Exhibit 1.1
EXECUTION COPY
UNDERWRITING AGREEMENT
dated September 15, 2006
GRANITE MASTER ISSUER PLC
and
NORTHERN ROCK PLC
and
GRANITE FINANCE FUNDING 2 LIMITED
and
GRANITE FINANCE TRUSTEES LIMITED
and
CITIGROUP GLOBAL MARKETS LIMITED
and
XXXXXX BROTHERS INC.
and
UBS SECURITIES LLC
and
BARCLAYS CAPITAL INC.
and
X.X. XXXXXX SECURITIES INC.
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
relating to GRANITE MASTER ISSUER PLC
U.S. $1,000,000,000 Series 2006-3 Class A1 Notes due December 2030
U.S. $1,800,000,000 Series 2006-3 Class A3 Notes due December 2054
U.S. $1,000,000,000 Series 2006-3 Class A4 Notes due December 2054
U.S. $1,750,000,000 Series 2006-3 Class A7 Notes due December 2054
U.S. $70,000,000 Series 2006-3 Class B1 Notes due December 2054
U.S. $182,000,000 Series 2006-3 Class B2 Notes due December 2054
U.S. $90,000,000 Series 2006-3 Class M1 Notes due December 2054
U.S. $100,000,000 Series 2006-3 Class M2 Notes due December 2054
U.S. $60,000,000 Series 2006-3 Class C2 Notes due December 0000
XXXXXX XXXXXX
WOOLGATE EXCHANGE
00 XXXXXXXXXX XXXXXX
XXXXXX, XX0X 0XX
TELEPHONE 000 0000 0000
FACSIMILE 020 7626 7937
REF:30507-30140
CONTENTS
Clause Page
1. Agreement to Issue and Subscribe......................................................5
2. Stabilization.........................................................................8
3. Agreements by the Underwriters........................................................9
4. Listing..............................................................................16
5. Representations and Warranties of the Master Issuer..................................17
6. Representations and Warranties of Funding 2 and the Mortgages Trustee................22
7. Representations and Warranties of NRPLC..............................................28
8. Covenants of the Master Issuer, Funding 2, the Mortgages Trustee and NRPLC...........31
9. Conditions Precedent.................................................................40
10. Expenses.............................................................................44
11. Indemnification......................................................................45
12. Termination..........................................................................49
13. Survival of Representations and Obligations..........................................50
14. Notices..............................................................................50
15. Time.................................................................................52
16. Non Petition and Limited Recourse....................................................52
17. Governing Law and Jurisdiction.......................................................53
18. Counterparts.........................................................................53
19. Authority of the Lead Underwriters...................................................53
20. Successors...........................................................................54
Schedule 1 ..................................................................................S-1
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THIS UNDERWRITING AGREEMENT (this "Agreement") is made as of September 15, 2006
BETWEEN:
(1) GRANITE MASTER ISSUER PLC, a public limited company incorporated under
the laws of England and Wales, whose registered office is at Xxxxx
Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (the "Master Issuer");
(2) NORTHERN ROCK PLC, a public limited company incorporated under the laws
of England and Wales, whose registered office is at Xxxxxxxx Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX ("NRPLC");
(3) GRANITE FINANCE FUNDING 2 LIMITED, a private limited company
incorporated under the laws of England and Wales, whose registered
office is at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX ("Funding
2");
(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) CITIGROUP GLOBAL MARKETS LIMITED, a limited liability company
incorporated under the laws of England and Wales, whose registered
office is at Citigroup Centre, Canada Square, Xxxxxx Xxxxx, Xxxxxx X00
0XX, XXXXXX BROTHERS INC., a corporation organized under the laws of the
State of Delaware, whose registered office is at 0000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, and UBS SECURITIES LLC, a limited liability
company organized under the laws of the State of Delaware, whose
registered office is at c/o Corporation Service Company, 0000
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (the "Lead
Underwriters"); and
(6) BARCLAYS CAPITAL INC., a corporation organized under the laws of the
State of Connecticut, whose registered office is at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X. XXXXXX SECURITIES INC., a corporation
organized under the laws of the State of New York, whose registered
office is at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXXXXXX LYNCH,
PIERCE, XXXXXX & XXXXX INCORPORATED, a corporation organized under the
laws of the State of Delaware, whose registered office is at c/o The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, and XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED, a private limited
company incorporated under the laws of England and Wales, whose
registered office is 00 Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx X00 0XX,
(together with the Lead Underwriters, the "Underwriters" and each an
"Underwriter").
WHEREAS:
(A) The Master Issuer proposes to issue and sell to the Underwriters the
mortgage-backed notes of the series and class specified in Schedule 1
hereto and described in Clause 1.3 hereof (the "US Notes" as set forth
on the cover page of the Prospectus Supplement).
(B) The US Notes will be issued in U.S. dollars and in minimum denominations
of $100,000 and integral multiples of $1,000 in excess thereof. The US
Notes will be issued on the date and at the time specified in the
Prospectus Supplement, which date and time may be changed by agreement
between the Master Issuer and the Lead Underwriters on behalf of the
Underwriters (such date and time of delivery of and payment for such US
Notes being
hereinafter referred to as the "Closing Date"). The issue of the US
Notes is referred to in this Agreement as the "Issue".
(C) Simultaneously with the Issue, the Master Issuer intends to issue other
classes and series of notes (the "Reg S Notes", and together with the US
Notes, the "Notes") specified in the subscription agreement dated as of
the date hereof (the "Subscription Agreement") among the Master Issuer,
NRPLC, Funding 2, the Mortgages Trustee and the respective dealers named
therein (the "Dealers"). Such Dealers have agreed to subscribe and pay
for the Reg S Notes upon the terms and subject to the conditions
contained in the Subscription Agreement and the programme agreement
dated as of January 19, 2005 (the "Programme Date"), as amended by a
Deed of Amendment dated August 26, 2005, among the Master Issuer, NRPLC,
Funding 2, the Mortgages Trustee and the respective dealers named
therein (the "Programme Agreement").
(D) The Notes will be constituted by, issued subject to and have the benefit
of a supplemental trust deed to the Issuer Trust Deed (the "Supplemental
Issuer Trust Deed") to be entered into on or before the Closing Date
between the Master Issuer and The Bank of New York, London Branch as
trustee for the Noteholders (the "Note Trustee").
(E) The Notes (together with the Master 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 dated the
Programme Date, which includes any deed of accession entered into in
connection therewith or supplement thereto (the "Issuer Deed of Charge")
by the Master Issuer, The Bank of New York (in its separate capacities
as the Note Trustee and the Issuer Security Trustee), Citibank, N.A. (in
its separate capacities as the Principal Paying Agent, the US Paying
Agent, the Registrar, the Transfer Agent, an Issuer Account Bank and the
Agent Bank), NRPLC (in its separate capacities as the Issuer Cash
Manager, the Issuer GIC Provider, an Issuer Account Bank and the
Start-up Loan Provider), and Law Debenture Corporate Services Limited in
its capacity as the Corporate Services Provider. The deed of accession
to the Issuer Deed of Charge to be entered into on the Closing Date is
herein referred to as the "Issuer Deed of Accession".
(F) Payments of principal of, and interest on, the US Notes will be made by
the Master Issuer to the US Paying Agent and by the US Paying Agent to
Noteholders on behalf of the Master Issuer under a paying agent and
agent bank agreement entered into on or before the Programme Date (the
"Issuer Paying Agent and Agent Bank Agreement") among the Master Issuer,
the Note Trustee, the Issuer Security Trustee, the Agent Bank, the
Principal Paying Agent, the US Paying Agent, the Transfer Agent and the
Registrar.
(G) Each class of the US Notes will be in fully registered permanent global
form. The Registrar will maintain a register in respect of the US Notes
in accordance with the Issuer Paying Agent and Agent Bank Agreement. The
global note certificates representing the US Notes (the "Dollar Global
Note Certificates") will be deposited on behalf of the beneficial owners
of the US Notes with Citibank N.A. in New York, as custodian for, and
registered in the name of Cede & Co. as nominee of, The Depository Trust
Company ("DTC").
(H) The Master Issuer will use an amount in Sterling equal to the gross
proceeds of the Issue as well as an amount in Sterling equal to the
gross proceeds of the Reg S Notes issue to make advances (each a loan
tranche) to Funding 2 pursuant to the terms of the global intercompany
loan agreement entered into on or before the Programme Date among the
Master Issuer, Funding 2, the Agent Bank and The Bank of New York,
London Branch in its capacity as security trustee (the "Funding 2
Security Trustee") (the "Global Intercompany Loan Agreement" and each
loan tranche made thereunder, a "Loan Tranche"). Reference to the
2
Global Intercompany Loan Agreement shall include reference to a loan
tranche supplement in respect of the Global Intercompany Loan Agreement
to be entered into on or about the Closing Date among Funding 2, the
Master Issuer, the Funding 2 Security Trustee and the Agent Bank, as
amended, restated, novated, verified or supplemented from time to time
and shall include any additional and/or replacement intercompany loan
terms and conditions entered into from time to time in accordance with
the Legal Agreements.
(I) Funding 2 will pay the proceeds of each Loan Tranche to the Mortgages
Trustee (or to its order) in consideration for the increase of its
beneficial share of a trust portfolio made up of, amongst other things,
first residential mortgage loans (the "Mortgage Loans") and an interest
in the related insurances and their related security (together, the
"Related Security").
(J) On March 26, 2001, NRPLC assigned the initial portfolio of Mortgage
Loans and their Related Security to the Mortgages Trustee and may assign
further Mortgage Loans on subsequent assignment dates pursuant to a
mortgage sale agreement dated March 26, 2001 among NRPLC, the Mortgages
Trustee, Funding 2 and the Funding 2 Security Trustee (the "Mortgage
Sale Agreement"). Each of the Mortgages Trustee and Funding 2 has
appointed NRPLC as administrator to service the Mortgage Loans and their
Related Security pursuant to an Administration Agreement dated March 26,
2001 (the "Administration Agreement").
(K) The Mortgages Trustee holds the Mortgage Loans and their Related
Security on a bare trust in undivided shares for the benefit of Funding,
Funding 2 and NRPLC pursuant to the mortgages trust deed dated March 26,
2001 entered into by NRPLC, Funding, Funding 2 and the Mortgages Trustee
(the "Mortgages Trust Deed"). The Mortgages Trustee also entered into a
guaranteed investment contract dated on or about May 26, 2004 in respect
of its principal bank account (the "Mortgages Trustee Guaranteed
Investment Contract"), among the Mortgages Trustee, the Security
Trustee, the Cash Manager and NRPLC (in its capacity as the Mortgages
Trustee GIC Provider).
(L) Funding 2's obligations to the Master Issuer under the Global
Intercompany Loan Agreement and to Funding 2's other creditors are
secured by the benefit of security interests created by a deed of charge
and assignment dated the Programme Date, which will include any deed of
accession to be entered into in connection therewith or supplement
thereto (the "Funding 2 Deed of Charge"), by and among Funding 2, the
Master Issuer, the Mortgages Trustee, the Funding 2 Security Trustee,
the Issuer Security Trustee, Law Debenture Corporate Services Limited
and NRPLC (in its separate capacities as Cash Manager, Account Bank,
Funding 2 Basis Rate Swap Provider and Funding 2 GIC Provider).
(M) In connection with Funding 2's purchase of a beneficial interest in a
mortgage portfolio and the issue of certain notes by the Master Issuer,
Funding 2, in addition to the documents described above, entered into on
the Programme Date (1) a cash management agreement with the Cash
Manager, the Mortgages Trustee, the Seller, Funding and the Funding 2
Security Trustee (the "Cash Management Agreement"); (2) a bank account
agreement with the Account Banks, the Funding 2 Security Trustee and the
Cash Manager (the "Funding 2 Bank Account Agreement"); (3) a guaranteed
investment contract with, inter alios, NRPLC as Funding 2 GIC Provider
and Cash Manager and the Funding 2 Security Trustee (the "Funding 2
Guaranteed Investment Contract"); (4) a corporate services agreement
(the "Corporate Services Agreement") with, inter alios, Law Debenture
Corporate Services Limited as corporate services provider to Funding 2
and the Master Issuer; and (5) an ISDA Master Agreement including the
Schedule thereto and confirmations thereunder in the respect of the
Funding 2 (mortgage rates) basis rate swap and Funding 2 (LIBOR rate)
basis rate swap with Funding 2, the Basis Rate Swap Provider and the
Note Trustee (the "Basis Rate Swap Agreements").
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(N) In connection with the Issue, the Master Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Note Certificates
relating to each class of the Notes; (2) a start-up loan tranche
supplement with the Start-up Loan Provider and the Issuer Security
Trustee (the "Start-Up Loan Tranche Supplement"); (3) an ISDA Master
Agreement, including the Schedule thereto and confirmations thereunder
in respect of Dollar/Sterling currency swaps with the relevant Issuer
Swap Provider(s) and the Note Trustee (the "Dollar Currency Swap
Agreements"); and (4) an ISDA Master Agreement, including the Schedule
thereto and confirmations thereunder in respect of Euro/Sterling
currency swaps with the relevant Issuer Swap Provider(s) and the Note
Trustee (the "Euro Currency Swap Agreements" and together with the
Dollar Currency Swap Agreements, the "Currency Swap Agreements").
(O) In connection with the Issue, the Master Issuer has executed and
delivered, on or before the Programme Date, (1) the Corporate Services
Agreement; (2) a cash management agreement between the Master Issuer,
the Issuer Cash Manager and the Issuer Security Trustee (the "Issuer
Cash Management Agreement"); (3) a bank account agreement between the
Master Issuer, the Issuer Security Trustee, the Issuer Cash Manager, the
Issuer GIC Account Bank and the Issuer Transaction Account Bank (the
"Issuer Bank Account Agreement"); (4) a post-enforcement call option
agreement (the "Post-Enforcement Call Option Agreement") between the
Master Issuer, the Note Trustee and GPCH Limited; and (5) a start-up
loan agreement with the Start-up Loan Provider, the Master Issuer and
the Issuer Security Trustee (the "Start-Up Loan Agreement").
(P) As required, the Master Issuer, Funding 2, the Mortgages Trustee and/or
NRPLC will enter into any other relevant documents to be signed and
delivered on or before the Closing Date (such documents, together with
the Mortgage Sale Agreement, the Mortgages Trust Deed, the
Administration Agreement, the Mortgages Trustee Guaranteed Investment
Contract, the Global Intercompany Loan Agreement, the Post-Enforcement
Call Option Agreement, the Funding 2 Guaranteed Investment Contract, the
Cash Management Agreement, the Funding 2 Bank Account Agreement, the
Collection Bank Agreement, the Start-up Loan Agreement, the Start-up
Loan Tranche Supplement, the Funding 2 Deed of Charge, the Basis Rate
Swap Agreements, the Issuer Deed of Charge (as amended by the Issuer
Deed of Accession), the Supplemental Issuer Trust Deed, the Issuer Cash
Management Agreement, the Issuer Paying Agent and Agent Bank Agreement,
the Issuer Bank Account Agreement, the Corporate Services Agreement, the
Currency Swap Agreements, this Agreement, the Programme Agreement and
the Subscription Agreement, each as they have been or may be amended,
restated, varied or supplemented from time to time are collectively
referred to herein as the "Legal Agreements").
