EXECUTION COPY
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GRANITE MORTGAGES 03-2 PLC
And
NORTHERN ROCK PLC
And
GRANITE FINANCE FUNDING LIMITED
And
GRANITE FINANCE TRUSTEES LIMITED
And
XXXXXX BROTHERS INC.
And
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
And
CITIGROUP CAPITAL MARKET INC.
And
X.X. XXXXXX SECURITIES INC.
And
UBS WARBURG LLC
UNDERWRITING AGREEMENT
relating to GRANITE MORTGAGES 03-2 PLC
$1,245,000,000 Series 1 Class Al Floating Rate Notes due July 2017
$1,006,000,000 Series 1 Class A2 Floating Rate Notes due July 2020
$500,000,000 Series 1 Class A3 Floating Rate Notes due July 2043
$76,500,000 Series 1 Class B Floating Rate Notes due July 2043
$10,500,000 Series 1 Class C Floating Rate Notes due July 2043
[E]16,000,000 Series 2 Class Cl Fixed Rate Notes due July 2043
[GBP]15,000,000 Series 3 Class C Floating Rate Notes due July 2043
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CONTENTS
CLAUSE PAGE
1. Agreement to Issue and Subscribe...........................................5
2. Stabilisation..............................................................7
3. Agreements by the Underwriters ............................................7
4. Listing...................................................................10
5. Representations and Warranties of the Current Issuer......................10
6. Representations and Warranties of Funding and the Mortgages Trustee.......16
7. Representations and Warranties of NRPLC...................................20
8. Covenants of the Current Issuer, Funding, the Mortgages Trustee and NRPLC.22
9. Conditions Precedent......................................................29
10. Closing...................................................................33
11. Commissions...............................................................34
12. Expenses..................................................................34
13. Indemnification...........................................................35
14. Termination...............................................................39
15. Survival of Representations and Obligations...............................40
16. Notices...................................................................40
17. Time......................................................................42
18. Non Petition and Limited Recourse.........................................43
19. Governing Law and Jurisdiction............................................43
20. Counterparts..............................................................44
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THIS AGREEMENT is made as of 16 May, 2003
BETWEEN:
(1) GRANITE MORTGAGES 03-2 PLC, a public limited company incorporated under the
laws of England and Wales, whose registered office is at Fifth Floor, 000
Xxxx Xxxxxx, Xxxxxx XX0X 0XX (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 0 Xxxxx
Xxxx Xxxxx, Xxxxxx XX0X 0XX ("FUNDING");
(4) GRANITE FINANCE TRUSTEES LIMITED, a private limited company incorporated
under the laws of Jersey, Channel Islands, whose registered office is at 00
Xxxxxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands (the
"MORTGAGES TRUSTEE");
(5) XXXXXX BROTHERS INC., a corporation organised under the laws of New York
whose registered office is at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000-0000, XXX, and XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INC., a
corporation organised under the laws of Delaware whose registered office is
at c/o The Corporation Trust Co., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx,
XXX (the "LEAD UNDERWRITERS"); and
(6) CITIGROUP GLOBAL MARKETS INC., X.X. XXXXXX SECURITIES INC. and UBS WARBURG
LLC (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 15
May, 2003, has duly authorised and determined to create and issue
$1,245,000,000 Series 1 Class Al Floating Rate,', Notes due July 2017 (the
"SERIES 1 CLASS AL NOTES"), $1,006,000,000 Series 1 Class A2 Floating Rate
Notes due July 2020 (the "SERIES 1 CLASS A2 NOTES"), $500,000,000 Series 1
Class A3 Floating Rate Notes due July 2043 (the "SERIES 1 CLASS A3 NOTES"),
$76,500,000 Series 1 Class B Floating Rate Notes due July 2043 (the "SERIES
1 CLASS B NOTES"), $10,500,000 Series 1 Class C Floating Rate Notes due
July 2043 (the "SERIES 1 CLASS C NOTES" and together with the Series 1
Class Al Notes, the Series 1 Class A2 Notes, the Series 1 Class A3 Notes
and the Series 1 Class B Notes, the "DOLLAR NOTES"), [E]16,000,000 Series 2
Class Cl Fixed Rate Notes due July 2043 (the "SERIES 2 CLASS CL NOTES") and
[GBP]15,000,000 Series 3 Class C Floating Rate Notes due July 2043 (the
"SERIES 3 CLASS C NOTES" and, together with the Series 2 Class Cl Notes and
the Dollar Notes, the "U.S. NOTES", which expression where the context so
requires shall include the U.S. Global Note Certificates defined below).
(B) The Dollar Notes will be denominated in U.S. dollars and in denominations
of $10,000 and $1,000, the Series 2 Class Cl Notes will be denominated in
Euro and in denominations of [E]10,000 and [E]1,000 and the Series 3 Class
C Notes will be denominated in Sterling and in denominations of [GBP]10,000
and [GBP]1,000. The U.S. Notes will be issued on or about 21 May, 2003 or
at such other time and/or date as the Current Issuer and the Lead
Underwriters on
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behalf of the Underwriters may agree acting reasonably (the "CLOSING
DATE"). The issue of the U.S. Notes is referred to in this Agreement as the
"ISSUE".
(C) Simultaneously with the Issue, the Current Issuer intends to issue
[E]300,000,000 Series 2 Class A Floating Rate Notes due July 2043 (the
"SERIES 2 CLASS A NOTES"), [E]72,900,000 Series 2 Class B Floating Rate
Notes due July 2043 (the "SERIES 2 CLASS B NOTES"), [E]52,300,000 Series 2
Class M Floating Rate Notes due July 2043 (the "SERIES 2 CLASS M NOTES")
and [E]65,500,000 Series 2 Class C2 Floating Rate Notes due July 2043 (the
"SERIES 2 CLASS C2 NOTES" and, together with the Series 2 Class A Notes,
the Series 2 Class B Notes and the Series 2 Class M Notes, the "EURO
NOTES") and [GBP]352,280,000 Series 3 Class A Fixed Rate Notes due July
2043 (the "SERIES 3 CLASS A NOTES" or the "STERLING NOTES", and together
with the Euro Notes, the "REG S NOTES", and together with the U.S. 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., (in its separate
capacities as the "PRINCIPAL PAYING AGENT", the "US PAYING AGENT", the
"REGISTRAR", the "TRANSFER AGENT" and the "AGENT BANK"), Banque AIG as
dollar currency swap provider to the Current Issuer (the "DOLLAR CURRENCY
SWAP PROVIDER"), ABN AMRO Bank N.V. as euro currency swap provider to the
Current Issuer (the "EURO CURRENCY SWAP PROVIDER" and together with the
Dollar Currency Swap Provider, the "CURRENCY RATE SWAP PROVIDERS"), CDC
IXIS Capital Markets as interest rate swap provider to the Current Issuer
in relation to the Series 3 Class A Notes (the "SERIES 3 CLASS A INTEREST
RATE SWAP PROVIDER"), NRPLC in its capacity as cash manager to the Current
Issuer under the Current Issuer cash management agreement (the "CURRENT
ISSUER CASH MANAGER"), NRPLC as basis rate swap provider to the Current
Issuer (the "BASIS RATE SWAP PROVIDER"), Citibank, N.A. in its capacity as
account bank to the Current Issuer under the Current Issuer Bank Account
Agreement (the "CURRENT ISSUER ACCOUNT BANK") and Law Debenture Corporate
Services Limited in its capacity as corporate services provider to the
Current Issuer under the corporate services provider agreement (the
"Current Issuer Corporate Services Provider").
(E) Payments of principal and interest on the U.S. 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 U.S. Notes will be in fully registered permanent global
form. The Registrar will maintain a register (the "REGISTER") in respect of
the U.S. Notes in accordance with the Current Issuer Paying Agent and Agent
Bank Agreement. The global note certificates representing the Notes (the
"GLOBAL NOTE CERTIFICATES") will be deposited on behalf of the beneficial
owners of the Notes with Citibank N.A. in New York, as custodian for, and
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registered in the name of Cede & Co. as nominee of. The Depository Trust
Company ("DTC"), the global note certificate representing the Series 2
Class Cl Notes (the "SERIES 2 CLASS CL GLOBAL NOTE CERTIFICATE") and the
Series 3 Class C Notes (the "SERIES 3 CLASS C GLOBAL NOTE CERTIFICATE" and
together with the Series 2 Class Cl Global Note Certificate and the Dollar
Global Note Certificates, the "U.S. GLOBAL NOTE CERTIFICATE") will be
deposited on behalf of the beneficial owners of the Series 2 Class Cl Notes
and the Series 3 Class C Notes with, and registered in the name of a
nominee of Citibank, N.A. in London as common depositary for Clearstream,
Luxembourg and Euroclear.
