Exhibit 1.1
EXECUTION COPY
UNDERWRITING AGREEMENT
DATED 25 NOVEMBER, 2005
XXXXXX FINANCING (NO. 9) PLC
AND
ABBEY NATIONAL PLC
AND
XXXXXX FUNDING LIMITED
AND
XXXXXX TRUSTEES LIMITED
AND
DEUTSCHE BANK SECURITIES INC.
AND
XXXXXX BROTHERS INC.
AND
XXXXXX XXXXXXX & CO. INCORPORATED
RELATING TO XXXXXX FINANCING (NO. 9) PLC
US$1,740,000,000 FLOATING RATE SERIES 1 CLASS A NINTH ISSUER NOTES DUE
DECEMBER 2006
US$2,175,000,000 FLOATING RATE SERIES 2 CLASS A NINTH ISSUER NOTES DUE
JULY 2013
XXXXX & XXXXX
London
ICM:2159922.5
CONTENTS
CLAUSE PAGE
1. Issue of the Ninth Issuer Notes......................................................................6
2. Stabilisation........................................................................................6
3. Agreements by the Underwriters.......................................................................7
4. Listing.............................................................................................10
5. Representations and Warranties of the Ninth Issuer..................................................11
6. Representations and Warranties of Funding and the Mortgages Trustee.................................16
7. Representations and Warranties of Abbey.............................................................21
8. Covenants of the Ninth Issuer, Funding, the Mortgages Trustee and Abbey.............................23
9. Conditions Precedent................................................................................30
10. Closing.............................................................................................33
11. Commissions.........................................................................................34
12. Expenses............................................................................................34
13. Indemnification.....................................................................................35
14. Termination.........................................................................................39
15. Survival of Representations and Obligations.........................................................40
16. Notices.............................................................................................40
17. Time................................................................................................41
18. Governing Law and Jurisdiction......................................................................41
19. Counterparts........................................................................................42
Signatories................................................................................................43
THIS AGREEMENT is made on 25 November, 2005
BETWEEN:
(1) XXXXXX FINANCING (NO. 9) PLC (registered number 5115696), a public
limited company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (the NINTH ISSUER);
(2) ABBEY NATIONAL PLC (registered number 2294747), a public limited company
incorporated under the laws of England and Wales, whose registered office
is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0
0XX (ABBEY);
(3) XXXXXX FUNDING LIMITED (registered number 3982428), a private limited
company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (FUNDING);
(4) XXXXXX TRUSTEES LIMITED (registered number 3982431), a private limited
company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 2 Triton Square, Regent's
Place, London NW1 3AN (the MORTGAGES TRUSTEE); and
(5) DEUTSCHE BANK SECURITIES INC., a corporation organised under the laws of
Delaware whose registered office is at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, XXXXXX BROTHERS INC., a corporation organised under the laws
of New York whose registered office is at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000-0000 and XXXXXX XXXXXXX & CO. INCORPORATED, a corporation
organised under the laws of Delaware whose registered office is at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (the UNDERWRITERS).
WHEREAS:
(A) The Ninth Issuer, by resolutions of its Board of Directors passed on 18th
November, 2005, has duly authorised and has determined to create and
issue US$ 1,740,000,000 in principal amount of its Floating Rate Series 1
Class A Ninth Issuer Notes due December 2006 (the SERIES 1 CLASS A NINTH
ISSUER NOTES) and US$ 2,175,000,000 in principal amount of its Floating
Rate Series 2 Class A Ninth Issuer Notes due July 2013 (the SERIES 2
CLASS A NINTH ISSUER NOTES, together with the Series 1 Class A Ninth
Issuer Notes, the NINTH ISSUER NOTES, which expression where the context
so requires shall include the Global Ninth Issuer Notes defined below).
(B) The Ninth Issuer Notes will be in registered form in denominations of
US$100,000 and increments of US$1,000 thereafter. The Ninth Issuer Notes
will be issued on 8th December, 2005 at 10:00 a.m. (London time) or at
such other time (not being later than 2:00 p.m. (London time)) or on such
other date (not being later than 14th December, 2005) as the Ninth Issuer
and the Underwriters may agree (the CLOSING DATE). The issue of the Ninth
Issuer Notes is referred to in this Agreement as the ISSUE.
(C) Simultaneously with the Issue, the Ninth Issuer intends to issue
(euro)740,000,000 in principal amount of its Floating Rate Series 3 Class
A1 Ninth Issuer Notes due January 2021, (pound)400,000,000 in principal
amount of its Floating Rate Series 3 Class A2 Ninth Issuer Notes due
January 2021 and (pound)600,000,000 in principal amount of its Floating
Rate Series 4 Class A Ninth Issuer Notes due January 2016 (together, the
REG S NINTH ISSUER NOTES). By a
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Subscription Agreement of today's date (the REG S NINTH ISSUER NOTES
SUBSCRIPTION AGREEMENT) between the Ninth Issuer, Abbey, Funding, the
Mortgages Trustee and the respective managers named therein, such
managers have agreed to subscribe and pay for the Reg S Ninth Issuer
Notes upon the terms and subject to the conditions therein contained.
The Ninth Issuer Notes and the Reg S Ninth Issuer Notes will be
constituted by, issued subject to and have the benefit of a trust deed
(the NINTH ISSUER TRUST DEED) to be entered into on or before the Closing
Date between the Ninth Issuer and The Bank of New York, London Branch as
trustee for the Noteholders (the NOTE TRUSTEE).
(D) The Ninth Issuer Notes and the Reg S Ninth Issuer Notes (together with
the Ninth Issuer's obligations to its other creditors) will be secured
with the benefit of security interests created by a deed of charge and
assignment (the NINTH ISSUER DEED OF CHARGE) to be entered into on or
before the Closing Date by the Ninth Issuer, The Bank of New York, London
Branch (in such capacity, the NINTH ISSUER SECURITY TRUSTEE), the Note
Trustee, JPMorgan Chase Bank, N.A., London Branch (the PRINCIPAL PAYING
AGENT and the AGENT BANK), Abbey in its capacity as cash manager to the
Ninth Issuer under the Ninth Issuer Cash Management Agreement (the NINTH
ISSUER CASH MANAGER) and in its capacity as sterling account bank to the
Ninth Issuer under the Ninth Issuer Bank Account Agreement (the NINTH
ISSUER STERLING ACCOUNT BANK), Citibank N.A., London Branch in its
capacity as the non-sterling account bank to the Ninth Issuer (the NINTH
ISSUER NON-STERLING ACCOUNT BANK), JPMorgan Chase Bank, N.A., New York
Branch (the US PAYING AGENT), X.X. Xxxxxx Bank Luxembourg S.A. as
registrar in respect of the Ninth Issuer Notes and the Reg S Ninth Issuer
Notes (the REGISTRAR), Deutsche Bank AG, London Branch, as swap provider
to the Ninth Issuer (the NINTH ISSUER SWAP PROVIDERS) and SPV Management
Limited in its capacity as corporate services provider to the Issuer
under the Ninth Issuer Corporate Services Agreement (the NINTH ISSUER
CORPORATE SERVICES PROVIDER).
(E) Payments of principal and interest on the Ninth Issuer Notes and the Reg
S Ninth Issuer Notes will be made by the Ninth Issuer to the Principal
Paying Agent and by the Principal Paying Agent to Noteholders on behalf
of the Ninth Issuer under a paying agent and agent bank agreement to be
entered into on or before the Closing Date (the NINTH ISSUER PAYING AGENT
AND AGENT BANK AGREEMENT) between the Ninth Issuer, the Principal Paying
Agent, the Agent Bank, the US Paying Agent, the Registrar, the Transfer
Agent and the Ninth Issuer Security Trustee.
(F) The Ninth Issuer Notes will be payable in US dollars. Each class of the
Ninth Issuer Notes will be represented by a global note (each a GLOBAL
NINTH ISSUER NOTE), without interest coupons, substantially in the form
set out in the Ninth Issuer Trust Deed.
(G) The Ninth Issuer will use an amount equal to the gross proceeds of the
Issue and the gross proceeds of the issue of the Reg S Ninth Issuer Notes
(net of underwriting commissions and various out-of-pocket expenses)
converted under the relevant Ninth Issuer Swap Agreements (as defined
below), to make a loan to Funding pursuant to an intercompany loan
agreement to be entered into on or before the Closing Date (the NINTH
ISSUER INTERCOMPANY LOAN AGREEMENT and the loan made thereunder the NINTH
ISSUER INTERCOMPANY LOAN) between the Ninth Issuer, Funding, the Agent
Bank and JPMorgan Chase Bank, N.A., London Branch (the SECURITY TRUSTEE).
(H) Funding will pay the proceeds of the Ninth Issuer Intercompany Loan to
Abbey in consideration for the assignment by Abbey of a part of Abbey's
interest in a portfolio of first residential mortgage loans (the LOANS)
and an interest in the related insurances and their related security
(together, the RELATED SECURITY).
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(I) Abbey transferred by way of equitable assignment the portfolio of Loans
and their Related Security to the Mortgages Trustee on 26th July, 2000
and on subsequent distribution dates, pursuant to a mortgage sale
agreement entered into on 26th July, 2000, amended on 29th November, 2000
and amended and restated on 23rd May, 2001, 5th July, 2001, 8th November,
2001, 7th November, 2002, 26th March, 2003 and 1st April, 2004 and to be
amended and restated prior to or on the Closing Date (the MORTGAGE SALE
AGREEMENT) between Abbey, the Mortgages Trustee, Funding and the Security
Trustee. In relation to Loans secured over properties in Scotland, the
transfer of the beneficial interest therein to the Mortgages Trustee has
been effected by a declaration of trust entered into on 8th January, 2003
and further declarations of trust in respect of further loans sold to the
Mortgages Trustee (the SCOTTISH TRUST DEED, the form of which is
incorporated into the Mortgage Sale Agreement), between Abbey, the
Mortgages Trustee and Funding. Each of the Mortgages Trustee, Funding and
the Security Trustee appointed Abbey as servicer to service the Loans and
their Related Security pursuant to a servicing agreement entered into on
26th July, 2000, as amended and restated on 23rd May, 2001 and 7th
November, 2002 (the AMENDED AND RESTATED SERVICING AGREEMENT).
(J) The Mortgages Trustee holds the Loans and their Related Security on a
bare trust in undivided shares for the benefit of Funding and Abbey
pursuant to a mortgages trust deed entered into on 25th July, 2000,
amended on 29th November, 2000 and 23rd May, 2001, amended and restated
on 5th July, 2001, 8th November, 2001, 7th November, 2002, 26th March,
2003 and 1st April, 2004 and to be amended and restated on or before the
Closing Date (the MORTGAGES TRUST DEED) between Abbey, Funding, the
Mortgages Trustee and SPV Management Limited. The Mortgages Trustee
entered into, on 26th July, 2000, a guaranteed investment contract in
respect of its principal bank account (the MORTGAGES TRUSTEE GUARANTEED
INVESTMENT CONTRACT) between the Mortgages Trustee and Abbey (in such
capacity, the MORTGAGES TRUSTEE GIC PROVIDER).
(K) Funding's obligations to the Ninth Issuer under the Ninth Issuer
Intercompany Loan Agreement and to Funding's other creditors will be
secured with the benefit of security interests created by a deed of
charge and assignment entered into on 26th July, 2000 (the FUNDING DEED
OF CHARGE) between Funding, Xxxxxx Financing (No. 1) PLC (the FIRST
ISSUER), the Security Trustee, Abbey National Treasury Services plc (in
such capacity, the FUNDING SWAP PROVIDER), Abbey in its capacity as cash
manager to the Mortgages Trustee and Funding (the CASH MANAGER) and in
its capacity as account bank to the Mortgages Trustee and Funding (the
ACCOUNT BANK), Abbey in its capacity as start-up loan provider to Funding
in relation to an issue of notes by the First Issuer (the FIRST START-UP
LOAN PROVIDER) and SPV Management Limited (the CORPORATE SERVICES
PROVIDER), acceded to pursuant to a deed of accession dated 29th
November, 2000 (the FIRST DEED OF ACCESSION TO THE FUNDING DEED OF
CHARGE) by Xxxxxx Financing (No. 2) PLC (the SECOND ISSUER) and by Abbey
in its capacity as start-up loan provider to Funding in relation to an
issue of notes by the Second Issuer (the SECOND START-UP LOAN PROVIDER),
acceded to pursuant to a deed of accession dated 23rd May, 2001 (the
SECOND DEED OF ACCESSION TO THE FUNDING DEED OF CHARGE) by Xxxxxx
Financing (No. 3) PLC (the THIRD ISSUER) and by Abbey in its capacity as
start-up loan provider to Funding in relation to an issue of notes by the
Third Issuer (the THIRD START-UP LOAN PROVIDER), acceded to pursuant to a
deed of accession dated 5th July, 2001 (the THIRD DEED OF ACCESSION TO
THE FUNDING DEED OF CHARGE) by Xxxxxx Financing (No. 4) PLC (the FOURTH
ISSUER) and by Abbey in its capacity as start-up loan provider to Funding
in relation to an issue of notes by the Fourth Issuer (the FOURTH
START-UP LOAN PROVIDER), acceded to pursuant to a deed of accession dated
8th November, 2001 (the FOURTH DEED OF ACCESSION TO THE FUNDING DEED OF
CHARGE) by Xxxxxx Financing (No. 5) PLC (the FIFTH ISSUER) and by Abbey
in its capacity as start-up loan provider to Funding in relation to an
issue of notes by the Fifth Issuer (the FIFTH START-UP LOAN PROVIDER),
amended and
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restated pursuant to the amendment and restatement of the Funding Deed of
Charge dated 7th November, 2002 (the AMENDED AND RESTATED FUNDING DEED OF
CHARGE) between Xxxxxx Financing (No. 6) PLC (the SIXTH ISSUER) and Abbey
in its capacity as start-up loan provider to Funding in relation to an
issue of notes by the Sixth Issuer (the SIXTH START-UP LOAN PROVIDER),
acceded to pursuant to a deed of accession dated 26th March, 2003 (the
FIRST DEED OF ACCESSION TO THE AMENDED AND RESTATED FUNDING DEED OF
CHARGE) by Xxxxxx Financing (No. 7) PLC (the SEVENTH ISSUER) and by Abbey
in its capacity as start-up loan provider to Funding in relation to an
issue of notes by the Seventh Issuer (the SEVENTH START-UP LOAN PROVIDER)
and acceded to pursuant to a deed of accession dated 1st April, 2004 (the
SECOND DEED OF ACCESSION TO THE AMENDED AND RESTATED FUNDING DEED OF
CHARGE) by Xxxxxx Financing (No. 8) PLC (the EIGHTH ISSUER) and Abbey in
its capacity as start-up loan provider to Funding in relation to an issue
of notes by the Eighth Issuer (the EIGHTH START-UP LOAN PROVIDER). On or
before the Closing Date, the Ninth Issuer and Abbey will, together with
the other secured creditors of Funding, accede to the Amended and
Restated Funding Deed of Charge pursuant to a deed of accession (the
THIRD DEED OF ACCESSION TO THE AMENDED AND RESTATED FUNDING DEED OF
CHARGE) and thereby become secured creditors of Funding.