(Q) The Master Issuer (together with Funding 2 and the Mortgages Trustee)
has prepared a registration statement on Form S-3, including a
prospectus relating to the US Notes and additional series of notes, for
the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of the offering and sale thereof from time to time in
accordance with Rule 415 under the Securities Act. At or prior to the
time when sales to purchasers of the US Notes were first made by the
Underwriters, which was approximately 4:00 p.m. (GMT +01:00, London) on
September 13, 2006 (the "Time of Sale"), the Master Issuer (together
with Funding 2 and the Mortgages Trustee) had prepared the following
information (when read together, the "Time of Sale Information"): (i)
the Preliminary Prospectus Supplement dated August 30, 2006 to the base
prospectus dated August 30, 2006 (including information referred to
under the caption "Static Pool Data" in Annex D therein regardless of
whether it is deemed a part of the Registration Statement or
Prospectus), together with such base prospectus (the "Initial
Preliminary Prospectus") and (ii) the Preliminary Prospectus Supplement
dated September 12, 2006 to the base prospectus dated September 12, 2006
(including information referred to under the caption "Static Pool Data"
in Annex D therein
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regardless of whether it is deemed a part of the Registration Statement
or Prospectus) together with such base prospectus (the "Revised
Preliminary Prospectus"). If, subsequent to the Time of Sale and prior
to the Closing Date, the Revised Preliminary Prospectus included an
untrue statement of material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and as a
result investors in the US Notes may terminate their old "Contracts of
Sale" (within the meaning of Rule 159 under the Securities Act) for any
US Notes and the Underwriters enter into new Contracts of Sale with
investors in the US Notes, then "Time of Sale Information" will refer to
the information conveyed to investors at the time of entry into the
first such new Contract of Sale, in an amended preliminary prospectus
approved by the Master Issuer (together with Funding 2 and the Mortgages
Trustee) and the Lead Underwriters that corrects such material
misstatements or omissions (a "Corrected Prospectus") and "Time of Sale"
will refer to the time and date on which such new Contracts of Sale were
entered into.
IT IS AGREED as follows:
1. AGREEMENT TO ISSUE AND SUBSCRIBE
1.1 Definitions and Interpretation
(a) Capitalized terms used herein and not otherwise defined herein or
pursuant hereto, unless the context otherwise requires, shall have
the meanings given to them in the Programme Master Definitions
Schedule signed for the purposes of identification only by Sidley
Xxxxxx Xxxxx & Xxxx and Xxxxx & Xxxxx LLP on the Programme Date
and the Issuer Master Definitions Schedule signed for the purposes
of identification only by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx &
Overy LLP on the Programme Date (each as amended, varied or
supplemented from time to time). In the event of a conflict
between the Programme Master Definitions Schedule and the Issuer
Master Definitions Schedule, the Issuer Master Definitions
Schedule will control.
(b) In this Agreement:
(i) words denoting the singular number only shall include the
plural number also and vice versa;
(ii) words denoting one gender only shall include the other
genders;
(iii) words denoting persons only shall include firms and
corporations and vice versa;
(iv) references to any statutory provision shall be deemed also
to refer to any statutory modification or re-enactment
thereof or any statutory instrument, order or regulation
made thereunder or under any such re-enactment;
(v) references to any agreement or other document (including any
of the Legal Agreements) shall be deemed also to refer to
such agreement or document as amended, varied, supplemented,
restated or novated from time to time;
(vi) clause, paragraph and schedule headings are for ease of
reference only;
5
(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 Offering
Each of the Master Issuer, Funding 2 and the Mortgages Trustee
understands that the Underwriters have offered and will offer the US
Notes upon the terms set forth in the Time of Sale Information and the
Prospectus, and in compliance with all applicable laws and regulations.
1.3 Purchase and Sale
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Agreement, the Master
Issuer agrees to issue and sell the US Notes on the Closing Date to the
Underwriters as hereinafter provided, and each Underwriter agrees to
purchase, severally and not jointly, from the Master Issuer the
respective principal amount of the US Notes set forth opposite such
Underwriter's name in Schedule 1 hereto at a price equal to the
aggregate of 100 per cent. of the aggregate principal amount of the
Series 2006-3 Class A1 Notes, 100 per cent. of the aggregate principal
amount of the Series 2006-3 Class A3 Notes, 100 per cent. of the
aggregate principal amount of the Series 2006-3 Class A4 Notes, 100 per
cent. of the aggregate principal amount of the Series 2006-3 Class A7
Notes, 100 per cent. of the aggregate principal amount of the Series
2006-3 Class B1 Notes, 100 per cent. of the aggregate principal amount
of the Series 2006-3 Class B2 Notes, 100 per cent. of the aggregate
principal amount of the Series 2006-3 Class M1 Notes, 100 per cent. of
the aggregate principal amount of the Series 2006-3 Class M2 Notes and
100 per cent. of the aggregate principal amount of the Series 2006-3
Class C2 Notes (the "Issue Price"). The Series 2006-3 Class A1 Notes,
Series 2006-3 Class A3 Notes, Series 2006-3 Class A4 Notes, Series
2006-3 Class A7 Notes, Series 2006-3 Class B1 Notes, Series 2006-3 Class
B2 Notes, Series 2006-3 Class M1 Notes, Series 2006-3 Class M2 Notes and
Series 2006-3 Class C2 Notes are collectively referred to as the "US
Notes".
The Master Issuer acknowledges and agrees that each of the Underwriters
in providing investment banking services to the Master Issuer in
connection with the offering, including in acting pursuant to the terms
of this Agreement, has acted and is acting as an arm's-length
counterparty and not as a fiduciary and the Master Issuer does not
intend any of the Underwriters to act in any capacity other than as an
arm's-length counterparty, including as a fiduciary or in any other
position of higher trust.
1.4 Commissions
In consideration of the obligations undertaken herein by the
Underwriters, the Master Issuer agrees to pay to the Underwriters a
selling commission (the "Selling Commission") of 0.03333 per cent. of
the aggregate principal amount of the Series 2006-3 Class A1 Notes,
0.04333 per cent. of the aggregate principal amount of the Series 2006-3
Class A3 Notes, 0.04667 per cent. of the aggregate principal amount of
the Series 2006-3 Class A4 Notes,
6
0.06000 per cent. of the aggregate principal amount of the Series 2006-3
Class A7 Notes, 0.10000 per cent. of the aggregate principal amount of
the Series 2006-3 Class B1 Notes, 0.10000 per cent. of the aggregate
principal amount of the Series 2006-3 Class B2 Notes, 0.14667 per cent.
of the aggregate principal amount of the Series 2006-3 Class M1 Notes,
0.14667 per cent. of the aggregate principal amount of the Series 2006-3
Class M2 Notes and 0.30000 per cent. of the aggregate principal amount
of the Series 2006-3 Class C2 Notes and a combined management and
underwriting commission (the "Management and Underwriting Commission")
of 0.01667 per cent. of the aggregate principal amount of the Series
2006-3 Class A1 Notes, 0.02167 per cent. of the aggregate principal
amount of the Series 2006-3 Class A3 Notes, 0.02333 per cent. of the
aggregate principal amount of the Series 2006-3 Class A4 Notes, 0.03000
per cent. of the aggregate principal amount of the Series 2006-3 Class
A7 Notes, 0.05000 per cent. of the aggregate principal amount of the
Series 2006-3 Class B1 Notes, 0.05000 per cent. of the aggregate
principal amount of the Series 2006-3 Class B2 Notes, 0.07333 per cent.
of the aggregate principal amount of the Series 2006-3 Class M1 Notes,
0.07333 per cent. of the aggregate principal amount of the Series 2006-3
Class M2 Notes and 0.15000 per cent. of the aggregate principal amount
of the Series 2006-3 Class C2 Notes.
The Master Issuer undertakes and covenants that on the Closing Date it
will pay to the Lead Underwriters on behalf of the Underwriters the
aggregate Selling Commission and aggregate Management and Underwriting
Commission calculated in accordance with this Clause 1.4.
1.5 Delivery and Payment
No later than 3:00 p.m. (London time) on the Closing Date, the Master
Issuer will (a) cause the Global Note Certificate for each of the US
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 US
Notes duly executed on behalf of the Master Issuer and authenticated in
accordance with the Paying Agent and Agent Bank Agreement to Citibank
N.A., as custodian for DTC.
Against delivery of the US Notes (i) the Underwriters will pay to the
Lead Underwriters the gross underwriting proceeds for the US Notes and
(ii) the Lead Underwriters will pay to the Master Issuer or to a third
party, as directed by the Master Issuer, the gross underwriting proceeds
for the US Notes. Payment for the US Notes shall be made by the Lead
Underwriters in Dollars in immediately available funds to the account of
the Master Issuer, account number 00000000, or to such other accounts as
the Master Issuer may direct, and shall be evidenced by a confirmation
from the Lead Underwriters that they have so made that payment to the
Master Issuer.
1.6 The Legal Agreements
To the extent that each of the Master Issuer, Funding 2, the Mortgages
Trustee and NRPLC is a signatory to the Legal Agreements, each will on
or before the Closing Date, have entered into or enter into each of the
Legal Agreements to which it is a party, substantially in the form of
the draft reviewed by Xxxxx & Xxxxx LLP and Sidley Austin (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 Master Issuer and, if it is a signatory, Funding 2, the
Mortgages Trustee and/or NRPLC.
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1.7 The Notes
The Notes will be issued on the Closing Date in accordance with the
terms of the Supplemental Issuer Trust Deed and will be in, or
substantially in, the form set out therein.
1.8 Prospectus
The Master Issuer confirms that it has prepared the Initial Preliminary
Prospectus, the Revised Preliminary Prospectus and the Prospectus for
use in connection with the issue of the US Notes and hereby authorizes
the Underwriters to distribute copies of the Prospectus in connection
with the offering and sale of the US Notes, copies of the Initial
Preliminary Prospectus and the Revised Preliminary Prospectus having
already been distributed with the consent of the Master Issuer.
1.9 Authority to Offer
The Master Issuer confirms that it has authorized the Lead Underwriters
to offer the US Notes on its behalf to the Underwriters for subscription
at the Issue Price subject to signature of this Agreement. Subject to
Clause 3.2(a), the Master Issuer acknowledges and agrees that the
Underwriters may offer and sell US Notes to or through any affiliate of
an Underwriter and that any such affiliate may offer and sell US Notes
purchased by it to or through any Underwriter.
2. STABILIZATION
2.1 Stabilization
(a) In connection with the issue of the US Notes, the Underwriter(s)
(if any) named as the stabilizing underwriter(s) (the "Stabilizing
Underwriter(s)") (or persons acting on behalf of any Stabilizing
Underwriter) in the Prospectus Supplement may over-allot US Notes
(provided that the aggregate principal amount of US Notes allotted
does not exceed 105 per cent. of the aggregate principal amount of
the US Notes) or effect transactions with a view to supporting the
market price of the US Notes at a level higher than that which
might otherwise prevail. However, there is no assurance that the
Stabilizing Underwriter(s) (or persons acting on behalf of any
Stabilizing Underwriter) will undertake stabilization action. Any
stabilization action may begin on or after the date on which
adequate public disclosure of the terms of the offer of the US
Notes is made and, if begun, may be ended at any time, but it must
end no later than the earlier of 30 days after the issue date of
the US Notes and 60 days after the date of the allotment of the US
Notes.
(b) The Master Issuer confirms that it has not issued and will not
issue, without the prior consent of the Stabilizing Underwriter(s)
(if any) (such consent not to be unreasonably withheld), any press
or other public announcement referring to the proposed issue of US
Notes unless the announcement adequately discloses that
stabilizing action may take place in relation to the US Notes to
be issued.
(c) The Master Issuer authorises the Stabilizing Underwriter(s) to
make all appropriate announcements in relation to any
stabilization or ancillary stabilization action taken in respect
of the US Notes.
(d) In carrying on any stabilization activity, the Stabilizing
Underwriter(s) shall act as principal and not as agent of the
Master Issuer.
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2.2 Stabilization Profits and Losses
As between the Master Issuer and the Stabilizing Underwriter any loss
resulting from stabilization transactions entered into by the
Stabilizing Underwriter pursuant to Clause 2.1 shall be borne, and any
profit arising therefrom shall be retained, by the Stabilizing
Underwriter for its own account.
3. AGREEMENTS BY THE UNDERWRITERS
3.1 Default of Underwriters
(a) If any Underwriter shall default on its obligation to purchase US
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 US 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 US 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 US 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 US Notes, or NRPLC notifies the
non-defaulting Underwriters that it has so arranged for the
purchase of such US 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 US Notes. Any substitute purchaser of US
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 US Notes.
(b) If, after giving effect to any arrangements for the purchase of US
Notes of a defaulting Underwriter by the non-defaulting
Underwriters, as provided in Clause 3.1(a) above, the aggregate
principal amount of the US Notes which remains unpurchased does
not exceed ten per cent. of the aggregate principal amount of the
US Notes, NRPLC shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of the
US 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 US Notes
which such Underwriter agreed to purchase hereunder) of the
principal amount of the US 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 US Notes of a defaulting Underwriter
by the non-defaulting Underwriters as provided in Clause 3.1(a)
above, the aggregate principal amount of the US Notes which
remains unpurchased exceeds ten per cent. of the aggregate
principal amount of the US Notes, or if NRPLC shall not exercise
the right described in Clause 3.1(b) above to require
non-defaulting Underwriters to purchase the US 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.
9
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 US
Notes for sale to the public in the United States as set forth in
the Time of Sale Information and the Prospectus. Any Underwriters
that are not U.S. registered broker dealers will offer and sell
the US Notes in the United States only through U.S. registered
broker dealers.
(b) United Kingdom
Each Underwriter represents and agrees that:
(i) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received by
it in connection with the issue or sale of any US Notes in
circumstances in which Section 21(1) of the FSMA does not
apply to the Master Issuer; and
(ii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it
in relation to the US Notes in, from or otherwise involving
the United Kingdom.
(c) Italy
Each of the Underwriters represents and agrees that the offering
of the US Notes has not been cleared by CONSOB (the Italian
Securities Exchange Commission) pursuant to Italian securities
legislation and, accordingly, each of the Underwriters represents
and agrees that no US Notes may be offered, sold or delivered, nor
may copies of the Prospectus or of any other document relating to
the US Notes be distributed in the Republic of Italy, except:
(i) to professional investors ("operatori qualificati"), as
defined in Article 31, second paragraph, of CONSOB
Regulation No. 11522 of 1 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 24 February, 1998 (the
"Financial Services Act") and Article 33, first paragraph,
of CONSOB Regulation No. 11971 of 14 May, 1999, as amended.
Each of the Underwriters represents and agrees that any offer,
sale or delivery of the US Notes or distribution of copies of the
Prospectus or any other document relating to the US 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 Xx. 000 xx 0 Xxxxxxxxx, 0000 (xxx
"Xxxxxxx Xxx"), as amended;
10
(b) in compliance with Article 129 of the Banking Act and the
implementing guidelines of the Bank of Italy pursuant to
which the issue or the offer of securities in the Republic
of Italy may need to be preceded and followed by an
appropriate notice to be filed with the Bank of Italy
depending, inter alia, on the aggregate value of the
securities issued or offered in the Republic of Italy and
their characteristics; and
(c) in accordance with any other applicable laws and
regulations.
(d) Ireland
Each Underwriter represents and agrees that:
(i) it will not underwrite the issue of, or place, the US Notes,
otherwise than in conformity with the provisions of the
Irish Investment Intermediaries Act 1995 (as amended),
including, without limitation, Sections 9 and 23 thereof and
any codes of conduct rules made under Section 37 thereof and
the provisions of the Investor Compensation Xxx 0000;
(ii) it will not underwrite the issue of, or place, the US Notes,
otherwise than in conformity with the provisions of the
Irish Central Bank Acts 1942 - 1999 (as amended) and any
codes of conduct rules made under Section 117(1) thereof;
(iii) it will not underwrite the issue of, or place, or do
anything in Ireland in respect of the US Notes otherwise
than in conformity with the provisions of the Irish
Prospectus (Directive 2003/71/EC) Regulations 2005 and any
rules issued under Section 51 of the Irish Investment Funds,
Companies and Miscellaneous Provisions Xxx 0000, by the
Irish Central Bank and Financial Services Regulatory
Authority ("IFSRA"); and
(iv) it will not underwrite the issue of, place or otherwise act
in Ireland in respect of the US Notes, otherwise than in
conformity with the provisions of the Irish Market Abuse
(Directive 2003/6/EC) Regulations 2005 and any rules issued
under Section 34 of the Irish Investment Funds, Companies
and Miscellaneous Provisions Xxx 0000 by IFSRA.