(G) The Current Issuer will use an amount in Sterling equal to the gross
proceeds of the Issue as well as an amount in Sterling equal to the gross
proceeds of the Reg S Notes issue to make a loan to Funding pursuant to an
intercompany loan agreement to be entered into on or before the Closing
Date between the Current Issuer, Funding, the Agent Bank and The Bank of
New York, London Branch in its capacity as security trustee (the "SECURITY
TRUSTEE") (the "INTERCOMPANY LOAN AGREEMENT" and the loan made thereunder,
the "INTERCOMPANY LOAN"). Reference to the Intercompany Loan Agreement
shall include reference to a loan confirmation in respect of the
Intercompany Loan Agreement to be entered into on or about the Closing Date
and made between Funding, the Current Issuer, the Security Trustee and the
Agent Bank (the "CURRENT ISSUER INTERCOMPANY LOAN CONFIRMATION"), and the
general terms and conditions applicable to the Intercompany Loan Agreement
which has been signed for the purposes of identification by the Security
Trustee, the Agent Bank and Funding on the Initial Closing Date, as amended
and restated, novated, verified or supplemented from time to time and shall
include any additional and/or replacement intercompany loan terms and
conditions entered into from time to time in accordance with the Legal
Agreements (the "INTERCOMPANY LOAN TERMS AND CONDITIONS")
(H) Funding will pay the proceeds of the Intercompany Loan to the Mortgages
Trustee (or to its order) in consideration for the acquisition of part of
the beneficial share of the additional assigned mortgage trust portfolio of
first residential mortgage loans (the "ADDITIONAL ASSIGNED MORTGAGE LOANS")
and an interest in the related insurances and their related security
(together, the "RELATED SECURITY").
(I) NRPLC assigned the portfolio of Additional Assigned Mortgage Loans and
their Related Security to the Mortgages Trustee on 14 April, 2003 and may
assign further Mortgage Loans on subsequent assignment dates pursuant to a
mortgage sale agreement dated 26th March, 2001 between NRPLC, the Mortgages
Trustee, Funding and the Security Trustee (the "MORTGAGE SALE AGREEMENT").
Each of the Mortgages Trustee and Funding has appointed NRPLC as
administrator to service the Additional Assigned Mortgage Loans and their
Related Security pursuant to a Administration Agreement dated 26th March,
2001 (the "ADMINISTRATION AGREEMENT").
(J) The Mortgages Trustee holds the Additional Assigned Mortgage Loans and
their Related Security on a bare trust in undivided shares for the benefit
of Funding and NRPLC pursuant to the mortgages trust deed dated 26th March,
2001 entered into by NRPLC, Funding and the Mortgages Trustee (the
"MORTGAGES TRUST DEED"). The Mortgages Trustee also entered into a
guaranteed investment contract dated on or about 26th March, 2001 in
respect of its principal bank account (the "MORTGAGES TRUSTEE GUARANTEED
INVESTMENT CONTRACT") between the Mortgages Trustee and Lloyds TSB Bank
pie, Jersey International Branch (in such capacity, the "MORTGAGES TRUSTEE
GIC PROVIDER").
(K) Funding's obligations to the Current Issuer under the Intercompany Loan
Agreement and to Funding's other creditors are secured by the benefit of
security interests created by a deed of charge and assignment dated 26th
March, 2001, which includes any deed of accession entered
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into in connection therewith or supplement thereto (the "FUNDING DEED OF
CHARGE") and entered into by Funding, Granite Mortgages 01-1 pie (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 pie, Jersey International Branch in its capacity
as account bank to the Mortgages Trustee, Lloyds TSB Bank pie in its
capacity as account bank to Funding (in such capacities, each an "ACCOUNT
BANK") and NRPLC in its capacity as Current Issuer start-up loan provider
to Funding (the "CURRENT ISSUER START-UP LOAN PROVIDER") and acceded to
pursuant to deeds of accession dated 28th September, 2001 by Granite
Mortgages 01-2 pie (the "SECOND ISSUER") and the Current Issuer Start-up
Loan Provider respectively, 20th March, 2002 by Granite Mortgages 02-1 pie
(the "THIRD ISSUER") and the Current Issuer Start-up Loan Provider,
respectively, 23rd September, 2002 by Granite Mortgages 02-2 pie (the
"FOURTH ISSUER") and the Current Issuer Start-up Loan Provider,
respectively, and dated 27th January, 2003 by Granite 03-1 pie (the "FIFTH
ISSUER") and the Current Issuer Start-Up Loan Provider, respectively
(together the "DEEDS OF ACCESSION"). On or before the Closing Date, the
Current Issuer and the Current Issuer Start- up Loan Provider will,
pursuant to a deed of accession (the "CURRENT DEED OF ACCESSION") accede to
the terms of the Funding Deed of Charge and thereby become secured
creditors of Funding.
(L) In connection with the purchase of an initial mortgage portfolio and the
issue of certain notes by the First Issuer, Funding, in addition to the
documents described above, entered into on 26th March, 2001 (the "INITIAL
CLOSING DATE") (1) a cash management agreement with the Cash Manager, the
Mortgages Trustee and the Security Trustee (the "CASH MANAGEMENT
AGREEMENT"); (2) a bank account agreement with the Account Banks, the
Mortgages Trustee, Funding, the Security Trustee and the Cash Underwriter
(the "BANK ACCOUNT AGREEMENT"); (3) a guaranteed investment contract with,
inter alios, Lloyds TSB Bank pie as GIC provider to Funding (the "FUNDING
GIC PROVIDER") (the "FUNDING GUARANTEED INVESTMENT CONTRACT"); (4) a
corporate services provider agreement (the "FUNDING CORPORATE SERVICES
AGREEMENT") with Mourant & Co. Capital (SPV) Limited as corporate services
provider to Funding, each of which will remain in effect, as applicable, in
respect of the Issue and (5) a start-up loan agreement made between the
Current Issuer Start-up Loan Provider and the Security Trustee (the
"START-UP LOAN AGREEMENT").
(M) In connection with the Issue; the Current Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Notes relating to
each class of the Notes; (2) the Current Issuer Corporate Services
Agreement with respect to the Current Issuer; (3) a cash management
agreement between the Current Issuer, The Current Issuer Cash Manager and
the Note Trustee (the "CURRENT ISSUER CASH MANAGEMENT AGREEMENT"); (4) a
bank account agreement between the Current Issuer, the Note Trustee, the
Current Issuer Cash Manager and the Current Issuer Account Bank (the
"CURRENT ISSUER BANK ACCOUNT AGREEMENT"); (5) a post-enforcement call
option agreement (the "POST-ENFORCEMENT CALL OPTION AGREEMENT") between the
Current Issuer, the Note Trustee, the Registrar, the Transfer Agent and
GPCH Limited; (6) the Start-Up Loan Agreement; (7) ISDA Master Agreements
including the Schedules thereto and confirmations thereunder in respect of
Dollar/Sterling currency swaps between the Current Issuer, the Dollar
Currency Swap Provider and the Note Trustee (the "DOLLAR CURRENCY SWAP
AGREEMENTS"); (8) ISDA Master Agreements including the Schedules thereto
and confirmations thereunder in respect of Euro/Sterling currency swaps
between the Current Issuer, the Euro Currency Swap Provider and the Note
Trustee (the "EURO CURRENCY SWAP AGREEMENTS" and the together with the
Dollar Currency Swap Agreements, the "CURRENCY SWAP AGREEMENTS"); (9) an
ISDA Master Agreement including the Schedule thereto and confirmations
thereunder in respect of an interest rate swap in relation to the Series 3
Class A Notes between the Current Issuer, the Series 3 Class A Interest
Rate Swap Provider and the Note Trustee (the "SERIES 3 CLASS A INTEREST
RATE SWAP
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AGREEMENT"); and (10) 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 Agreements and the Series 3 Class A Interest Rate 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 (including, for the avoidance of doubt, the
Intercompany Loan Terms and Conditions and the Current Issuer Intercompany
Loan Confirmation), the Post-Enforcement Call Option Agreement, the Funding
Granite (03-2) Guaranteed Investment Contract, the Funding Guaranteed
Investment Contract, the Cash Management Agreement, the Bank Account
Agreement, the Collection Bank Agreement, the Start-up Loan Agreement with
respect to the Current Issuer, the Funding (Granite 03-2) 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.
(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;
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(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 U.S. Notes on the Closing Date to the Underwriters or
as they may direct. The U.S. 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 Al 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 A3 Notes, 100 per cent. of the aggregate principal
amount of the Series 1 Class B Notes, 100 per cent. of the aggregate
principal amount of the Series 1 Class C Notes, 99.982 per cent. of the
aggregate principal amount of the Series 2 Class Cl Notes and 100 per
cent. of the aggregate principal amount of the Series 3 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 Alien & Overy and Xxxxxx Xxxxxx Xxxxx & Xxxx (any draft of any
document so reviewed being called an "AGREED FORM"), with such amendments
as the Lead Underwriters, on behalf of the Underwriters, may agree with
the Current Issuer and, if it is a signatory. Funding, the Mortgages
Trustee and/or NRPLC.
1.4 THE NOTES
The U.S. Notes will be issued on the Closing Date in accordance with the
terms of the Current Issuer Trust Deed and will be in, or substantially
in, the form set out therein.
1.5 PROSPECTUS
The Current Issuer confirms that it has prepared a prospectus dated on or
around today's date (together with the preliminary prospectus of the
Current Issuer dated 24 April, 2003, the "PROSPECTUS") for use in
connection with the issue of the U.S. Notes and hereby authorises the
Underwriters to distribute copies of the Prospectus in connection with the
offering and sale of the U.S. Notes.
