Exhibit 1.1
DATED ___ NOVEMBER, 2002
XXXXXX FINANCING (No. 6) PLC
and
ABBEY NATIONAL PLC
and
XXXXXX FUNDING LIMITED
and
XXXXXX TRUSTEES LIMITED
and
X.X. XXXXXX SECURITIES INC.
and
BARCLAYS CAPITAL INC.
--------------------------------------------------------------------------------
UNDERWRITING AGREEMENT
relating to XXXXXX FINANCING (NO. 6) PLC
US$[1,500,000,000]
Floating Rate Series 1 Class A Sixth Issuer Notes due October 2003
US$[50,000,000]
Floating Rate Series 1 Class B Sixth Issuer Notes due July 2040
US$[86,000,000]
Floating Rate Series 1 Class C Sixth Issuer Notes due July 2040
US$[1,250,000,000]
Floating Rate Series 2 Class A Sixth Issuer Notes due April 2008
US$[42,000,000]
Floating Rate Series 2 Class B Sixth Issuer Notes due July 2040
US$[71,000,000]
Floating Rate Series 2 Class C Sixth Issuer Notes due July 2040
US$[750,000,000]
Floating Rate Series 4 Class A1 Sixth Issuer Notes due October 2009
US$[1,000,000,000]
Floating Rate Series 4 Class B Sixth Issuer Notes due July 2040
US$[40,000,000]
Floating Rate Series 4 Class C Sixth Issuer Notes due July 2040
US$[69,000,000]
--------------------------------------------------------------------------------
INDEX
CLAUSE PAGE
1. Issue of the Sixth Issuer Notes...........................................7
2. Stabilisation.............................................................8
3. Agreements by the Underwriters............................................8
4. Listing..................................................................10
5. Representations and Warranties of the Sixth Issuer.......................11
6. Representations and Warranties of Funding and the Mortgages Trustee......17
7. Representations and Warranties of ANPLC..................................21
8. Covenants of the Sixth Issuer, Funding, the Mortgages Trustee and ANPLC..24
9. Conditions Precedent.....................................................31
10. Closing..................................................................35
11. Commissions..............................................................36
12. Expenses.................................................................36
13. Indemnification..........................................................37
14. Termination..............................................................41
15. Survival of Representations and Obligations..............................42
16. Notices..................................................................42
17. Time.....................................................................43
18. Governing Law and Jurisdiction...........................................43
19. Counterparts.............................................................44
20. Authority of the Lead Managers...........................................44
THIS AGREEMENT is made on ___ November, 2002
BETWEEN:
(1) XXXXXX FINANCING (NO. 6) PLC (registered number 4359738), a public limited
company incorporated under the laws of England and Wales, whose registered
office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx
XX0 0XX (the "SIXTH 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, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX
("ANPLC");
(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, Xxxxxxx 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, Regents Place, London
NW1 3AN (the "MORTGAGES TRUSTEE"); and
(5) X.X. XXXXXX SECURITIES INC., a corporation organised under the laws of
Delaware whose registered office is at 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000, and BARCLAYS CAPITAL INC., a corporation organised under the laws
of Connecticut whose registered office is at 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000 (the "LEAD MANAGERS").