(e) France
Each Underwriter represents and agrees that it has not offered or
sold and will not offer or sell, directly or indirectly, US Notes
to the public in France, and has not distributed or caused to be
distributed and will not distribute or cause to be distributed to
the public in France, the Prospectus or any other document
relating to the US Notes, and that such offers, sales and
distributions have been made and will be made in France only to
(a) providers of investment services relating to portfolio
management for the account of third parties and/or (b) qualified
investors (investisseurs qualifies), all as defined in, and in
accordance with, articles L.411-1, L.411-2 and D.411-1 of the
French Code monetaire et financier.
(f) The Netherlands
Each Underwriter represents and agrees that it has not and will
not, directly or indirectly, offer, sell, transfer or deliver any
US Notes as part of their initial distribution or at any time
thereafter (including rights representing an interest in a
11
global note) to individuals or legal entities who or which are
established, domiciled or have their residence in The Netherlands
other than to the following entities (hereinafter referred to as
"Professional Market Parties") provided they acquire the US Notes
for their own account and trade or invest in securities in the
conduct of a business or profession:
(i) anyone who is subject to supervision of the Dutch Central
Bank, the Dutch Authority for the Financial Markets or a
supervisory authority from another member state and who is
authorised to be active on the financial markets;
(ii) anyone who otherwise performs a regulated activity on the
financial markets;
(iii) the State of the Netherlands, the Dutch Central Bank, a
foreign central government body, a foreign central bank,
Dutch regional and local governments and comparable foreign
decentralised government bodies, international treaty
organisations and supranational organisations;
(iv) a company or entity which, according to its last annual
(consolidated) accounts, meets at least two of the following
three criteria: an average number of employees during the
financial year of at least 250, a total balance sheet of at
least (euro)43,000,000 and an annual net turnover of at
least (euro)50,000,000;
(v) a company or entity with its statutory seat in the
Netherlands other than a company as referred to in (iv)
above, which has requested the Dutch Authority for the
Financial Markets to be treated as a Professional Market
Party;
(vi) a natural person, living in the Netherlands, who has
requested the Dutch Authority for the Financial Markets to
be treated as a Professional Market Party, and who meets at
least two of the following three criteria: the person has
carried out transactions of a significant size on securities
markets at an average frequency of, at least, ten per
quarter over the previous four quarters; the size of the
securities portfolio is at least (euro)500,000 and the
person works or has worked for at least one year in the
financial sector in a professional position which requires
knowledge of securities investment;
(vii) a company or entity whose only purpose is investing in
securities;
(viii) a company or entity whose purpose is to acquire assets and
issue asset backed securities;
(ix) an enterprises or entity with total assets of at least
(euro)500,000,000 (or the equivalent thereof in another
currency) as per the balance sheet as of the year end
preceding the obtaining of the repayable funds;
(x) an enterprise, entity or individual with net assets of at
least (euro)10,000,000 (or the equivalent thereof in another
currency) as of the year end preceding the obtaining of the
repayable funds who has been active in the financial markets
on average twice a month over a period of at least two
consecutive years preceding the obtaining of the repayable
funds;
12
(xi) a subsidiary of any of the persons or entities referred to
under (i)-(viii) above, provided such subsidiaries are
subject to consolidated supervision; and
(xii) an enterprise or entity which has a rating from a rating
agency that, in the opinion of the Dutch Central Bank, has
sufficient expertise, or which issues securities that have a
rating from a rating agency that, in the opinion of the
Dutch Central Bank, has sufficient expertise.
(g) Germany
Each Underwriter represents and agrees that:
(i) the US Notes have not been and will not be offered or sold
or publicly promoted or advertised by it in the Federal
Republic of Germany other than in compliance with the
provisions of the German Securities Prospectus Act
(Wertpapierprospektgesetz) June 22, 2005, or of any other
laws applicable in the Federal Republic of Germany governing
the offer and sale of securities; and
(ii) it shall not offer or sell US Notes in the Federal Republic
of German in a manner which could result in the Master
Issuer being subject to any license requirement under the
Germany Banking Act (Kreditwesengesetz).
(h) Sweden
Each Underwriter represents and agrees that it will not, directly
or indirectly, offer for subscription or purchase or issue
invitations to subscribe for or buy US Notes or distribute any
draft or definite document in relation to any such offer,
invitation or sale except in circumstances that will not result in
a requirement to prepare a prospectus pursuant to the provisions
of the Swedish Financial Instruments Trading Act (lag (1991:980)
xx xxxxxx med finansiella instrument).
(i) Norway
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 Kingdom of Norway any US Notes
other than to persons who are registered with the Oslo Stock
Exchange as professional investors.
(j) Belgium
Each Underwriter represents and agrees that it will not:
(i) offer for sale, sell or market in Belgium US Notes by means
of a public offer within the meaning of the law of June 16,
2006 on the public offer of investment instruments and the
admission to trading of investment instruments on a
regulated market; or
(ii) sell US Notes to any person qualifying as a consumer within
the meaning of Article 1.7 of the Belgian law of July 14,
1991 on consumer protection and trade practices unless such
sale is made in compliance with this law and its
implementing regulation.
13
(k) Spain
Each Underwriter represents and agrees that it will not offer or
sell US Notes in Spain by means of a public offer as defined and
construed in Chapter I of Title III of Law 24/1988, of 28 July, on
the Securities Act (as amended by Royal Decree Law 5/2005 of 11
March and related legislation). The Prospectus has not been
registered with the Comision Nacional del Xxxxxxx de Valores and
therefore it is not intended for any public offer of US Notes in
Spain.
(l) Japan
Each Underwriter acknowledges that the US Notes have not been and
will not be registered under the Securities and Exchange Law of
Japan and each Underwriter agrees that, except pursuant to an
exemption from the registration requirements of, or otherwise in
compliance with, the Securities and Exchange Law of Japan and any
other applicable laws, regulations and ministerial guidelines of
Japan, it will not, directly or indirectly, offer or sell any US
Notes in Japan or to, or for the benefit of, any resident of Japan
(which term as used in this paragraph means any person resident in
Japan, including any corporation or other legal entity organized
under the laws of Japan) or to any person or entity for
re-offering or resale, directly or indirectly, in Japan or to, or
for the benefit of, a resident of Japan.
(m) Korea
Each Underwriter represents and agrees that the US Notes have not
been and will not be offered, delivered or sold directly or
indirectly in Korea or to any resident of Korea or to others for
re-offering or resale directly or indirectly in Korea or to any
resident of Korea except as otherwise permitted under applicable
Korean laws and regulations. Each Underwriter has undertaken to
ensure that any securities dealer to which it sells US Notes
confirms that it is purchasing such US Note as principal and
agrees with such Underwriter that it will comply with the
restrictions set out in this paragraph (m).
(n) Hong Kong
Each Underwriter represents and agrees that:
(i) it has not offered or sold, and will not offer or sell, in
Hong Kong, by means of any document, any US Notes other than
(i) to persons whose ordinary business is to buy or sell
shares or debentures (whether as principal or agent), or
(ii) to "professional investors" within the meaning of the
Securities and Futures Ordinance (Cap.571, Laws of Hong
Kong) and any rules made thereunder, or (iii) in other
circumstances which do not result in the document being a
"prospectus" within the meaning of the Companies Ordinance
(Cap.32, Laws of Hong Kong) or which do not constitute an
offer to the public thereunder; and
(ii) it has not issued, or had in its possession for the purpose
of issue (in each case whether in Hong Kong or elsewhere),
any advertisement, invitation or document relating to the US
Notes which is directed at, or the contents of which are
likely to be accessed or read by, the public in Hong Kong
(except if permitted to do so under the laws of Hong Kong)
other than with respect to the US Notes which are or are
intended to be disposed of only to persons
14
outside Hong Kong or only to "professional investors"
within the meaning of the Securities and Futures Ordinance
(Cap.571, Laws of Hong Kong) and any rules made
thereunder.
(o) Singapore
The Prospectus has not been registered as a prospectus with the
Monetary Authority of Singapore under the Securities and Futures
Act, Chapter 289 of Singapore (the "Securities and Futures Act").
Accordingly, each Underwriter represents and agrees that the US
Notes may not be offered or sold or made the subject of an
invitation for subscription or purchase nor may the Prospectus or
any other document or material in connection with the offer or
sale or invitation for subscription or purchase of any US Notes be
circulated or distributed, whether directly or indirectly, to any
person in Singapore other than (i) to an institutional investor
pursuant to Section 274 of the Securities and Futures Act, (ii) to
a relevant person, or any person pursuant to Section 275(1A) of
the Securities and Futures Act, and in accordance with the
conditions specified in Section 275 of the Securities and Futures
Act, or (iii) pursuant to, and in accordance with the conditions
of, any other applicable provision of the Securities and Futures
Act.
(p) Taiwan
Each Underwriter represents and agrees that the US Notes have not
been and will not be registered with the Financial Supervisory
Commission of Taiwan, the Republic of China pursuant to relevant
securities laws and regulations and may not be offered or sold in
Taiwan, the Republic of China through a public offering or in
circumstances which constitute an offer within the meaning of the
Securities and Exchange Law of Taiwan, the Republic of China that
requires a registration or approval of the Financial Supervisory
Commission of Taiwan, the Republic of China. Each Underwriter
agrees that no person or entity in Taiwan, the Republic of China
has been authorized to offer or sell US Notes in Taiwan, the
Republic of China.
(q) People's Republic of China
Each Underwriter represents and agrees that neither it nor any of
its affiliates has offered or sold or will offer or sell any of
the US Notes in the People's Republic of China (excluding Hong
Kong, Macau and Taiwan) as part of the initial distribution of the
US Notes.
(r) Other
For each jurisdiction outside the United States and the United
Kingdom (a "Relevant Jurisdiction"), neither the Master Issuer nor
any Underwriter represents that US Notes may at any time lawfully
be sold in compliance with any application, registration or other
requirement in any Relevant Jurisdiction by the Master Issuer or
any Underwriter (other than as described above), or pursuant to
any exemption available thereunder, or assume any responsibility
for facilitating such sale.
Each Underwriter represents and agrees that it has complied and
will comply with all applicable securities laws and regulations in
force in any Relevant Jurisdiction in which it purchases, offers,
sells or delivers US Notes or has in its possession or distributes
the Prospectus or any other offering material, in all cases at its
own expense, and it will obtain any consent, approval or
permission required by it for the
15
purchase, offer, sale or delivery by it of US Notes under the laws
and regulations in force in any Relevant Jurisdiction to which it
is subject or in which it makes such purchases, offers, sales or
deliveries and the Master Issuer shall have not responsibility for
them, in all cases at its own expense. Each Underwriter represents
and agrees that it has not and will not directly or indirectly
offer, sell or deliver any US Notes or distribute or publish any
prospectus, form of application, offering circular, advertisement
or other offering material except under circumstances that will,
to the best of its knowledge and belief, result in compliance with
any applicable laws and regulations, and all offers, sales and
deliveries of US Notes by it will be made on the same terms.
Each Underwriter agrees that it will, unless prohibited by
applicable law, furnish to each person to whom it offers or sells
US Notes a copy of the Prospectus, as then amended or supplemented
or, unless delivery of the Prospectus is required by applicable
law, inform each such person that a copy will be made available
upon request. Each Underwriter is not authorized to give any
information or to make any representation not contained in the
Prospectus in connection with the offer and sale of US Notes to
which the Prospectus relates.
4. LISTING
4.1 Application for Listing
The Master Issuer confirms that it has authorized the Lead Underwriters
to make or cause to be made at the Master Issuer's expense applications
on the Master Issuer's behalf for the Notes to be listed on the Official
List and for the Notes to be admitted to trading on the London Stock
Exchange plc's Gilt Edged and Fixed Interest Market or such other Market
of the London Stock Exchange plc as shall be designated as a "regulated
market" within the meaning of Directive 93/22/EC (the "Market").
4.2 Supply of Information
The Master Issuer agrees to supply to the Lead Underwriters for delivery
to the UK Listing Authority and the London Stock Exchange copies of the
Prospectus and such other documents, information and undertakings as may
be required for the purpose of obtaining such listing and admission to
trading.
4.3 Maintenance of Listing
The Master Issuer agrees to use its reasonable endeavors to maintain a
listing of the US Notes on the Official List and the admission of the
Notes to trading on the Market for as long as any of the US Notes are
outstanding and to pay all fees and supply all further documents,
information and undertakings and publish all advertisements or other
material as may be necessary for such purpose. However, if such listing
or admission to trading becomes impossible, the Master Issuer will
obtain, and will thereafter use its best endeavors to maintain, a
quotation for, or listing of, the US 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
decide with the approval of the Lead Underwriters (such approval not to
be unreasonably withheld or delayed).
16
5. REPRESENTATIONS AND WARRANTIES OF THE MASTER ISSUER
The Master Issuer represents and warrants to, and agrees with, Funding
2, the Mortgages Trustee, the Underwriters and each of them that:
(a) The Registration Statement
A registration statement on Form S-3 (File No.s 333-133279,
000-000000-00 and 333-133279-01) relating to the US Notes has been
filed by the Master Issuer (together with Funding 2 and the
Mortgages Trustee) with the United States Securities and Exchange
Commission ("Commission") and has become effective and is still
effective as of the date hereof under the Securities Act. No stop
order suspending the effectiveness of the Registration Statement
has been issued under the Securities Act and no proceedings for
that purpose have been instituted or are pending or, to the
knowledge of the Master Issuer, are threatened by the Commission.
The Master Issuer (together with Funding 2 and the Mortgages
Trustee) has filed with the Commission the Initial Preliminary
Prospectus and the Revised Preliminary Prospectus and, in each
case, it has done so within the applicable period of time required
under the Securities Act and the rules and regulations of the
Commission under the Securities Act (the "Rules and Regulations").
The Master Issuer (together with Funding 2 and the Mortgages
Trustee) will file with the Commission pursuant to Rule 424(b) of
the Rules and Regulations, promptly upon or after the execution
and delivery of this Agreement, a prospectus supplement dated
September 15, 2006 (together with information referred to under
the caption "Static Pool Data" in Annex D therein regardless of
whether it is deemed a part of the Registration Statement or
Prospectus, the "Prospectus Supplement") to the prospectus dated
September 12, 2006 (the "Base Prospectus"), relating to the US
Notes and the method of distribution thereof. Such registration
statement, including exhibits thereto, and such prospectus, as
amended or supplemented to the date hereof, and as further
supplemented by the Prospectus Supplement, are hereinafter
referred to as the "Registration Statement" and the "Prospectus",
respectively. Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration
Statement, the Base Prospectus or the Prospectus Supplement shall
include, without limitation, any document filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Base Prospectus and the Prospectus Supplement, as the case may
be, deemed to be incorporated therein pursuant to the Securities
Act.
The conditions to the use of a registration statement on Form S-3
under the Securities Act have been satisfied. The Registration
Statement, at the time it became effective, any post-effective
amendment thereto, at the time it became effective, the Initial
Preliminary Prospectus, as of its date, the Revised Preliminary
Prospectus, as of its date, and the Prospectus, as of the date of
the Prospectus Supplement, complied and on the Closing Date will
comply in all material respects with the applicable requirements
of the Securities Act and the Rules and Regulations and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder.