1.6 AUTHORITY TO OFFER
The Current Issuer confirms that it has authorised the Lead Underwriters
to offer the U.S. Notes on its behalf to the Underwriters for subscription
at the Issue Price subject to signature of this Agreement.
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2. STABILISATION
2.1 STABILISATION
The 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
the Underwriters shall act as principal and in no circumstances shall the
Current Issuer be obliged to issue more than (i) $1,245,000,000 in
aggregate principal amount of the Series 1 Class Al Notes, (ii)
$1,006,000,000 in aggregate principal amount of the Series 1 Class A2
Notes, (iii) $500,000,000 in aggregate principal amount of the Series 1
Class A3 Notes, (iv) $76,500,000 in aggregate principal amount of the
Series 1 Class B Notes, (v) $10,500,000 in aggregate principal amount of
the Series 1 Class C Notes, (vi) [E]16,000,000 in aggregate principal
amount of the Series 2 Class Cl Notes or (vii) [GBP]15,000,000 in
aggregate principal amount of the Series 3 Class C Notes.
2.2 STABILISATION PROFITS AND LOSSES
As between the Current Issuer and the Underwriters any loss resulting from
stabilisation transactions entered into by the Underwriters, pursuant to
Clause 2.1 shall be borne, and any profit arising therefrom shall be
retained, by the Underwriters.
3. AGREEMENTS BY THE UNDERWRITERS
3.1 PURCHASE
Each Underwriter severally agrees to purchase and pay for such principal
amount of the U.S. 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 U.S.
Notes which it has agreed to purchase hereunder, the non-defaulting
Underwriters may in their discretion arrange to purchase, or for
another party or other parties reasonably satisfactory to NRPLC to
purchase, such U.S. 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
U.S. 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 U.S. 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 U.S. Notes,
or NRPLC notifies the non-defaulting Underwriters that it has so
arranged for the purchase of such U.S. 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 U.S. 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 U.S. Notes.
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(b) If, after giving effect to any arrangements for the purchase of U.S.
Notes of a defaulting Underwriter by the non-defaulting
Underwriters, as provided in Clause 3.1(a) above, the aggregate
principal amount of the U.S. Notes which remains unpurchased does
not exceed ten per cent. of the aggregate principal amount of the
U.S. Notes, NRPLC shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of the
U.S. 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 U.S. Notes
which such Underwriter agreed to purchase hereunder) of the
principal amount of the U.S. 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 U.S. Notes of a defaulting Underwriter by
the non-defaulting Underwriters as provided in Clause 3.1(a) above,
the aggregate principal amount of the U.S. Notes which remains
unpurchased exceeds ten per cent. of the aggregate principal amount
of the U.S. Notes, or if NRPLC shall not exercise the right
described in Clause 3.1(b) above to require non-defaulting
Underwriters to purchase the U.S. 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 U.S.
Notes for sale to the public in the United States as set forth in
the Prospectus.
(b) UNITED KINGDOM
Each Underwriter represents and agrees that:
(1) in relation to U.S. Notes that are to be admitted to the
official list of the UK Listing Authority, it has not offered
or sold, and will not offer or sell, any U.S. Notes to any
persons in the United Kingdom prior to admission of the U.S.
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 U.S. 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
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engage in investment activities (within the meaning of Section
21 of the FSMA) in connection with the issue or sale of any of
the U.S. Notes in circumstances in which Section 21(1) of the
FSMA does not apply to the Current Issuer.
(c) NETHERLANDS
Each Underwriter represents and agrees that it has not, directly or
indirectly, offered or sold and will not, directly or indirectly,
offer or sell in the Netherlands any U.S. Notes.
(d) ITALY
Each Underwriter will represent and agree that:
The offering of the U.S. Notes has not been cleared by CONSOB (the
Italian Securities Exchange Commission) pursuant to Italian
Securities legislation and, accordingly, no U.S. Notes may be
offered, sold or delivered, nor may copies of the Prospectus or of
any other document relating to the U.S. Notes be distributed in the
Republic of Italy, except:
(i) to professional investors (operatori qualificati), as defined
in Article 31, second paragraph, of CONSOB Regulation No.
115522 of 1st July, 1998, as amended; or
(ii) in circumstances which are exempted from the rules on
solicitation of investments pursuant to Article 100 of
Legislative Decree No. 58 of 24th February 1998 (the
"FINANCIAL SERVICES ACT") and Article 33, first paragraph of
CONSOB Regulation No. 11971 of 14th May, 1999, as amended; or
(iii) to an Italian resident who submits an unsolicited offer to
purchase the U.S. Notes.
In addition, each Underwriter will represent and agree that any
offer, sale or delivery of the U.S. Notes or distribution of copies
of the Prospectus or any other document relating to the U.S. Notes
in the Republic of Italy under (i) or (ii) above must be:
(A) made by an investment firm, bank or financial intermediary
permitted to conduct such activities in the Republic of Italy
in accordance with the Financial Services Act and Legislative
Decree No. 385 of 1st September, 1993 (the "BANKING ACT"); and
(B) in compliance with Article 129 of the Banking Act and the
implementing guidelines of the Bank of Italy, as amended from
time to time, pursuant to which the issue or the offer of
securities in the Republic of Italy may need to be preceded
and followed by an appropriate notice to be filed with the
Bank of Italy depending, inter alia, on the aggregate value of
the securities issued or offered in the Republic of Italy and
their circumstances.
(e) 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
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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 U.S. 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 U.S. 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 U.S. 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.
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 pie (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 U.S. 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 U.S. Notes are outstanding and to pay all fees and
supply all farther 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 U.S. 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:
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(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 333-103897) on Form S-11 (the "REGISTRATION
STATEMENT"), including a related preliminary prospectus dated 24
April, 2003, for registration under the U.S. Securities Act of 1933,
as amended (the "SECURITIES ACT") of the offering and sale of the
U.S. Notes. The Current Issuer may have filed one or more amendments
thereto, including a related preliminary prospectus, each of which
has previously been furnished to the Underwriters. The Current
Issuer will next file with the Commission one of the following,
either (1) prior to the date and time that such Registration
Statement becomes effective (the "EFFECTIVE DATE"), a further
amendment to such Registration Statement, including the form of
final prospectus, or (2) after the Effective Date of such
Registration Statement, a final prospectus in accordance with Rules
430A and 424(b) under the Securities Act. In the case of clause (2),
the Current Issuer has included in such Registration Statement, as
amended at the Effective Date, all information (other than
information with respect to the Notes and the Issue permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A ("RULE 430A INFORMATION")) required by the
Securities Act and the rules thereunder to be included in such
Registration Statement 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
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12
conformity with information furnished in writing to the Current
Issuer by or on behalf of any Underwriter through the Lead
Underwriters specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto), which
information is described in Clause 13.2;
(c) INCORPORATION, CAPACITY AND AUTHORISATION
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
capacity to conduct its business as described in the Prospectus, has
fall power and capacity to create and issue the Notes, to execute
this Agreement and the Legal Agreements to which it is a party and
to undertake and perform the obligations expressed to be assumed by
it herein and therein; and has taken all necessary action to approve
and authorise the same; and the Current Issuer is lawfully qualified
to do business in England and Wales. The Current Issuer has not
taken any corporate action nor (to the best of its knowledge and
belief) have any other steps been taken or legal proceedings been
started or threatened against it for its winding-up, dissolution or
reorganisation or for the appointment of a receiver, administrator,
administrative receiver or similar officer of it or of any or all of
its assets or revenues;
(d) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
the Current Issuer and constitutes, and the other Legal Agreements
to which the Current Issuer is a party have been duly authorised by
the Current Issuer and on the Closing Date will constitute, valid
and legally binding obligations of the Current Issuer;
(e) VALIDITY OF NOTES
The creation, sale and issue of the Notes have been duly authorised
by the Current Issuer and, when executed and authenticated in
accordance with the Current Issuer Trust Deed and the Current Issuer
Paying Agent and Agent Bank Agreement, the Notes will constitute
valid and legally binding obligations of the Current Issuer and,