(L) In connection with the issue of notes by the First Issuer, Funding, in
addition to the documents described above, on 26th July, 2000 entered
into (1) a cash management agreement amended on 29th November, 2000,
amended on 26th March, 2003 and amended on 1st April, 2004 and to be
amended and restated on the Closing Date (the CASH MANAGEMENT AGREEMENT)
with the Cash Manager, the Mortgages Trustee and the Security Trustee;
(2) a bank account agreement amended on 1st April, 2004 and to be amended
on the Closing Date (the BANK ACCOUNT AGREEMENT) with the Account Bank,
the Mortgages Trustee and Funding; (3) a guaranteed investment contract
(the FUNDING GUARANTEED INVESTMENT Contract) with the Account Bank; (4) a
start-up loan agreement (the FIRST START-UP LOAN AGREEMENT) with the
First Start-up Loan Provider and the Security Trustee; and (5) a
corporate services agreement amended and restated on 29th November, 2000
and 23rd May, 2001 (the CORPORATE SERVICES AGREEMENT) with the Mortgages
Trustee, the Security Trustee and the Corporate Services Provider, each
of which will remain in effect, as applicable, in respect of the Issue.
In connection with the issue of notes by the Second Issuer, Funding, in
addition to the documents described above, on 29th November, 2000 entered
into a start-up loan agreement (the SECOND START-UP LOAN AGREEMENT) with
the Second Start-up Loan Provider and the Security Trustee. In connection
with the issue of notes by the Third Issuer, Funding, in addition to the
documents described above, on 23rd May, 2001 entered into a start-up loan
agreement (the THIRD START-UP LOAN AGREEMENT) with the Third Start-up
Loan Provider and the Security Trustee. In connection with the issue of
notes by the Fourth Issuer, Funding, in addition to the documents
described above, on 5th July, 2001 entered into a start-up loan agreement
(the FOURTH START-UP LOAN AGREEMENT) with the Fourth Start-up Loan
Provider and the Security Trustee. In connection with the issue of notes
by the Fifth Issuer, Funding, in addition to the documents described
above, on 8th November, 2001 entered into a start-up loan agreement (the
FIFTH START-UP LOAN AGREEMENT) with the Fifth Start-up Loan Provider and
the Security Trustee. In connection with the issue of notes by the Sixth
Issuer, Funding, in addition to the documents described above, on 7th
November, 2002 entered into a start-up loan agreement (the SIXTH START-UP
LOAN AGREEMENT) with the Sixth Start-up Loan Provider and the Security
Trustee. In connection with the issue of notes by the Seventh Issuer,
Funding, in addition to the documents described above, on 26th March,
2003 entered into a start-up loan agreement (the SEVENTH START-UP LOAN
AGREEMENT) with the Seventh Start-up Loan Provider and the Security
Trustee. In connection with the issue of notes by the Eighth Issuer,
Funding, in addition to the documents described above, on 1st April, 2004
entered into a start-up loan agreement (the EIGHTH START-UP LOAN
AGREEMENT) with the Eighth Start-up Loan Provider and the Security
Trustee.
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(M) In connection with an intercompany loan agreement entered into on 26th
July, 2000 (the FIRST ISSUER INTERCOMPANY LOAN AGREEMENT) between the
First Issuer, Funding and the Security Trustee, Funding entered into an
ISDA Master Agreement (including the schedule thereto) and confirmations
documented between Funding, the Funding Swap Provider and the Security
Trustee (as amended, the FUNDING SWAP AGREEMENT). In connection with an
intercompany loan agreement entered into on 29th November, 2000 (the
SECOND ISSUER INTERCOMPANY LOAN AGREEMENT) between the Second Issuer,
Funding and the Security Trustee, the parties to the Funding Swap
Agreement agreed to amend the terms of that ISDA Master Agreement and to
replace the previous confirmations with a new confirmation that provided
for a variable rate of interest to be paid by Funding to the Funding Swap
Provider (based on the weighted average rates of interest on the Loans in
the Portfolio (as defined below)) and for the Funding Swap Provider to
pay a rate of interest to Funding equal to LIBOR for three-month Sterling
deposits and a margin, in connection with a further intercompany loan
agreement entered into on 23rd May, 2001 (the THIRD ISSUER INTERCOMPANY
LOAN AGREEMENT) between the Third Issuer, Funding and the Security
Trustee, the parties to the Funding Swap Agreement agreed to further
amend the Funding Swap Agreement and in connection with a further
intercompany loan agreement entered into on 26th March, 2003 (the SEVENTH
ISSUER INTERCOMPANY LOAN AGREEMENT) between the Seventh Issuer, Funding
and the Security Trustee, the parties to the Funding Swap Agreement
agreed to further amend the Funding Swap Agreement.
(N) In connection with the Issue, the Ninth Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Ninth Issuer Notes
relating to each class of the Ninth Issuer Notes; (2) a corporate
services agreement (the NINTH ISSUER CORPORATE SERVICES AGREEMENT)
between the Ninth Issuer, the Ninth Issuer Security Trustee and the Ninth
Issuer Corporate Services Provider; (3) a cash management agreement (the
NINTH ISSUER CASH MANAGEMENT AGREEMENT) between the Ninth Issuer, the
Ninth Issuer Security Trustee and the Ninth Issuer Cash Manager; (4) a
bank account agreement (the NINTH ISSUER BANK ACCOUNT AGREEMENT) between
the Ninth Issuer, the Ninth Issuer Sterling Account Bank, the Ninth
Issuer Non-Sterling Account Bank and the Ninth Issuer Security Trustee;
and (5) ISDA Master Agreements (including the schedule thereto and
confirmation thereunder) in respect of currency swap transactions
relating to the Series 1 Class A Ninth Issuer Notes and the Series 2
Class A Ninth Issuer Notes, between the Ninth Issuer, the Ninth Issuer
Swap Provider and the Ninth Issuer Security Trustee (the NINTH ISSUER
DOLLAR CURRENCY SWAP AGREEMENTS) and, together with the other swap
agreements to be entered into in relation to certain of the Reg S Ninth
Issuer Notes, each as referred to in the Prospectus (as defined below),
the NINTH ISSUER SWAP AGREEMENTS).
(O) On or before the Closing Date, Xxxxx & Xxxxx LLP and Xxxxxxxxx and May
will sign for the purposes of identification an amended and restated
master definitions and construction schedule (the AMENDED AND RESTATED
MASTER DEFINITIONS SCHEDULE) and a master definitions and construction
schedule in respect of the Ninth Issuer (the NINTH ISSUER MASTER
DEFINITIONS SCHEDULE).
(P) As required, the Ninth Issuer, Funding, the Mortgages Trustee and/or
Abbey have entered or will enter into any other relevant documents to be
signed and delivered on or before the Closing Date (such documents,
together with the Mortgage Sale Agreement, the Mortgages Trust Deed, the
Scottish Trust Deed, the Amended and Restated Servicing Agreement, the
Mortgages Trustee Guaranteed Investment Contract, the First Issuer
Intercompany Loan Agreement, the Second Issuer Intercompany Loan
Agreement, the Third Issuer Intercompany Loan Agreement, the Fourth
Issuer Intercompany Loan Agreement, the Fifth Issuer Intercompany Loan
Agreement, the Sixth Issuer Intercompany Loan Agreement, the Seventh
Issuer Intercompany Loan Agreement, the Eighth Issuer Intercompany Loan
Agreement, the
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Ninth Issuer Intercompany Loan Agreement, the Funding Swap Agreement, the
Funding Guaranteed Investment Contract, the Cash Management Agreement,
the Bank Account Agreement, the First Start-up Loan Agreement, the Second
Start-up Loan Agreement, the Third Start-up Loan Agreement, the Fourth
Start-up Loan Agreement, the Fifth Start-up Loan Agreement, the Sixth
Start-up Loan Agreement, the Seventh Start-up Loan Agreement, the Eighth
Start-up Loan Agreement, the Corporate Services Agreement, the Amended
and Restated Funding Deed of Charge, the Ninth Issuer Deed of Charge, the
Ninth Issuer Trust Deed, the Ninth Issuer Cash Management Agreement, the
Ninth Issuer Paying Agent and Agent Bank Agreement, the Ninth Issuer Bank
Account Agreement, the Ninth Issuer Swap Agreements, the Ninth Issuer
Corporate Services Agreement, this Agreement and the Reg S Ninth Issuer
Notes Subscription Agreement, each as they have been or may be amended,
restated, varied or supplemented from time to time, are collectively
referred to herein as the LEGAL AGREEMENTS).
IT IS AGREED as follows:
1. ISSUE OF THE NINTH ISSUER NOTES
1.1 AGREEMENT TO ISSUE
Subject to the terms and conditions of this Agreement, the Ninth Issuer
agrees to issue theNinth Issuer Notes on the Closing Date to the
Underwriters or as they may direct. The Ninth Issuer Notes will be issued
at a price equal to the aggregate of 100 per cent. of the principal
amount of the Series 1 Class A Ninth Issuer Notes and 100 per cent. of
the principal amount of the Series 2 Class A Ninth Issuer Notes (the
ISSUE PRICE).
1.2 THE LEGAL AGREEMENTS
To the extent that each of the Ninth Issuer, Funding, the Mortgages
Trustee and Abbey is a signatory of the Legal Agreements, each has
entered or will, not later than the Closing Date, enter into each of the
Legal Agreements to which it is a party, substantially in the form of the
draft signed for the purposes of identification by Xxxxx & Xxxxx LLP and
Xxxxxxxxx and May (any draft of any document so signed being called an
AGREED FORM), with such amendments as the Underwriters may agree with the
Ninth Issuer and, if it is such a signatory, Funding, the Mortgages
Trustee and/or Abbey.
1.3 THE NINTH ISSUER NOTES
The Ninth Issuer Notes will be issued on the Closing Date in accordance
with the terms of the Ninth Issuer Trust Deed and will be in the form set
out therein.
1.4 PROSPECTUS
The Ninth Issuer confirms that it has prepared a preliminary prospectus
dated 14 November, 2005 and a prospectus dated today's date (together,
the PROSPECTUS) for use in connection with the issue of the Ninth Issuer
Notes and hereby authorises the Underwriters to distribute copies of the
Prospectus in connection with the offering and sale of the Ninth Issuer
Notes.
2. STABILISATION
Deutsche Bank Securities Inc. may, to the extent permitted by applicable
laws and regulations, engage in over-allotment transactions, stabilising
transactions, syndicate covering transactions and penalty bids and
otherwise effect transactions in the open market or otherwise in
connection with the distribution of the Ninth Issuer Notes with a view to
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stabilising or maintaining the respective market prices of the Ninth
Issuer Notes at levels other than those which might otherwise prevail in
the open market, but in doing so Deutsche Bank Securities Inc. shall act
as principal and in no circumstances shall the Ninth Issuer be obliged to
issue (i) more than US$1,740,000,000 in principal amount of Series 1
Class A Ninth Issuer Notes; or (ii) more than US$2,175,000,000 in
principal amount of Series 2 Class A Ninth Issuer Notes.
3. AGREEMENTS BY THE UNDERWRITERS
3.1 PURCHASE
Each Underwriter severally agrees to purchase and pay for such principal
amount of Ninth Issuer Notes set out against its name in the Schedule
hereto on the Closing Date at the Issue Price on the terms set out in
this Agreement.
(a) If any Underwriter shall default in its obligation to purchase
Ninth Issuer Notes which it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange to
purchase, or for another party or other parties reasonably
satisfactory to Abbey to purchase, such Ninth Issuer Notes on the
terms contained herein. If within 36 hours after such default by
any Underwriter, the non-defaulting Underwriters do not arrange
for the purchase of such Ninth Issuer Notes, then Abbey shall be
entitled to a further period of 36 hours within which to procure
another party or other parties satisfactory to the non-defaulting
Underwriters to purchase such Ninth Issuer Notes on such terms. In
the event that, within the respective prescribed periods, the
non-defaulting Underwriters notify Abbey that the non-defaulting
Underwriters have so arranged for the purchase of such Ninth
Issuer Notes, or Abbey notifies the non-defaulting Underwriters
that they have so arranged for the purchase of such Ninth Issuer
Notes, the non-defaulting Underwriters or Abbey shall have the
right to postpone the Closing Date for a period of not more than
seven days, in order to effect whatever changes may thereby be
made necessary in any documents or arrangements relating to the
offering and sale of the Ninth Issuer Notes. Any substitute
purchaser of Ninth Issuer Notes pursuant to this paragraph shall
be deemed to be an Underwriter, for the purposes of this
Agreement, in connection with the offering and sale of the Ninth
Issuer Notes.
(b) If, after giving effect to any arrangements for the purchase of
Ninth Issuer Notes of a defaulting Underwriter by the
non-defaulting Underwriters, as provided in Clause 3.1(a) above,
the aggregate principal amount of the Ninth Issuer Notes which
remains unpurchased does not exceed 10 per cent. of the aggregate
principal amount of the Ninth Issuer Notes, then Abbey shall have
the right to require each non-defaulting Underwriter to purchase
the principal amount of the Ninth Issuer Notes which such
Underwriter agreed to purchase hereunder and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of the Ninth Issuer Notes
which such Underwriter agreed to purchase hereunder) of the
principal amount of the Ninth Issuer Notes of such defaulting
Underwriter for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the principal amount of the Ninth Issuer Notes of a defaulting
Underwriter by the non-defaulting Underwriters as provided in
Clause 3.1(a) above, the aggregate principal amount of the Ninth
Issuer Notes which remains unpurchased exceeds 10 per cent. of the
aggregate principal amount of the Ninth Issuer Notes, or if Abbey
shall not exercise
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the right described in Clause 3.1(b) above to require
non-defaulting Underwriters to purchase the Ninth Issuer Notes of
a defaulting Underwriter, then this Agreement shall thereupon
terminate, without liability on the part of the non-defaulting
Underwriters; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
3.2 SELLING
Each Underwriter severally (and not jointly) agrees as follows:
(a) UNITED STATES
It is understood that the several Underwriters propose to offer
the Ninth Issuer Notes for sale to the public in the United States
as set forth in the Prospectus.