(b) No Material Misstatements or Omissions
(I) The Registration Statement, as of the applicable effective
date as to each part of the Registration Statement and any
amendment thereto pursuant to Rule 430B(f)(2) under the Securities
Act, did not include any untrue statement of a material fact and
17
did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that the Master Issuer makes no
representations, warranties or agreements as to: (i) that part of
the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Note Trustee under
the Trust Indenture Act, and (ii) statements or omissions in the
Registration Statement made in reliance upon and in conformity
with information furnished in writing to the Master Issuer by or
on behalf of any Underwriter through the Lead Underwriters
specifically for inclusion therein, it being agreed that the only
such information consists of the statements under the heading
"Underwriting" in each of the Initial Preliminary Prospectus, the
Revised Preliminary Prospectus and the Prospectus that specify (A)
the list of Underwriters and their respective participation in the
sale of the US Notes, (B) the sentences related to concessions and
reallowances and (C) the paragraphs related to short sales,
stabilization, short covering transactions and penalty bids (such
information, the "Underwriter Information");
(II) the Initial Preliminary Prospectus (except for the omission
of any pricing related information and any information relating to
an Issuer Swap Provider, the Conditional Purchaser or the
Remarketing Bank), as of its date and as of the Time of Sale, did
not contain an untrue statement of a material fact and did not
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 Master
Issuer makes no representations, warranties or agreements as to
statements or omissions in the Initial Preliminary Prospectus made
in reliance upon and in conformity with the Underwriter
Information;
(III) the Revised Preliminary Prospectus (except for the omission
of any pricing related information), as of its date and as of the
Time of Sale, did not contain an untrue statement of a material
fact and did not 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 Master Issuer makes no representations, warranties or
agreements as to statements or omissions in the Revised
Preliminary Prospectus made in reliance upon and in conformity
with the Underwriter Information;
(IV) the Master Issuer was not, as of any date on or after which a
bona fide offer (as used in Rule 164(h)(2) under the Securities
Act) of the US Notes was made, an "ineligible issuer", as defined
in Rule 405 under the Securities Act;
(V) the Prospectus, as of the date of the Prospectus Supplement
and as of the Closing Date, did not and will not contain 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 Master Issuer makes no
representations, warranties or agreements as to statements or
omissions in the Prospectus (or any amendment or supplement
thereto) made in reliance upon and in conformity with the
Underwriter Information; and
(VI) the documents incorporated by reference in the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus and the
Prospectus, when they were filed with the Commission under the
Exchange Act, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and any further
18
documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder; provided, however,
that the Master Issuer makes no representations, warranties or
agreements as to the documents incorporated by reference under the
headings "The issuer swap provider" and "The conditional
purchaser" in the Revised Preliminary Prospectus and the
Prospectus.
(c) Incorporation, Capacity and Authorization
The Master Issuer is a public limited company duly incorporated
and validly existing under the laws of England and Wales, with
full power and capacity to conduct its business as described in
the Prospectus, to create and issue the Notes, to execute this
Agreement and the other Legal Agreements to which it is a party
and to undertake and perform the obligations expressed to be
assumed by it herein and therein; and has taken all necessary
action to approve and authorize the same; and the Master Issuer is
lawfully qualified to do business in England and Wales. The Master
Issuer has not taken any corporate action nor (to the best of its
knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against it for its
winding-up, dissolution or reorganization or for the appointment
of a receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues.
(d) Validity of Legal Agreements
This Agreement has been duly authorized, executed and delivered by
the Master Issuer and constitutes, and the other Legal Agreements
to which the Master Issuer is a party have been duly authorized by
the Master Issuer and on the Closing Date will constitute, legal,
valid and binding obligations of the Master Issuer, enforceable
against the Master Issuer in accordance with their respective
terms, subject as to enforceability to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors rights generally and to general equitable principles.
(e) Validity of Notes
The creation, sale and issue of the Notes have been duly
authorized by the Master Issuer and, when executed and
authenticated in accordance with the Supplemental Issuer Trust
Deed and the Issuer Paying Agent and Agent Bank Agreement, the
Notes will constitute legal, valid and binding obligations of the
Master Issuer and, upon effectiveness of the Registration
Statement, the Supplemental Issuer Trust Deed will have been duly
qualified under the Trust Indenture Act.
(f) Consents
All consents, approvals, authorizations and other orders of all
United States and United Kingdom regulatory authorities required
for the creation, issue and offering of the Notes by the Master
Issuer or in connection with the execution and performance by the
Master Issuer of the transactions contemplated by the Legal
Agreements or the compliance by the Master Issuer with the terms
of the Notes and the Legal Agreements as the case may be, except
for (i) such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable United States
state securities, Blue Sky or similar laws in connection with the
19
purchase and distribution of the Notes by the Underwriters and
(ii) those which will on the Closing Date be, in full force and
effect.
(g) Compliance
The authorization of the Notes and the granting of security
interests in relation thereto under the Issuer Deed of Charge (as
amended by the Deed of Accession), the offering and issue of the
Notes on the terms and conditions of this Agreement, the
Supplemental Issuer Trust Deed and the Prospectus, the execution
and delivery of the Legal Agreements to which it is a party and
the implementation of the transactions contemplated by such Legal
Agreements and compliance with the terms of the Legal Agreements
to which it is a party do not, and will not, (i) conflict with, or
result in a breach of, any of the terms or provisions of, or
constitute a default under, the Memorandum and Articles of
Association of the Master Issuer or any agreement or instrument to
which the Master Issuer is a party or by which any of its assets
or 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 Master
Issuer or any of its assets or properties; or (iii) result in the
creation or imposition of any mortgage, charge, pledge, lien or
other security interest on any of its assets or properties, other
than those created in, or imposed by, the Legal Agreements
themselves.
(h) Accountants
PricewaterhouseCoopers LLP are a registered public accounting firm
and independent with respect to the Master Issuer within the
meaning of the Securities Act.
(i) Taxation
Save as described in the legal opinions referred to in Clause
9.1(d) of this Agreement, no stamp or other similar duty is
assessable or payable in the United Kingdom, and no withholding or
deduction for or on account of any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for or
on account of any income, registration, transfer or turnover
taxes, customs or other duties or taxes of any kind in connection
with the authorization, execution or delivery of the Legal
Agreements or with the authorization, issue, sale or delivery of
the Notes and (except as disclosed in the Prospectus) the
performance of the Master Issuer's, Funding 2's and/or, as the
case may be, the Mortgages Trustee's obligations under the Legal
Agreements and the Notes. This warranty does not apply to any
United Kingdom corporation tax on net income, profits or gains
received or receivable which may be levied, collected, withheld or
assessed in connection with the authorization, execution or
delivery of the Legal Agreements or with the authorization, issue,
sale or delivery of the Notes.
(j) Breach of other agreements
The Master 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.
20
(k) Events of Default
No event has occurred or circumstance arisen which, had the Notes
already been issued, would (whether or not with the giving of
notice and/or the passage of time and/or the fulfillment of any
other requirement) constitute an Event of Default as set out in
the Conditions of the Notes.
(l) No Subsidiaries
The Master Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies Xxx
0000.
(m) Granite Finance Holdings Limited
The Funding Issuers, the Master Issuer, Funding, Funding 2, the
Mortgages Trustee and GPCH Limited are the only subsidiaries or
subsidiary undertakings of Granite Finance Holdings Limited within
the meanings of Sections 258 and 736 of the Companies Xxx 0000.
(n) No Activities
The Master Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any registration
or re-registration as a public limited company under the Companies
Acts 1985 and 1989 and various changes to its directors,
secretary, registered office, Memorandum and Articles of
Association; (ii) the authorization and execution of the Legal
Agreements to which it is a party; (iii) the activities referred
to or contemplated in the Legal Agreements to which it is a party
and (iv) the authorization and issue by it of the Notes. The
Master Issuer has not prepared any accounts and has neither paid
any dividends nor made any distributions since the date of its
incorporation.
(o) Prospectus Rules
The Reg S Prospectus has been (i) approved by the UK Listing
Authority as an approved prospectus for the purposes of Section
85(2) of the FSMA and the Prospectus Rules; and (ii) published in
accordance with the Prospectus Rules.
(p) Litigation
There are no pending actions, suits or proceedings against or
affecting the Master 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
Master Issuer or could adversely affect the ability of the Master
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 Master
Issuer's knowledge, no such actions, suits or proceedings are
threatened or contemplated.
(q) No Prior Security
Save as set out in any of the Legal Agreements, there exists no
mortgage, lien, pledge or other charge on or over the assets of
the Master Issuer and, other than the Legal Agreements, the Master
Issuer has not entered into any indenture or trust deed.
21
(r) Security for the Notes
The Notes and the obligations of the Master Issuer under the
Supplemental Issuer Trust Deed will be secured in the manner
provided in the Issuer Deed of Charge (as amended by the Issuer
Deed of Accession) 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 Master Issuer's rights and claims in respect of
all security and other rights held on trust by the Funding 2
Security Trustee pursuant to the Funding 2 Deed of Charge, (ii) an
assignment by way of first fixed security of the Master Issuer's
right, title, interest and benefit in the Global Intercompany Loan
Agreement, the Currency Swap Agreements, the Funding 2 Deed of
Charge, the Supplemental Issuer Trust Deed, the Notes, the Issuer
Paying Agent and Agent Bank Agreement, the Issuer Cash Management
Agreement, the Corporate Services Agreement, the Issuer Bank
Account Agreement, the Post-Enforcement Call Option Agreement,
this Agreement, the Programme Agreement, the Subscription
Agreement and any other agreements to which the Master Issuer is a
party; (iii) an assignment by way of first fixed charge over the
Issuer Bank Accounts; (iv) a first fixed charge (which may take
effect as a floating charge) over the Master Issuer's right,
title, interest and benefit to any Authorized Investments made
with moneys standing to the credit of any of the Issuer Bank
Accounts; and (v) a first ranking floating charge over the whole
of the assets and undertaking of the Master Issuer which are not
otherwise effectively subject to any fixed charge or assignment by
way of security.
(s) Investment Company Act
The Master Issuer is not an "investment company" as defined in the
U.S. Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the offer and sale of the US Notes in the
United States will not subject the Master Issuer to registration
under, or result in a violation of, the Investment Company Act.
(t) United States Income Tax
The Master 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.
(u) Legal Agreements
The representations and warranties given by the Master Issuer in
the Legal Agreements are true and accurate, and the description of
the Legal Agreements as set out in the Prospectus is true and
correct in all material respects.
Unless otherwise indicated, the representations and warranties set out
in this Clause 5 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF FUNDING 2 AND THE MORTGAGES TRUSTEE
Each of Funding 2 and the Mortgages Trustee severally represents and
warrants (in respect of itself only) to, and agrees with, the
Underwriters and each of them that:
22
(a) The Registration Statement
The Registration Statement has been filed by Funding 2 and the
Mortgages Trustee (together with the Master Issuer) with the
Commission and has become effective and is still effective as of
the date hereof under the Securities Act. No stop order suspending
the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of Funding 2
and the Mortgages Trustee, are threatened by the Commission.
Funding 2 and the Mortgages Trustee (together with the Master
Issuer) have filed with the Commission the Initial Preliminary
Prospectus and the Revised Preliminary Prospectus and, in each
case, they have done so within the applicable period of time
required under the Securities Act and the Rules and Regulations.
Funding 2 and the Mortgages Trustee (together with the Master
Issuer) will file with the Commission the Prospectus pursuant to
Rule 424(b) of the Rules and Regulations, promptly upon or after
the execution and delivery of this Agreement.
The conditions to the use of a registration statement on Form S-3
under the Securities Act have been satisfied. The Registration
Statement, at the time it became effective, any post-effective
amendment thereto, at the time it became effective, the Initial
Preliminary Prospectus, as of its date, and the Revised
Preliminary Prospectus, as of its date, and the Prospectus, as of
the date of the Prospectus Supplement, complied and on the Closing
Date will comply in all material respects with the applicable
requirements of the Act and the Rules and Regulations and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder.
(b) No Material Misstatements or Omissions
(I) The Registration Statement, as of the applicable effective
date as to each part of the Registration Statement and any
amendment thereto pursuant to Rule 430B(f)(2) under the Act, did
not include any untrue statement of a material fact and did not
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that neither Funding 2 nor the Mortgages Trustee makes
any representations, warranties or agreements as to: (i) that part
of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Note Trustee under
the Trust Indenture Act, and (ii) statements or omissions in the
Registration Statement made in reliance upon and in conformity
with the Underwriter Information;
(II) the Initial Preliminary Prospectus (except for the omission
of any pricing related information and any information relating to
an Issuer Swap Provider, the Conditional Purchaser or the
Remarketing Bank), as of its date and as of the Time of Sale, did
not contain an untrue statement of a material fact and did not
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 2 nor the Mortgages Trustee makes any representations,
warranties or agreements as to statements or omissions in the
Initial Preliminary Prospectus made in reliance upon and in
conformity with the Underwriter Information;
(III) the Revised Preliminary Prospectus (except for the omission
of any pricing related information), as of its date and as of the
Time of Sale, did not contain an untrue statement of a material
fact and did not omit to state a material fact necessary
23
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 2 nor the Mortgages
Trustee makes any representations, warranties or agreements as to
statements or omissions in the Revised Preliminary Prospectus made
in reliance upon and in conformity with the Underwriter
Information;
(IV) the Prospectus, as of the date of the Prospectus Supplement
and as of the Closing Date, did not and will not contain 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 2 nor the
Mortgages Trustee makes any representations, warranties or
agreements as to statements or omissions in the Prospectus (or any
amendment or supplement thereto) made in reliance upon and in
conformity with the Underwriter Information; and
(V) the documents incorporated by reference in the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus and the
Prospectus, when they were filed with the Commission under the
Exchange Act, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with
the Commission, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; provided, however, that neither Funding 2 nor the
Mortgages Trustee makes any representation, warranty or agreement
as to the documents incorporated by reference under the headings
"The issuer swap provider" and "The conditional purchaser" in the
Revised Preliminary Prospectus and the Prospectus.
(c) Incorporation, Capacity and Authorization
(I) Funding 2 is a private limited company duly incorporated and
validly existing under the laws of England and Wales, with full
power and capacity to conduct its business as described in the
Prospectus, to execute this Agreement and the other Legal
Agreements to which it is a party and to undertake and perform the
obligations expressed to be assumed by it herein and therein; and
has taken all necessary action to approve and authorize the same;
and Funding 2 is lawfully qualified to do business in England and
Wales. Funding 2 has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been taken
or legal proceedings been started or threatened against it for its
winding-up, dissolution or reorganization or for the appointment
of a receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues; and
(II) The Mortgages Trustee is duly incorporated and validly
existing under the laws of Jersey, Channel Islands, with full
power and authority to conduct its business as described in the
Prospectus, is lawfully qualified to do business in Jersey and has
full power and capacity to execute this Agreement and the other
Legal Agreements to which it is a party, and to undertake and
perform the obligations expressed to be assumed by it herein and
therein; and it has taken all necessary action to approve and
authorize the same. The Mortgages Trustee has not taken any
corporate action 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
24
reorganization or for the appointment of a receiver,
administrator, administrative receiver or similar officer of it or
of any or all of its assets or revenues.
(d) Validity of Legal Agreements
This Agreement has been duly authorized, executed and delivered by
each of Funding 2 and the Mortgages Trustee and constitutes, and
the other Legal Agreements to which Funding 2 and the Mortgages
Trustee are a party have been duly authorized by each of Funding 2
and the Mortgages Trustee and on the Closing Date will constitute,
legal, valid and binding obligations of each of Funding 2 and the
Mortgages Trustee, enforceable against each of Funding 2 and the
Mortgages Trustee in accordance with their respective terms,
subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or
other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles.
(e) Consents
All consents, approvals, authorizations and other orders of all
United States, Jersey, Channel Islands and United Kingdom
regulatory authorities required in connection with the execution
of and performance by Funding 2 and/or the Mortgages Trustee of
the transactions contemplated by the Legal Agreements to which
Funding 2 and/or the Mortgages Trustee, as the case may be, is a
party or the compliance by each of them with the terms of the
Legal Agreements are, or will on the Closing Date be, in full
force and effect.