upon effectiveness of the Registration Statement, the Current Issuer
Trust Deed will have been duly qualified under the Trust Indenture
Act;
(f) CONSENTS
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required for
the creation, issue and offering of the Notes or in connection with
the execution and performance of the transactions contemplated by
the Legal Agreements or the compliance by the Current Issuer with
the terms of the Notes and the Legal Agreements as the case may be,
except for (i) such consents, approvals, authorisations,
registrations or qualifications as may be required under applicable
United States state securities. Blue Sky or similar laws in
connection with the purchase and distribution of the Notes by the
Underwriters and (ii) those which will on the Closing Date be, in
full force and effect;
(g) COMPLIANCE
The authorisation of the Notes and the granting of security
interests in relation thereto under the Current Issuer Deed of
Charge, the offering and issue of the Notes on the terms and
conditions of this Agreement, the Trust Deed and the Prospectus, the
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execution and delivery of the Legal Agreements to which it is a
party and the implementation of the transactions contemplated by
such Legal Agreements and compliance with the terms of the Legal
Agreements to which it is a party do not, and will not, (i) conflict
with, or result in a breach of, any of the terms or provisions of,
or constitute a default under, the Memorandum and Articles of
Association of the Current Issuer or any agreement or instrument to
which the Current Issuer is a party or by which its properties is
bound; (ii) infringe any applicable law, rule, regulation, judgment,
order or decree of any government, governmental body or court,
having jurisdiction over the Current Issuer or any of its
properties; or (iii) result in the creation or imposition of any
mortgage, charge, pledge, lien or other security interest on any of
its properties, other than those created in, or imposed by, the
Legal Agreements themselves;
(h) FINANCIAL STATEMENTS
(i) The auditor's report by PricewaterhouseCoopers LLP, as
independent auditor to the Current Issuer, set out in the
Prospectus presents fairly the financial position of the
Current Issuer as at the date at which it has been prepared;
(ii) Since the date of each such report there has been no change
(nor any development or event involving a prospective change
of which the Current Issuer is, or might reasonably be
expected to be, aware) since the date of incorporation of the
Current Issuer which is materially adverse to the condition
(financial or other), prospects, results of operations or
general affairs of the Current Issuer; and
(iii) PricewaterhouseCoopers LLP are independent public accountants
with respect to the Current Issuer within the meaning of the
standards established by the American Institute of Certified
Public Accountants;
(i) TAXATION
Save as described in the legal opinions referred to in Clause 9(d)
of this Agreement, no stamp or other similar duty is assessable or
payable in the United Kingdom, and no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever
nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties or
taxes of any kind in connection with the authorisation, execution or
delivery of the Legal Agreements or with the authorisation, issue,
sale or delivery of the Notes and (except as disclosed in the
Prospectus) the performance of the Current Issuer's, Funding's
and/or, as the case may be, the Mortgages Trustee's obligations
under the Legal Agreements and the Notes. This warranty does not
apply to any United Kingdom corporation tax which may be levied,
collected, withheld or assessed in connection with the
authorisation, execution or delivery of the Legal Agreements or with
the authorisation, issue, sale or delivery of the Notes;
(j) BREACH OF OTHER AGREEMENTS
The Current Issuer is not in breach of or in default under any
agreement to which it is a party or which is binding on it or any of
its assets or revenues;
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(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;
(1) 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 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 VI of the FSMA
and the Prospectus complies with the listing rules made under
Section 72 of the FSMA;
(p) LITIGATION
There are no pending actions, suits or proceedings against or
affecting the Current Issuer which could individually or in the
aggregate have an adverse effect on the condition (financial or
other), prospects, results of operations or general affairs of the
Current Issuer or could adversely affect the ability of the Current
Issuer to perform its obligations under the Legal Agreements or the
Notes or which are otherwise material in the context of the issue or
offering of the Notes and, to the best of the Current Issuer's
knowledge, no such actions, suits or proceedings are threatened or
contemplated;
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15
(q) NO PRIOR SECURITY
Save as set out in any of the Legal Agreements, there exists no
mortgage, lien, pledge or other charge on or over the assets of the
Current Issuer and, other than the Legal Agreements, the Current
Issuer has not entered into any indenture or trust deed;
(r) SECURITY FOR THE NOTES
The Notes and the obligations of the Current Issuer under the
Current Issuer Trust Deed will be secured in the manner provided in
the Current Issuer Deed of Charge and with the benefit of the
charges, covenants and other security interests provided for therein
including, without limitation, (i) an assignment by way of first
fixed security of the Current Issuer's right, title, interest and
benefit in the Intercompany Loan Agreement, the Swap Agreements, the
Funding Deed of Charge (as amended by the Deeds of Accession and the
Current Deed of Accession), the Current Issuer Trust Deed, the
Notes, the Current Issuer Paying Agent and Agent Bank Agreement, the
Current Issuer Cash Management Agreement, the Current Issuer
Corporate Services Agreement, the Current Issuer Bank Account
Agreement, the Post-Enforcement Call Option Agreement, this
Agreement, the Subscription Agreement and any other of the Legal
Agreements to which the Current Issuer is a party; (ii) an
assignment by way of first fixed charge over the Current Issuer
Transaction Accounts; (iii) a first fixed 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 of the Notes in
the United States will not subject the Current Issuer to
registration under, or result in a violation of, the Investment
Company Act;
(u) UNITED STATES INCOME TAX
The Issuer will not engage in any activities in the United States
(directly or through agents), derive any income from United States
sources as determined under the U.S. Internal Revenue Code of 1986,
as amended (the "CODE"), or hold any property if doing so would
cause it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under the Code; and
(v) LEGAL AGREEMENTS
The representations 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.
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Unless otherwise indicated, the representations and warranties set
out in this Clause 5 shall be made on the date of the Prospectus
and, if different, the date of this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF FUNDING AND THE MORTGAGES TRUSTEE
Each of Funding and the Mortgages Trustee severally represents and
warrants (in respect of itself only) to, and agrees with each other, the
Underwriters, the Current Issuer, NRPLC and each of them that:
(a) THE REGISTRATION STATEMENT
Together with the Current Issuer they have prepared and filed with
the Commission the Registration Statement, including a related
preliminary prospectus dated 24 April, 2003, for registration under
the Securities Act of the offering and sale of the U.S. Notes. They
may have filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been furnished
to the Underwriters. They will next file with the Commission one of
the following either (1) prior to the Effective Date of such
Registration Statement, a further amendment to such Registration
Statement, including the form of final prospectus or (2) after the
Effective Date of such Registration Statement, a final prospectus in
accordance with 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
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17
or warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any statement thereto)
in reliance upon and in conformity with information furnished in
writing to them by or on behalf of any Underwriter through the Lead
Underwriters specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto), which
information is described in Clause 13.2;
(c) INCORPORATION, CAPACITY AND AUTHORISATION
Each is duly incorporated and validly existing under the laws of
Jersey, Channel Islands and Funding has lawfully constituted a
branch office in Great Britain in accordance with Ch. I of Part
XXIII of the Companies Act of 1985, as amended, with full power and
authority to conduct its business as described in the Prospectus, is
lawfully qualified to do business in Jersey and has full power and
capacity to execute this Agreement and the Legal Agreements to which
each is respectively a party, and to undertake and perform the
obligations expressed to be assumed by each herein and therein; and
each has taken all necessary action to approve and authorise the
same. Neither Funding nor the Mortgages Trustee has taken any
corporate action nor (to the best of its knowledge and belief) have
any other steps been taken or legal proceedings been started or
threatened against it for its winding-up, dissolution or
reorganisation or for the appointment of a receiver, administrator,
administrative receiver or similar officer of it or of any or all of
its assets or revenues;
(d) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
each of Funding and the Mortgages Trustee and constitutes, and the
other Legal Agreements to which each of Funding and/or the Mortgages
Trustee is a party have been duly authorised by, as applicable.
