reimbursed the indemnified party in accordance with such
request or objected to such request in writing prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or
could have been a party and in respect of which indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
13.4 CONTRIBUTION
In the event that the indemnity provided in Clause 13.1 or 13.2 is
unavailable to or insufficient to hold harmless an indemnified party for
any reason, the Current Issuer, NRPLC, Funding, the Mortgages Trustee and
the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "LOSSES") to which the Current Issuer, NRPLC, Funding, the
Mortgages Trustee and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Current Issuer, NRPLC, Funding, the Mortgages Trustee and
the Underwriters from the offering of the Dollar Notes. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Current Issuer, NRPLC, Funding, the Mortgages Trustee and the
Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Current Issuer, NRPLC, Funding, the Mortgages
Trustee and the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Current Issuer,
Funding, the Mortgages Trustee and NRPLC shall be deemed to be equal to
the Issue Price (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total Selling Commissions
and the Management and Underwriting Commission, in each case as set forth
in Clause 11.1. Relative fault shall be determined by reference to among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Current Issuer, Funding, the
Mortgages Trustee or NRPLC on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Current Issuer, NRPLC, Funding, the Mortgages Trustee and
the Underwriters agree that it would not be just and equitable if
contribution were determined by PRO RATA allocation or any other method of
allocation which does not take account of the equitable consideration
referred to above. Notwithstanding the provisions of this Clause 13.4, no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Clause 13, each person who controls an Underwriter
within the meaning of either the Securities Act or the Exchange Act and
each director, officer, employee and agent of an Underwriter shall have
the same rights to contribution as such Underwriter, and each person who
controls the Current Issuer, Funding, the Mortgages Trustee or NRPLC
within the meaning of either the Securities Act or the Exchange Act, each
officer of the Current Issuer who shall have signed the Registration
Statement, each employee and each director of the Current Issuer, Funding,
the Mortgages Trustee or NRPLC shall have the same rights to contribution
as the Current Issuer, Funding, the Mortgages Trustee or NRPLC, as the
case may be, subject in each case to the applicable terms and conditions
of this Clause 13.4. Notwithstanding the foregoing, in no case shall the
Underwriter (except as may be provided in any agreement among Underwriters
relating to the offering of the Notes) be
38
responsible for any amount in excess of the Selling Commission or
Management and Underwriting Commission applicable to the Notes purchased
by such Underwriter hereunder.
14. TERMINATION
14.1 LEAD UNDERWRITERS' ABILITY TO TERMINATE
Notwithstanding any other provision of this Agreement, the Lead
Underwriters on behalf of the Underwriters may, by notice to the Current
Issuer given at any time prior to payment of the net underwriting proceeds
for the Dollar Notes to the Current Issuer, terminate this Agreement in
any of the following circumstances:
(a) if there shall have come to the notice of the Underwriters any
breach of, or any event rendering untrue or incorrect in any
material respect, any of the warranties and representations
contained in Clause 5 or 6 or 7 (or any deemed repetition thereof)
or failure to perform any of the Current Issuer's or NRPLC's
covenants or agreements in this Agreement in any material respect;
or
(b) if any condition specified in Clause 9 has not been satisfied or
waived by the Lead Underwriters on behalf of the Underwriters; or
(c) if in the opinion of the Lead Underwriters, circumstances shall be
such as: (i) to prevent or to a material extent restrict payment for
the Dollar Notes in the manner contemplated in this Agreement or
(ii) to a material extent prevent or restrict settlement of
transactions in the Dollar Notes in the market or otherwise; or
(i) 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;
(ii) upon termination of the Subscription Agreement; or
(iii) if (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the London Stock
Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on
such exchanges or such market; (ii) a banking moratorium shall
have been declared by US federal or New York State or UK
regulatory authorities; (iii) there shall have occurred any
change or any development involving a prospective change, in
or affecting particularly the business or properties of the
Current Issuer, Funding, the Mortgages Trustee or NRPLC,
which, in the judgement of the Lead Underwriters materially
impairs the investment quality of the Dollar Notes or makes it
impracticable or inadvisable to market the Dollar Notes or
(iv) if in the judgement of the Lead Underwriters, it
otherwise becomes impracticable or inadvisable to proceed with
the offering of the Dollar Notes.