(f) Compliance
The authorization of the terms and conditions of this Agreement,
the execution and delivery of the Legal Agreements to which
Funding 2 and/or, as the case may be, the Mortgages Trustee is
party and the implementation of the transactions contemplated by
such Legal Agreements and compliance with the terms of the Legal
Agreements do not, and will not, (i) conflict with, or result in a
breach of, any of the terms or provisions of, or constitute a
default under, the Memorandum and Articles of Association of
Funding 2 or the Mortgages Trustee or any agreement or instrument
to which Funding 2 or the Mortgages Trustee is a party or by which
any of its assets or properties is bound; (ii) infringe any
applicable law, rule, regulation, judgment, order or decree of any
government, governmental body or court having jurisdiction over
either Funding 2 or the Mortgages Trustee or any of its assets or
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 assets or properties, other than those created in,
or imposed by, the Legal Agreements themselves.
(g) Breach of other agreements
Neither Funding 2 nor the Mortgages Trustee is in breach of or in
default under any agreement to which it is a party or which is
binding on it or any of its assets or revenues.
(h) Events of Default
No event has occurred or circumstance arisen which, had the Global
Intercompany Loan Agreement been entered into, would (whether or
not with the giving of notice
25
and/or the passage of time and/or the fulfillment of any other
requirement) constitute a Funding 2 Intercompany Loan Event of
Default as set out in the Global Intercompany Loan Agreement.
(i) No Subsidiaries
The Mortgages Trustee does not have any subsidiaries or subsidiary
undertakings within the meanings of Sections 258 and 736 of the
Companies Xxx 0000. Funding 2 does not have any subsidiaries or
subsidiary undertakings within the meanings of Sections 258 and
736 of the Companies Xxx 0000 save for the Master Issuer.
(j) No Activities
(I) Funding 2 has not engaged in any activities since its
incorporation other than (i) those incidental to any registration
or re-registration as a private limited company under the
Companies Acts 1985 and 1989 and various changes to its directors,
secretary, registered office, Memorandum and Articles of
Association; (ii) the authorization, execution and in certain
cases, amendment, of the Legal Agreements to which each is a
party; (iii) the activities referred to or contemplated in the
Legal Agreements; and (iv) the filing of a notification by it
under the Data Protection Act 1998 (the "DPA") and the application
for a standard license under the Consumer Credit Xxx 0000. Funding
2 has not prepared any accounts and has neither paid any dividends
nor made any distributions since the date of its incorporation;
and
(II) The Mortgages Trustee has not engaged in any activities since
its incorporation other than (i) those incidental to any
registration as a private limited company under the laws of Jersey
and (if any) various changes to its directors, secretary,
registered office, Memorandum and Articles of Association; (ii)
the authorization, execution and in certain cases, amendment, of
the Legal Agreements to which each is a party; (iii) the
activities referred to or contemplated in the Legal Agreements or
in the Prospectus; (iv) the activities undertaken in connection
with the establishment of the Mortgages Trust pursuant to the
Mortgages Trust Deed; (v) the filing of a notification by the
Mortgages Trustee under the DPA and the application for a standard
license under the Consumer Credit Xxx 0000; and (vi) any
activities in connection with or incidental to the issue of notes
by the Funding Issuers and the issue of the Notes by the Master
Issuer. The Mortgages Trustee has not prepared any accounts and
has neither paid any dividends nor made any distributions since
the date of its incorporation.
(k) Beneficial Owner
As of August 21, 2006, following the completion of the assignment
of the New Mortgage Portfolio to the Mortgages Trustee pursuant to
and in accordance with the Mortgage Sale Agreement and pursuant to
and in accordance with the terms of the Mortgages Trust Deed, the
Mortgages Trustee has held the New Mortgage Portfolio, and has
held and will continue to hold, the Mortgage Portfolio on a bare
trust for the benefit of Funding, Funding 2 and NRPLC in undivided
shares absolutely.
(l) Litigation
There are no pending actions, suits or proceedings against or
affecting Funding 2 or the Mortgages Trustee which could
individually or in the aggregate have an adverse effect on the
condition (financial or otherwise), prospects, results of
operations or
26
general affairs of the Mortgages Trustee or Funding 2 (as the case
may be) or could adversely affect the ability of the Mortgages
Trustee or Funding 2 (as the case may be) to perform their
respective obligations under the Legal Agreements, or which are
otherwise material in the context of the transaction contemplated
by the Prospectus and, to the best of the knowledge of Funding 2
and the Mortgages Trustee, no such actions, suits or proceedings
are threatened or contemplated.
(m) No Prior Security
Save as set out in any of the Legal Agreements there exists no
mortgage, lien, pledge or other charge on or over the assets of
Funding 2 or the Mortgages Trustee and, other than the Legal
Agreements, neither Funding 2 nor the Mortgages Trustee has
entered into any indenture or trust deed.
(n) Security for the Loan Tranches under the Global Loan Facility
Funding 2's obligations under, inter alia, the Global Intercompany
Loan Agreement will be secured in the manner provided in the
Funding 2 Deed of Charge and with the benefit of the charges,
covenants and other security provided for therein including,
without limitation, (i) a first fixed charge over and assignment
by way of security of Funding 2's share of the Trust Property (as
defined in the Mortgages Trust Deed); (ii) an assignment by way of
first fixed security of all of Funding 2's right, title, interest
and benefit in the Mortgage Sale Agreement, the Mortgages Trust
Deed, the Administration Agreement, the Global Intercompany Loan
Agreement, the Start-Up Loan Agreement, the Funding 2 Guaranteed
Investment Contract, the Corporate Services Agreement, the Cash
Management Agreement, the Funding 2 Bank Account Agreement and any
other of the Legal Agreements (excluding all of Funding 2's right,
title, interest and benefit in the Funding 2 Deed of Charge) to
which Funding 2 is a party); (iii) a first fixed charge (which may
take effect as a floating charge) of Funding 2's right, title,
interest and benefit in the Funding 2 Bank Accounts; (iv) a first
fixed charge (which may take effect as a floating charge) of
Funding 2's right, title, interest and benefit in all Authorized
Investments purchased with moneys standing to the credit of the
Funding 2 Bank Accounts; and (v) a first floating charge over all
the assets and the undertaking of Funding 2 which are not
effectively subject to a fixed charge or assignment by way of
security (including all the assets and undertakings of Funding 2
which are situated in or governed by the laws of Scotland).
(o) Investment Company Act
Neither Funding 2 nor the Mortgages Trustee is an "investment
company" as defined in the Investment Company Act, and the offer
and sale of the Notes in the United States will not subject
Funding 2 or the Mortgages Trustee to registration under, or
result in a violation of, the Investment Company Act.
(p) United States Income Tax
Neither Funding 2 nor the Mortgages Trustee will engage in any
activities in the United States (directly or through agents),
derive any income from United States sources as determined under
the Code, or hold any property if doing so would cause it to be
engaged or deemed to be engaged in a trade or business within the
United States as determined under the Code.
27
(q) Accountants
PricewaterhouseCoopers LLP are a registered public accounting firm
and independent with respect to Funding 2 within the meaning of
the Securities Act.
(r) Legal Agreements
The representations and warranties given by Funding 2 and the
Mortgages Trustee in the Legal Agreements are true and accurate,
and the description of the Legal Agreements as set out in the
Prospectus is true and correct in all material respect.
Unless otherwise indicated, the representations and warranties set out
in this Clause 6 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF NRPLC
NRPLC represents and warrants to, and agrees with, the Underwriters and
each of them and, in the case of the matters referred to in Clause 7(f)
below, to and with the Mortgages Trustee that:
(a) Incorporation, Capacity and Authorization
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
authority to conduct its business as described in the Prospectus,
to execute this Agreement and the Legal Agreements to which it is
a party and to undertake and perform the obligations expressed to
be assumed by it herein and therein and has taken all necessary
action to approve and authorize the same and is lawfully qualified
to do business in England and Wales; and NRPLC has not taken any
corporate action nor (to the best of its knowledge and belief)
have any other steps been taken or legal proceedings been started
or threatened against it for its winding-up, dissolution or
reorganization or for the appointment of a receiver,
administrator, administrative receiver or similar officer of it or
of any or all of its assets or revenues; and it is not in
liquidation.
(b) Validity of Legal Agreements
This Agreement has been duly authorized, executed and delivered by
NRPLC and constitutes, and the other Legal Agreements to which
NRPLC is a party will be duly authorized by NRPLC prior to the
Closing Date and on the Closing Date will constitute, legal, valid
and binding obligations of NRPLC, enforceable against NRPLC in
accordance with their respective terms, subject as to
enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or
other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles.
(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.
28
(d) Consents
All consents, approvals and authorizations of all United Kingdom
regulatory authorities required on the part of NRPLC for or in
connection with the execution and performance of the transactions
contemplated by the Legal Agreements to which NRPLC is a party
have been, or will be prior to the Closing Date be, obtained and
are, or will prior to the Closing Date be, in full force and
effect including, without limiting the generality of the
foregoing, NRPLC having received a standard license under the
Consumer Credit Xxx 0000 and NRPLC being registered under the DPA.
(e) Compliance
The authorization of the terms and conditions of this Agreement,
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 assets or 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 assets or properties; or (iii) result in the
creation or imposition of any mortgage, charge, pledge, lien or
other security interest on any of its assets or properties, other
than those created in, or imposed by, the Legal Agreements
themselves.
(f) No Material Misstatements or Omissions
(I) The conditions to the use of a registration statement on Form
S-3 under the Securities Act have been satisfied. The Registration
Statement, at the time it became effective, any post-effective
amendment thereto, at the time it became effective, the Initial
Preliminary Prospectus, as of its date, the Revised Preliminary
Prospectus, as of its date, and the Prospectus, as of the date of
the Prospectus Supplement, complied and on the Closing Date will
comply in all material respects with the applicable requirements
of the Securities Act and the Rules and Regulations and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder. The Registration Statement, as of the applicable
effective date as to each part of the Registration Statement and
any amendment thereto pursuant to Rule 430B(f)(2) under the Act,
did not include any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading;
provided, however, that NRPLC makes no representations, warranties
or agreements as to: (i) that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification
(Form T-1) of the Note Trustee under the Trust Indenture Act, and
(ii) statements or omissions in the Registration Statement made in
reliance upon and in conformity with the Underwriter Information;
(II) the Initial Preliminary Prospectus (except for the omission
of any pricing related information and any information relating to
an Issuer Swap Provider, the Conditional Purchaser or the
Remarketing Bank), as of its date and as of the Time of Sale, did
not contain an untrue statement of a material fact and did not
omit to state a material fact necessary in order to make the
statements therein, in the light of the
29
circumstances under which they were made, not misleading;
provided, however, that NRPLC makes no representations, warranties
or agreements as to statements or omissions in the Initial
Preliminary Prospectus made in reliance upon and in conformity
with the Underwriter Information;
(III) the Revised Preliminary Prospectus (except for the omission
of any pricing related information), as of its date and as of the
Time of Sale, did not contain an untrue statement of a material
fact and did not 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, warranties or agreements as
to statements or omissions in the Revised Preliminary Prospectus
made in reliance upon and in conformity with the Underwriter
Information;
(IV) the Prospectus, as of the date of the Prospectus Supplement
and as of the Closing Date, did not and will not contain 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, warranties or agreements as to statements or
omissions in the Prospectus (or any amendment or supplement
thereto) made in reliance upon and in conformity with the
Underwriter Information; and
(V) the documents incorporated by reference in the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus and the
Prospectus, when they were filed with the Commission under the
Exchange Act, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with
the Commission, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; provided, however, that NRPLC makes no representation,
warranty or agreement as to the documents incorporated by
reference under the headings "The issuer swap provider" and "The
conditional purchaser" in the Revised Preliminary Prospectus and
the Prospectus.
(g) Beneficial Owner
As of August 21, 2006, following the completion of the assignment
of the New Mortgage Portfolio to the Mortgages Trustee pursuant to
and in accordance with the Mortgage Sale Agreement and pursuant to
and in accordance with the terms of the Mortgages Trust Deed, the
Mortgages Trustee has held the New Mortgage Portfolio and has held
and will continue to hold the Mortgage Portfolio on a bare trust
for the benefit of Funding, Funding 2 and NRPLC in undivided
shares absolutely.
(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.
30
(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 MASTER ISSUER, FUNDING 2, THE MORTGAGES TRUSTEE AND
NRPLC
8.1 Each of the Master Issuer and, where expressly provided, Funding 2, the
Mortgages Trustee and NRPLC severally (and not jointly) covenants to,
and agrees each for itself with, the Underwriters and each of them that:
(a) The Registration Statement
The Master Issuer, Funding 2 and the Mortgages Trustee will (i)
file with the Commission the final Prospectus (in a form approved
by the Lead Underwriters) pursuant to Rule 424(b) under the
Securities Act not later than the relevant time period prescribed
therein, (ii) make no further amendment to the Registration
Statement or supplement to the Prospectus prior to the Closing
Date except as permitted herein, (iii) advise the Lead
Underwriters, promptly after they receive notice thereof, of the
time, during the period a Prospectus is required to be delivered
in connection with the offer and sale of the US Notes, when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, (iv) furnish the
Lead Underwriters with copies thereof for their review prior to
filing and not to file any such proposed amendment or supplement
to which the Lead Underwriters reasonably object and (v) provide
evidence satisfactory to the Lead Underwriters of such timely
filing(s).
(b) Signed Prospectus
The Master Issuer will deliver to the Underwriters, without
charge, on the date of this Agreement and during the Prospectus
Delivery Period, such number of copies of the Prospectus
(including all amendments and supplements thereto) as the
Underwriters may reasonably request, and the Master Issuer will
furnish to the Lead Underwriters on the date of this Agreement
four copies of the Prospectus signed by a duly authorized director
of the Master Issuer. The Master Issuer will also promptly furnish
each Underwriter (to the extent not already furnished) and its
counsel one signed copy of the Registration Statement as
originally filed and each amendment or supplement thereto,
including all consents and exhibits filed therewith and all
documents incorporated by reference therein. As used herein, the
term "Prospectus Delivery Period" means such period of time after
the first date of the public offering of the US Notes as in the
opinion of counsel for the Underwriters a prospectus relating to
the US Notes is required by law to be delivered in connection with
sales of the US Notes by any Underwriter or dealer.
31
(c) Notify Material Omission
If, during such period of time after the first date of the public
offering of the US Notes that a prospectus is required by law to
be delivered in connection with offers and sales by the
Underwriters or any dealer, (i) any event shall have occurred as a
result of which the Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or (ii) if
for any other reason it shall be necessary to amend or supplement
the Registration Statement or the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Registration Statement or the Prospectus in order to comply with
the Securities Act or the Exchange Act, then the Master Issuer
will promptly (A) notify the Underwriters, (B) prepare and file
with the Commission any amendment or supplement to the
Registration Statement or the Prospectus which corrects such
statement or omission or effects such compliance, and (C) furnish
without charge to the Underwriters as many copies as the Lead
Underwriters may reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance. The provisions of Clauses
5(a), 5(b), 5(c), 5(o), 6(a), 6(b), 6(c), 7(a) and 7(f) shall be
deemed to be repeated by, as applicable, the Master Issuer,
Funding 2, the Mortgages Trustee and NRPLC (as applicable) as of
the date of each such amended or supplemented Prospectus on the
basis that each reference to "Prospectus" in such provisions of
Clauses 5, 6 and 7 shall be deemed to be a reference to the
Prospectus as amended or supplemented as of such date.
(d) Notify Change
Without prejudice to its obligations under Clause 8.1(c), the
Master 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 Master Issuer on the Closing Date and will take such
steps as may be reasonably requested by the Lead Underwriters to
remedy and/or publicize the same.
(e) Official Announcements
Between the date of this Agreement and the Closing Date (both
dates inclusive) none of NRPLC, the Master Issuer, Funding 2 or
the Mortgages Trustee will, without the prior approval of the Lead
Underwriters on behalf of the Underwriters (such approval not to
be unreasonably withheld or delayed), make any official
announcement which would have an adverse effect on the
marketability of the US Notes.