Funding and the Mortgages Trustee and on the Closing Date will
constitute, valid and legally binding obligations of each of Funding
and the Mortgages Trustee;
(e) CONSENTS
All consents, approvals, authorisations and other orders of all
United States, Jersey, Channel Islands and United Kingdom regulatory
authorities required in connection with the execution of and
performance by. Funding and/or the Mortgages Trustee, of the
transactions contemplated by the Legal Agreements to which Funding
and/or the Mortgages Trustee, as the case may be, is a party or the
compliance by each of them with the terms of the Legal Agreements
are, or will on the Closing Date be, in full force and effect;
(f) COMPLIANCE
The authorisation of the terms and conditions of this Agreement, the
execution and delivery of the Legal Agreements to which Funding
and/or, as the case may be, the Mortgages Trustee is party and the
implementation of the transactions contemplated by such Legal
Agreements and compliance with the terms of the Legal Agreements do
not, and will not, (i) conflict with, or result in a breach of, any
of the terms or provisions of, or constitute a default under, the
Memorandum and Articles of Association of Funding or the Mortgages
Trustee or any agreement or instrument to which Funding or the
Mortgages Trustee is a party or by which its properties is bound;
(ii) infringe any applicable law, rule, regulation, judgment, order
or decree of
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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;
(i) NO SUBSIDIARIES
The Mortgages Trustee does not have any subsidiaries or subsidiary
undertakings within the meanings of Sections 258 and 736 of the
Companies Act 1985. Funding does not have any subsidiaries or
subsidiary undertakings within the meanings of Sections 258 and 736
of the Companies Act 1985 save for the Previous Issuers and the
Current Issuer;
(j) NO ACTIVITIES
Neither Funding nor the Mortgages Trustee has engaged in any
activities since its incorporation other than (i) those incidental
to any registration as private limited companies under the laws of
Jersey and (if any) various changes to its directors, secretary,
registered office. Memorandum and Articles of Association; (ii) the
authorisation, execution and in certain cases, amendment, of the
Legal Agreements to which each is a party; (iii) the activities
referred to or contemplated in the Legal Agreements or in the
Prospectus; (iv) the activities undertaken in connection with the
establishment of the Mortgages Trust pursuant to the Mortgages Trust
Deed and the establishment of a branch in the United Kingdom; (v)
the filing of a notification by the Mortgages Trustee and Funding
under the Data Protection Act 1998 (the "DPA") and the application
for a standard licence under the Consumer Credit 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. The first statutory accounts of Funding were
prepared and drawn up from the date of incorporation to 31 December,
2001. The Mortgages Trustee has not (other than as set out in the
Prospectus) prepared any accounts. Neither Funding nor the Mortgages
Trustee has paid any dividends nor made any distributions since
their respective dates of incorporation;
(k) BENEFICIAL OWNER
As of 14 April, 2003, following (i) the completion of the assignment
of the Additional Assigned Mortgage Portfolio to the Mortgages
Trustee pursuant to or in accordance with the Mortgage Sale
Agreement and (ii) the declaration of trust over
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the Additional Assigned Mortgage Portfolio by the Mortgages Trustee
pursuant to and in accordance with the terms of the Mortgages Trust
Deed, the Mortgages Trustee has held the Additional Assigned
Mortgage Portfolio, and has held and will continue to hold, the
Mortgage Portfolio on a bare trust for the benefit of Funding and
NRPLC in undivided shares absolutely;
(l) LITIGATION
There are no pending actions, suits or proceedings against or
affecting Funding or the Mortgages Trustee which could individually
or in the aggregate have an adverse effect on the condition
(financial or otherwise), prospects, results of operations or
general affairs of the Mortgages Trustee or Funding (as the case may
be) or could adversely affect the ability of the Mortgages Trustee
or Funding (as the case may be) to perform their respective
obligations under the Legal Agreements, or which are otherwise
material in the context of the transaction contemplated by the
Prospectus and, to the best of the knowledge of Funding and the
Mortgages Trustee, no such actions, suits or proceedings are
threatened or contemplated;
(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, each Start-Up Loan Agreement, the
Funding Guaranteed Investment Contract, the Funding Corporate
Services Agreement, the Funding Cash Management Agreement, the Bank
Account Agreement and any other of the Legal Agreements to which
Funding is a party, save to the extent that the same are situated in
Jersey; (iii) an assignment by way of first fixed security over
Funding's right, title, interest and benefit in the Funding Bank
Accounts; (iv) a first fixed charge (which may take effect as a
floating charge) of Funding's right, title, interest and benefit in
all Authorised Investments purchased with moneys standing to the
credit of the Funding Bank Accounts; and (v) a first floating charge
over all the assets and the undertaking of Funding which are not
effectively subject to a fixed charge or assignment by way of
security;
(o) CAPITALISATION
The authorised capital of each of Funding and the Mortgages Trustee
is as set out in the Prospectus;
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(p) INVESTMENT COMPANY ACT
Neither Funding nor the Mortgages Trustee is an "investment company"
as defined in the Investment Company Act, and the offer and sale of
the Notes in the United States will not subject Funding or the
Mortgages Trustee to registration under, or result in a violation
of, the Investment Company Act;
(q) UNITED STATES INCOME TAX
Neither Funding nor the Mortgages Trustee will engage in any
activities in the United States (directly or through agents), derive
any income from United States sources as determined under the Code,
or hold any property if doing so would cause it to be engaged or
deemed to be engaged in a trade or business within the United States
as determined under the Code;
(r) FINANCIAL STATEMENTS
(i) The auditor's report by PricewaterhouseCoopers LLP, as
independent auditor to Funding, set out in the Prospectus
presents fairly the financial position of Funding as at the
date at which it has been prepared;
(ii) since the date of each such report there has been no change
(nor any development or event involving a prospective change
of which Funding is or might reasonably be expected to be
aware) which is materially adverse to the condition (financial
or other), prospects, results of operations or general affairs
of Funding; and
(iii) PricewaterhouseCoopers LLP are independent public accountants
with respect to Funding within the meaning of the standards
established by the American Institute of Certified Public
Accountants; and
(s) LEGAL AGREEMENTS
The representations given by Funding and the Mortgages Trustee in
the Legal Agreements are true and accurate, and the description of
the Legal Agreements as set out in the Prospectus is materially
complete and accurate.
Unless otherwise indicated, the representations and warranties set
out in this Clause 6 shall be made on the date of the Prospectus
and, if different, the date of this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF NRPLC
NRPLC represents and warrants to, and agrees with, the Current Issuer,
Funding, the Mortgages Trustee, the Underwriters and each of them that:
(a) INCORPORATION
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
authority to conduct its business as described in the Prospectus, to
execute this Agreement and the Legal Agreements to which it is a
party and to undertake and perform the obligations expressed to be
assumed by it herein and therein and has taken all necessary action
to approve and authorise the same and is lawfully qualified to do
business in England and Wales; and NRPLC has not taken any corporate
action nor (to the best of its knowledge and belief) have any other
steps been taken or legal proceedings been started or threatened
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against it for its winding-up, dissolution or reorganisation or for
the appointment of a receiver, administrator, administrative
receiver or similar officer of it or of any or all of its assets or
revenues; and it is not in liquidation;
(b) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
NRPLC and constitutes, and the other Legal Agreements to which NRPLC
is a party will be duly authorised by NRPLC prior to the Closing
Date and on the Closing Date will constitute, valid and legally
binding obligations of NRPLC;
(c) RELATED SECURITY
NRPLC has not received notice of, and no solicitor employed in the
NRPLC Solicitors' Department is actually aware of, any material
litigation or claim, of any pending material litigation or claim,
calling into question NRPLC's title to any Related Security or the
value of any security therefor or its right to assign any such
Related Security to the Mortgages Trustee;
(d) CONSENTS
All consents, approvals and authorisations of all United Kingdom
regulatory authorities required on the part of NRPLC for or in
connection with the execution and performance of the transactions
contemplated by the Legal Agreements to which NRPLC is a party have
been, or will be prior to the Closing Date be, obtained and are, or
will prior to the Closing Date be, in full force and effect
including, without limiting the generality of the foregoing, NRPLC
having received a standard licence under the Consumer Credit Act
1974 and NRPLC being registered under the DPA;
(e) COMPLIANCE
The sale on 14 April, 2003 of the Additional Assigned Mortgage
Portfolio and the related property and rights did not and will not,
and the execution and delivery of the Legal Agreements to which
NRPLC is a party, the implementation of the transactions
contemplated by such Legal Agreements and compliance with the terms
of such Legal Agreements do not and will not (i) conflict with, or
result in a breach of, any of the terms or provisions of, or
constitute a default under, the Memorandum and Articles of
Association of NRPLC, or any agreement or instrument to which NRPLC
is a party or by which it or any of its properties is bound, where
such breach or default might have a material adverse effect in the
context of the issue of the Notes; or (ii) infringe any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental body or court having jurisdiction over
NRPLC or any of its properties; or (iii) result in the creation or
imposition of any mortgage, charge, pledge, lien or other security
interest on any of its properties, other than those created in, or
imposed by, the Legal Agreements themselves;
(f) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Securities Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective
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22
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 14 April, 2003, following (i) the completion of the assignment
of the Additional Assigned 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 Assigned Mortgage Portfolio by the Mortgages
Trustee pursuant to and in accordance with the terms of the
Mortgages Trust Deed, the Mortgages Trustee has held the Additional
Assigned Mortgage Portfolio and has held and will continue to hold
the Mortgage Portfolio on a bare trust for the benefit of Funding
and NRPLC in undivided shares absolutely;
(h) LITIGATION
It is not a party to, and no solicitor in NRPLC's Solicitors'
Department is actually aware of, any actions, suits or proceedings
in relation to claims or amounts which could, if determined
adversely to NRPLC, materially adversely affect NRPLC's ability to
perform its obligations under the Legal Agreements; and
(i) MORTGAGE SALE AGREEMENT AND MORTGAGES TRUST DEED
The representations and warranties given by NRPLC in the Mortgage
Sale Agreement are true and accurate in all material respects as
when stated to be made and the representations and warranties given
by NRPLC in the Mortgages Trust Deed are true and accurate in all
material respects as when stated to be made.