(b) UNITED KINGDOM
Each Underwriter represents and agrees that:
(i) (A) it is a person whose ordinary activities involve it in
acquiring, holding, managing or disposing of investments
(as principal or as agent) for the purposes of its
businesss and (B) it has not offered or sold, and will not
offer or sell any Ninth Issuer Notes other than to persons
whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal
or as agent) for the purposes of their businesses or who it
is reasonable to expect will acquire, hold, manage or
dispose of investments (as principal or as agent) for the
purposes of their businesses where the issue of the Ninth
Issuer Notes would otherwise constitute a contravention of
Section 19 of the FSMA by the Issuer;
(ii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it
in relation to the Ninth Issuer Notes in, from or otherwise
involving the United Kingdom; and
(iii) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any
invitation or inducement to engage in investment activities
(within the meaning of Section 21 of the FSMA) received by
it in connection with the issue or sale of any Ninth Issuer
Notes in circumstances in which Section 21(1) of the FSMA
does not apply to the Ninth Issuer.
(c) SPAIN
Each Manager represents and agrees that the Ninth Issuer Notes may
not be offered or sold in Spain by means of a public offer as
defined and construed in Chapter I of Title III of Law 24/1998, of
28 July, or the Spanish Securities Act (as amended by Royal Decree
Law 5/2005, of 11 March) and related legislation.
(d) REPUBLIC OF ITALY
Each Underwriter acknowledges that the Series 1 Class A Ninth
Issuer Notes may not be placed, offered or distributed to Italian
investors at any time. Each Underwriter represents and agrees that
the offering of the Ninth Issuer Notes has not been cleared by
CONSOB (the Italian Securities Exchange Commission) pursuant to
Italian
8
securities legislation and, accordingly, no Ninth Issuer Notes may
be offered, sold or delivered, nor may copies of the Prospectus or
of any other document relating to the Ninth Issuer Notes be
distributed in the Republic of Italy, except:
(i) to professional investors (operatori qualificati), as
defined in Article 31, second paragraph, of CONSOB
Regulation No. 11522 of 1st July, 1998, as amended; or
(ii) in circumstances which are exempted from the rules on
solicitation of investments pursuant to Article 100 of
Legislative Decree No. 58 of 24th February, 1998 (the
FINANCIAL SERVICES ACT) and Article 33, first paragraph of
CONSOB Regulation No. 11971 of 14th May 1999, as amended.
In addition, each Underwriter represents and agrees that any
offer, sale or delivery of the Ninth Issuer Notes or distribution
of copies of the Prospectus or any other document relating to the
Ninth Issuer Notes in the Republic of Italy under (i) or (ii)
above must be:
(A) made by an investment firm, bank or financial intermediary
permitted to conduct such activities in the Republic of
Italy in accordance with the Financial Services Act and
Legislative Decree Xx. 000 xx 0xx Xxxxxxxxx, 0000 (xxx
XXXXXXX XXX);
(B) in compliance with Article 129 of the Banking Act and the
implementing guidelines of the Bank of Italy, as amended
from time to time, pursuant to which the issue or the offer
of securities in the Republic of Italy may need to be
preceded and followed by an appropriate notice to be filed
with the Bank of Italy depending, inter alia, on the
aggregate value of the securities issued or offered in the
Republic of Italy and their characteristics; and
(C) in accordance with any other applicable laws and
regulations.
(e) FRANCE
Each Underwriter represents and agrees that:
(i) it has only made and will only make an offer of Notes to
the public (xxxxx public a l'epargne) in France in the
period beginning (i) when a prospectus in relation to those
issuer notes has been approved by the Autorite des marches
financiers (the AMF), on the date of such publication or,
(ii) when a prospectus has been approved in another member
state of the European Economic Area which has implemented
the EU Prospectus Directive 2003/71/EC, on the date of
notification of such approval to the AMF, all in accordance
with articles L.412-1 and L.621-8 of the French Code
monetaire et financier and the Reglement general of the
AMF, and ending at the latest on the date which is 12
months after the date of such publication; or
(ii) it has only made and will only make an offer of issuer
notes to the public in France (xxxxx public a l'epargne)
and/or it has only required and will only require the
admission to trading on Euronext Paris S.A. in
circumstances which do not require the publication by the
offeror of a prospectus pursuant to articles L.411-2 and
L.412-1 of the French Code monetaire et financier; and
9
(iii) it has not offered or sold, and will not offer or sell,
directly, or indirectly, the Ninth Issuer Notes to the
public in the Republic of France, and has not distributed
or caused to be distributed and will not distribute or
cause to be distributed to the public in the Republic of
France, the Prospectus or any other offering material
relating to the Ninth Issuer Notes, and that such offers,
sales and distributions have been made and shall only be
made in France to (a) providers of investment services
relating to portfolio management for the account of third
parties, and/or (b) qualified investors (investisseurs
qualifies), and/or (c) a restricted group of investors
(cercle restraint d'investisseurs), all as defined in, and
in accordance with, Articles L.411-1, L.411-2 and D.411-1
of the French Code monetaire et financier.
(f) OTHER
Each Underwriter acknowledges that no representation is made by
the Ninth Issuer or any Underwriter that any action has been or
will be taken in any jurisdiction by the Ninth Issuer or any
Underwriter that would permit a public offering of the Ninth
Issuer Notes (other than as described above), or possession or
distribution of the Prospectus or any other offering material, in
any country or jurisdiction where action for that purpose is
required. Each Underwriter has complied with and will comply with
all applicable securities laws and regulations in each
jurisdiction in which it purchases, offers, sells or delivers the
Ninth Issuer Notes or has in its possession or distributes the
Prospectus or any other offering material, in all cases at its own
expense. Each Underwriter represents that it will not directly or
indirectly offer, sell or deliver any Ninth Issuer Notes or
distribute or publish any prospectus, form of application,
advertisement or other offering material except under
circumstances that will, to the best of its knowledge and belief,
result in compliance with any applicable laws and regulations, and
all offers, sales and deliveries of the Ninth Issuer Notes by it
will be made on the same terms, and it will obtain any consent,
approval or permission required by it for the purchase, offer,
sale or delivery by it of the Ninth Issuer Notes under the laws
and regulations in force in any jurisdictions to which it is
subject or in which it makes such purchases, offers, sales or
deliveries, and the Ninth Issuer shall have no responsibility for
them.
4. LISTING
4.1 APPLICATION FOR LISTING
The Ninth Issuer confirms that it has authorised the Underwriters to make
or cause to be made at the Ninth Issuer's expense applications on the
Ninth Issuer's behalf for the Ninth Issuer Notes to be listed on the
official list of the UK Listing Authority and for the Ninth Issuer Notes
and to be admitted to trading on the London Stock Exchange plc (the STOCK
EXCHANGE).
4.2 SUPPLY OF INFORMATION
The Ninth Issuer agrees to supply to the Underwriters for delivery to the
UK Listing Authority and the Stock Exchange copies of the Prospectus and
such other documents, information and undertakings as may be required for
the purpose of obtaining such listing.
4.3 MAINTENANCE OF LISTING AND TRADING
The Ninth Issuer agrees to use its reasonable endeavours to maintain a
listing of the Ninth Issuer Notes and the Reg S Ninth Issuer Notes on the
official list of the UK Listing Authority
10
and the admission of the Ninth Issuer Notes and the Reg S Ninth Issuer
Notes to trading on the Stock Exchange for as long as any of the Ninth
Issuer Notes and the Reg S Ninth Issuer Notes are outstanding and to pay
all fees and supply all further documents, information and undertakings
and publish all advertisements or other material as may be necessary for
such purpose. However, if such listing becomes impossible, the Ninth
Issuer will obtain, and will thereafter use its best endeavours to
maintain, a quotation for, or listing of, the Ninth Issuer Notes on such
other stock exchange as is commonly used for the quotation or listing of
debt securities as it may, with the approval of the Underwriters (such
approval not to be unreasonably withheld or delayed), decide.
5. REPRESENTATIONS AND WARRANTIES OF THE NINTH ISSUER
The Ninth Issuer represents and warrants to, and agrees with, the Underwriters
and each of them that:
(a) THE REGISTRATION STATEMENT
The Ninth Issuer has prepared and filed with the United States
Securities and Exchange Commission (the COMMISSION) a registration
statement (file number 333-117381) on Form S-11 (the REGISTRATION
STATEMENT), including a related preliminary prospectus, for
registration under the U.S. Securities Act of 1933, as amended
(the SECURITIES ACT), of the offering and sale of the Ninth Issuer
Notes. The Ninth Issuer may have filed one or more amendments
thereto, including a related preliminary prospectus, each of which
has previously been furnished to the Underwriters. The Ninth
Issuer will next file with the Commission one of the following:
either (i) prior to the date and time that such Registration
Statement becomes effective (the EFFECTIVE DATE), a further
amendment to such Registration Statement, including the form of
final prospectus, or (ii) after the Effective Date of such
Registration Statement, a final prospectus in accordance with
Rules 430A and 424(b) under the Securities Act. In the case of
Subparagraph (ii) the Ninth Issuer has included in such
Registration Statement, as amended at the Effective Date, all
information (other than information with respect to the Ninth
Issuer Notes and the Issue permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule
430A (RULE 430A INFORMATION)) required by the Securities Act and
the rules thereunder to be included in such Registration Statement
and the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information,
and, except to the extent that the Underwriters shall agree in
writing to a modification, shall be in all substantive respects in
the form furnished to the Underwriters prior to the date and time
that this Agreement is executed and delivered by the parties
hereto (the EXECUTION TIME), or, to the extent not completed at
the Execution Time, shall contain only specific additional
information and other changes (beyond that contained in the latest
preliminary prospectus) as the Ninth Issuer has advised the
Underwriters, prior to the Execution Time, will be included or
made therein.
(b) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectus (and any
amendment or supplement thereto) will, comply in all material
respects with the applicable requirements of the Securities Act,
the Securities Exchange Act of 1934, as amended (the EXCHANGE
ACT), and the Trust Indenture Act of 1939, as amended (the TRUST
INDENTURE ACT), and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration
11
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading; on the Effective Date and on the Closing
Date the Ninth Issuer Trust Deed did or will comply in all
material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and on the Effective Date,
the Prospectus, if not filed pursuant to Rule 424(b), did not or
will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Prospectus (together with any
amendment or supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Ninth Issuer makes no representations
or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Note
Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any statement
thereto) in reliance upon and in conformity with information
furnished in writing to the Ninth Issuer by or on behalf of any
Underwriter specifically for inclusion in the Registration
Statement or the Prospectus (or any amendment or supplement
thereto).
(c) INCORPORATION
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
authority to conduct its business as described in the Prospectus,
and is lawfully qualified to do business in England and Wales, and
it has not taken any corporate action nor (to the best of its
knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against it for its
winding-up, dissolution or reorganisation or for the appointment
of a receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues.
(d) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
the Ninth Issuer and constitutes, and the other Legal Agreements
to which the Ninth Issuer is a party have been duly authorised by
the Ninth Issuer and on the Closing Date will constitute, valid
and legally binding obligations of the Ninth Issuer, enforceable
in accordance with their terms subject to applicable bankruptcy,
insolvency and similar laws affecting the rights of creditors
generally, general equitable principles, the time barring of
claims and, where a fixed security interest has been granted
pursuant to the terms of a deed of charge, the recharacterization
by a relevant court of such security of a floating charge (such
principles and laws being referred to in this Agreement as the
RESERVATIONS).
(e) VALIDITY OF THE NINTH ISSUER NOTES
The Ninth Issuer Notes and the Reg S Ninth Issuer Notes have been
duly authorised by the Ninth Issuer and, when executed and
authenticated in accordance with the Ninth Issuer Trust Deed and
the Ninth Issuer Paying Agent and Agent Bank Agreement, will
constitute valid and legally binding obligations of the Ninth
Issuer, enforceable in accordance with their terms subject to the
Reservations and, upon effectiveness of the Registration
Statement, the Ninth Issuer Trust Deed will have been duly
qualified under the Trust Indenture Act.
12
(f) CONSENTS
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required
for the issue and offering of the Ninth Issuer Notes and the Reg S
Ninth Issuer Notes or in connection with the execution and
performance of the transactions contemplated by the Legal
Agreements or the compliance by the Ninth Issuer with the terms of
the Ninth Issuer Notes and the Reg S Ninth Issuer Notes and the
Legal Agreements as the case may be, except for (i) such consents,
approvals, authorisations, registrations or qualifications as may
be required under applicable United States state securities, Blue
Sky or similar laws in connection with the purchase and
distribution of the Ninth Issuer Notes by the Underwriters and
(ii) those which have been, or will prior to the Closing Date be
taken, fulfilled or done, are, or will on the Closing Date be, in
full force and effect.
(g) COMPLIANCE
The authorisation of the Ninth Issuer Notes and the Reg S Ninth
Issuer Notes and the security therefor under the Ninth Issuer Deed
of Charge, the offering and issue of the Ninth Issuer Notes and
the Reg S Ninth Issuer Notes on the terms and conditions of this
Agreement and the Reg S Ninth Issuer Notes Subscription Agreement
(as applicable) and as described in the Prospectus, the execution
and delivery of the Legal Agreements to which it is a party and
the implementation of the transactions contemplated by such Legal
Agreements and compliance with the terms of the Legal Agreements
to which it is a party do not, and will not, (i) conflict with, or
result in a breach of, any of the terms or provisions of, or
constitute a default under, the Memorandum and Articles of
Association of the Ninth Issuer or any agreement or instrument to
which the Ninth Issuer is a party or by which any of its
properties is bound; (ii) infringe any applicable law, rule,
regulation, judgment, order or decree of any government,
governmental body or court, having jurisdiction over the Ninth
Issuer or any of its properties; or (iii) result in the creation
or imposition of any mortgage, charge, pledge, lien or other
security interest on any of its properties, other than those
created in, or imposed by, the Legal Agreements themselves.
(h) FINANCIAL STATEMENTS
(i) The auditor's report by Deloitte & Touche LLP, as
independent auditors to the Ninth Issuer, set out in the
Prospectus presents fairly the financial position of the
Ninth Issuer as at the date at which it has been prepared.