(f) Stamp Duty
(i) The Master Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties that it is required to pay under any obligation
in the Legal Agreements to which it is a party payable in
the United Kingdom, Belgium, Luxembourg or the United
States, including interest and penalties, in connection with
the creation, issue, distribution and offering of the Notes,
or in connection with the execution, delivery or enforcement
of any of the Legal Agreements to which it is a party
together with any value added, turnover or similar tax
payable in respect of that
32
amount (and references in this Agreement to such amount shall
be deemed to include any such taxes so payable in addition to
it);
(ii) Funding 2 will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and duties
that it is required to pay under any obligation in the Legal
Agreements to which it is a party payable in the United
Kingdom or the United States, including interest and
penalties, or in connection with the execution, delivery or
enforcement of any of the Legal Agreements to which it is a
party (other than in respect of the execution, delivery or
enforcement of the Mortgages Trust Deed and any Legal
Agreement to which the Master Issuer is a party) together
with any value added, turnover or similar tax payable in
respect of that amount (and references in this Agreement to
such amount shall be deemed to include any such taxes so
payable in addition to it); and
(iii) The Mortgages Trustee will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties that it is required to pay under any obligation
in the Legal Agreements to which it is a party payable in
the United Kingdom, Jersey, Channel Islands or the United
States, including interest and penalties, or in connection
with the execution, delivery or enforcement of the Mortgages
Trust Deed (including any amendment thereto) and the
Mortgage Sale Agreement (including any amendment thereto)
(together with any value added, turnover or similar tax
payable in respect of that amount (and references in this
Agreement to such amount shall be deemed to include any such
taxes so payable in addition to it)) but will be promptly
reimbursed an amount equal to any such payments by the
Beneficiaries in accordance with the terms of the Mortgages
Trust Deed.
(g) United States Income Tax
The Master Issuer will not engage in any activities in the United
States (directly or through agents), will not derive any income
from United States sources as determined under the Code and will
not hold any property if doing so would cause it to be engaged or
deemed to be engaged in a trade or business within the United
States as determined under the Code.
(h) Payment of Fees, Charges, Costs and Duties
(i) Without prejudice to the generality of Clause 10.1, the
Master 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 Master Issuer under the
Supplemental Issuer Trust Deed and for the other amounts to
be secured as contemplated by the Issuer Deed of Charge (as
amended by the Issuer Deed of Accession), and the perfection
of such security at any time;
(ii) Without prejudice to the generality of Clause 10.1, Funding
2 will pay all and any fees, charges, costs and duties and
any stamp and other similar taxes or duties that it is
required to pay under the Legal Agreements to which it is a
party, including interest and penalties, arising from or in
connection with the creation of the security for the Loan
Tranches under the Global Loan Facility
33
and for the other amounts to be secured as contemplated by
the Funding 2 Deed of Charge and the perfection of such
security at any time; and
(iii) Without prejudice to the generality of Clause 10.1, the
Mortgages Trustee will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or duties
that it is required to pay under the Legal Agreements to
which it is a party, including interest and penalties,
arising from or in connection with the purchase of the
Related Security (and related property and rights) excluding
H.M. Land Registry fees and/or Registers of Scotland fees
(as applicable) (it being agreed that registration or
recording at H.M. Land Registry and/or the Registers of
Scotland (as applicable) of the transfer of the Related
Security to the Mortgages Trustee will not be applied for
except in the circumstances specified in the Administration
Agreement); but on the basis that the Mortgages Trustee will
be reimbursed such fees, charges, costs and duties and any
stamp and other similar taxes or duties (including interest
and penalties) by the Beneficiaries pursuant to the terms of
the Mortgages Trust Deed.
(i) Perform All Required Actions
On or prior to the Closing Date each of NRPLC, the Master Issuer,
Funding 2 and the Mortgages Trustee will do all things reasonably
within each of their respective powers and required of each of
them on such date under the terms of the Legal Agreements to which
each is a party.
(j) Review of Related Security
NRPLC will deliver to the Lead Underwriters on or about the date
of this Agreement a letter (referred to as the auditors' pool
audit report) addressed to the Underwriters or their affiliates
(relating to the review by PricewaterhouseCoopers LLP of the
Mortgage Loans and their Related Security) dated on or about the
date of this Agreement in the agreed form addressed to NRPLC and
the Underwriters from PricewaterhouseCoopers LLP.
(k) Conditions Precedent
The Master Issuer will use all reasonable endeavors to procure
satisfaction on or before the Closing Date of the conditions
referred to in Clause 9 of this Agreement.
(l) Issuer Cash Management Agreement
The Master Issuer will use all reasonable endeavors to procure
that NRPLC complies with its obligations under the Issuer Cash
Management Agreement.
(m) Administration Agreement
Funding 2 and the Mortgages Trustee will use all reasonable
endeavors to procure that NRPLC complies with its obligations
under the Administration Agreement.
34
(n) Charges and Security Interests
(i) The Master Issuer will procure that each of the charges and
other security interests created by or contained in the
Issuer Deed of Accession is registered within all applicable
time limits in all appropriate registers; and
(ii) Funding 2 will procure that each of the charges and other
security interests created by or contained in the Funding 2
Deed of Charge is registered within all applicable time
limits in all appropriate registers.
(o) Ratings
None of NRPLC, the Master Issuer, Funding 2 or the Mortgages
Trustee will take, or cause to be taken, any action and none of
them will permit any action to be taken which it knows or has
reason to believe would result in the US Notes not being assigned
an AAA rating for the Series 2006-3 Class A1 Notes, the Series
2006-3 Class A3 Notes, the Series 2006-3 Class A4 Notes and the
Series 2006-3 Class A7 Notes, an AA rating for the Series 2006-3
Class B1 Notes and the Series 2006-3 Class B2 Notes, an A rating
for the Series 2006-3 Class M1 Notes and the Series 2006-3 Class
M2 Notes and a BBB rating for the Series 2006-3 Class C2 Notes by
Fitch Ratings Ltd. ("Fitch Ratings"); an Aaa rating for the Series
2006-3 Class A1 Notes, the Series 2006-3 Class A3 Notes, the
Series 2006-3 Class A4 Notes and the Series 2006-3 Class A7 Notes,
an Aa3 rating for the Series 2006-3 Class B1 Notes and the Series
2006-3 Class B2 Notes, an A2 rating for the Series 2006-3 Class M1
Notes and the Series 2006-3 Class M2 Notes and a Baa2 rating for
the Series 2006-3 Class C2 Notes by Xxxxx'x Investors Service
Limited ("Moody's"); and an AAA rating for the Series 2006-3 Class
A1 Notes, the Series 2006-3 Class A3 Notes, the Series 2006-3
Class A4 Notes and the Series 2006-3 Class A7 Notes, an AA rating
for the Series 2006-3 Class B1 Notes and the Series 2006-3 Class
B2 Notes, an A rating for the Series 2006-3 Class M1 Notes and the
Series 2006-3 Class M2 Notes and a BBB rating for the Series
2006-3 Class C2 Notes by Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. ("Standard & Poor's").
(p) Legal Agreements
Prior to closing on the Closing Date none of NRPLC, the Master
Issuer, Funding 2 or the Mortgages Trustee will amend the terms of
the executed Legal Agreements, nor execute any of the other Legal
Agreements other than in the agreed form, without the consent of
the Lead Underwriters (such consent not to be unreasonably
withheld or delayed).
(q) Commission Filings
The Master Issuer, Funding 2 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 Master Issuer, Funding 2 or the
Mortgages Trustee will file any such document or amendment unless
the Master Issuer, Funding 2 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
35
consulted and given a reasonable opportunity to comment on such
document or amendment.
(r) Copies of Filings and Commission
If during the Marketing Period there is (i) any amendment to the
Registration Statement, (ii) any amendment or supplement to the
Prospectus, or (iii) any material document filed by the Master
Issuer, Funding 2 or the Mortgages Trustee with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
including but not limited to (A) any interim or any report
submitted to the Commission on Form 6-K ("Form 6-K") or Form 20-F
("Form 20-F") under the Exchange Act and the rules and regulations
thereunder or (B) any amendment of or supplement to any such
document, the Master Issuer, Funding 2 and the Mortgages Trustee,
as the case may be, will furnish a copy thereof to each
Underwriter, and counsel to the Underwriters.
(s) Notice to Underwriters of Certain Events
During the Marketing Period, the Master Issuer will advise the
Underwriters immediately (i) when any post-effective amendment to
the Registration Statement becomes effective, (ii) of any request
by the Commission whether written or oral, for an amendment or
supplement to the Registration Statement, to any Prospectus or to
any material document filed by the Master Issuer, Funding 2 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 Master Issuer, Funding 2 and the Mortgages Trustee will
afford the Underwriters a reasonable opportunity to comment on any
such proposed amendment or supplement, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or any part thereof or the initiation
or threat of any stop order proceeding or of any challenge to the
accuracy or adequacy of the Prospectus or any document
incorporated by reference therein, (iv) of receipt by NRPLC or the
Master Issuer of any notification with respect to the suspension
of the qualification of the US 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 Master 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 Master 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 Master 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 Master Issuer is so informed.
(t) Stop Orders
The Master Issuer will use its best efforts to prevent the
issuance of any stop order or the suspension of any qualification
and if, during the Marketing Period, the Commission shall issue a
stop order suspending the effectiveness of the Registration
Statement or such qualification of the US Notes for sale in any
jurisdiction is suspended, the Master Issuer will make every
reasonable effort to obtain the lifting of that order or
suspension at the earliest possible time.
36
(u) Blue Sky Qualifications
The Master Issuer will co-operate with the Underwriters to qualify
the US Notes for offering and sale under the securities laws of
such jurisdictions of the United States as the Underwriters may
designate, to maintain such qualifications in effect for as long
as may be required for the distribution of the US Notes and to
file such statements and reports as may be required by the laws of
each jurisdiction in which the US Notes have been qualified as
above provided that in connection therewith the Master 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 US 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 Master Issuer on the Closing Date and will take such steps
as may be reasonably requested by the Lead Underwriters to remedy
and/or publicize the same. In the event that the Prospectus is
amended or supplemented pursuant to Clause 8.1(c) above, then the
representations and warranties contained in Clause 7(f) shall be
deemed to be repeated by NRPLC as of the date of such amended
Prospectus or supplement to the Prospectus, on the basis that each
reference to "Prospectus" in Clause 7(f) shall be deemed to be a
reference to the Prospectus as amended or supplemented as at such
date.
(b) Perform All Required Actions
On or prior to the Closing Date, NRPLC will do all things
reasonably within its power and required of it on such date under
the terms of the Legal Agreements to which it is a party.
(c) 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).
8.3 Written Communications
(a) The following terms have the specified meanings for purposes of
this Agreement:
"Bloomberg Submission" means the pricing material (in electronic
form) sent via Bloomberg e-mail by the Underwriters to investors;
provided, that references to Bloomberg Submission in this
Agreement shall mean the final pricing information accurately
displayed on Bloomberg;
37
"Free Writing Prospectus" means and includes any information
relating to the US Notes disseminated by the Master Issuer or any
Underwriter that constitutes a "free writing prospectus" within
the meaning of Rule 405 under the Securities Act;
"Issuer Information" means (1) the information contained in any
Underwriter Free Writing Prospectus (as defined below) which
information is also included in the Initial Preliminary Prospectus
or the Revised Preliminary Prospectus (other than Underwriter
Information), (2) information in the Initial Preliminary
Prospectus or the Revised Preliminary Prospectus or provided by
the Master Issuer, Funding 2, the Mortgages Trustee or NRPLC that
is used to calculate or create any Derived Information, in each
case in its final form and as filed under Rule 433 under the
Securities Act and (3) any computer tape or data in respect of the
US Notes or the related Mortgage Loans furnished by the Master
Issuer, Funding 2, the Mortgages Trustee or NRPLC to any
Underwriter; and
"Derived Information" means such written information regarding the
US Notes as is disseminated by any Underwriter to a potential
investor, which information is neither (1) Issuer Information nor
(2) contained in the Registration Statement, the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus, the
Prospectus or any amendment or supplement to any of them, taking
into account information incorporated therein by reference (other
than information incorporated by reference from any information
regarding the US Notes that is disseminated by any Underwriter to
a potential investor).
(b) The Master Issuer will not disseminate to any potential investor
any information relating to the US Notes that constitutes a
"written communication" within the meaning of Rule 405 under the
Securities Act, other than the Time of Sale Information and the
Prospectus, unless the Master Issuer has obtained the prior
consent of the Lead Underwriters (which consent will not be
unreasonably withheld).
(c) Neither the Master Issuer nor any Underwriter shall disseminate or
file with the Commission any information relating to the US Notes
in reliance on Rule 167 or 426 under the Securities Act, nor shall
the Master Issuer or any Underwriter disseminate any Underwriter
Free Writing Prospectus (as defined below) "in a manner reasonably
designed to lead to its broad unrestricted dissemination" within
the meaning of Rule 433(d) under the Securities Act.
(d) The Master Issuer and the Underwriters each agree that any Free
Writing Prospectus prepared by it shall comply in all material
respects with the Securities Act and the Rules and Regulations and
shall bear the following legend, or a substantially similar legend
that complies with Rule 433 under the Securities Act:
The issuing entity has filed a registration statement (including a
prospectus) with the Commission for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the Commission for more complete
information about the issuing entity and this offering. You may
get these documents for free by visiting XXXXX on the Commission
Web site at xxx.xxx.xxx. Alternatively, the issuing entity, any
underwriter or any dealer participating in the offering will
arrange to send you the prospectus if you request it by calling
toll-free _________.
(e) In the event the Master Issuer or NRPLC becomes aware that, as of
the Time of Sale, any Time of Sale Information contains or
contained any untrue statement of material
38
fact or omits or omitted to state a material fact necessary in
order to make the statements contained therein (when read in
conjunction with all Time of Sale Information) in the light of the
circumstances under which they were made, not misleading (a
"Defective Prospectus"), the Master Issuer or NRPLC shall promptly
notify the Lead Underwriters of such untrue statement or omission
no later than one business day after discovery and the Master
Issuer shall, if requested by the Lead Underwriters, prepare and
deliver to the Underwriters a Corrected Prospectus.
(f) In the event that any Underwriter shall incur any costs to any
investor in connection with the reformation of the Contract of
Sale with such investor that received a Defective Prospectus, the
Master Issuer agrees to reimburse such Underwriter for such costs.
(g) Each Underwriter represents, warrants, covenants and agrees with
the Master Issuer that:
(i) Other than the Initial Preliminary Prospectus, the Revised
Preliminary Prospectus and the Prospectus, it has not made,
used, prepared, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any
"written communication" (as defined in Rule 405 under the
Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the US Notes; provided,
-------- however, that (A) each Underwriter may prepare and
convey one or more "written communications" (as defined in
Rule 405 under the Securities Act) containing no more than
the following: (1) information included in the Initial
Preliminary Prospectus or the Revised Preliminary Prospectus
with the consent of the Master Issuer, (2) information
relating to the class, size, rating, price, CUSIPs, coupon,
yield, spread, benchmark, status and/or legal maturity date
of the US Notes, the weighted average life, expected final
payment date, the trade date and payment window of one or
more classes of US Notes and any credit enhancement expected
to be provided with respect to the US Notes, (3) the
eligibility of the US Notes to be purchased by ERISA plans,
(4) a column or other entry showing the status of the
subscriptions for the US Notes (both for the issuance as a
whole and for each Underwriter's retention) and/or expected
pricing parameters of the US Notes and (5) any "ABS
informational and computational materials" as defined in
Item 1101(a) of Regulation AB under the Securities Act (each
such written communication, an "Underwriter Free Writing
Prospectus"); (B) unless otherwise consented to by the
Master Issuer, no Underwriter Free Writing Prospectus shall
be conveyed if, as a result of such conveyance, the Master
Issuer shall be required to make any registration or other
filing solely as a result of such Underwriter Free Writing
Prospectus pursuant to Rule 433(d) under the Securities Act
other than the filing of the final terms of the US Notes
pursuant to Rule 433(d)(5)(ii) of the Securities Act; and
(C) each Underwriter will be permitted to provide
information (including the Bloomberg Submission) customarily
included in confirmations of sale of securities and notices
of allocations and information delivered in compliance with
Rule 134 under the Securities Act.