Unless otherwise indicated, the representations and warranties set out in
this Clause 7 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
8. COVENANTS OF THE CURRENT ISSUER, FUNDING, THE MORTGAGES TRUSTEE AND NRPLC
8.1 The Current Issuer and, where expressly provided. Funding, the Mortgages
Trustee and NRPLC severally covenants to, and agrees each for itself with,
the Underwriters and each of them that:
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(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
(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
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24
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(0), 6(r), 7(a) and
7(f) shall be deemed to be repeated by, as applicable, the Current
Issuer, Funding, the Mortgages Trustee and NRPLC as of the date of
each such amended Prospectus or supplement to the Prospectus on the
basis that each reference to "PROSPECTUS" in such provisions of
Clauses 5, 6 and 7 shall be deemed to be a reference to the
Prospectus as amended or supplemented as at such date;
(d) NOTIFY CHANGE
Without prejudice to its obligations under Clause 8.1(c), the
Current Issuer will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time prior to
payment of the gross underwriting proceeds for the Notes being made
to the Current Issuer on the Closing Date and will take such steps
as may be reasonably requested by the Lead Underwriters to remedy
and/or publicise the same;
(e) OFFICIAL ANNOUNCEMENTS
Between the date of this Agreement and the Closing Date (both dates
inclusive) none of NRPLC, the Current Issuer, Funding or the
Mortgages Trustee will, without the prior approval of the Lead
Underwriters on behalf of the Underwriters (such approval not to be
unreasonably withheld or delayed), make any official announcement
which would have an adverse effect on the marketability of the
Notes;
(f) STAMP DUTY
(i) The Current Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties that it is required to pay under 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
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(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;
(h) PAYMENT OF FEES, CHARGES, COSTS AND DUTIES
(i) Without prejudice to the generality of Clause 12.1, the
Current Issuer will pay all and any fees, charges, costs and
duties and any stamp and other similar taxes or duties that it
is required to pay under the Legal Agreements to which it is a
party, including interest and penalties, arising from or in
connection with the creation of the security for the Notes and
the obligations of the Current Issuer under the Current Issuer
Trust Deed and for the other amounts to be secured as
contemplated by the Current Issuer Deed of Charge, and the
perfection of such security at any time;
(ii) Without prejudice to the generality of Clause 12.1, Funding
will pay all and * any fees, charges, costs and duties and any
stamp and other similar taxes or duties that it is required to
pay under the Legal Agreements to which it is a party,
including interest and penalties, arising from or in
connection with the creation of the security for the
Intercompany Loan and for the other amounts to be secured as
contemplated by the Funding Deed of Charge the Deeds of
Accession and the Current Deed of Accession and the perfection
of such security at any time; and
(iii) Without prejudice to the generality of Clause 12.1, the
Mortgages Trustee will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or duties
that it is required to pay under the Legal Agreements to which
it is a party, including interest and penalties, arising from
or in connection with the purchase of the Related Security
(and related property and rights) excluding H.M. Land Registry
fees (it being agreed that registration or recording at H.M.
Land Registry of the transfer of the Related Security to the
Mortgages Trustee will not be applied for except in the
circumstances specified in the Administration Agreement); but
on the basis that the Mortgages Trustee will be reimbursed
such fees, charges, costs and duties and any stamp and other
similar taxes or duties (including interest and
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26
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 ofNRPLC, the Current Issuer,
Funding and the Mortgages Trustee will do all things reasonably
within each of their respective powers and required of each of them
on such date under the terms of the Legal Agreements to which each
is a party;
(j) REVIEW OF RELATED SECURITY
NRPLC will deliver to the Lead Underwriters on or around the date of
this Agreement a letter addressed to the Underwriters or their
affiliates (relating to the review by PricewaterhouseCoopers LLP of
the Related Security and referred to in the Signing and Closing
Memorandum as the Auditors' pool audit report letter) dated on or
around the date of this Agreement in the agreed form addressed to
NRPLC and the Underwriters from PricewaterhouseCoopers LLP;
(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;
(1) 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 a AAA rating
for the Series 1 Class Al Notes, the Series 1 Class A2 Notes and the
Series 1 Class A3 Notes, an AA rating for the Series 1 Class B Notes
and a BBB rating for the Series 1 Class C Notes, the Series 2 Class
Cl Notes and the Series 3 Class C Notes by Fitch Ratings Ltd.
("FITCH RATINGS"), a Aaa rating for the Series 1 Class Al Notes, the
Series 1 Class A2 Notes and the Series 1 Class A3 Notes, an Aa3
rating for the Series 1 Class B Notes and a Baa2 rating for the
Series 1 Class C Notes, the Series 2 Class Cl Notes and the Series 3
Class C Notes by Xxxxx'x Investors Service ("MOODY'S") and an AAA
rating for the Series 1 Class Al Notes, the Series 1
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Class A2 Notes and the Series 1 Class A3 Notes, an AA rating for the
Series 1 Class B Notes and a BBB rating for the Series 1 Class C
Notes, the Series 2 Class Cl Notes and the Series 3 Class C Notes by
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
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 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
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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 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 U.S. 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 U.S. Notes, and to
file such statements arid reports as may be required by the laws of
each jurisdiction in which the U.S. 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 U.S. Notes in such jurisdiction or to
register as a dealer in securities or to become subject to taxation
in any jurisdiction.
8.2 NRPLC covenants to and agrees with the Underwriters and each of them that:
(a) NOTIFY CHANGE
NRPLC will notify the Underwriters promptly of any change affecting
any of its representations, warranties, covenants, agreements or
indemnities in this Agreement at any time prior to payment of the
gross underwriting proceeds of the Notes being made to the Current
Issuer on the Closing Date and will take such steps as may be
reasonably requested by the Lead Underwriters to remedy and/or
publicise the same. hi 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
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29
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 a AAA
rating for the Series 1 Class Al Notes, the Series 1 Class A2 Notes
and the Series 1 Class A3 Notes, an AA rating for the Series 1 Class
B Notes and a BBB rating for the Series 1 Class C Notes, the Series
2 Class Cl Notes and the Series 3 Class C Notes by Fitch Ratings, a
Aaa rating for the Series 1 Class Al Notes, the Series 1 Class A2
Notes and the Series 1 Class A3 Notes, an Aa3 rating for the Series
1 Class B Notes and a Baa2 rating for the Series 1 Class C Notes,
the Series 2 Class Cl Notes and the Series 3 Class C Notes by
Xxxxx'x and an AAA rating for the Series 1 Class Al Notes, the
Series 1 Class A2 Notes and the Series 1 Class A3 Notes, an AA
rating for the Series 1 Class B Notes and a BBB rating for the
Series 1 Class C Notes, the Series 2 Class Cl Notes and the Series 3
Class C Notes by Standard & Poor's; and
(d) LEGAL AGREEMENTS
Prior to closing on the Closing Date NRPLC will not amend the terms
of any of the already executed Legal Agreements, nor execute any of
the other Legal Agreements other than in the agreed form, without
the consent of the Lead Underwriters (such consent not to be
unreasonably withheld or delayed).
9. CONDITIONS PRECEDENT
9.1 The obligation of the Underwriters under this Agreement to subscribe for
the U.S. 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
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(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 U.S.
Notes on or prior to the Closing Date;
(c) ADMISSION TO TRADING
The U.S. Notes having been admitted to the Official List maintained
by UK Listing Authority and the Stock Exchange having agreed to
admission of the U.S. Notes to trading on or about the Closing Date;
(d) LEGAL OPINIONS
On or prior to the Closing Date, there having been delivered to the
Current Issuer, the Underwriters, the Note Trustee and the Security
Trustee copies of opinions and disclosure letters, in form and
substance satisfactory to the Lead Underwriters, the Note Trustee,
the Security Trustee and the Rating Agencies, dated the Closing
Date, of:
(i) Xxxxxx Xxxxxx Xxxxx & Xxxx, 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) Alien & Overy, legal advisers as to US law to the Underwriters
and the Managers, addressed to the Underwriters;
(iv) Counsel for the Series 3 Class A Interest Rate Swap Provider;
and
(v) Counsel for each of the Currency Rate Swap Providers;
(e) AUDITORS' LETTERS
(A) On or around the date of this Agreement, there having been
addressed and delivered to the Underwriters letters, in form
and substance satisfactory to the Lead Underwriters, dated on
or around the date of this Agreement, from
PricewaterhouseCoopers LLP, the independent auditors of the
Current Issuer and Funding; and
(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 pie mortgage
files (with no material exceptions to the results stated
therein) from PricewaterhouseCoopers LLP;
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(f) CERTIFIED CONSTITUTIONAL DOCUMENTS
On or prior to the Closing Date, there having been delivered to the
Lead Underwriters on behalf of the Underwriters a copy, certified by
a duly authorised director or the company secretary of, as
applicable, the Current Issuer, Funding and the Mortgages Trustee
of: (i) the Memorandum and Articles of Association of each of the
Current Issuer, Funding and the Mortgages Trustee; (ii) the
resolution of the Board of Directors of each of the Current Issuer,
Funding and the Mortgages Trustee authorising the execution of this
Agreement and the other Legal Agreements and the entry into and
performance of the transactions contemplated thereby; and (iii) in
respect of the Current Issuer, the issue of the Notes and the entry
into and performance of the transactions contemplated thereby;
(g) ACCURACY OF REPRESENTATIONS
At the Closing Date: (i) the representations and warranties of the
Current Issuer, Funding, the Mortgages Trustee and NRPLC in this
Agreement being true, accurate and correct at, and as if made on,
the Closing Date and the Current Issuer, Funding, the Mortgages
Trustee and NRPLC having performed all of their obligations in the
Legal Agreements to be performed on or before the Closing Date; and
(ii) there having been delivered to the Underwriters a certificate
to that effect signed by a duly authorised officer of, as
applicable, the Current Issuer, Funding, the Mortgages Trustee and
NRPLC, dated the Closing Date and confirming that, since the date of
this Agreement, there has been no adverse change, nor any
development involving a prospective adverse change, in or affecting
the operations, properties, financial condition or prospects of the
Current Issuer, Funding, the Mortgages Trustee or NRPLC which is
material in the context of the issue of the Notes;
(h) CIRCUMSTANCES FOR TERMINATION
On or prior to the Closing Date, in the opinion of the Lead
Underwriters (after consultation with NRPLC, if practicable), none
of the circumstances described in Clause 14.1 (c) or 14.1 (d) having
arisen;
(i) RATINGS
Receipt of notification from Fitch Ratings, Xxxxx'x 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
U.S. Notes hereunder;
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(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;
(1) SOLVENCY CERTIFICATES
(i) The Current Issuer having furnished or caused to be famished
to the Underwriters and the Note Trustee at the Closing Date a
solvency certificate, dated the Closing Date, of a duly
authorised director of the Current Issuer in the agreed form;
(ii) Funding having famished or caused to be famished 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 famished or caused to be famished
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 famished or caused to be famished 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 14 April, 2003 and related rights to
be acquired from NRPLC pursuant thereto having been taken.