(ii) Since the date of such report there has been no change (nor
any development or event involving a prospective change of
which the Ninth Issuer is, or might reasonably be expected
to be, aware) which is materially adverse to the condition
(financial or otherwise), prospects, results of operations
or general affairs of the Ninth Issuer.
(iii) Deloitte & Touche LLP are independent public accountants
with respect to the Ninth Issuer within the meaning of the
standards established by the American Institute of
Certified Public Accountants.
(i) TAXATION
No stamp or other similar duty is assessable or payable in the
United Kingdom, and no withholding or deduction for any taxes,
duties, assessments or governmental charges of whatever nature is
imposed or made for or on account of any income,
13
registration, transfer or turnover taxes, customs or other duties
or taxes of any kind in connection with the authorisation,
execution, delivery or performance of the Legal Agreements or with
the authorisation, issue, sale or delivery of the Ninth Issuer
Notes and the Reg S Ninth Issuer Notes and (except as disclosed in
the Prospectus) the performance of the Ninth Issuer's, Funding's
and/or, as the case may be, the Mortgages Trustee's obligations
under the Legal Agreements, the Ninth Issuer Notes and the Reg S
Ninth Issuer Notes. This warranty does not apply to any United
Kingdom corporation tax which may be levied, collected, withheld
or assessed in connection with the authorisation, execution or
delivery of the Legal Agreements or with the authorisation, issue,
sale or delivery of the Ninth Issuer Notes and the Reg S Ninth
Issuer Notes.
(j) BREACH OF OTHER AGREEMENTS
The Ninth Issuer is not in breach of or in default under any
agreement to which it is a party or which is binding on it or any
of its assets or revenues.
(k) EVENTS OF DEFAULT
No event has occurred or circumstance arisen which, had the Ninth
Issuer Notes and/or the Reg S Ninth Issuer Notes already been
issued, would (whether or not with the giving of notice and/or the
passage of time and/or the fulfilment of any other requirement)
constitute an Event of Default as set out in the Conditions of the
Ninth Issuer Notes.
(l) NO SUBSIDIARIES
The Ninth Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies Xxx
0000.
(m) XXXXXX HOLDINGS LIMITED
The First Issuer, the Second Issuer, the Third Issuer, the Fourth
Issuer, the Fifth Issuer, the Sixth Issuer, the Seventh Issuer,
the Eighth Issuer, the Ninth Issuer, Funding, the Mortgages
Trustee, PECOH Limited, Xxxxxx Funding Xx. 0 XXX xxx Xxxxxx
Xxxxxxx Xx. 0 XXX are the only subsidiaries or subsidiary
undertakings of Xxxxxx Holdings Limited within the meanings of
Sections 258 and 736 of the Companies Xxx 0000.
(n) NO ACTIVITIES
The Ninth Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any registration
or re-registration as a public limited company under the Companies
Acts 1985 and 1989 and changes to its name, directors, secretary,
registered office, Memorandum and Articles of Association; (ii)
the authorisation and execution of the Legal Agreements to which
it is a party; (iii) the activities referred to or contemplated in
the Legal Agreements to which it is a party or in the Prospectus;
and (iv) the authorisation and issue by it of the Ninth Issuer
Notes and the Reg S Ninth Issuer Notes. The Ninth Issuer has not
(other than as set out in the Prospectus) made up any accounts and
has neither paid any dividends nor made any distributions since
its incorporation.
14
(o) LISTING RULES
Prior to the delivery of the Prospectus to the Registrar of
Companies in England and Wales, the Prospectus (i) has been
approved by or on behalf of the competent authority as listing
particulars each as defined in the FSMA and (2) complies with the
listing rules as set out under Part VI of the FSMA.
(p) LITIGATION
There are no pending actions, suits or proceedings against or
affecting the Ninth Issuer which could individually or in the
aggregate have an adverse effect on the condition (financial or
other), prospects, results of operations or general affairs of the
Ninth Issuer or could adversely affect the ability of the Ninth
Issuer to perform its obligations under the Legal Agreements, the
Ninth Issuer Notes and the Reg S Ninth Issuer Notes or which are
otherwise material in the context of the issue or offering of the
Ninth Issuer Notes and the Reg S Ninth Issuer Notes and, to the
best of the Ninth Issuer's knowledge, no such actions, suits or
proceedings are threatened or contemplated.
(q) NO PRIOR SECURITY
Save as set out in any of the Legal Agreements, there exists no
mortgage, lien, pledge or other charge or security interest on or
over the assets of the Ninth Issuer and, other than the Legal
Agreements, the Ninth Issuer has not entered into any indenture or
trust deed.
(r) SECURITY FOR THE NINTH ISSUER NOTES
The Ninth Issuer Notes and the obligations of the Ninth Issuer
under the Ninth Issuer Trust Deed will be secured in the manner
provided in the Ninth Issuer Deed of Charge and with the benefit
of the charges, covenants and other security provided for therein
including, without limitation, (i) an assignment by way of first
fixed security over its interests in the Ninth Issuer Intercompany
Loan Agreement, the Funding Deed of Charge (as amended by the
First Deed of Accession to the Funding Deed of Charge, the Second
Deed of Accession to the Funding Deed of Charge, the Third Deed of
Accession to the Funding Deed of Charge, the Fourth Deed of
Accession to the Funding Deed of Charge, the Amended and Restated
Funding Deed of Charge, the First Deed of Accession to the Amended
and Restated Funding Deed of Charge and the Second Deed of
Accession to the Amended and Restated Funding Deed of Charge and
as further acceded to on or before the Closing Date), the Ninth
Issuer Swap Agreements, the Ninth Issuer Trust Deed, the Ninth
Issuer Paying Agent and Agent Bank Agreement, the Ninth Issuer
Cash Management Agreement, the Ninth Issuer Corporate Services
Agreement, the Ninth Issuer Bank Account Agreement and any other
relevant documents to be signed on or before the Closing Date to
which the Ninth Issuer is a party; (ii) a charge by way of first
fixed charge over the Ninth Issuer Accounts (as defined in the
Ninth Issuer Deed of Charge); (iii) a charge by way of first fixed
charge over any authorised investments made with moneys standing
to the credit of any of the Ninth Issuer Accounts; and (iv) a
first ranking floating charge over the other assets of the Issuer
(extending over all of the Issuer's Scottish assets).
(s) CAPITALISATION
The authorised capital of the Ninth Issuer is as set out in the
Prospectus.
15
(t) INVESTMENT COMPANY ACT
The Ninth Issuer is not an "investment company" as defined in the
United States Investment Company Act of 1940, as amended (the
INVESTMENT COMPANY ACT), and the offer and sale of the Ninth
Issuer Notes in the United States will not subject the Ninth
Issuer to registration under, or result in a violation of, the
Investment Company Act.
(u) UNITED STATES INCOME TAX
The Ninth Issuer will not engage in any activities in the United
States (directly or through agents), will not derive any income
from United States sources as determined under United States
income tax principles, and will not hold any property if doing so
would cause it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under United
States income tax principles.
(v) REPRESENTATIONS AND WARRANTIES IN THE LEGAL AGREEMENTS
The representations and warranties given by the Ninth Issuer in
the Legal Agreements are true and accurate.
6. REPRESENTATIONS AND WARRANTIES OF FUNDING AND THE MORTGAGES TRUSTEE
Each of Funding and the Mortgages Trustee severally represents and
warrants (in respect of itself only) to, and agrees with, the
Underwriters and each of them that:
(a) THE REGISTRATION STATEMENT
Together with the Ninth Issuer, Funding and the Mortgages Trustee
have prepared and filed with the Commission the Registration
Statement (file number 333-117381) on Form S-11, including a
related preliminary prospectus, for registration under the
Securities Act of the offering and sale of the Ninth Issuer Notes.
The Ninth Issuer, Funding and the Mortgages Trustee may have filed
one or more amendments thereto, including a related preliminary
prospectus, each of which has previously been furnished to the
Underwriters. The Ninth Issuer, Funding and the Mortgages Trustee
will next file with the Commission one of the following either (i)
prior to the Effective Date of such Registration Statement, a
further amendment to such Registration Statement, including the
form of final prospectus, or (ii) after the Effective Date of such
Registration Statement, a final prospectus in accordance with
Rules 430A and 424(b) under the Securities Act. In the case of
Subparagraph (ii), the Ninth Issuer, Funding and the Mortgages
Trustee have included in such Registration Statement, as amended
at the Effective Date, all information (other than Rule 430A
Information) required by the Securities Act and the rules
thereunder to be included in such Registration Statement and the
Prospectus. As filed, such amendment and form of final prospectus,
or such final prospectus, shall contain all Rule 430A Information,
together with all other such required information, and, except to
the extent that the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to the Underwriters prior to the Execution Time, or, to
the extent not completed at the Execution Time, shall contain only
specific additional information and other changes (beyond that
contained in the latest preliminary prospectus) as they have
advised the Underwriters, prior to the Execution Time, will be
included or made therein.
16
(b) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectus (and any
amendment or supplement thereto) will, comply in all material
respects with the applicable requirements of the Securities Act,
the Exchange Act and the Trust Indenture Act and the respective
rules thereunder; on the Effective Date and at the Execution Time,
the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on
the Closing Date, the Ninth Issuer Trust Deed did or will comply
in all material respects with the applicable requirements of the
Trust Indenture Act and the rules thereunder; and on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with any
amendment or supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that neither Funding nor the Mortgages Trustee
makes any representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Note Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
statement thereto) in reliance upon and in conformity with
information furnished in writing to them by or on behalf of any
Underwriter specifically for inclusion in the Registration
Statement or the Prospectus (or any amendment or supplement
thereto).
(c) INCORPORATION
Each is duly incorporated and validly existing under the laws of
England and Wales, with full power and authority to conduct its
business as described in the Prospectus, and is lawfully qualified
to do business in England and Wales and it has not taken any
corporate action nor (to the best of its knowledge and belief)
have any other steps been taken or legal proceedings been started
or threatened against it for its winding-up, dissolution or
reorganisation or for the appointment of a receiver,
administrator, administrative receiver or similar officer of it or
of any or all of its assets or revenues.
(d) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
each of Funding and the Mortgages Trustee and constitutes, and the
other Legal Agreements to which each of Funding and/or the
Mortgages Trustee is a party have been duly authorised by, as
applicable, Funding and the Mortgages Trustee and on the Closing
Date will constitute, valid and legally binding obligations of
each of Funding and the Mortgages Trustee, enforceable in
accordance with their terms subject to the Reservations.
(e) CONSENTS
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required
in connection with the execution and performance of the
transactions contemplated by the Legal Agreements to which Funding
and/or the Mortgages Trustee, as the case may be, is a party or
the
17
compliance by each of them with the terms of the Legal Agreements
(except for those which have been, or will prior to the Closing
Date be taken, fulfilled or done) are, or will on the Closing Date
be, in full force and effect.
(f) COMPLIANCE
The authorisation of the terms and conditions of this Agreement,
the execution and delivery of the Legal Agreements to which
Funding and/or, as the case may be, the Mortgages Trustee is party
and the implementation of the transactions contemplated by such
Legal Agreements and compliance with the terms of the Legal
Agreements do not, and will not, (i) conflict with, or result in a
breach of, any of the terms or provisions of, or constitute a
default under, the Memorandum and Articles of Association of
Funding or the Mortgages Trustee or any agreement or instrument to
which Funding or the Mortgages Trustee is a party or by which any
of its properties is bound; (ii) infringe any applicable law,
rule, regulation, judgment, order or decree of any government,
governmental body or court, having jurisdiction over either
Funding or the Mortgages Trustee or any of its properties; or
(iii) result in the creation or imposition of any mortgage,
charge, pledge, lien or other security interest on any of its or
their properties, other than those created in, or imposed by, the
Legal Agreements themselves.
(g) BREACH OF OTHER AGREEMENTS
Neither Funding nor the Mortgages Trustee is in breach of or in
default under any agreement to which it is a party or which is
binding on it or any of its assets or revenues.
(h) XXXXXX HOLDINGS LIMITED
The First Issuer, the Second Issuer, the Third Issuer, the Fourth
Issuer, the Fifth Issuer, the Sixth Issuer, the Seventh Issuer,
the Eighth Issuer, the Ninth Issuer, Funding, the Mortgages
Trustee, PECOH Limited, Xxxxxx Funding Xx. 0 XXX xxx Xxxxxx
Xxxxxxx Xx. 0 XXX are the only subsidiaries or subsidiary
undertakings of Xxxxxx Holdings Limited within the meanings of
Sections 258 and 736 of the Companies Xxx 0000.
(i) EVENTS OF DEFAULT
No event has occurred or circumstance arisen which, had the Ninth
Issuer Intercompany Loan Agreement been entered into, would
(whether or not with the giving of notice and/or the passage of
time and/or the fulfilment of any other requirement) constitute an
Event of Default as set out in the Ninth Issuer Intercompany Loan
Agreement.
(j) NO SUBSIDIARIES
Neither Funding nor the Mortgages Trustee has any subsidiaries or
subsidiary undertakings within the meanings of Sections 258 and
736 of the Companies Xxx 0000.
(k) NO ACTIVITIES
Neither Funding nor the Mortgages Trustee has engaged in any
activities since its incorporation other than (i) those incidental
to any registration as a private limited
18
company under the Companies Acts 1985 and 1989 and changes to its
name, directors, secretary, registered office, Memorandum and
Articles of Association; (ii) the authorisation and execution of
the Legal Agreements to which each is a party; (iii) the
activities referred to or contemplated in the Legal Agreements or
in the Prospectus; (iv) the activities undertaken in connection
with the establishment of the Mortgages Trust pursuant to the
Mortgages Trust Deed and the issue of notes by the First Issuer,
the Second Issuer, the Third Issuer, the Fourth Issuer, the Fifth
Issuer, Sixth Issuer, the Seventh Issuer, the Eighth Issuer and
the Ninth Issuer; and (v) the registration of Funding under the
Data Protection Xxx 0000 (the DPA). Neither Funding nor the
Mortgages Trustee has (other than as set out in the Prospectus or
in the prospectuses relating to the notes issued by the First
Issuer, the Second Issuer, the Third Issuer, the Fourth Issuer,
the Fifth Issuer, the Sixth Issuer, the Seventh Issuer or the
Eighth Issuer and other than as required by any applicable law)
made up any accounts and neither has paid any dividends or made
any distributions since its respective date of incorporation.