WHEREAS:
(A) The Sixth Issuer, by resolutions of its Board of Directors passed on ___ ,
2002, has duly authorised and has determined to create and issue
US$[1,500,000,000] in principal amount of its Floating Rate Series 1 Class
A Sixth Issuer Notes due October 2003 (the "SERIES 1 CLASS A SIXTH ISSUER
NOTES"), US$[34,000,000] in principal amount of its Floating Rate Series 1
Class B Sixth Issuer Notes due July 2040 (the "SERIES 1 CLASS B SIXTH
ISSUER NOTES"), US$[86,000,000] in principal amount of its Floating Rate
Series 1 Class C Sixth Issuer Notes due July 2040 (the "SERIES 1 CLASS C
SIXTH ISSUER NOTES" and, together with the Series 1 Class A Sixth Issuer
Notes and the Series 1 Class B Sixth Issuer Notes, the "SERIES 1 SIXTH
ISSUER NOTES"), US$[1,250,000,000] in principal amount of its Floating
Rate Series 2 Class A Sixth Issuer Notes due April 2008 (the "SERIES 2
CLASS A SIXTH ISSUER NOTES"), US$[42,000,000] in principal amount of its
Floating Rate Series 2 Class B Sixth Issuer Notes due July 2040 (the
"SERIES 2 CLASS B SIXTH ISSUER NOTES") and US$[71,000,000] in principal
amount of its Floating Rate Series 2 Class C Sixth Issuer Notes due July
2040 (the "SERIES 2 CLASS C SIXTH ISSUER NOTES" and together with the
Series 2 Class A Sixth Issuer Notes and the Series 2 Class B Sixth Issuer
Notes, the "SERIES 2 SIXTH ISSUER NOTES"), US$[1,000,000,000] in principal
amount of its Floating Rate Series 4 Class A1 Sixth Issuer Notes due
October 2009 (the "SERIES 4 CLASS A1 SIXTH ISSUER NOTES"), US$[40,000,000]
in principal amount of its Floating Rate Series 4 Class B Sixth Issuer
Notes due July 2040 (the "SERIES 4 CLASS B SIXTH ISSUER NOTES") and
US$[69,000,000] in principal amount of its Floating Rate Series 4 Class C
Sixth Issuer Notes due July 2040 (the "SERIES 4 CLASS C SIXTH ISSUER
NOTES" and together with the Series 4 Class A1 Sixth Issuer Notes and the
Series 4
S-2
Class B Sixth Issuer Notes, the "SERIES 4 SIXTH ISSUER NOTES" and the
Series 4 Sixth Issuer Notes together with the Series 2 Sixth Issuer Notes
and the Series 1 Sixth Issuer Notes, the "SIXTH ISSUER NOTES", which
expression where the context so requires shall include the Global Sixth
Issuer Notes defined below).
(B) The Sixth Issuer Notes will be in registered form in the denominations of
US$1,000, US$10,000 or US$100,000 each or integral multiples thereof. The
Sixth Issuer Notes will be issued on ___ November, 2002 or on such other
date not later than __, 2002 as the Sixth Issuer and the Lead Managers may
agree (the "CLOSING DATE"). The issue of the Sixth Issuer Notes is
referred to in this Agreement as the "ISSUE".
(C) Simultaneously with the Issue, the Sixth Issuer intends to issue
(euro)[1,000,000,000] in principal amount of its Floating Rate Series 3
Class A Sixth Issuer Notes due October 2009,(euro)[34,000,000] in
principal amount of its Floating Rate Series 3 Class B Sixth Issuer Notes
due July 2040, (euro)[57,000,000] in principal amount of its Floating Rate
Series 3 Class C Sixth Issuer Notes due July 2040,(pound)[500,000,000] in
principal amount of its Floating Rate Series 5 Class A Sixth Issuer Notes
due July 2040,(pound)[17,000,000] in principal amount of its Floating Rate
Series 5 Class B Sixth Issuer Notes due July 2040 and(pound)[29,000,000]
in principal amount of its Floating Rate Series 5 Class C Sixth Issuer
Notes due July 2040 (together, the "REG S SIXTH ISSUER NOTES"). By a
Subscription Agreement of today's date (the "REG S SIXTH ISSUER NOTES
SUBSCRIPTION AGREEMENT") between the Sixth Issuer, ANPLC, Funding, the
Mortgages Trustee and the respective managers named therein, such managers
have agreed to subscribe and pay for the Reg S Sixth Issuer Notes upon the
terms and subject to the conditions therein contained.
Simultaneously with the Issue, the Sixth Issuer intends to issue
CHF[300,000,000] in principal amount of its Fixed-Floating Rate Series 4
Class A2 Notes due October 2009 (the "SWISS REG S SIXTH ISSUER NOTES"). By
a Subscription Agreement of today's date (the "SWISS REG S SIXTH ISSUER
NOTES SUBSCRIPTION AGREEMENT") between the Sixth Issuer, ANPLC, Funding,
the Mortgages Trustee, UBS AG, Zurich and the respective managers named
therein, such managers have agreed to subscribe and pay for the Swiss Reg
S Sixth Issuer Notes upon the terms and subject to the conditions therein
contained.
The Sixth Issuer Notes, the Reg S Sixth Issuer Notes and the Swiss Reg S
Sixth Issuer Notes will be constituted by, issued subject to and have the
benefit of a trust deed (the "SIXTH ISSUER TRUST DEED") to be entered into
on or before the Closing Date between the Sixth Issuer and The Bank of New
York, London Branch as trustee for the Noteholders (the "NOTE TRUSTEE").