9.2 Prior to the Closing Date, there shall be famished to the Lead
Underwriters such farther information, certificates, opinions and
documents as the Lead Underwriters may reasonably request.
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9.3 IF any of the conditions specified in this Clause 9 have not been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be reasonably satisfactory in all material
respects in form and substance to the Lead Underwriters, this Agreement
and all obligations of the Underwriters hereunder may be cancelled
(provided, however, that the liability of the Current Issuer in relation
to expenses as provided under, or under any arrangements referred to in.
Clause 12 and any liability arising before or in relation to such
termination shall not be cancelled) at, or at any time prior to, the
Closing Date by the Lead Underwriters. Notice of such cancellation shall
be given to the Current Issuer in writing or by telephone or facsimile
confirmed in writing.
9.4 The Lead Underwriters, on behalf of the Underwriters, may, in their
discretion, waive compliance with the whole or any part of this Clause 9.
10. CLOSING
10.1 ISSUE OF U.S. 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 Al Notes, Series 1 Class A2 Notes, Series 1 Class A3 Notes, Series 1
Class B Notes, 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
(b) Deliver the Global Note Certificate for each of the Series 1 Class Al
Notes, Series 1 Class A2 Notes, Series 1 Class A3 Notes, Series 1 Class B
Notes 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 and deliver to the
Underwriters, or to their order, the Series 2 Class Cl Global Note
Certificate and the Series 3 Class C Global Note Certificate, to be held
pursuant to the Paying Agent and Agent Bank Agreement.
10.2 PAYMENT
Against delivery of the U.S. Notes (i) the Underwriters will pay to the
Lead Underwriters the gross underwriting proceeds for the U.S. Notes and
(ii) the Lead Underwriters will pay proceeds to the Current Issuer or to a
third party, as directed by the Current Issuer, the gross underwriting
proceeds for the U.S. Notes. Payment for the Dollar Notes shall be made by
the Lead Underwriters in Dollars, payment for the Series 2 Class C 1 Notes
shall be made by the Lead Underwriters in Euro and payment for the Series
3 Class C Notes shall be made by the Lead Underwriters in Sterling in
immediately available funds to the accounts of the Current Issuer, in
respect of the Dollar Notes account number 00000000, sort code 18-50-08,
in respect of the Euro Notes account number 00000000, sort code 18-50-08,
and in respect of the Sterling Notes 10135518, sort code 18-50-08, or such
other accounts as the Current Issuer may direct, and shall be evidenced by
a confirmation from the Lead Underwriters that they have so made that
payment to the Current Issuer.
10.3 GROSS UNDERWRITING PROCEEDS
The Current Issuer undertakes that on the Closing Date it will apply the
gross underwriting proceeds for the Notes forthwith in making a loan to
Funding pursuant to the terms of the Intercompany Loan Agreement. Funding
undertakes that it will apply the proceeds of the
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Intercompany Loan to make payment to the Mortgages Trustee or at the
Mortgages Trustee's direction of the purchase price of a portion of
Funding's beneficial share of the Additional Assigned Mortgage Portfolio
and related rights pursuant to the Mortgage Sale Agreement.
11. COMMISSIONS
11.1 In consideration of the obligations undertaken herein by the Underwriters,
the Current Issuer agrees to pay to the Underwriters a selling commission
(the "SELLING COMMISSION") of 0.0500 per cent. of the aggregate principal
amount of the Series 1 Class Al Notes, 0.1000 per cent. of the aggregate
principal amount of the Series 1 Class A2 Notes, 0.1200 per cent. of the
aggregate principal amount of the Series 1 Class A3 Notes, 0.1500 per
cent. of the aggregate principal amount of the Series 1 Class B Notes,
0.300 per cent. of the aggregate principal amount of the Series 1 Class C
Notes, 0.3200 per cent. of the aggregate principal amount of the Series 2
Class Cl Notes and 0.3000 per cent. of the aggregate principal amount of
the Series 3 Class C Notes, respectively, and a combined management and
underwriting commission (the "MANAGEMENT AND UNDERWRITING COMMISSION") of
0.0300 per cent. of the aggregate principal amount of the Series 1 Class
Al Notes, 0.0500 per cent. of the aggregate principal amount of the Series
1 Class A2 Notes, 0.0675 per cent. of the aggregate principal amount of
the Series 1 Class A3 Notes, 0.0875 per cent. of the aggregate principal
amount of the Series 1 Class B Notes, 0.1250 per cent. of the aggregate
principal amount of the Series 1 Class C Notes, 0.1550 per cent. of the
aggregate principal amount of the Series 2 Class Cl Notes and 0.1250 per
cent. of the aggregate principal amount of the Series 3 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.
12. EXPENSES
12.1 General Expenses
The Current Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Current
Issuer, any amount in respect of value added tax or similar tax payable in
respect thereof against production of a valid tax invoice and (ii) in
respect of taxable supplies made to a person other than the Current
Issuer, any amount in respect of Irrecoverable VAT (for the purposes of
this Agreement "IRREVOCABLE VAT" means any amount in respect of VAT
incurred by a party to the Transaction Documents (for the purposes of this
definition, a "RELEVANT PARTY") as part of a payment in respect of which
it is entitled to be indemnified under the relevant Transaction Documents
to the extent that the Relevant Party does not or will not receive and
retain a credit or repayment of such VAT as input tax (as that expression
is defined in section 24(1) of the Value Added Tax Act 1994) for the
prescribed accounting period (as that expression is used in section 25(1)
of the Value Added Tax Act 1994) to which such input tax relates) or
similar tax payable in respect thereof against production of a valid tax
invoice): (a) the fees, disbursements and expenses of the Current Issuer's
legal advisers and accountants and all other expenses of the Current
Issuer in connection with the issue (including without limitation any
filing fees payable to the Commission in connection with the registration
of the U.S. Notes under the Securities Act and any fees payable in
connection with the qualification of the U.S. 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 U.S.
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
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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, Xxxxx'x 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.
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 U.S. 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
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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 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
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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. For purposes of this Clause 13, the Current Issuer,
Funding, the Mortgages Trustee and NRPLC acknowledge that the statements
set forth under the heading "Underwriting" that specify, (i) the list of
Underwriters and their respective participation in the sale of the U.S.
Notes, (ii) the sentences related to concessions and reallowances and
(iii) the paragraph related to short sales, stabilisation, short covering
transactions and penalty bids in any preliminary prospectus and the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any preliminary
prospectus or the Prospectus.
13.3 PROCEEDINGS
Promptly after receipt by an indemnified party under this Clause 13 of
notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Clause 13, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under Clause 13.1 or 13.2 above
unless and to the extent it did not otherwise leam 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
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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 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 U.S. 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
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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 1 l(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Clause 13, each
person who controls an Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee
and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Current Issuer,
Funding, the Mortgages Trustee or NRPLC within the meaning of either the
Securities Act or the Exchange Act, each officer of the Current Issuer who
shall have signed the Registration Statement, each employee and each
director of the Current Issuer, Funding, the Mortgages Trustee or NRPLC
shall have the same rights to contribution as the Current Issuer, Funding,
the Mortgages Trustee or NRPLC, as the case may be. Subject in each case
to the applicable terms and conditions of this Clause 13.4.
Notwithstanding the foregoing, in no case shall the Underwriter (except as
may be provided in any agreement among Underwriters relating to the
offering of the Notes) be responsible for any amount in excess of the
Selling Commission or Management and Underwriting Commission applicable to
the Notes purchased by such Underwriter hereunder.
14. TERMINATION
14,1 LEAD UNDERWRITERS' ABILITY TO TERMINATE
Notwithstanding any other provision of this Agreement, the Lead
Underwriters on behalf of the Underwriters may, by notice to the Current
Issuer given at any time prior to payment of the gross underwriting
proceeds for the U.S. 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 NRPLG'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 U.S. Notes in the manner
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40
contemplated in this Agreement or (ii) to a material extent prevent
or restrict settlement of transactions in the U.S. Notes in the
market or otherwise; or
(d) if in the opinion of the Lead Underwriters, there shall have been
(i) any change in national or international political, legal, tax or
regulatory conditions or (ii) any calamity or emergency, which has
in its view caused a substantial deterioration in the price and/or
value of the U.S. Notes; or
(e) upon termination of the Subscription Agreement; or
(f) if (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the London Stock Exchange or
the over-the-counter market shall have been suspended or minimum
prices shall have been established on such exchanges or such market;
(ii) a banking moratorium shall have been declared by US federal or
New York State or UK regulatory authorities; (iii) there shall have
occurred any change or any development involving a prospective
change, in or affecting particularly the business or properties of
the Current Issuer, Funding, the Mortgages Trustee or NRPLC, which,
in the judgement of the Lead Underwriters materially impairs the
investment quality of the U.S. Notes or makes it impracticable or
inadvisable to market the U.S. Notes or (iv) if in the judgement of
the Lead Underwriters, it otherwise becomes impracticable or
inadvisable to proceed with the offering of the U.S. 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 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 U.S.