(l) BENEFICIAL OWNER
On 25th July, 2000, the Mortgages Trust was established pursuant
to the Mortgages Trust Deed and following the transfer by way of
equitable assignment by Abbey of its interest in the Portfolio (as
defined in the Prospectus) to the Mortgages Trustee pursuant to or
in accordance with the Mortgage Sale Agreement on 26th July, 2000
and on subsequent distribution dates, or, in relation to Loans
secured over properties in Scotland and their Related Security,
following the granting from time to time of a Scottish Trust Deed,
the Mortgages Trustee held (and continues to hold) the Portfolio
on trust for the benefit of Funding and Abbey in undivided shares
absolutely.
(m) LITIGATION
There are no pending actions, suits or proceedings against or
affecting Funding or the Mortgages Trustee which could
individually or in the aggregate have an adverse effect on the
condition (financial or otherwise), prospects, results of
operations or general affairs of either one of them or could
adversely affect the ability of the Mortgages Trustee or Funding
to perform their respective obligations under the Legal
Agreements, or which are otherwise material in the context of the
transaction contemplated by the Prospectus and, to the best of the
knowledge of Funding and the Mortgages Trustee, no such actions,
suits or proceedings are threatened or contemplated.
(n) NO PRIOR SECURITY
Save as set out in any of the Legal Agreements there exists no
mortgage, lien, pledge or other charge or security interest on or
over the assets of Funding and, other than the Legal Agreements,
it has not entered into any indenture or trust deed.
(o) SECURITY FOR THE NINTH ISSUER INTERCOMPANY LOAN
Funding's obligations under, inter alia, the Ninth Issuer
Intercompany Loan Agreement will be secured in the manner provided
in the Amended and Restated Funding Deed of Charge and with the
benefit of the charges, covenants and other security provided for
therein including, without limitation, (i) a first ranking fixed
charge over Funding's interest in the Trust Property (as defined
in the Mortgages Trust Deed); (ii) an assignment by way of first
fixed security over its interests in the Mortgage Sale Agreement,
the Mortgages Trust Deed, the Scottish Trust Deed, the
19
Amended and Restated Servicing Agreement, the Funding Swap
Agreement, the First Issuer Intercompany Loan Agreement, the
Second Issuer Intercompany Loan Agreement, the Third Issuer
Intercompany Loan Agreement, the Fourth Issuer Intercompany Loan
Agreement, the Fifth Issuer Intercompany Loan Agreement, the Sixth
Issuer Intercompany Loan Agreement, the Seventh Issuer
Intercompany Loan Agreement, the Eighth Issuer Intercompany Loan
Agreement, the Ninth Issuer Intercompany Loan Agreement, the First
Start-up Loan Agreement, the Second Start-up Loan Agreement, the
Third Start-up Loan Agreement, the Fourth Start-up Loan Agreement,
the Fifth Start-up Loan Agreement, the Sixth Start-up Loan
Agreement, the Seventh Start-up Loan Agreement, the Eighth
Start-up Loan Agreement, the Funding Guaranteed Investment
Contract, the Corporate Services Agreement, the Cash Management
Agreement, the Bank Account Agreement and any other relevant
documents signed or to be signed on or before the Closing Date to
which Funding is a party; (iii) a first ranking fixed charge over
the Bank Accounts (as defined in the Amended and Restated Funding
Deed of Charge); (iv) a first ranking fixed charge over any
authorised investments made with moneys standing to the credit of
the Bank Accounts; and (v) a first ranking floating charge over
the other assets of Funding (extending over all of Funding's
Scottish assets).
(p) CAPITALISATION
The authorised capital of each of Funding and the Mortgages
Trustee is as set out in the Prospectus.
(q) INVESTMENT COMPANY ACT
Neither Funding nor the Mortgages Trustee is an "investment
company" as defined in the Investment Company Act, and the offer
and sale of the Ninth Issuer Notes in the United States will not
subject Funding or the Mortgages Trustee to registration under, or
result in a violation of, the Investment Company Act.
(r) UNITED STATES INCOME TAX
Neither Funding nor the Mortgages Trustee will engage in any
activities in the United States (directly or through agents),
derive any income from United States sources as determined under
United States income tax principles, or hold any property if doing
so would cause it to be engaged or deemed to be engaged in a trade
or business within the United States as determined under United
States income tax principles.
(s) FINANCIAL STATEMENTS
(i) The auditor's report by Deloitte & Touche LLP, as
independent auditor to Funding, set out in the Prospectus
presents fairly the financial position of Funding as at the
date at which it has been prepared.
(ii) Since the date of such report there has been no change (nor
any development or event involving a prospective change of
which Funding is, or might reasonably be expected to be,
aware) which is materially adverse to the condition
(financial or otherwise), prospects, results of operations
or general affairs of Funding.
(iii) Deloitte & Touche LLP are independent public accountants
with respect to Funding within the meaning of the standards
established by the American Institute of Certified Public
Accountants.
20
(t) REPRESENTATIONS AND WARRANTIES IN THE LEGAL AGREEMENTS
The representations and warranties given by Funding and the
Mortgages Trustee in the Legal Agreements are true and accurate.
7. REPRESENTATIONS AND WARRANTIES OF ABBEY
Abbey represents and warrants to, and agrees with, the Underwriters and
each of them that:
(a) INCORPORATION
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
authority to conduct its business as described in the Prospectus,
and is lawfully qualified to do business in England and Wales and
it is not in liquidation.
(b) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
Abbey and constitutes, and the other Legal Agreements to which
Abbey is a party have been duly authorised by Abbey and on the
Closing Date will constitute, valid and legally binding
obligations of Abbey, enforceable in accordance with their terms
subject to the Reservations.
(c) RELATED SECURITY
Abbey has not received written notice of any litigation or claim
calling into question its title to any Related Security or the
value of any security therefore or its right to assign any such
Related Security to the Mortgages Trustee.
(d) CONSENTS
All consents, approvals and authorisations of all United Kingdom
regulatory authorities required on the part of Abbey for or in
connection with the execution and performance of the transactions
contemplated by the Legal Agreements to which Abbey is a party
have been obtained and are in full force and effect including,
without limiting the generality of the foregoing, Abbey having
received a standard licence under the Consumer Credit Xxx 0000 and
Abbey being registered under the DPA.
(e) COMPLIANCE
The transfer by way of equitable assignment of Abbey of its
interest in the Portfolio and the related property and rights, the
execution and delivery of the Legal Agreements to which Abbey is a
party, the implementation of the transactions contemplated by such
Legal Agreements and compliance with the terms of such Legal
Agreements did not, and will not, (i) conflict with, or result in
a breach of, any of the terms or provisions of, or constitute a
default under, the Memorandum and Articles of Association of
Abbey, or any agreement or instrument to which Abbey is a party or
by which it or any of its properties is bound, where such breach
or default might have a material adverse effect in the context of
the issue of the Ninth Issuer Notes or the Reg S Ninth Issuer
Notes; or (ii) infringe any applicable law, rule, regulation,
judgment, order or decree of any government, governmental body or
court having jurisdiction over Abbey or any of its properties; or
(iii) result in the creation or
21
imposition of any mortgage, charge, pledge, lien or other security
interest on any of its properties, other than those created in, or
imposed by, the Legal Agreements themselves.
(f) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectus (and any
amendment or supplement thereto) will, comply in all material
respects with the applicable requirements of the Securities Act,
the Exchange Act and the Trust Indenture Act and the respective
rules thereunder; on the Effective Date and at the Execution Time,
the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on
the Closing Date the Ninth Issuer Trust Deed did or will comply in
all material respects with the applicable requirements of the
Trust Indenture Act and the rules thereunder; and on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with any
amendment or supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that Abbey makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Note Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any statement thereto) in reliance
upon and in conformity with information furnished in writing to
Abbey by or on behalf of any Underwriter specifically for
inclusion in the Registration Statement or the Prospectus (or any
amendment or supplement thereto).
(g) BENEFICIAL OWNER
On 25th July, 2000, the Mortgages Trust was established pursuant
to the Mortgages Trust Deed and following the transfer by way of
equitable assignment of Abbey of its interest in the Portfolio to
the Mortgages Trustee pursuant to, and in accordance with, the
Mortgage Sale Agreement on 26th July, 2000 and on subsequent
distribution dates or, in relation to Loans secured over
properties in Scotland and their Related Security, following the
granting from time to time of a Scottish Trust Deed, the Mortgages
Trustee held (and continues to hold) the Portfolio on trust for
the benefit of Funding and Abbey in undivided shares absolutely.
(h) LITIGATION
It is not involved in any actions, suits or proceedings in
relation to claims or amounts which could materially adversely
affect its ability to perform its obligations under the Legal
Agreements.
(i) MORTGAGE SALE AGREEMENT
The representations and warranties given by Abbey in the Mortgage
Sale Agreement will be true and accurate when made or deemed to be
repeated.
22
(j) BREACH OF OTHER AGREEMENTS
Abbey is not in breach of or in default under any agreements to
which it is a party or which is binding on it or any applicable
laws to the extent that such breach or default is material to the
performance by Abbey of its obligations under the Legal Agreements
to which it is a party, or would be so material, had such Legal
Agreements been entered into.
(k) REPRESENTATIONS AND WARRANTIES IN THE LEGAL AGREEMENTS
The representations and warranties given by Abbey in the Legal
Agreements are true and accurate.
8. COVENANTS OF THE NINTH ISSUER, FUNDING, THE MORTGAGES TRUSTEE AND ABBEY
8.1 The Ninth Issuer and, where expressly provided, Funding, the Mortgages
Trustee and Abbey covenants to, and agrees with, the Underwriters and
each of them that:
(a) THE REGISTRATION STATEMENT
The Ninth Issuer, Funding, the Mortgages Trustee and Abbey will
use their best efforts to cause the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, to
become effective. Prior to the termination of the offering of the
Ninth Issuer Notes, none of the Ninth Issuer, Funding, the
Mortgages Trustee or Abbey will file any amendment to the
Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Ninth Issuer, Funding,
the Mortgages Trustee and Abbey have furnished the Underwriters
with a copy for their review prior to filing and none of them will
file any such proposed amendment or supplement to which the
Underwriters reasonably object. Subject to the foregoing sentence,
if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Ninth Issuer, Funding, the
Mortgages Trustee and Abbey will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Underwriters of such timely filing. The Ninth
Issuer, Funding, the Mortgages Trustee and Abbey will promptly
advise the Underwriters when:
(i) the Registration Statement, if not effective at the
Execution Time, shall have become effective;
(ii) the Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission; and
(iii) prior to termination of the offering of the Ninth Issuer
Notes, any amendment to the Registration Statement shall
have been filed or become effective.
(b) DELIVERY OF COPIES
The Ninth Issuer will deliver to each Underwriter (i) one copy of
the Registration Statement as originally filed and each amendment
thereto, in each case including all exhibits and consents filed
therewith; (ii) a conformed copy of the Registration
23
Statement as originally filed and each amendment thereto, in each
case including all exhibits and consents filed therewith and (iii)
during the Marketing Period, as many copies of the Prospectus
(including all amendments and supplements thereto) as each
Underwriter may reasonably request. As used herein, the term
MARKETING PERIOD means any period during which a prospectus
relating to the Ninth Issuer Notes is required to be delivered
under the Securities Act.
(c) NOTIFY MATERIAL OMISSION
If at any time during the Marketing Period any event shall have
occurred as a result of which the Registration Statement or
Prospectus, as then amended or supplemented, would include a
statement of fact which is not true and accurate in all material
respects or omit any fact the omission of which would make
misleading in any material respect any statement therein whether
of fact or opinion, or if for any other reason it shall be
necessary to amend or supplement the Registration Statement or
Prospectus, then: (i) the Ninth Issuer will promptly notify the
Underwriters; (ii) the Ninth Issuer shall promptly prepare and
timely file with the Commission any amendment or supplement to the
Registration Statement or any Prospectus that may, in the
reasonable judgment of the Ninth Issuer or the Underwriters, be
required by the Securities Act or requested by the Commission;
(iii) the Ninth Issuer will, without charge, supply to the
Underwriters as many copies as they may reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission; and (iv) the representations
and warranties contained in Clauses 5(a), 5(b), 5(c), 5(h), 5(o),
5(s), 6(a), 6(b), 6(c), 6(p) and 6(s) shall be deemed to be
repeated by, as applicable, the Ninth Issuer, Funding and the
Mortgages Trustee as of the date of each such amended Prospectus
or supplement to the Prospectus on the basis that each reference
to "Prospectus" in such representations and warranties contained
in Clauses 5 and 6 shall be deemed to be a reference to the
Prospectus as amended or supplemented as at such date.
(d) NOTIFY CHANGE
Without prejudice to its obligations under Clause 8(c), the Ninth
Issuer, Funding or the Mortgages Trustee will notify the
Underwriters promptly of any change affecting any of its
representations, warranties, covenants, agreements or indemnities
in this Agreement at any time prior to payment being made to the
Ninth Issuer on the Closing Date and will take such steps as may
be reasonably requested by the Underwriters to remedy and/or
publicise the same.
(e) OFFICIAL ANNOUNCEMENTS
Between the date of this Agreement and the Closing Date (both
dates inclusive) none of the Ninth Issuer, Funding or the
Mortgages Trustee will, without the prior approval of the
Underwriters (such approval not to be unreasonably withheld), make
any official announcement which would have an adverse effect on
the marketability of the Ninth Issuer Notes.
(f) STAMP DUTY
(i) The Ninth Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar
nature and duties payable in the United Kingdom, Belgium,
Luxembourg or the United States, including interest and
penalties, in connection with the creation, issue,
distribution and offering of the Ninth Issuer Notes or in
connection with the execution, delivery or enforcement of
24
any of the Legal Agreements to which it is a party together
with any value added, turnover or similar tax payable in
respect of that amount (and references in this Agreement to
such amount shall be deemed to include any such taxes so
payable in addition to it).
(ii) Funding will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and duties
payable in the United Kingdom, Belgium, Luxembourg or the
United States, including interest and penalties, in
connection with the execution, 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 (including any amendment
thereto), the Mortgage Sale Agreement (including any
amendment thereto) and any Legal Agreement to which the
Ninth Issuer is a party) together with any value added,
turnover or similar tax payable in respect of that amount
(and references in this Agreement to such amount shall be
deemed to include any such taxes so payable in addition to
it).