(D) The Sixth Issuer Notes, the Reg S Sixth Issuer Notes and the Swiss Reg S
Sixth Issuer Notes (together with the Sixth 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 "SIXTH ISSUER DEED OF
CHARGE") to be entered into on or before the Closing Date by the Sixth
Issuer, The Bank of New York, London Branch (in such capacity, the "SIXTH
ISSUER SECURITY TRUSTEE"), the Note Trustee, JPMorgan Chase Bank, London
Branch (the "PRINCIPAL PAYING AGENT" and the "AGENT BANK"), ___ (the
"SIXTH ISSUER LIQUIDITY FACILITY PROVIDER"), ANPLC in its capacity as cash
manager to the Sixth Issuer under the Sixth Issuer Cash Management
Agreement (the "SIXTH ISSUER CASH MANAGER") and in its capacity as
sterling account bank to the Sixth Issuer under the Sixth Issuer Bank
Account Agreement (the "SIXTH ISSUER STERLING ACCOUNT BANK"), [Citibank
N.A]. in its capacity as the non-sterling account bank to
S-3
the Sixth Issuer (the "SIXTH ISSUER NON-STERLING ACCOUNT BANK"), JPMorgan
Chase Bank, New York Branch (the "US PAYING AGENT"), UBS Warburg (the
"SWISS PRINCIPAL PAYING AGENT"), UBS AG (together with the Swiss Principal
Paying Agent, the "SWISS PAYING AGENTS"), X.X. Xxxxxx Bank Luxembourg S.A.
as registrar in respect of the Sixth Issuer Notes and the Reg S Sixth
Issuer Notes (the "REGISTRAR") and as transfer agent in respect of the
Sixth Issuer Notes and the Reg S Sixth Issuer Notes (the "TRANSFER
AGENT"), ___ and ___ as swap providers to the Sixth Issuer (the "SIXTH
ISSUER SWAP PROVIDERS") and SPV Management Limited in its capacity as
corporate services provider to the Issuer under the Sixth Issuer Corporate
Services Agreement (the "SIXTH ISSUER CORPORATE SERVICES PROVIDER").
(E) Payments of principal and interest on the Sixth Issuer Notes and the Reg S
Sixth Issuer Notes will be made by the Sixth Issuer to the Principal
Paying Agent and by the Principal Paying Agent to Noteholders on behalf of
the Sixth Issuer under a paying agent and agent bank agreement to be
entered into on or before the Closing Date (the "SIXTH ISSUER PAYING AGENT
AND AGENT BANK AGREEMENT") between the Sixth Issuer, the Principal Paying
Agent, the Agent Bank, the US Paying Agent, the Registrar, the Transfer
Agent and the Sixth Issuer Security Trustee. Payments of principal and
interest on the Swiss Reg S Sixth Issuer Notes will be made by the Sixth
Issuer to the Swiss Principal Paying Agent and by the Swiss Principal
Paying Agent to Noteholders on behalf of the Sixth Issuer under a Swiss
paying agent and agent bank agreement to be entered into on or before the
Closing Date (the "SIXTH ISSUER SWISS PAYING AGENT AND AGENT BANK
AGREEMENT") between the Sixth Issuer, the Swiss Principal Paying Agent,
the other Swiss Paying Agents, the Agent Bank and the Sixth Issuer
Security Trustee.
(F) The Sixth Issuer Notes will be payable in U.S. dollars. Each class of the
Sixth Issuer Notes will be represented by a global note (a "GLOBAL SIXTH
ISSUER NOTE"), without interest coupons, substantially in the form set out
in the Sixth Issuer Trust Deed.
(G) The Sixth Issuer will use an amount equal to the gross proceeds of the
Issue, together with the gross proceeds of the issue of the Reg S Sixth
Issuer Notes and the proceeds of the issue of the Swiss Reg S Sixth Issuer
Notes (net of underwriting commissions and various out-of-pocket expenses)
plus an additional amount, where applicable converted under the relevant
Sixth Issuer Swap Agreement (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 "SIXTH ISSUER INTERCOMPANY LOAN AGREEMENT" and the
loan made thereunder the "SIXTH ISSUER INTERCOMPANY LOAN") between the
Sixth Issuer, Funding, JPMorgan Chase Bank, London Branch (in such
capacity, the "SECURITY TRUSTEE") and the Sixth Issuer Security Trustee.