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 U.S.
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
U.S. Notes in any jurisdiction or in respect of the U.S. 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;
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(i) if to the Current Issuer,
Fifth Floor
000 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: The Company Secretary
Xxxxxxxxx: x00 (0) 000 000 0000
With a copy to:
Northern Rock House
Gosforth
Newcastle upon Tyne
NE3 4PL
Attention: Securitisation, Risk Operations
Facsimile: x00 (0) 000 000 0000
(ii) if to NRPLC,
Northern Rock House
Gosforth
Newcastle upon Tyne
NE3 4PL
Attention: Securitisation, Risk Operations
Facsimile: x00 (0) 000 000 0000
(iii) if to the Underwriters,
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Attention: Head of Mortgage Securitization Group
Facsimile: x0 000 000 0000
and
c/o Men-ill Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Inc.
4 World Financial Center
New York,
New York 10080
Attention: Structured Finance
Facsimile: x0000 000 0000
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(iv) if to Funding,
0 Xxxxx Xxxx Xxxxx
Xxxxxx XX0X 0XX
Attention: The Company Secretary
Xxxxxxxxx: x00 (0) 000 000 0000
(v) if to the Mortgages Trustee,
00 Xxxxxxxxx Xxxxxx
Xx. Xxxxxx, Xxxxxx XX0 0XX
Attention: The Company Secretary
Xxxxxxxxx: x00 (0) 0000 000 000
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, 0 Xxxxx
Xxxx Xxxxx, Xxxxxx XX0X 0XX, or otherwise at the registered office of
Mourant & Co. Capital (SPV) Limited, attn: The Company Secretary. If such
person is not or ceases to be effectively appointed to accept service of
process on the Mortgages Trustee's behalf the Mortgages Trustee shall, on
the written demand of the Lead Underwriters, appoint a further person in
England to accept service of process on its behalf and, failing such
appointment within 15 days, the Lead Underwriters shall be entitled to
appoint such a person by written notice to the Mortgages Trustee. Nothing
in this sub-clause shall affect the right of the Lead Underwriters to
serve process in any other manner permitted by law.
16.4 Funding agrees that the process by which any proceedings in England are
begun may be secured on it by being delivered to Granite Finance Funding
Limited c/o Mourant & Co. Capital (SPV) Limited, 0 Xxxxx Xxxx Xxxxx,
Xxxxxx XX0X 0XX, or otherwise at the registered office of Mourant & Co.
Capital (SPV) Limited, attn: The Company Secretary. If such person is not
or ceases to be effectively appointed to accept service of process on
Funding's behalf Funding shall, on the written demand of the Lead
Underwriters, appoint a farther person in England to accept service of
process on its behalf and, failing such appointment within 15 days, the
Lead Underwriters shall be entitled to appoint such a person by written
notice to Funding. Nothing in this sub-clause shall affect the right of
the Lead Underwriters to serve process in any other manner permitted by
law.
17. TIME
Time shall be of the essence of this Agreement.
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18. NON PETITION AND LIMITED RECOURSE
Each of the Underwriters agrees with the Current Issuer, Funding and the
Mortgages Trustee, that it shall not, until the expiry of one year and one
day after the payment of all sums outstanding and owing under the Notes
(in respect of the Current Issuer) and until the expiry of one year and
one day after the payment of all sums outstanding and owing under any
intercompany loan made to Funding by the Current Issuer or any other
company (in respect of the Mortgages Trustee and Funding) take any
corporate action or other steps or legal proceedings for the winding-up,
dissolution, arrangement, reconstruction or re-organisation or for the
appointment of a liquidator, receiver, manager, administrator,
administrative receiver or similar officer of the Current Issuer, the
Mortgages Trustee or Funding or any, or all of, their respective assets or
revenues.
To the extent permitted by law, no recourse under any obligation, covenant
or agreement of any person contained in this Agreement shall be had
against any shareholder, officer or director of the Current Issuer,
Funding or the Mortgages Trustee, by the enforcement of any assessment or
by any legal proceedings, by virtue of any statute or otherwise; it being
expressly agreed and understood that this Agreement is a corporate
obligation of each of the Current Issuer, Funding and the Mortgages
Trustee expressed to be a party hereto and no personal liability shall
attach to or be incurred by the shareholders, officers, agents or
directors of such person as such, or any of them, under or by reason of
any of the obligations, covenants or agreements of the Current Issuer,
Funding or the Mortgages Trustee contained in this Agreement, or implied
therefrom, and that any and all personal liability for breaches by such
person of any such obligations, covenants or agreements, either under any
applicable law or by statute or constitution, of every such shareholder,
officer, agent or director is hereby expressly waived by each person
expressed to be a party hereto as a condition of and consideration for the
execution of this Agreement.
19. GOVERNING LAW AND JURISDICTION
19.1 GOVERNING LAW
This Agreement shall be governed by, and shall be construed in accordance
with, the laws of New York.
19.2 JURISDICTION
Each of the parties hereto irrevocably agrees that, except as otherwise
set forth in this paragraph, any state or federal court sitting in the
City of New York shall have exclusive jurisdiction to hear and determine
any suit, action or proceeding and to settle any dispute arising out of or
relating to this Agreement and, for such purposes, irrevocably submits to
the jurisdiction of such courts. Each of the Mortgages Trustee, Funding,
the Current Issuer and NRPLC hereby appoints the CT Corporation System at
000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or, if otherwise, its principal
place of business in the City of New York from time to time, as its agent
for service of process and agrees that service of any process, summons,
notice or document by hand delivery or registered mail upon such agent
shall be effective service of process for any suit, action or proceeding
brought in any such court. Each of the Mortgages Trustee, Funding, the
Current Issuer and NRPLC irrevocably and unconditionally waives any
objection to the laying of venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or
proceeding has been brought in an inconvenient forum. Each of the
Mortgages Trustee, Funding, the Current Issuer and NRPLC agrees that a
final judgment in any such suit, action or proceeding brought in any such
court shall be conclusive and binding upon each of the Mortgages Trustee,
Funding, the Current
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44
Issuer and NRPLC and may be enforced in any other court to whose
jurisdiction each of the Mortgages Trustee, Funding, the Current Issuer
and NRPLC is or may in the future be subject, by suit upon judgment. Each
of the Mortgages Trustee, Funding, the Current Issuer and NRPLC further
agrees that nothing herein shall affect the Underwriters' right to effect
service of process in any other manner permitted by law or to bring a
suit, action or proceeding (including a proceeding for enforcement of a
judgement) in any other court or jurisdiction in accordance with
applicable law.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually or
by facsimile) all of which, taken together, shall constitute one and the
same agreement and any party may enter into this Agreement by executing a
counterpart.
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IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
GRANITE MORTGAGES 03-2 PLC
By:
NORTHERN ROCK PLC
By:
GRANITE FINANCE FUNDING LIMITED
By:
GRANITE FINANCE TRUSTEES LIMITED
By:
XXXXXX BROTHERS INC.
By:
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INC.
By:
CITIGROUP CAPITAL MARKETS INC.
X.X. XXXXXX SECURITIES INC.
UBS WARBURG LLC
By:
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SCHEDULE
PRINCIPAL AMOUNT
OF SERIES 1 OF SERIES 1 OF SERIES 1 OF SERIES 1 OF SERIES 1
UNDERWRITERS CLASS A1 NOTES CLASS A2 NOTES CLASS A3 NOTES CLASS B NOTES CLASS C NOTES
Xxxxxx Brothers Inc. $583,350,000 $471,350,000 $234,250,000 $38,250,000 $5,250,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $583,350,000 $471,350,000 $234,250,000 $38,250,000 $5,250,000
Citigroup Capital Markets Inc. $26,100,000 $21,100,000 $10,500,000 -- --
X.X. Xxxxxx Securities Inc. $26,100,000 $21,100,000 $10,500,000 -- --
UBS Warburg LLC $26,100,000 $21,100,000 $10,500,000 -- --
-------------- -------------- -------------- ------------- -------------
TOTAL $1,245,000,000 $1,006,000,000 $500,000,000 $76,500,000 $10,500,000
============== ============== ============== ============= =============
PRINCIPAL AMOUNT
OF SERIES 2 OF SERIES 3
UNDERWRITERS CLASS C1 NOTES CLASS C NOTES
Xxxxxx Brothers Inc. [e]8,000,000 [GBP]7,500,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated [e]8,000,000 [GBP]7,500,000
Citigroup Capital Markets Inc. -- --
X.X. Xxxxxx Securities Inc. -- --
UBS Warburg LLC -- --
-------------- ---------------
TOTAL [E]16,000,000 [GBP]15,000,000
============== ===============
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