(iii) The Mortgages Trustee will pay any stamp duty, issue,
registration, documentary or other taxes of a similar
nature and duties payable in the United Kingdom, Belgium,
Luxembourg or the United States, including interest and
penalties in connection with the execution, delivery or
enforcement of the Mortgages Trust Deed (including any
amendment thereto), the Mortgage Sale Agreement (including
any amendment thereto) and the Scottish Trust Deed
(including any amendment thereto and any subsequent trust
deed in substantially similar form) (together with any
value added, turnover or similar tax payable in respect of
that amount (and references in this Agreement to such
amount shall be deemed to include any such taxes so payable
in addition to it)) but will be promptly reimbursed an
amount equal to any such payments by the Beneficiaries in
accordance with the terms of the Mortgages Trust Deed.
(iv) For the avoidance of doubt, if Funding or the Mortgages
Trustee discharges its obligations to pay any stamp duty,
issue, registration, documentary or other taxes of a
similar nature and duties payable in the United Kingdom,
Belgium, Luxembourg or the United States, including
interest and penalties in each case as described above
(together, the RELEVANT TAXES), at any time while amounts
are outstanding in respect of the notes issued by the First
Issuer and/or the Second Issuer and/or the Third Issuer
and/or the Fourth Issuer and/or the Fifth Issuer and/or the
Sixth Issuer and/or the Seventh Issuer and/or the Eighth
Issuer and/or the Ninth Issuer and/or any New Issuer, then
Funding and/or (as applicable) the Mortgages Trustee will
not be obliged to pay such relevant taxes multiple times
(in respect of the same obligation), in order to meet its
obligations under (A) the underwriting agreements and
subscription agreements relating to the First Issuer and/or
the Second Issuer and/or the Third Issuer and/or the Fourth
Issuer and/or the Fifth Issuer and/or the Sixth Issuer
and/or the Seventh Issuer and/or the Eighth Issuer and/or
the Ninth Issuer and/or any New Issuer and (B) paragraphs
(ii) and/or (iii) (as applicable) above.
(g) PAYMENT OF FEES, CHARGES, COSTS AND DUTIES
(i) Without prejudice to the generality of Clause 12.1, the
Ninth Issuer will pay all and any fees, charges, costs and
duties and any stamp and other similar
25
taxes or duties, including interest and penalties, arising
from or in connection with the creation of the security for
the Ninth Issuer Notes and the Reg S Ninth Issuer Notes,
the obligations of the Ninth Issuer under the Ninth Issuer
Trust Deed, for the other amounts to be secured as
contemplated by the Ninth Issuer Deed of Charge and the
perfection of such security at any time.
(ii) Without prejudice to the generality of Clause 12.1, Funding
will pay all and any fees, charges, costs and duties and
any stamp and other similar taxes or duties, including
interest and penalties, arising from or in connection with
the creation of the security for the Ninth Issuer
Intercompany Loan and for the other amounts to be secured
as contemplated by the Funding Deed of Charge, the First
Deed of Accession to the Funding Deed of Charge, the Second
Deed of Accession to the Funding Deed of Charge, the Third
Deed of Accession to the Funding Deed of Charge, the Fourth
Deed of Accession to the Funding Deed of Charge, the
Amended and Restated Funding Deed of Charge, the First Deed
of Accession to the Amended and Restated Funding Deed of
Charge, the Second Deed of Accession to the Amended and
Restated Funding Deed of Charge and any accession thereto
and the perfection of such security at any time.
(iii) Without prejudice to the generality of Clause 12.1, the
Mortgages Trustee will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or duties,
including interest and penalties, arising from or in
connection with the purchase of the Related Security (and
related property and rights) excluding Land Registry and
Registers of Scotland fees (it being agreed that
registration or recording at Land Registry or Registers of
Scotland of the transfer of the Related Security to the
Mortgages Trustee will not be applied for except in the
circumstances specified in the Amended and Restated
Servicing Agreement); but on the basis that the Mortgages
Trustee will be reimbursed such fees, charges, costs and
duties, and any stamp and other similar taxes or duties
(including interest and penalties) by the Beneficiaries
pursuant to the terms of the Mortgages Trust Deed.
(h) PERFORM ALL REQUIRED ACTIONS
On or prior to the Closing Date each of the Ninth Issuer, Funding
and the Mortgages Trustee will do all things within each of their
respective powers and required of each of them on such date under
the terms of the Legal Agreements to which each is a party.
(i) CONDITIONS PRECEDENT
The Ninth Issuer will use all reasonable endeavours to procure
satisfaction on or before the Closing Date of the conditions
referred to in Clause 9 of this Agreement.
(j) SERVICING AGREEMENT
Funding and the Mortgages Trustee will use all reasonable
endeavours to procure that Abbey complies with its obligations
under the Amended and Restated Servicing Agreement.
26
(k) CHARGES AND SECURITIES
(i) The Ninth Issuer will procure that each of the charges and
other securities created by or pursuant to or contained in
the Ninth Issuer Deed of Charge is registered within all
applicable time limits in all appropriate registers.
(ii) Funding will procure that each of the charges and other
securities created by or pursuant to or contained in the
Funding Deed of Charge, the First Deed of Accession to the
Funding Deed of Charge, the Second Deed of Accession to the
Funding Deed of Charge, the Third Deed of Accession to the
Funding Deed of Charge, the Fourth Deed of Accession to the
Funding Deed of Charge, the Amended and Restated Funding
Deed of Charge, the First Deed of Accession to the Amended
and Restated Funding Deed of Charge, the Second Deed of
Accession to the Amended and Restated Funding Deed of
Charge and any accession thereto is registered within all
applicable time limits in all appropriate registers other
than at Land Registry.
(l) RATINGS
None of the Ninth Issuer, Funding or the Mortgages Trustee will
take, or cause to be taken, any action and will not permit any
action to be taken which it knows or has reason to believe would
result in the Series 1 Class A Ninth Issuer Notes not being
assigned an F1+ rating by Fitch Ratings Ltd. (FITCH RATINGS), a
P-1 rating by Xxxxx'x Investors Service Limited (MOODY'S) and an
A-1+ rating by Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies, Inc. (STANDARD & POOR'S); and the
Series 2 Class A Ninth Issuer Notes not being assigned an AAA
rating by Fitch Ratings, an Aaa rating by Moody's and an AAA
rating by Standard & Poor's.
(m) LEGAL AGREEMENTS
Prior to closing on the Closing Date none of the Ninth Issuer,
Funding or the Mortgages Trustee will amend the terms of the
executed Legal Agreements to which they are parties, nor execute
any of the other Legal Agreements other than in the agreed form,
without the consent of the Underwriters (such consent not to be
unreasonably withheld or delayed).
(n) COMMISSION FILINGS
The Ninth Issuer, Funding and the Mortgages Trustee will timely
file with the Commission all documents (and any amendments to
previously filed documents) required to be filed by them pursuant
to Sections 13(a), 13(c) or 15(d) of the Exchange Act, provided
that during the Marketing Period none of the Ninth Issuer, Funding
or the Mortgages Trustee will file any such document or amendment
unless the Ninth Issuer, Funding and the Mortgages Trustee have
furnished the Underwriters with a copy for their review prior to
filing and none of them will file any such proposed document or
amendment until the Underwriters have been consulted and given a
reasonable opportunity to comment on such document or amendment.
(o) COPIES OF COMMISSION FILINGS
During the Marketing Period, if there is (i) any amendment or
supplement to the Registration Statement, (ii) any amendment or
supplement to any Prospectus, or (iii) any material document filed
by the Ninth Issuer, Funding or the Mortgages Trustee
27
with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act including but not limited to any interim or
any report submitted to the Commission on Form 6-K (FORM 6-K) or
Form 20-F (FORM 20-F) under the Exchange Act and the rules and
regulations thereunder or any amendment or supplement to any such
document, the Ninth Issuer, Funding and the Mortgages Trustee, as
the case may be, will furnish a copy thereof to each Underwriter,
and counsel to the Underwriters, prior to filing with the
Commission.
(p) NOTICE TO UNDERWRITERS OF CERTAIN EVENTS
During the Marketing Period, the Ninth Issuer will advise the
Underwriters immediately (i) when any post-effective amendment to
the Registration Statement becomes effective, (ii) of any request
or proposed request by the Commission, whether written or oral,
for an amendment or supplement to the Registration Statement, to
any Rule 462(b) Registration Statement, to any Prospectus or to
any material document filed by the Ninth Issuer, Funding or the
Mortgages Trustee with or submitted to the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and the
rules and regulations thereunder or for any additional information
and the Ninth Issuer, Funding and the Mortgages Trustee will
afford the Underwriters a reasonable opportunity to comment on any
such proposed amendment or supplement, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or any part thereof or any order
directed to the Prospectus or any document incorporated therein by
reference or the initiation or threat of any stop order proceeding
or of any challenge to the accuracy or adequacy of any document
incorporated by reference in the Prospectus, (iv) of receipt by
Abbey or the Ninth Issuer of any notification with respect to the
suspension of the qualification of the Ninth Issuer Notes for sale
in any jurisdiction or the initiation or threat of any proceeding
for that purpose, and (v) of any downgrading in the rating of the
Ninth Issuer Notes or any debt securities of Abbey or the Ninth
Issuer by any nationally recognized statistical rating
organization (as defined for purposes of Rule 436(g) under the
Securities Act), or if any such organisation shall have informed
Abbey or the Ninth Issuer or made any public announcement that any
such organisation has under surveillance or review its rating of
any debt securities of Abbey or the Ninth Issuer (other than an
announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading of such rating) as
soon as such announcement is made or Abbey or the Ninth Issuer is
so informed.
(q) STOP ORDERS
The Ninth Issuer will use its best efforts to prevent the issuance
of any stop order or the suspension of any qualification referred
to in Clause 8.1(p) above and if, during the Marketing Period, the
Commission shall issue a stop order suspending the effectiveness
of the Registration Statement or such qualification of the Ninth
Issuer Notes for sale in any jurisdiction is suspended, the Ninth
Issuer will make every reasonable effort to obtain the lifting of
that order or suspension at the earliest possible time.
(r) BLUE SKY QUALIFICATIONS
The Ninth Issuer will arrange, in co-operation with the
Underwriters, to qualify the Ninth Issuer Notes for offering and
sale under the securities laws of such jurisdictions in the United
States as the Underwriters may designate, and to maintain such
qualifications in effect for as long as may be required for the
distribution of the Ninth
28
Issuer Notes, and to file such statements and reports as may be
required by the laws of each jurisdiction in which the Ninth
Issuer Notes have been qualified as above, provided that in
connection therewith the Ninth Issuer shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to take any other action
that would subject it to service of process in suits in any
jurisdiction other than those arising out of the offering or sale
of the Ninth Issuer Notes in such jurisdiction or to register as a
dealer in securities or to become subject to taxation in any
jurisdiction.
8.2 Abbey covenants to and agrees with the Underwriters and each of them
that:
(a) NOTIFY CHANGE
Abbey will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time prior to
payment being made to the Ninth Issuer on the Closing Date and
will take such steps as may be reasonably requested by the
Underwriters to remedy and/or publicise the same. In the event
that the Prospectus is amended or supplemented pursuant to Clause
8.1(c) above, then the representations and warranties contained in
Clause 7(f) shall be deemed to be repeated by Abbey as of the date
of such amended Prospectus or supplement to the Prospectus, on the
basis that each reference to "Prospectus" in Clause 7(f) shall be
deemed to be a reference to the Prospectus as amended or
supplemented as at such date.
(b) PERFORM ALL REQUIRED ACTIONS
On or prior to the Closing Date, Abbey will do all things within
its power and required of it on such date under the terms of the
Legal Agreements.
(c) REVIEW OF RELATED SECURITY
Abbey will deliver to the Underwriters on the date of this
Agreement a letter (relating to its review of the Related
Security) dated the date of this Agreement in the agreed form
addressed to Abbey and the Underwriters from Deloitte & Touche
LLP.
(d) RATINGS
Abbey will not take, or cause to be taken, any action and will not
permit any action to be taken which it knows or has reason to
believe would result in the Series 1 Class A Ninth Issuer Notes
not being assigned an F1+ rating by Fitch Ratings, a P-1 rating by
Moody's and an A-1+ rating by Standard & Poor's; and the Series 2
Class A Ninth Issuer Notes not being assigned an AAA rating by
Fitch Ratings, an Aaa rating by Moody's and an AAA rating by
Standard & Poor's.
(e) LEGAL AGREEMENTS
Prior to closing on the Closing Date Abbey will not amend the
terms of any of the already executed Legal Agreements to which it
is a party, nor execute any of the other Legal Agreements other
than in the agreed form, without the consent of the Underwriters
(such consent not to be unreasonably withheld or delayed).
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9. CONDITIONS PRECEDENT
The obligation of the Underwriters under this Agreement to subscribe for
the Ninth Issuer Notes is subject to the following conditions precedent:
(a) THE REGISTRATION STATEMENT
(i) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriters agree
in writing to a later time, the Registration Statement will
become effective not later than (A) 6:00 p.m. New York City
time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00
p.m. New York City time on such date, or (B) 9:30 a.m. New
York City time on the next business day in New York
following the day on which the public offering price was
determined, if such determination occurred after 3:00 p.m.
New York City time on such date.
(ii) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any
such supplement, will be filed in the manner and within the
time period required by Rule 424(b).
(iii) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) EXECUTION OF LEGAL AGREEMENTS AND THE GLOBAL NINTH ISSUER NOTES
The execution and delivery by all parties thereto of the Legal
Agreements and the Global Ninth Issuer Notes representing each
class of the Ninth Issuer Notes on or prior to the Closing Date.
(c) ADMISSION TO LISTING AND TRADING
The UK Listing Authority having agreed to admit the Ninth Issuer
Notes and the Reg S Ninth Issuer Notes to the official list of the
UK Listing Authority and the Stock Exchange having agreed to
admission of the Ninth Issuer Notes and the Reg S Ninth Issuer
Notes to trading, in each case on or prior to the Closing Date.