14.2 CONSEQUENCES OF TERMINATION
Upon such notice being given this Agreement shall terminate and be of no
further effect and no party hereto shall be under any liability to any
other in respect of this Agreement except that (i) the Current Issuer
shall remain liable under Clause 12 for the payment of the costs and
expenses already incurred or incurred in consequence of such termination,
(ii) the
39
indemnity agreement and contribution provisions set forth in Clause 13,
(iii) the obligations of the Current Issuer and NRPLC, and (iv) the
representations and warranties of the Underwriters made in Clause 3.2(b)
of this Agreement, which would have continued in accordance with Clause 15
had the arrangements for the underwriting and issue of the Dollar Notes
been completed, shall so continue.
15. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
15.1 The representations, warranties, agreements, undertakings and indemnities
in this Agreement will continue in full force and effect notwithstanding
completion of the arrangements for the subscription and issue of the
Dollar Notes or any investigation made by or on behalf of any Underwriter
or any controlling person or any of its representatives, directors,
officers, agents or employees or any of them.
15.2 Save for their respective responsibilities to comply with the relevant
representations set forth herein, neither the Current Issuer, Funding, the
Mortgages Trustee nor NRPLC shall have any responsibility in respect of
the legality of the Underwriters or other persons offering and selling the
Dollar Notes in any jurisdiction or in respect of the Dollar Notes
qualifying for sale in any jurisdiction.
16. NOTICES
16.1 All communications pursuant to this Agreement will be in writing and will
be delivered at or sent by facsimile transmission to the following
addresses:
(i) if to the Current Issuer,
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: Securitisation, Risk Operations
Facsimile: +44 (0) 191 279 4929
(ii) if to NRPLC,
Northern Rock House
40
Gosforth
Newcastle upon Tyne
NE3 4PL
Attention: Securitisation, Risk Operations
Facsimile: +44 (0) 191 279 4929
(iii) if to the Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Attention: General Counsel
Facsimile: +1 212 816 7912
(iv) if to Funding,
35 New Bridge Street, 4th Floor
Blackfriars, London EC4V 6BW
Attention: The Company Secretary
Facsimile: +44 (0) 207 332 6199
(v) if to the Mortgages Trustee,
22 Grenville Street
St. Helier, Jersey JE4 8PX
Attention: The Company Secretary
Facsimile: +44 (0) 1534 609 333
16.2 Any communication so sent by letter shall take effect at the time of
actual delivery to the addressee, and any communication so sent by
facsimile transmission shall take effect upon acknowledgement of receipt
by the recipient. Any communication to be delivered to any party under
this Agreement which is to be sent by facsimile transmission will be
written legal evidence.
16.3 The Mortgages Trustee agrees that the process by which any proceedings
in England are begun may be secured on it by being delivered to Granite
Finance Trustees Limited c/o Mourant & Co. Capital (SPV) Limited, 4th
Floor, 35 New Bridge Street, London EC4V 6BW, attn: The Company
Secretary. If such person is not or ceases to be effectively appointed
to accept service of process on the Mortgages Trustee's behalf the
Mortgages Trustee shall, on the written demand of the Lead
Underwriters, appoint a further person in England to accept service of
process on its behalf and, failing such appointment within 15 days, the
Lead Underwriters shall be entitled to appoint such a person by written
notice to the Mortgages Trustee. Nothing in this sub-clause shall
affect the right of the Lead Underwriters to serve process in any other
manner permitted by law.
16.4 Funding agrees that the process by which any proceedings in England are
begun may be secured on it by being delivered to Granite Finance Funding
Limited c/o Mourant & Co. Capital (SPV) Limited, 35 New Bridge Street, 4th
Floor, Blackfriars, London EC4V 6BW, attn: The Company Secretary. If such
person is not or ceases to be effectively appointed to accept service of
process on Funding's behalf Funding shall, on the written demand of the
Lead Underwriters, appoint a further person in England to accept
41
service of process on its behalf and, failing such appointment within 15
days, the Lead Underwriters shall be entitled to appoint such a person by
written notice to Funding. Nothing in this sub-clause shall affect the
right of the Lead Underwriters to serve process in any other manner
permitted by law.