(ii) If a Defective Prospectus has been corrected with a
Corrected Prospectus, it shall comply with the requirements
for reformation of the original Contract of Sale, as
described in Section IV.A.2.c. of the Commission's
Securities Offering Reform Release No. 33-8591.
39
(h) The Master Issuer agrees to file with the Commission when required
under the Rules and Regulations the following:
(i) any Free Writing Prospectus that is included in the Time of
Sale Information (any such Free Writing Prospectus, an
"Issuer Free Writing Prospectus");
(ii) subject to the Underwriters' compliance with Clause 8.3(g),
any Underwriter Free Writing Prospectus at the time required
to be filed; and
(iii) any Free Writing Prospectus for which the Master Issuer or
any person acting on its behalf provided, authorized or
approved information that is prepared and published or
disseminated by a person unaffiliated with the Master Issuer
or any other offering participant that is in the business of
publishing, radio or television broadcasting or otherwise
disseminating communications.
(i) NRPLC, Funding 2 and the Mortgages Trustee will cause any Issuer
Free Writing Prospectus with respect to the US Notes to be filed
with the Commission to the extent required by Rule 433 under the
Securities Act.
(j) Notwithstanding the provisions of Clauses 8.3(h) and 8.3(i), the
Master Issuer, Funding 2, the Mortgages Trustee and NRPLC will not
be required to file any Free Writing Prospectus that does not
contain substantive changes from or additions to a Free Writing
Prospectus previously filed with the Commission.
9. CONDITIONS PRECEDENT
9.1 The obligation of the Underwriters under this Agreement to subscribe for
the US Notes is subject to the following conditions precedent:
(a) The Registration Statement
(i) If a post-effective amendment is required to be filed with
the Commission, such post-effective amendment shall have
become effective not later than 9:00 a.m. New York City time
on the date hereof;
(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
applicable time period prescribed for such filing by Rule
424(b) and in accordance with Clause 5(a) hereof; and
(iii) No stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall
be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission.
(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 US
Notes on or prior to the Closing Date.
40
(c) Admission to Trading
The US Notes having been admitted to the Official List, on the
Market and the London Stock Exchange having agreed to admission of
the US Notes to trading on the Market on or about the Closing
Date.
(d) Legal Opinions
On or prior to the Closing Date, there having been delivered to
the Master Issuer, the Underwriters, the Note Trustee and the
Issuer Security Trustee copies of the following, in form and
substance satisfactory to the Lead Underwriters, the Note Trustee,
the Issuer Security Trustee and the Rating Agencies, dated the
Closing Date:
(i) Opinions of Sidley Austin, legal and tax advisers as to
English law and legal counsel as to US federal securities
law and New York law to NRPLC, addressed to NRPLC, the
Mortgages Trustee, Funding 2, the Master Issuer, the
Underwriters, the Dealers, the Note Trustee and the Issuer
Security Trustee;
(ii) A disclosure letter of Sidley Austin, legal counsel as to US
federal securities law to NRPLC, addressed to the
Underwriters;
(iii) An opinion of Sidley Austin LLP, tax counsel as to US
federal income tax law, addressed to the Underwriters;
(iv) An opinion of Mourant du Feu & Jeune, legal advisers as to
Jersey law to the Mortgages Trustee, addressed to Funding 2,
the Mortgages Trustee, the Underwriters, the Dealers, the
Note Trustee and the Issuer Security Trustee;
(v) An opinion of Tods Xxxxxx LLP, legal advisers as to Scots
law to NRPLC, addressed to NRPLC, the Mortgages Trustee,
Funding 2, the Master Issuer, the Underwriters, the Dealers,
the Note Trustee and the Issuer Security Trustee;
(vi) A disclosure letter of Xxxxx & Overy LLP, legal advisers as
to US federal securities law to the Underwriters and the
Dealers, addressed to the Underwriters and the Dealers; and
(vii) An opinion of in-house counsel for each Issuer Swap
Provider, addressed to the Issuer, the Note Trustee, the
Issuer Security Trustee, NRPLC and the Underwriters.
(e) Auditors' Letter
There having been addressed and delivered to the Underwriters (i)
a letter, dated on or about the date of this Agreement, in form
and substance satisfactory to the Lead Underwriters, containing
statements and information of the type ordinarily included in
auditors' "comfort letters" with respect to certain financial,
statistical and other information contained in the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus and the
Prospectus from PricewaterhouseCoopers LLP, and (ii) a letter
(referred to as a "bring down letter"), dated the Closing Date, in
form and substance satisfactory to the Lead Underwriters,
containing statements with respect to matters specified in
sub-clause (i) above, in each case from PricewaterhouseCoopers
LLP.
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(f) Additional Auditors' Letter
On or about the date of this Agreement, there having been
addressed and delivered to the Underwriters a letter, in form and
substance satisfactory to the Lead Underwriters, containing
statements and information of the type ordinarily included in
auditors' "comfort letters" with respect to certain financial,
statistical and other information contained in the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus and the
Prospectus from KPMG LLP.
(g) Certified Constitutional Documents
On or prior to the Closing Date, there having been delivered to
the Lead Underwriters on behalf of the Underwriters a copy,
certified by a duly authorized director or the company secretary
of, as applicable, the Master Issuer, Funding 2 and the Mortgages
Trustee of: (i) the Memorandum and Articles of Association of each
of the Master Issuer, Funding 2 and the Mortgages Trustee; (ii)
the resolution of the Board of Directors of each of the Master
Issuer, Funding 2 and the Mortgages Trustee authorizing the
execution of this Agreement and the other Legal Agreements and the
entry into and performance of the transactions contemplated
thereby; and (iii) in respect of the Master Issuer, the issue of
the Notes and the entry into and performance of the transactions
contemplated thereby.
(h) Accuracy of Representations
At the Closing Date: (i) the representations and warranties of the
Master Issuer, Funding 2, the Mortgages Trustee and NRPLC in this
Agreement being true, accurate and correct at, and as if made on,
the Closing Date and the Master Issuer, Funding 2, the Mortgages
Trustee and NRPLC having performed all of their obligations in the
Legal Agreements to be performed on or before the Closing Date;
and (ii) there having been delivered to the Underwriters a
certificate to that effect signed by a duly authorized officer of,
as applicable, the Master Issuer, Funding 2, the Mortgages Trustee
and NRPLC, dated the Closing Date and confirming that, since the
date of this Agreement, there has been no adverse change, nor any
development involving a prospective adverse change, in or
affecting the operations, properties, financial condition or
prospects of the Master Issuer, Funding 2, the Mortgages Trustee
or NRPLC which is material in the context of the issue of the
Notes.
(i) Circumstances for Termination
On or prior to the Closing Date, in the opinion of the Lead
Underwriters (after consultation with NRPLC, if practicable), none
of the circumstances described in Clause 12.1(c) or 12.1(d) having
arisen.
(j) 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
42
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.
(k) Other Issues
The Reg S Notes having been or being issued and subscribed and
paid for pursuant to the Subscription Agreement and the Programme
Agreement prior to or contemporaneously with the issue,
subscription and payment for the US Notes hereunder.
(l) Material Adverse Event
There not having been between the date of this Agreement and the
Closing Date any change or any development or event reasonably
likely to involve a prospective change which would, in the
judgement of the Lead Underwriters, be materially adverse to the
financial or trading condition of the Master Issuer, Funding 2,
the Mortgages Trustee or NRPLC from that set forth in the Time of
Sale Information or 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 Master Issuer, Funding 2, the Mortgages Trustee or
NRPLC to perform each and every covenant to be performed by it
pursuant to the Legal Agreements, the Mortgage Loans and the
Related Security on or prior to the Closing Date.
(m) Solvency Certificates
(i) The Master Issuer having furnished or caused to be furnished
to the Underwriters and the Note Trustee a solvency
certificate, dated the Closing Date, of a duly authorized
director of the Master Issuer in the agreed form;
(ii) Funding 2 having furnished or caused to be furnished to the
Master Issuer, NRPLC and the Issuer Security Trustee a
solvency certificate, dated the Closing Date, of a duly
authorized director of Funding 2 in the agreed form;
(iii) The Mortgages Trustee having furnished or caused to be
furnished to the Underwriters, the Master Issuer, the Issuer
Security Trustee and NRPLC a solvency certificate, dated the
Closing Date, of a duly authorized director of the Mortgages
Trustee in the agreed form; and
(iv) NRPLC having furnished or caused to be furnished to the
Underwriters, the Master Issuer, the Issuer Security
Trustee, Funding 2 and the Mortgages Trustee a solvency
certificate, dated the Closing Date, of a duly authorized
officer or director of NRPLC in the agreed form.
(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 (as defined therein) by the Mortgages Trustee from NRPLC
on the applicable Assignment Date and related rights to be
acquired from NRPLC pursuant thereto having been taken.
43
9.2 Prior to the Closing Date, there shall be furnished to the Lead
Underwriters such further information, certificates, opinions and
documents as the Lead Underwriters may reasonably request.
9.3 If any of the conditions specified in this Clause 9 have not been
fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be reasonably satisfactory in all
material respects in form and substance to the Lead Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be
cancelled (provided, however, that the liability of the Master Issuer in
relation to expenses as provided under, or under any arrangements
referred to in, Clause 10 and any liability arising before or in
relation to such termination shall not be cancelled) at, or at any time
prior to, the Closing Date by the Lead Underwriters. Notice of such
cancellation shall be given to the Master Issuer in writing or by
telephone or facsimile confirmed in writing.
9.4 The Lead Underwriters, on behalf of the Underwriters, may, in their
discretion, waive compliance with the whole or any part of this Clause
9.
10. EXPENSES
10.1 General Expenses
The Master Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Master
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 Master
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 Master Issuer's legal advisers and accountants and all
other expenses of the Master Issuer in connection with the issue
(including without limitation any filing fees payable to the Commission
in connection with the registration of the US Notes under the Securities
Act and any fees payable in connection with the qualification of the US
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 Notes (including without limitation,
any advertisements required in connection therewith); the preparation
and delivery of each class of the Notes in global form and (if required)
definitive form; the costs of the initial delivery and distribution of
the Notes (including, without limitation, transportation, packaging and
insurance) and the initial fees and expenses of The Depository Trust
Company in relation to the Notes (excluding any such fees and expenses
arising as a result of any transfer of the Notes); the preparation and
printing of the Time of Sale Information and 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 Issuer Security Trustee (including
fees and expenses of legal advisers to the Note Trustee and the Issuer
Security Trustee), the US Paying Agent and the Agent Bank in
44
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 Market; (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; and (g) any reasonable amount in
respect of the fees and disbursements of the Underwriters' legal
advisers in relation thereto.
10.2 Reimbursement
The Master Issuer will reimburse the Underwriters for all amounts in
connection with the issue of the Notes which it has agreed to pay
pursuant to Clause 10.1.
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.
10.3 Gross Underwriting Proceeds
The Master Issuer undertakes that on the Closing Date it will apply the
gross underwriting proceeds for the Notes forthwith in making the
relevant Loan Tranches to Funding 2 pursuant to the terms of the Global
Intercompany Loan Agreement. Funding 2 undertakes that it will apply the
proceeds of such Loan Tranches in accordance with Clause 4.1 (Purpose
and application of a Loan Tranche) of the Global Intercompany Loan
Agreement.
11. INDEMNIFICATION
11.1 Issuer, Funding 2, Mortgages Trustee and NRPLC Indemnity
Each of the Master Issuer, Funding 2, the Mortgages Trustee and NRPLC
jointly and severally agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each an "Indemnified Person") 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, the Initial Preliminary
Prospectus, the Revised Preliminary Prospectus, the Prospectus, the
Issuer Information or any Issuer Free Writing Prospectus or any
information provided by the Master Issuer or NRPLC to any holder or
prospective purchaser of US Notes (or in any amendment thereof or
supplement thereto) in the Registration Statement, the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus, the
Prospectus, the Issuer Information or any Issuer Free Writing Prospectus
(or in any amendment thereof or supplement thereto) or arise out of or
are based upon the omission or alleged omission to state therein a
material fact (excluding, in the case of the Initial Preliminary
Prospectus, the pricing related information and information relating to
an Issuer Swap Provider, the Conditional Purchaser or the Remarketing
Bank omitted therefrom and, in the case of the Revised Preliminary
Prospectus, the pricing related information
45
omitted therefrom) required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
Indemnified Person, as incurred, for any legal or other reasonable
expenses incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however,
that the Master Issuer, Funding 2, the Mortgages Trustee and NRPLC will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in (x)
the Registration Statement, the Initial Preliminary Prospectus, the
Revised Preliminary Prospectus (excluding, in the case of the Initial
Preliminary Prospectus, the pricing related information and information
relating to an Issuer Swap Provider, the Conditional Purchaser or the
Remarketing Bank omitted therefrom and, in the case of the Revised
Preliminary Prospectus, the pricing related information omitted
therefrom), the Prospectus, any Issuer Free Writing Prospectus or the
Issuer Information (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with the Underwriter Information or (y)
any Derived Information or the Bloomberg Submission unless such untrue
statement or alleged untrue statement or omission or alleged omission
made in any Derived Information or the Bloomberg Submission results from
an error or omission in the Initial Preliminary Prospectus, the Revised
Preliminary Prospectus, the Prospectus or the Issuer Information. The
Master Issuer, Funding 2, the Mortgages Trustee and NRPLC further agree
to reimburse each Underwriter and each such controlling person for any
legal and other expenses reasonably incurred by such Underwriter or
controlling person in investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action, as such
expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which the Master Issuer, Funding 2, 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 11.1.
The foregoing shall be subject to the following:
(a) Any right which at any time the Mortgages Trustee has under the
existing or future laws of Jersey whether by virtue of the droit
de discussion or otherwise to require that recourse be had to the
assets of any other person before any claim is enforced against
such person in respect of the obligations hereby assumed by such
person is hereby abandoned and waived.
(b) The Mortgages Trustee undertakes that if at any time any person
indemnified sues the Mortgages Trustee in respect of any such
obligations and the person in respect of whose obligations the
indemnity is given is not sued also, the Mortgages Trustee shall
not claim that such person be made a party to the proceedings and
each agrees to be bound by this indemnity whether or not it is
made a party to legal proceedings for the recovery of the amount
due or owing to the person indemnified, as aforesaid, by the
person in respect of whose obligations the indemnity is given and
whether the formalities required by any law of Jersey whether
existing or future in regard to the rights or obligations of
sureties shall or shall not have been observed.
(c) Any right which the Mortgages Trustee may have under the existing
or future laws of Jersey whether by virtue of the droit de
division or otherwise to require that any liability under this
indemnity be divided or apportioned with any other person or
reduced in any manner whatsoever is hereby abandoned and waived.
46
11.2 Underwriters' Indemnity
Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Master Issuer, Funding 2, the Mortgages Trustee and
NRPLC, each of their directors and each of their officers who signs the
Registration Statement, their employees and each person who controls the
Master Issuer or NRPLC within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Master Issuer to each Underwriter, but
only with reference to (x) the Underwriter Information furnished to the
Master Issuer, Funding 2, the Mortgages Trustee or NRPLC specifically
for inclusion in the Registration Statement, the Initial Preliminary
Prospectus, the Revised Preliminary Prospectus or the Prospectus (or in
any amendment or supplement thereto) or (y) any Derived Information or
the Bloomberg Submission; provided, however, that the indemnity with
respect to clause (y) above shall not apply to any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Derived Information or the Bloomberg Submission that results from an
error or omission in the Initial Preliminary Prospectus, the Revised
Preliminary Prospectus, the Prospectus or the Issuer Information. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have.