(H) Funding will pay the proceeds of the Sixth Issuer Intercompany Loan to
ANPLC in consideration for the assignment by ANPLC of a part of ANPLC'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").
(I) ANPLC 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 and 8th November,
2001 and to be amended and restated on or before the Closing Date (the
S-4
"MORTGAGE SALE AGREEMENT") between ANPLC, 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 will be affected by a declaration of trust entered into on or
before the Closing Date (the "SCOTTISH TRUST DEED," which is incorporated
in the Mortgage Sale Agreement) between ANPLC and the Mortgages Trustee.
Each of the Mortgages Trustee, Funding and the Security Trustee appointed
ANPLC 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 to be amended and restated on or before the
Closing Date (the "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 ANPLC 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
and 8th November, 2001 and to be amended and restated on or before the
Closing Date (the "MORTGAGES TRUST DEED") between ANPLC, Funding and the
Mortgages Trustee. 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 ANPLC (in such capacity, the "MORTGAGES TRUSTEE GIC
PROVIDER").
(K) Funding's obligations to the Sixth Issuer under the Sixth 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, amended on 29th November,
0000, 00xx Xxx, 0000, 0xx July, 2001 and 8th November, 2001 and to be
amended and restated on or before the Closing Date (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"), The Royal Bank of Scotland
plc as liquidity facility provider to Funding (the "FUNDING LIQUIDITY
FACILITY PROVIDER"), ANPLC 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"),
Citibank N.A. 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 the 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
Citibank N.A. 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 ANPLC 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 ANPLC 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") and 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 ANPLC 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"). On or before the Closing Date, the Sixth Issuer and ANPLC
in its capacity as start-up loan provider to
S-5
Funding in relation to an issue of notes by the Sixth Issuer (the "SIXTH
START-UP LOAN PROVIDER") will, pursuant to a deed of accession (the "FIFTH
DEED OF ACCESSION TO THE FUNDING DEED OF CHARGE"), be amended and restated
and will accede to the terms of the 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 (the "CASH
MANAGEMENT AGREEMENT") with the Cash Manager, the Mortgages Trustee and
the Security Trustee; (2) a bank account agreement (the "FUNDING 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 liquidity facility
agreement amended on 29th November, 2000 (the "FUNDING LIQUIDITY FACILITY
AGREEMENT") with the Funding Liquidity Facility Provider and the Security
Trustee; (5) a start-up loan agreement (the "FIRST START-UP LOAN
AGREEMENT") with the First Start-up Loan Provider and the Security
Trustee; and (6) 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, Funding will additionally enter
into a start-up loan agreement (the "SIXTH START-UP LOAN AGREEMENT") with
the Sixth Start-up Loan Provider and the Security Trustee.
(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) 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,
and 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
S-6
Funding Swap Agreement agreed to further amend the Funding Swap Agreement.
(N) In connection with the Issue, the Sixth Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Sixth Issuer Notes
relating to each class of the Sixth Issuer Notes; (2) a corporate services
agreement (the "SIXTH ISSUER CORPORATE SERVICES AGREEMENT") between the
Sixth Issuer, the Sixth Issuer Security Trustee and the Sixth Issuer
Corporate Services Provider; (3) a cash management agreement (the "SIXTH
ISSUER CASH MANAGEMENT AGREEMENT") between the Sixth Issuer, the Sixth
Issuer Security Trustee and the Sixth Issuer Cash Manager; (4) a bank
account agreement (the "SIXTH ISSUER BANK ACCOUNT AGREEMENT") between the
Sixth Issuer, the Sixth Issuer Sterling Account Bank, the Sixth Issuer
Non-Sterling Account Bank and the Sixth Issuer Security Trustee; (5) ISDA
Master Agreements (including the schedule thereto and confirmation
thereunder) in respect of currency swap transactions relating to the
Series 1 Sixth Issuer Notes, the Series 2 Sixth Issuer Notes and the
Series 4 Sixth Issuer Notes (other than the Swiss Reg S Sixth Issuer
Notes), between the Sixth Issuer, ___ and the Sixth Issuer Security
Trustee (the "SIXTH ISSUER DOLLAR CURRENCY SWAP AGREEMENTS") and, together
with the other swap agreements to be entered into in relation to the Swiss
Reg S Sixth Issuer Notes and certain of the Reg S Sixth Issuer Notes, each
as referred to in the Prospectus (as defined below), the "SIXTH ISSUER
SWAP AGREEMENTS"); (6) a liquidity facility agreement (the "SIXTH ISSUER
LIQUIDITY FACILITY AGREEMENT") between the Sixth Issuer, ___ and the Sixth
Issuer Security Trustee; and (7) a post-enforcement call option agreement
(the "SIXTH ISSUER POST-ENFORCEMENT CALL OPTION AGREEMENT") between the
Sixth Issuer, the Sixth Issuer Security Trustee and PECOH Limited.