(d) LEGAL OPINIONS
On or prior to the Closing Date, there having been delivered to
the Ninth Issuer, the Underwriters, the Note Trustee, the Ninth
Issuer Security Trustee and the Security Trustee copies of
opinions and disclosure letters, in form and substance
satisfactory to the Underwriters, the Note Trustee, the Ninth
Issuer Security Trustee, the Security Trustee and the Rating
Agencies, dated the Closing Date, of:
(i) Xxxxxxxxx and May, legal advisers to the Ninth Issuer as to
English law, addressed to the Ninth Issuer and the
Underwriters, substantially to the effect set forth in
Annex A hereto;
(ii) Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, legal advisers to the
Ninth Issuer as to US law, addressed to the Ninth Issuer
and the Underwriters, substantially to the effect set forth
in Annex B hereto;
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(iii) Xxxxx & Overy LLP, legal advisers to the Underwriters, the
Note Trustee, the Ninth Issuer Security Trustee and the
Security Trustee, addressed to the Underwriters, the Note
Trustee, the Ninth Issuer Security Trustee and the Security
Trustee, substantially to the effect set forth in Annex C
hereto;
(iv) Tods Xxxxxx LLP, legal advisers to the Underwriters, the
Note Trustee, the Ninth Issuer Security Trustee, the
Security Trustee, the Ninth Issuer and Abbey as to Scots
law, addressed to the Underwriters, the Note Trustee, the
Ninth Issuer Security Trustee, the Security Trustee, the
Ninth Issuer and Abbey, substantially to the effect set
forth in Annex E hereto; and
(v) In-house legal counsel of each Ninth Issuer Swap Provider,
addressed to the Ninth Issuer, the Ninth Issuer Security
Trustee, the Security Trustee and the Underwriters.
(e) AUDITORS' LETTERS
On the date of this Agreement and (in the event that a new
portfolio of Loans and their Related Security is transferred to
the Mortgages Trustee, or as reasonably requested by the
Underwriters) on the Closing Date, there having been addressed and
delivered to the Underwriters letters, in form and substance
satisfactory to them, dated the date of this Agreement and the
Closing Date, respectively, from Deloitte & Touche LLP, the
independent auditors of the Ninth Issuer and Funding.
(f) CERTIFIED CONSTITUTIONAL DOCUMENTS
On or prior to the Closing Date, there having been delivered to
the Underwriters a copy, certified by a duly authorised director
of, as applicable, the Ninth Issuer, Funding and the Mortgages
Trustee, of: (i) the Memorandum and Articles of Association of
each of the Ninth Issuer, Funding and the Mortgages Trustee; (ii)
the resolution of the Board of Directors of each of the Ninth
Issuer, Funding and the Mortgages Trustee authorising the
execution of this Agreement and the other Legal Agreements and the
entry into and performance of the transactions contemplated
thereby, and (iii) in respect of the Ninth Issuer, the issue of
the Ninth Issuer Notes and the Reg S Ninth Issuer Notes and the
entry into and performance of the transactions contemplated
thereby.
(g) COMPLIANCE
At the Closing Date: (i) the representations and warranties of the
Ninth Issuer, Funding, the Mortgages Trustee and Abbey in this
Agreement being true, accurate and correct at, and as if made on,
the Closing Date and the Ninth Issuer, Funding, the Mortgages
Trustee and Abbey having performed all of their obligations and
complied with all of their undertakings in the Legal Agreements to
be performed on or before the Closing Date, and (ii) there having
been delivered to the Underwriters a certificate to that effect
signed by a duly authorised officer of, as applicable, the Ninth
Issuer, Funding, the Mortgages Trustee and Abbey, dated the
Closing Date and confirming that, since the date of this
Agreement, there has been no adverse change, nor any development
involving a prospective adverse change, in or affecting the
operations, properties, financial condition or prospects of the
Ninth Issuer, Funding, the Mortgages Trustee or Abbey which is
material in the context of the issue of the Ninth Issuer Notes or
the Reg S Ninth Issuer Notes.
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(h) CIRCUMSTANCES FOR TERMINATION
On or prior to the Closing Date, in the opinion of the
Underwriters, none of the circumstances described in Clause
14.1(c), 14.1(d), 14.1(f) or 14.1(g) having arisen.
(i) RATINGS
Receipt of notification from Fitch Ratings, Xxxxx'x and Standard &
Poor's that the ratings for the Ninth Issuer Notes and the Reg S
Ninth Issuer Notes described in the Prospectus have been assigned
either without conditions or subject only to the execution and
delivery on or before the Closing Date of the Legal Agreements and
legal opinions in all material respects in the form in which they
shall then have been executed and delivered on or prior to the
Closing Date, there not having been a public announcement from any
of the above rating agencies that such agency has revised
downwards or withdrawn or placed on review or "credit watch" with
negative implications or with implications of a possible change
that does not indicate the direction of such possible change (or
other similar publication of formal review by the relevant rating
agency) any existing credit rating assigned to the Ninth Issuer
Notes and the Reg S Ninth Issuer Notes or the long term debt of
Abbey.
(j) REG S NINTH ISSUER NOTES SUBSCRIPTION AGREEMENT
The Reg S Ninth Issuer Notes Subscription Agreement having been
entered into.
(k) OTHER ISSUES
The Reg S Ninth Issuer Notes having been or being issued and
subscribed and paid for pursuant to the Reg S Ninth Issuer Notes
Subscription Agreement prior to or contemporaneously with the
issue, subscription and payment for the Ninth Issuer Notes
hereunder.
(l) MATERIAL ADVERSE EVENT
There not having been between the date of this Agreement and the
Closing Date any change or any development or event reasonably
likely to involve a prospective change which would, in the
judgment of the Underwriters, be materially adverse to the
financial or trading condition of the Ninth Issuer, Funding, the
Mortgages Trustee or Abbey from that set forth in the Prospectus,
or rendering untrue and incorrect any of the representations and
warranties contained in Clauses 5, 6 and 7 as though the said
representations and warranties had been given on the Closing Date
with reference to the facts and circumstances prevailing at that
date nor the failure of the Ninth Issuer, Funding, the Mortgages
Trustee or Abbey to perform each and every covenant and obligation
to be performed by it pursuant to the Legal Agreements, the Loans
and the Related Security on or prior to the Closing Date.
(m) SOLVENCY CERTIFICATES
(i) The Ninth Issuer having furnished or caused to be furnished
to the Underwriters at the Closing Date a solvency
certificate, dated the Closing Date, of a duly authorised
director of the Ninth Issuer in the agreed form.
(ii) Funding having furnished or caused to be furnished to the
Ninth Issuer and the Security Trustee a solvency
certificate, dated the Closing Date, of a duly authorised
director of Funding in the agreed form.
32
(iii) Abbey having furnished or caused to be furnished to Funding
and the Security Trustee a solvency certificate, dated the
Closing Date, of a duly authorised officer of Abbey in the
agreed form.
(n) CERTIFICATE OF NOTE TRUSTEE
The Note Trustee having furnished to the Underwriters a
certificate stating that that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Note Trustee did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein not misleading.
Prior to the Closing Date, there shall be furnished to the Underwriters
such further information, certificates and documents as the Underwriters
may reasonably request.
If any of the conditions specified in this Clause 9 have not been
fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be reasonably satisfactory in all
material respects in form and substance to the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Ninth
Issuer in writing or by telephone or facsimile confirmed in writing.
The Underwriters may, at their discretion, waive compliance with the
whole or any part of this Clause 9.
10. CLOSING
10.1 ISSUE OF NINTH ISSUER NOTES
Not later than 4:00 p.m. (London time) on the Closing Date, the Ninth
Issuer will issue and deliver (a) to the Underwriters, or to their order,
a Global Ninth Issuer Note for each of the Series 1 Class A Ninth Issuer
Notes and the Series 2 Class A Ninth Issuer Notes.
10.2 PAYMENT
Against such delivery Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Underwriters will pay to the Ninth Issuer, or as the Ninth Issuer may
direct, the gross subscription moneys for the Ninth Issuer Notes (being
the Issue Price). Such payment shall be made by Xxxxxx Xxxxxxx & Co.
Incorporated in respect of the Ninth Issuer Notes in Dollars in
immediately available funds to the account of the Ninth Issuer, Citibank,
N.A., New York, ABA.000000000, SWIFT CODE XXXXXX0X - Citibank London via
Citibank New York, SWIFT Code: XXXXXX00 account of Citibank, N.A.,
London, sort code18-50-04, IBAN No.XX00 XXXX 0000 0000 0000 00 reference
for account 0010855499 Xxxxxx Financing (No. 9) PLC or to such other
account(s) notified to Xxxxxx Xxxxxxx & Co. International Limited by the
Ninth Issuer.
Such payment shall be evidenced by a confirmation by Xxxxxx Xxxxxxx & Co.
Incorporated, that it has so made that payment to the Ninth Issuer.
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10.3 GROSS SUBSCRIPTION MONEYS
The Ninth Issuer undertakes that on the Closing Date it will apply the
gross subscription moneys for the Ninth Issuer Notes and the gross
subscription moneys for the Reg S Ninth Issuer Notes (net of underwriting
commissions and various out-of-pocket expenses) converted under the
relevant Ninth Issuer Swap Agreement, forthwith in making a loan to
Funding pursuant to the terms of the Ninth Issuer Intercompany Loan
Agreement. Funding undertakes that it will apply the proceeds of the
Ninth Issuer Intercompany Loan to make payment to Abbey or at Abbey's
direction of the purchase price of an addition to Funding's already
existing share of the portfolio and related rights pursuant to the
Mortgage Sale Agreement.
11. COMMISSIONS
11.1 In consideration of the obligations undertaken herein by the
Underwriters, the Ninth Issuer agrees to pay to the Underwriters a
selling commission (the SELLING COMMISSION) of 0.043 per cent. of the
aggregate principal amount of the Series 1 Class A Ninth Issuer Notes and
of 0.043 per cent. of the aggregate principal amount of the Series 2
Class A Ninth Issuer Notes and a combined management and underwriting
commission (the MANAGEMENT AND UNDERWRITING COMMISSION) of 0.028 per
cent. of the aggregate principal amount of the Series 1 Class A Ninth
Issuer Notes and of 0.028 per cent. of the aggregate principal amount of
the Series 2 Class A Ninth Issuer Notes.
11.2 The Ninth Issuer undertakes that on the Closing Date it will pay to the
Underwriters the aggregate Selling Commission and aggregate Management
and Underwriting Commission calculated in accordance with Clause 11.1, in
sterling, in immediately available funds to HSBC, London (BIC: XXXXXX0X)
sort code 40-05-15, account number 00000000 in favor of Xxxxxx Xxxxxxx &
Co. International Limited (BIC: XXXXXX00) reference Xxxxxx Financing (No.
9) PLC.
12. EXPENSES
12.1 GENERAL EXPENSES
The Ninth Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Ninth
Issuer, any amount in respect of value added tax or similar tax payable
in respect thereof against production of a valid tax invoice and (ii) in
respect of taxable supplies made to a person other than the Ninth Issuer,
any amount in respect of Irrecoverable VAT or similar tax payable in
respect thereof against production of a valid tax invoice): (a) the fees,
disbursements and expenses of the Ninth Issuer's legal advisers and
accountants and all other expenses of the Ninth Issuer in connection with
the issue (including, without limitation, any filing fees payable to the
Commission in connection with the registration of the Ninth Issuer Notes
under the Securities Act and any fees payable in connection with the
qualification of the Ninth Issuer Notes for offering and sale pursuant to
any NASD regulatory provisions or under any applicable United States
state securities, Blue Sky or similar laws) and listing of the Ninth
Issuer Notes (including, without limitation, any advertisements required
in connection therewith), the preparation and delivery of each class of
the Ninth Issuer Notes in global form and (if required) definitive form,
the costs of the initial delivery and distribution of the Ninth Issuer
Notes (including, without limitation, transportation, packaging and
insurance) and the initial fees and expenses of The Depository Trust
Company, Euroclear and Clearstream, Luxembourg in relation to the Ninth
Issuer Notes (excluding any such fees and expenses arising as a result of
any transfer of the Ninth Issuer Notes), the preparation and printing of
the Prospectus (in proof, preliminary and final form) and any amendments
and supplements thereto and the mailing and delivery of copies of this
34
Agreement to the Underwriters; (b) the cost of printing or reproducing
the Legal Agreements and any other documents prepared in connection with
the offering, issue and initial delivery of the Ninth Issuer Notes; (c)
the fees and expenses of the Note Trustee, the Security Trustee and the
Ninth Issuer Security Trustee (including fees and expenses of legal
advisers to the Note Trustee, the Security Trustee and the Ninth Issuer
Security Trustee), the Principal Paying Agent, the US Paying Agent, the
Registrar, the Transfer Agent and the Agent Bank in connection with the
preparation and execution of the Legal Agreements and any other relevant
documents and the issue of the Ninth Issuer Notes and compliance with the
Conditions of the Ninth Issuer Notes; (d) the fees and expenses incurred
or payable in connection with obtaining a rating for the Ninth Issuer
Notes from Fitch Ratings, Xxxxx'x and Standard & Poor's and annual fees
in connection with such rating or any other rating from such institution
for the Ninth Issuer Notes; (e) the fees and expenses payable in
connection with obtaining and maintaining the admission to trading of the
Ninth Issuer Notes on the Stock Exchange; (f) out-of-pocket expenses
(excluding legal expenses) incurred by the Underwriters in connection
with the transactions contemplated hereby; (g) any roadshow expenses
incurred by the Underwriters; and (h) any amount in respect of the fees
and disbursements of the Underwriters' legal advisers in relation
thereto.
12.2 REIMBURSEMENT
The Ninth Issuer will reimburse the Underwriters for all amounts incurred
by them in connection with the issue of the Ninth Issuer Notes which it
has agreed to pay pursuant to Clause 12.1.
For the avoidance of doubt, references to costs and expenses in this
Agreement shall be deemed to include, in addition, references to any
Irrecoverable VAT payable in respect of such costs and expenses.