11.3 Proceedings
Promptly after receipt by an indemnified party under this Clause 11 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Clause 11, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under Clause 11.1 or 11.2
above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event relieve
the indemnifying party from any obligation to any indemnified party
other than the indemnification obligation provided in Clause 11.1 or
11.2 above. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein, and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Clause 11 for any legal or
other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided that each Underwriter, the Underwriters as a
group, or the Master Issuer, Funding 2, the Mortgages Trustee and NRPLC,
as the case may be, shall have the right to employ separate counsel to
represent such Underwriter and its controlling persons, the Underwriters
and their respective controlling persons or the Master Issuer, Funding
2, the Mortgages Trustee and NRPLC and their respective controlling
persons, as the case may be, who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by such
indemnified parties under this Clause 11 if in the reasonable judgement
of any Underwriter, the Underwriters acting together, or any of the
Master Issuer, Funding 2, the Mortgages Trustee and NRPLC, as the case
may be, it is advisable for such indemnified parties to be represented
by separate counsel, and in that event the fees and expenses of such
separate counsel (and local counsel) shall be paid by the indemnifying
party. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel selected by the
indemnifying party, the indemnifying party will not be liable to such
indemnified party under this Clause 11 for any legal or other expenses
subsequently incurred by such indemnified party in connection
47
with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it
being understood, however that the indemnifying party shall not be
liable for the expenses of more than one such separate counsel (and
local counsel) representing the indemnified parties under Clause 11.1 or
11.2 hereof), (ii) the indemnifying party has authorized (acting
reasonably) the employment of more than one such separate counsel (and
local counsel) representing the employed counsel satisfactory to the
indemnified party to represent the indemnified party, or (iii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only
in respect of the counsel referred to in such clause (i) or (iii). The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
this Clause 11, 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.
11.4 Contribution
In the event that the indemnity provided in Clause 11.1 or 11.2 is
unavailable to or insufficient to hold harmless an indemnified party for
any reason, the Master Issuer, NRPLC, Funding 2, the Mortgages Trustee
and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Master Issuer,
NRPLC, Funding 2, the Mortgages Trustee and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Master Issuer, NRPLC,
Funding 2, the Mortgages Trustee and the Underwriters from the offering
of the US Notes. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Master Issuer, NRPLC,
Funding 2, the Mortgages Trustee and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Master Issuer,
NRPLC, Funding 2, the Mortgages Trustee and the Underwriters in
connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Master Issuer, Funding 2, the Mortgages Trustee and
NRPLC shall be deemed to be equal to the Issue Price (before deducting
expenses), and benefits received by the Underwriters shall be deemed to
be equal to the total Selling Commissions and the Management and
Underwriting Commission, in each case as set forth in Clause 1.4.
Relative fault shall be determined by reference to among other things,
whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information provided by the Master Issuer, Funding 2, the Mortgages
Trustee or NRPLC on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to
information and
48
opportunity to correct or prevent such untrue statement or omission. The
Master Issuer, NRPLC, Funding 2, the Mortgages Trustee and the
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable consideration
referred to above. Notwithstanding the provisions of this Clause 11.4,
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Clause 11, each person who controls an Underwriter
within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act and each director, officer, employee and agent of
an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Master Issuer, Funding 2,
the Mortgages Trustee or NRPLC within the meaning of either the
Securities Act or the Exchange Act, each officer of the Master Issuer
who shall have signed the Registration Statement, each employee and each
director of the Master Issuer, Funding 2, the Mortgages Trustee or NRPLC
shall have the same rights to contribution as the Master Issuer, Funding
2, the Mortgages Trustee or NRPLC, as the case may be, subject in each
case to the applicable terms and conditions of this Clause 11.4.
Notwithstanding the foregoing, in no case shall the Underwriter (except
as may be provided in any agreement among Underwriters relating to the
offering of the Notes) be responsible for any amount in excess of the
Selling Commission or Management and Underwriting Commission applicable
to the Notes purchased by such Underwriter hereunder.
12. TERMINATION
12.1 Lead Underwriters' Ability to Terminate
Notwithstanding any other provision of this Agreement, the Lead
Underwriters on behalf of the Underwriters may, by notice to the Master
Issuer given at any time after the execution and delivery of this
Agreement and prior to the Closing Date, terminate this Agreement in any
of the following circumstances:
(a) if there shall have come to the notice of the Underwriters any
breach of, or any event rendering untrue or incorrect in any
material respect, any of the warranties and representations
contained in Clauses 5, 6 or 7 (or any deemed repetition thereof)
or failure to perform any of the Master Issuer's or NRPLC's
covenants or agreements in this Agreement in any material respect;
or
(b) if any condition specified in Clause 9 has not been satisfied or
waived by the Lead Underwriters on behalf of the Underwriters; or
(c) if in the opinion of the Lead Underwriters, circumstances shall be
such as: (i) to prevent or to a material extent restrict payment
for the US Notes in the manner contemplated in this Agreement or
(ii) to a material extent prevent or restrict settlement of
transactions in the US 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 US 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 Market or the
over-the-counter market shall have been
49
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 Master Issuer,
Funding 2, the Mortgages Trustee or NRPLC, which in the judgement
of the Lead Underwriters materially impairs the investment quality
of the US Notes or makes it impracticable or inadvisable to market
the US Notes or (iv) if in the judgement of the Lead Underwriters,
it otherwise becomes impracticable or inadvisable to proceed with
the offering of the US Notes.
12.2 Consequences of Termination
Upon such notice being given this Agreement shall terminate and be of no
further effect and no party hereto shall be under any liability to any
other in respect of this Agreement except that (a) the Master Issuer
shall remain liable under Clause 10 for the payment of the costs and
expenses already incurred or incurred in consequence of such termination
and (b) (i) the indemnity agreement and contribution provisions set
forth in Clause 11, (ii) the obligations of the Master Issuer and NRPLC
and the representations and warranties of the Underwriters made in
Clause 3.2(b) of this Agreement, which would have continued in
accordance with Clause 13 had the arrangements for the underwriting and
issue of the US Notes been completed, shall so continue.
13. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
13.1 The representations, warranties, agreements, undertakings and
indemnities in this Agreement will continue in full force and effect
notwithstanding completion of the arrangements for the subscription and
issue of the US Notes or any investigation made by or on behalf of any
Underwriter or any controlling person or any of its representatives,
directors, officers, agents or employees or any of them.
13.2 Save for their respective responsibilities to comply with the relevant
representations set forth herein, neither the Master Issuer, Funding 2,
the Mortgages Trustee nor NRPLC shall have any responsibility in respect
of the legality of the Underwriters or other persons offering and
selling the US Notes in any jurisdiction or in respect of the US Notes
qualifying for sale in any jurisdiction.
14. NOTICES
14.1 All communications pursuant to this Agreement will be in writing and
will be delivered at or sent by facsimile transmission to the following
addresses:
(i) if to the Master Issuer,
Xxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: The Company Secretary
Facsimile: x00 (0) 00 0000 0000
With a copy to:
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx
00
Xxxxxxxxx xxxx Xxxx XX0 0XX
Attention: Securitization, Risk Operations
Facsimile: x00 (0) 000 000 0000
(ii) if to NRPLC,
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx
Xxxxxxxxx xxxx Xxxx
XX0 0XX
Attention: Securitization, Risk Operations
Facsimile: x00 (0) 000 000 0000
(iii) if to the Underwriters, to the Lead Underwriters on behalf of the
Underwriters,
Citigroup Global Markets Limited
Citigroup Centre
00 Xxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Attention: Debt Syndicate Desk
Facsimile: + 00 (0)00 0000 0000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Head of Structured Finance
Facsimile: + 1 000 000 0000
UBS Securities LLC
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department - Securitized Products Group
Facsimile: x0 000 000 0000
(iv) if to Funding 0,
Xxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: The Company Secretary
Facsimile: x00 (0) 00 0000 0000
(v) if to the Mortgages Trustee,
00 Xxxxxxxxx Xxxxxx
Xx. Xxxxxx
Xxxxxx XX0 0XX
Attention: The Company Secretary
Facsimile: x00 (0) 0000 000 000
51
14.2 Any communication so sent by letter shall take effect at the time of
actual delivery to the addressee, and any communication so sent by
facsimile transmission shall take effect upon acknowledgement of receipt
by the recipient. Any communication to be delivered to any party under
this Agreement which is to be sent by facsimile transmission will be
written legal evidence.
14.3 The Mortgages Trustee agrees that the process by which any proceedings
in England are begun may be secured on it by being delivered to Granite
Finance Trustees Limited c/o Mourant & Co. Capital (SPV) Limited, 0xx
Xxxxx, 00 Xxxx Xxxxxxx Xxxxxx, 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.
15. TIME
Time shall be of the essence of this Agreement.
16. NON PETITION AND LIMITED RECOURSE
Each of the Underwriters agrees with the Master Issuer, Funding 2 and
the Mortgages Trustee, that it shall not, until the expiry of one year
and one day after the payment of all sums outstanding and owing under
the Notes (in respect of the Master Issuer) and until the expiry of one
year and one day after the payment of all sums outstanding and owing
under any Loan Tranche made to Funding 2 by the Master Issuer or any
other company (in respect of the Mortgages Trustee) take any corporate
action or other steps or legal proceedings for the winding-up,
dissolution, arrangement, reconstruction or re-organization or for the
appointment of a liquidator, receiver, manager, administrator,
administrative receiver or similar officer of the Master Issuer, the
Mortgages Trustee or Funding 2 or any, or all of, their respective
assets or revenues.
Each of the Underwriters agrees with the Mortgages Trustee that to the
extent that any amounts due to such Underwriter from the Mortgages
Trustee hereunder exceed the assets of the Mortgages Trustee (excluding,
for the avoidance of doubt, the assets comprised in the Mortgages Trust)
available to pay such amounts and any other amounts due to other
creditors of the Mortgages Trustee then the claims of such Underwriter
in relation to any such excess amounts shall be extinguished and shall
not thereafter revive.
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 Master Issuer,
Funding 2 or the Mortgages Trustee, by the enforcement of any assessment
or by any legal proceedings, by virtue of any statute or otherwise; it
being expressly agreed and understood that this Agreement is a corporate
obligation of each of the Master Issuer, Funding 2 and the Mortgages
Trustee expressed to be a party hereto and no personal liability shall
attach to or be incurred by the shareholders, officers, agents or
directors of such person as such, or any of them, under or by reason of
any of the obligations, covenants or agreements of the Master Issuer,
Funding 2 or the Mortgages Trustee contained in this Agreement, or
implied therefrom, and that any and all personal liability for breaches
by such person of any such obligations, covenants or agreements, either
under any applicable law
52
or by statute or constitution, of every such shareholder, officer, agent
or director is hereby expressly waived by each person expressed to be a
party hereto as a condition of and consideration for the execution of
this Agreement.
17. GOVERNING LAW AND JURISDICTION
17.1 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflict of
laws provisions thereof.
17.2 Jurisdiction
Each of the parties hereto irrevocably agrees that, except as otherwise
set forth in this paragraph, any state or federal court sitting in the
City of New York shall have exclusive jurisdiction to hear and determine
any suit, action or proceeding and to settle any dispute arising out of
or relating to this Agreement and, for such purposes, irrevocably
submits to the jurisdiction of such courts. Each of the Mortgages
Trustee, Funding 2, the Master 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 2, the Master Issuer and NRPLC
irrevocably and unconditionally waives any objection to the laying of
venue of any such suit, action or proceeding brought in any such court
and any claim that any such suit, action or proceeding has been brought
in an inconvenient forum. Each of the Mortgages Trustee, Funding 2, the
Master Issuer and NRPLC agrees that a final judgment in any such suit,
action or proceeding brought in any such court shall be conclusive and
binding upon each of the Mortgages Trustee, Funding 2, the Master Issuer
and NRPLC and may be enforced in any other court to whose jurisdiction
each of the Mortgages Trustee, Funding 2, the Master Issuer and NRPLC is
or may in the future be subject, by suit upon judgment. Each of the
Mortgages Trustee, Funding 2, the Master 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
judgment) in any other court or jurisdiction in accordance with
applicable law.
18. COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually
or by facsimile) all of which, taken together, shall constitute one and
the same agreement and any party may enter into this Agreement by
executing a counterpart.
19. AUTHORITY OF THE LEAD UNDERWRITERS
Any action by the Underwriters hereunder may be taken by Citigroup
Global Markets Limited, Xxxxxx Brothers Inc. and UBS Securities LLC as
representatives on behalf of the Underwriters, and any such action taken
by Citigroup Global Markets Limited, Xxxxxx Brothers Inc. and UBS
Securities LLC shall be binding upon the Underwriters.
53
20. SUCCESSORS
This Agreement shall inure to the benefit of and be binding upon each of
the parties hereto, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein
contained. No purchaser of US Notes from the Underwriters shall be
deemed to be a successor by reason merely of such purchase.
54
IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
GRANITE MASTER ISSUER PLC
By: /s/ Xxx Xxxxxx
Representing L.D.C. Securitisation Director No 1 Limited
NORTHERN ROCK PLC
By: /s/ CJ
GRANITE FINANCE FUNDING 2 LIMITED
By: /s/ Xxx Xxxxxx
Representing L.D.C. Securitisation Director No 1 Limited
GRANITE FINANCE TRUSTEES LIMITED
By: /s/ Xxxxxx Xx Xxxxxx
Xxxxxx Xx Xxxxxx
Director
CITIGROUP GLOBAL MARKETS LIMITED
By: /s/ BD
Xxxxx Xxxxxx
DULY AUTHORISED SIGNATORY
XXXXXX BROTHERS INC.
For itself and on behalf of the several Underwriters listed in Schedule 1
hereto (other than Citigroup Global Markets Limited and UBS Securities LLC)
By: /s/
UBS SECURITIES LLC
By: /s/ Xxxx Xxxxxxxxx /s/ P Xxxxxxxxxxx
Xxxx Xxxxxxxxx Xxxxxxx Xxxxxxxxxxx
Executive Director Director
55
SCHEDULE 1
Underwriters $1,000,000,000 of $1,800,000,000 of $1,000,000,000 of $1,750,000,000 of
Series 2006-3 Series 2006-3 Series 2006-3 Series 2006-3
Class A1 Notes Class A3 Notes Class A4 Notes Class A7 Notes
-----------------------------------------------------------------------------
Citigroup Global Markets Limited $ 314,000,000 $ 566,600,000 $ 314,000,000 $ 559,000,000
Xxxxxx Brothers Inc. $ 314,000,000 $ 566,700,000 $ 314,000,000 $ 559,100,000
UBS Securities LLC $ 314,000,000 $ 566,700,000 $ 314,000,000 $ 559,100,000
Barclays Capital Inc. $ 14,500,000 $ 25,000,000 $ 14,500,000 $ 18,200,000
X.X. Xxxxxx Securities Inc. $ 14,500,000 $ 25,000,000 $ 14,500,000 $ 18,200,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $ 14,500,000 $ 25,000,000 $ 14,500,000 $ 18,200,000
Xxxxxx Xxxxxxx & Co. International Limited $ 14,500,000 $ 25,000,000 $ 14,500,000 $ 18,200,000
Total $ 1,000,000,000 $ 1,800,000,000 $ 1,000,000,000 $ 1,750,000,000
S-1
Underwriters $70,000,000 of $182,000,000 of $90,000,000 of $100,000,000 of $60,000,000 of
Series 2006-3 Series 2006-3 Series 2006-3 Series 2006-3 Series 2006-3
Class B1 Notes Class B2 Notes Class M1 Notes Class M2 Notes Class C2 Notes
-------------------------------------------------------------------------------------------------
Citigroup Global Markets Limited $ 23,400,000 $ 60,600,000 $ 30,000,000 $ 33,400,000 $ 20,000,000
Xxxxxx Brothers Inc. $ 23,300,000 $ 60,700,000 $ 30,000,000 $ 33,300,000 $ 20,000,000
UBS Securities LLC $ 23,300,000 $ 60,700,000 $ 30,000,000 $ 33,300,000 $ 20,000,000
Total $ 70,000,000 $ 182,000,000 $ 90,000,000 $ 100,000,000 $ 60,000,000
S-1