(O) On or before the Closing Date, Xxxxx & Overy 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 Sixth Issuer (the "SIXTH ISSUER MASTER DEFINITIONS
SCHEDULE").
(P) As required, the Sixth Issuer, Funding, the Mortgages Trustee and/or ANPLC
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 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 Funding Swap Agreement, the Funding Guaranteed Investment Contract,
the Funding Liquidity Facility Agreement, 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 Corporate Services Agreement, 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 Fifth Deed of Accession to the Funding
Deed of Charge, the Sixth Issuer Deed of Charge, the Sixth Issuer Trust
Deed, the Sixth Issuer Liquidity Facility Agreement, the Sixth Issuer Cash
Management Agreement, the Sixth Issuer Paying Agent and Agent Bank
Agreement, the Sixth Issuer Swiss Paying Agent and Agent Bank Agreement,
the Sixth Issuer Bank Account Agreement, the Sixth Issuer
S-7
Swap Agreements, the Sixth Issuer Corporate Services Agreement, this
Agreement, the Reg S Sixth Issuer Notes Subscription Agreement and the
Swiss Reg S Sixth 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 SIXTH ISSUER NOTES
1.1 AGREEMENT TO ISSUE
Subject to the terms and conditions of this Agreement, the Sixth Issuer
agrees to issue the Sixth Issuer Notes on the Closing Date to the
underwriters named on the Schedule hereto (the "UNDERWRITERS") or as they
may direct. The Sixth Issuer Notes will be issued at a price equal to the
aggregate of 100 per cent. of the principal amount of the Series 1 Sixth
Issuer Notes, 100 per cent. of the principal amount of the Series 2 Sixth
Issuer Notes and 100 per cent. of the principal amount of the Series 4
Sixth Issuer Notes (other than the Swiss Reg S Sixth Issuer Notes) (the
"ISSUE PRICE").
1.2 THE LEGAL AGREEMENTS
To the extent that each of the Sixth Issuer, Funding, the Mortgages
Trustee and ANPLC 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 & Overy and Xxxxxxxxx
and May (any draft of any document so signed being called an "AGREED
FORM"), with such amendments as the Lead Managers, on behalf of the
Underwriters, may agree with the Sixth Issuer and, if it is such a
signatory, Funding, the Mortgages Trustee and/or ANPLC.
1.3 THE SIXTH ISSUER NOTES
The Sixth Issuer Notes will be issued on the Closing Date in accordance
with the terms of the Sixth Issuer Trust Deed and will be in the form set
out therein.
1.4 PROSPECTUS
The Sixth Issuer confirms that it has prepared a preliminary prospectus
dated 10th October, 2002 and a prospectus dated today's date (together,
the "PROSPECTUS") for use in connection with the issue of the Sixth Issuer
Notes and hereby authorises the Underwriters to distribute copies of the
Prospectus in connection with the offering and sale of the Sixth Issuer
Notes.
1.5 AUTHORITY TO OFFER
The Sixth Issuer confirms that it has authorised the Lead Managers to
offer Sixth Issuer Notes on its behalf to the Underwriters for
subscription at the Issue Price subject to signature of this Agreement.