13. INDEMNIFICATION
13.1 NINTH ISSUER, FUNDING, MORTGAGES TRUSTEE AND ABBEY INDEMNITY
Each of the Ninth Issuer, Funding, the Mortgages Trustee and Abbey agrees
to indemnify and hold harmless each Underwriter (including, for the
purposes of this Clause 13.1, the directors, officers, employees and
agents of each Underwriter) and each person who controls such Underwriter
within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject, including
without limitation any such losses, claims, damages or liabilities
arising under the Securities Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement for the registration of the Ninth Issuer Notes as originally
filed or in any amendment thereto, or in any Registration Statement, any
preliminary prospectus or the Prospectus, or in any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other reasonable expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Ninth Issuer, Funding, the Mortgages
Trustee and Abbey will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission (a) made in the Registration Statement or the Prospectus
in reliance upon and in
35
conformity with written information furnished to the Ninth Issuer,
Funding, the Mortgages Trustee and Abbey by or on behalf of any
Underwriter specifically for inclusion therein or (b) contained in that
part of the Registration Statement constituting the Statement of
Eligibility and Qualification under the Trust Indenture Act (Form T-1) of
the Note Trustee; and provided further, that as to any preliminary
prospectus or as to the Prospectus, this indemnity agreement shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) on account of any loss, claim, damage, liability or action
arising from the sale of Notes to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented (for the purposes of this Clause 13, the
FINAL PROSPECTUS), to that person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in
such preliminary prospectus or Prospectus was corrected in the Final
Prospectus unless such failure resulted from non-compliance by the Ninth
Issuer, Funding, the Mortgages Trustee or Abbey with Clause 8.1(c)
hereof. For purposes of the final proviso to the immediately preceding
sentence, the term Final Prospectus shall not be deemed to include the
documents incorporated therein by reference, and no Underwriter shall be
obligated to send or give any supplement or amendment to any document
incorporated by reference in the Prospectus or in any Final Prospectus to
any person other than a person to whom such Underwriter has delivered
such incorporated documents in response to a written or oral request
therefor. The Ninth Issuer, Funding, the Mortgages Trustee and Abbey
further agree to reimburse each Underwriter and each such controlling
person for any legal and other expenses reasonably incurred by such
Underwriter or controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action, as such expenses are incurred. The foregoing indemnity agreement
is in addition to any liability which the Ninth Issuer, Funding, the
Mortgages Trustee and Abbey may otherwise have to any Underwriter or any
controlling person of any Underwriter.
No Underwriter or controlling person of any Underwriter shall have any
duty or obligation, whether as fiduciary for any Underwriter, controlling
person or otherwise, to recover any such payment or to account to any
other person for any amounts paid to it under this Clause 13.1.
13.2 UNDERWRITERS' INDEMNITY
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Ninth Issuer, Funding, the Mortgages Trustee and Abbey, each
of their directors and each of their officers who signs the Registration
Statement, and each person who controls the Ninth Issuer, Funding, the
Mortgages Trustee, or Abbey within the meaning of either the Securities
Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Ninth Issuer to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Ninth
Issuer, Funding, the Mortgages Trustee or Abbey by or on behalf of such
Underwriter specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. It is
acknowledged that the statements set forth under the heading Underwriting
that specify (a) the list of Underwriters and their respective
participation in the sale of the Ninth Issuer Notes, (b) the sentences
related to concessions and reallowances and (c) the paragraph related to
short sales, stabilisation, short covering transactions and penalty bids
in any preliminary prospectus and the Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any preliminary prospectus, the Prospectus
or the Registration Statement.
36
13.3 PROCEEDINGS
Promptly after receipt by an indemnified party under this Clause 13 of
notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Clause 13, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(a) will not relieve it from liability under Clause 13.1 or 13.2 above
unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of
substantial rights and defences and (b) will not in any event relieve the
indemnifying party from any obligation to any indemnified party other
than the indemnification obligation provided in Clause 13.1 or 13.2
above. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein, and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defence thereof with counsel
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defence of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Clause 13 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defence thereof other than reasonable costs of investigation; provided
that each Underwriter, the Underwriters as a group, or the Ninth Issuer,
Funding, the Mortgages Trustee and Abbey, as the case may be, shall have
the right to employ separate counsel to represent such Underwriter and
its controlling persons, the Underwriters and their respective
controlling persons or the Ninth Issuer, Funding, the Mortgages Trustee
and Abbey and their respective controlling persons, as the case may be,
who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by such indemnified parties under this
Clause 13 if, in the reasonable judgment of any Underwriter, the
Underwriters acting together, or the Ninth Issuer, Funding, the Mortgages
Trustee and Abbey, as the case may be, it is advisable for such
indemnified parties to be represented by separate counsel, and in that
event the fees and expenses of such separate counsel (and local counsel)
shall be paid by the indemnifying party. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume
the defence of such action and approval by the indemnified party of
counsel selected by the indemnifying party, the indemnifying party will
not be liable to such indemnified party under this Clause 13 for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defence thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of
legal defences in accordance with the proviso to the preceding sentence
(it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one such separate counsel (and local
counsel) representing the indemnified parties under Clause 13.1 or 13.2
hereof), (ii) the indemnifying party shall not be liable for the expenses
of more than one such separate counsel (and local counsel) representing
the employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorised
the employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if Subparagraph (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such Subparagraph (i) or (iii). The indemnifying party
shall not be liable for any settlement of any proceeding effected without
its written consent, such consent not to be unreasonably withheld or
delayed, but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if
at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel
as contemplated by this Clause 13, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (A)
37
such settlement is entered into more than 60 days after receipt by such
indemnifying party of such request and (B) such indemnifying party shall
not have either reimbursed the indemnified party in accordance with such
request or objected to such request in writing prior to the date of such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or
could have been a party and in respect of which indemnity could have been
sought hereunder by such indemnified party, unless such settlement: (i)
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding, and
(ii) does not include a statement as to or any admission of fault,
culpability or failure to act, by or on behalf of any indemnified party.
13.4 CONTRIBUTION
In the event that the indemnity provided in Clause 13.1 or 13.2 is
unavailable to or insufficient to hold harmless an indemnified party for
any reason, the Ninth Issuer, Funding, the Mortgages Trustee, Abbey and
the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively, LOSSES) to which the Ninth Issuer, Funding, the Mortgages
Trustee, Abbey and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by
the Ninth Issuer, Funding, the Mortgages Trustee, Abbey and the
Underwriters from the offering of the Ninth Issuer Notes. If the
allocation provided by the immediately preceding sentence is unavailable
for any reason, the Ninth Issuer, Funding, the Mortgages Trustee, Abbey
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Ninth Issuer, Funding, the Mortgages Trustee, Abbey
and the Underwriters in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Ninth Issuer, Funding, the
Mortgages Trustee and Abbey shall be deemed to be equal to the Issue
Price (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total Selling Commission
and the Management and Underwriting Commission, in each case as set forth
in Clause 11.1. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information provided by the Ninth Issuer, Funding, the
Mortgages Trustee or Abbey on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The Ninth Issuer, Funding, the Mortgages Trustee, Abbey and
the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the foregoing, in no case shall an
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Ninth Issuer Notes) be
responsible for any amount in excess of the Selling Commission or
Management and Underwriting Commission applicable to the Ninth Issuer
Notes purchased by such Underwriter hereunder. Notwithstanding the
provisions of this Clause 13.4, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Clause 13,
each person who controls an Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee
and agent of an Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the Ninth Issuer, Funding,
the Mortgages Trustee or Abbey within the meaning of either the
Securities Act or the Exchange Act, each officer of the Ninth Issuer
38
who shall have signed the Registration Statement and each director of the
Ninth Issuer, Funding, the Mortgages Trustee or Abbey, shall have the
same rights to contribution as the Ninth Issuer, Funding, the Mortgages
Trustee or Abbey, as the case may be, subject in each case to the
applicable terms and conditions of this Clause 13.4.
14. TERMINATION
14.1 UNDERWRITERS' ABILITY TO TERMINATE
Notwithstanding any other provision of this Agreement, the Underwriters
may, by notice to the Ninth Issuer given at any time prior to payment of
the gross subscription moneys for the Ninth Issuer Notes to the Ninth
Issuer, terminate this Agreement in any of the following circumstances:
(a) if there shall have come to the notice of the Underwriters any
breach of, or any event rendering untrue or incorrect in any
material respect, any of the warranties and representations
contained in Clause 5 or 6 or 7 (or any deemed repetition thereof)
or failure to perform any of the Ninth Issuer's or Abbey's
covenants or agreements in this Agreement; or
(b) if any condition specified in Clause 9 has not been satisfied or
waived by the Underwriters; or
(c) if, in the opinion of the Underwriters, circumstances shall be
such as: (i) to prevent or to a material extent restrict payment
for the Ninth Issuer Notes in the manner contemplated in this
Agreement or (ii) to a material extent prevent or restrict
settlement of transactions in the Ninth Issuer Notes in the
market or otherwise; or
(d) if, in the opinion of the Underwriters, (i) there shall have been
any change in national or international political, legal, tax or
regulatory conditions or (ii) there shall have occurred any
outbreak or escalation of hostilities or any change in financial
markets or any calamity or emergency, either within or outside the
United States, in each case that in the judgment of the
Underwriters is material and adverse and makes it impracticable or
inadvisable to market the Ninth Issuer Notes on the terms and in
the manner contemplated by this Agreement and the Prospectus; or
(e) upon termination of the Reg S Ninth Issuer Notes Subscription
Agreement; or
(f) trading generally shall have been suspended or materially limited
on or by any of the New York Stock Exchange, the London Stock
Exchange or the over-the-counter market or a material disruption
has occurred in commercial banking or securities settlement or
clearance services in the United States or with respect to
Clearstream, Luxembourg, or Euroclear systems in Europe; or
(g) a general moratorium on commercial banking activities shall have
been declared by US federal or New York State authorities.
Upon such notice being given this Agreement shall terminate and be of no
further effect.
14.2 CONSEQUENCES OF TERMINATION
In the event that this Agreement terminates, no party hereto shall be
under any liability to any other in respect of this Agreement except that
(a) the Ninth Issuer shall remain liable under Clause 12 for the payment
of the costs and expenses already incurred or incurred in
39
consequence of such termination, (b) the indemnity agreement and
contribution provisions set forth in Clause 13 shall survive and (c) the
obligations of the Ninth Issuer and Abbey that would have continued in
accordance with Clause 15 had the arrangements for the underwriting and
issue of the Ninth Issuer Notes been completed shall so continue.
15. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
15.1 The representations, warranties, agreements, undertakings and indemnities
in this Agreement will continue in full force and effect notwithstanding
completion of the arrangements for the subscription and issue of the
Ninth Issuer Notes or any investigation made by or on behalf of any
Underwriter or any controlling person or any of its representatives,
directors, officers, agents or employees or any of them.
15.2 Save for their respective responsibilities to comply with Clauses 5(f),
5(t), 6(e), 6(q) and 7(d), neither the Ninth Issuer, Funding, the
Mortgages Trustee nor Abbey shall have any responsibility in respect of
the legality of the Underwriters or other persons offering and selling
the Ninth Issuer Notes in any jurisdiction or in respect of the Ninth
Issuer Notes qualifying for sale in any jurisdiction.
16. NOTICES
16.1 All communications pursuant to this Agreement will be in writing and will
be delivered at or sent by facsimile transmission to the following
addresses:
(a) if to the Ninth Issuer,
Abbey Xxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Regent's Place
London NW1 3AN
Attention: Company Secretary
Facsimile: x00 (0)00 0000 0000
(b) if to Abbey,
c/o Abbey House (AAM 126)
000 Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxxxx XX0 0XX
Attention: Securitisation Team, Retail Credit Risk
Facsimile: x00 (0)00 0000 0000
with a copy to:
Attention: Company Secretary
Facsimile: x00 (0)00 0000 0000
(c) if to the Underwriters,
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
40
Attention: Securitized Products Group
Facsimile: x0 000 000 0000
With a copy to:
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Head of Mortgage Securitization Group
Facsimile: x0 000 000 0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Securitised Products Group - Xxxx Xxxxxx or
Xxxxx Xxxxxxxx
Facsimile: x00 (0)00 0000 0000
16.2 Any communication so sent by letter shall take effect at the time of
actual delivery, and any communication so sent by facsimile transmission
shall take effect upon acknowledgement of receipt by the recipient. Any
communication to be delivered to any party under this Agreement which is
to be sent by facsimile transmission will be written legal evidence.
17. TIME
Time shall be of the essence of this Agreement.
18. GOVERNING LAW AND JURISDICTION
18.1 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
the laws of the State of New York.
18.2 JURISDICTION
Each of the parties hereto irrevocably agrees that, except as otherwise
set forth in this Clause 18.2, any state or federal court sitting in the
City of New York shall have exclusive jurisdiction to hear and determine
any suit, action or proceeding and to settle any dispute arising out of
or based upon this Agreement and, for such purposes, irrevocably submits
to the jurisdiction of such courts. Each of the Ninth Issuer, Funding,
the Mortgages Trustee and Abbey hereby appoints CT Corporation System at
000 Xxxxx 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 Ninth Issuer, Funding, the
Mortgages Trustee and Abbey irrevocably and unconditionally waives any
objection to the laying of venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or
proceeding has been brought in an inconvenient forum. Each of the Ninth
Issuer, Funding, the Mortgages Trustee and Abbey agrees that a final
judgment in any such suit, action or proceeding brought in any such court
shall be conclusive and binding upon each of the Ninth Issuer, Funding,
the Mortgages Trustee and Abbey and may be enforced in any other court to
whose jurisdiction each of the
41
Ninth Issuer, Funding, the Mortgages Trustee and Abbey is or may in the
future be subject, by suit upon judgment. Each of the Ninth Issuer,
Funding, the Mortgages Trustee and Abbey further agrees that nothing
herein shall affect the Underwriters' right to effect service of process
in any other manner permitted by law or to bring a suit, action or
proceeding (including a proceeding for enforcement of a judgment) in any
other court or jurisdiction in accordance with applicable law.
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
IN WITNESS WHEREOF this Agreement has been entered on the date stated at
the beginning.
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SIGNATORIES
XXXXXX FINANCING (NO. 9) PLC
By:
Authorized Signatory
ABBEY NATIONAL PLC
By:
Authorized Signatory
XXXXXX FUNDING LIMITED
By:
Authorized Signatory
XXXXXX TRUSTEES LIMITED
By:
Authorized Signatory
DEUTSCHE BANK SECURITIES INC.
By:
Authorized Signatory
43
XXXXXX BROTHERS INC.
By:
Authorized Signatory
XXXXXX XXXXXXX & CO. INCORPORATED
By:
Authorized Signatory
44
SCHEDULE
------------------------------ --------------------------- ---------------------------
UNDERWRITERS PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
SERIES 1 CLASS A NINTH SERIES 2 CLASS A NINTH
ISSUER NOTES ISSUER NOTES
------------------------------ --------------------------- ---------------------------
Deutsche Bank Securities Inc. US$ 580,000,000 US$ 725,000,000
------------------------------ --------------------------- ---------------------------
Xxxxxx Brothers Inc. US$ 580,000,000 US$ 725,000,000
------------------------------ --------------------------- ---------------------------
Xxxxxx Xxxxxxx & Co. US$ 580,000,000 US$ 725,000,000
Incorporated
------------------------------ --------------------------- ---------------------------
TOTAL US$ 1,740,000,000 US$ 2,175,000,000
------------------------------ --------------------------- ---------------------------
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