17. TIME
Time shall be of the essence of this Agreement.
18. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
Except as set out in Clause 13, a person who is not a party to this
Agreement has no right under the Contracts (Rights of Third Parties) Act
1999 to enforce any term of this Agreement, but this does not affect any
right or remedy of a third party which exists or is available apart from
that Act.
19. NON PETITION AND LIMITED RECOURSE
Each of the Underwriters agrees with the Current Issuer, Funding and the
Mortgages Trustee, that it shall not, until the expiry of one year and one
day after the payment of all sums outstanding and owing under the Notes
(in respect of the Current Issuer) and until the expiry of one year and
one day after the payment of all sums outstanding and owing under any
intercompany loan made to Funding by the Current Issuer or any other
company (in respect of the Mortgages Trustee and Funding) take any
corporate action or other steps or legal proceedings for the winding-up,
dissolution, arrangement, reconstruction or re-organisation or for the
appointment of a liquidator, receiver, manager, administrator,
administrative receiver or similar officer of the Current Issuer, the
Mortgages Trustee or Funding or any, or all of, their respective assets or
revenues.
To the extent permitted by law, no recourse under any obligation, covenant
or agreement of any person contained in this Agreement shall be had
against any shareholder, officer or director of the Current Issuer,
Funding or the Mortgages Trustee, by the enforcement of any assessment or
by any legal proceedings, by virtue of any statute or otherwise; it being
expressly agreed and understood that this Agreement is a corporate
obligation of each of the Current Issuer, Funding and the Mortgages
Trustee expressed to be a party hereto and no personal liability shall
attach to or be incurred by the shareholders, officers, agents or
directors of such person as such, or any of them, under or by reason of
any of the obligations, covenants or agreements of the Current Issuer,
Funding or the Mortgages Trustee contained in this Agreement, or implied
therefrom, and that any and all personal liability for breaches by such
person of any such obligations, covenants or agreements, either under any
applicable law or by statute or constitution, of every such shareholder,
officer, agent or director is hereby expressly waived by each person
expressed to be a party hereto as a condition of and consideration for the
execution of this Agreement.
42
20. GOVERNING LAW AND JURISDICTION
20.1 GOVERNING LAW
This Agreement shall be governed by, and shall be construed in accordance
with, the laws of England.
20.2 JURISDICTION
The courts of England are to have jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement and
accordingly any legal action or proceedings arising out of or in
connection with this Agreement ("PROCEEDINGS") may be brought in such
courts. The Mortgages Trustee, Funding, the Current Issuer and NRPLC
irrevocably submit to the jurisdiction of such courts and waive any
objection to Proceedings in such courts whether on the ground of venue or
on the ground that the Proceedings have been brought in an inconvenient
forum. These submissions are made for the benefit of each of the
Underwriters and shall not limit the right of any of them to take
Proceedings in any other court of competent jurisdiction nor shall the
taking of Proceedings in one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction (whether concurrently or not).
21. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
43
IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
GRANITE MORTGAGES 02-2 PLC
By:
NORTHERN ROCK PLC
By:
GRANITE FINANCE FUNDING LIMITED
By:
GRANITE FINANCE TRUSTEES LIMITED
By:
SALOMON SMITH BARNEY INC.
By:
J.P. MORGAN SECURITIES INC.
By:
[O]
By:
44
SCHEDULE
O
PRINCIPAL AMOUNT
UNDERWRITERS OF SERIES 1 OF SERIES 1 OF SERIES 1 OF SERIES 1
CLASS A1 NOTES CLASS A2 NOTES CLASS B NOTES CLASS C NOTES
Salomon Smith Barney Inc. $[o] [o] [o] [o]
J.P. Morgan Securities Inc. $[o] [o] [o] [o]
TOTAL [o] [o] [o] [o]