S-8
2. STABILISATION
X.X. Xxxxxx Inc., on behalf of itself and the other Underwriters, may, to
the extent permitted by applicable laws and regulations, engage in
over-allotment transactions, stabilising transactions, syndicate covering
transactions and penalty bids and otherwise effect transactions in the
open market or otherwise in connection with the distribution of the Sixth
Issuer Notes with a view to stabilising or maintaining the respective
market prices of the Sixth Issuer Notes at levels other than those which
might otherwise prevail in the open market but in doing so X.X. Xxxxxx
Inc. shall act as principal and in no circumstances shall the Sixth Issuer
be obliged to issue (i) more than US$[1,500,000,000] in principal amount
of Series 1 Class A Sixth Issuer Notes; (ii) more than US$[50,000,000] in
principal amount of Series 1 Class B Sixth Issuer Notes; (iii) more than
US$[86,000,000] in principal amount of Series 1 Class C Sixth Issuer
Notes; (iv) more than US$[1,000,000,000] in principal amount of Series 2
Class A Sixth Issuer Notes; (v) more than US$[40,000,000] in principal
amount of Series 2 Class B Sixth Issuer Notes; (vi) more than
US$[71,000,000] in principal amount of Series 2 Class C Sixth Issuer
Notes; (vii) more than US$[1,000,000,000] in principal amount of Series 4
Class A1 Sixth Issuer Notes; (viii) more than US$[41,000,000] in principal
amount of Series 4 Class B Sixth Issuer Notes; or (ix) more than
US$[69,000,000] in principal amount of Series 4 Class C Sixth Issuer
Notes.
3. AGREEMENTS BY THE UNDERWRITERS
3.1 PURCHASE
Each Underwriter severally agrees to purchase and pay for such principal
amount of Sixth Issuer Notes set out against its name in the Schedule
hereto on the Closing Date at the Issue Price all on the terms set out in
this Agreement.
(a) If any Underwriter shall default in its obligation to purchase Sixth
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 ANPLC to purchase, such Sixth Issuer Notes on the
terms contained herein. If within thirty-six hours after such
default by any Underwriter, the non-defaulting Underwriters do not
arrange for the purchase of such Sixth Issuer Notes, then ANPLC
shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to the
non-defaulting Underwriters to purchase such Sixth Issuer Notes on
such terms. In the event that, within the respective prescribed
periods, the Lead Managers on behalf of the non-defaulting
Underwriters notify ANPLC that the non-defaulting Underwriters have
so arranged for the purchase of such Sixth Issuer Notes, or ANPLC
notifies the non-defaulting Underwriters that they have so arranged
for the purchase of such Sixth Issuer Notes, the non-defaulting
Underwriters or ANPLC 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 Sixth Issuer
Notes. Any substitute purchaser of Sixth 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 Sixth Issuer Notes.
(b) If, after giving effect to any arrangements for the purchase of
Sixth Issuer Notes of a defaulting Underwriter by the non-defaulting
Underwriters, as provided in CLAUSE
S-9
3.1(A) above, the aggregate principal amount of the Sixth Issuer
Notes which remains unpurchased does not exceed 10 per cent. of the
aggregate principal amount of the Sixth Issuer Notes, then ANPLC
shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of the Sixth 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 Sixth Issuer Notes which
such Underwriter agreed to purchase hereunder) of the principal
amount of the Sixth 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 Sixth 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 Sixth Issuer
Notes which remains unpurchased exceeds 10 per cent. of the
aggregate principal amount of the Sixth Issuer Notes, or if ANPLC
shall not exercise the right described in CLAUSE 3.1(B) above to
require non-defaulting Underwriters to purchase the Sixth 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 several Underwriters propose to offer the Sixth
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:
(1) it has not offered or sold, and will not offer or sell, any Sixth
Issuer Notes to any persons in the United Kingdom prior to
admission of the Sixth Issuer Notes to listing in accordance with
Part VI of the Financial Services and Markets Xxx 0000 (the
"FSMA"), except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995, as
amended, or the FSMA;
(2) it has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the
Sixth Issuer Notes in, from or otherwise involving the United
Kingdom; and
(3) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or
inducement to
S-10
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 Sixth Issuer Notes in circumstances in which Section 21(1)
of the FSMA does not apply to the Sixth Issuer.
(c) ITALY
Each underwriter acknowledges that the Floating Rate Series 1 Class A
Sixth Issuer Notes may not be placed, offered or distributed to
Italian investors at any time.
(d) OTHER
Each Underwriter acknowledges that no representation is made by the
Sixth Issuer or any Underwriter that any action has been or will be
taken in any jurisdiction by the Sixth Issuer or any Underwriter that
would permit a public offering of the Sixth 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 will comply with
all applicable securities laws and regulations in each jurisdiction in
which it purchases, offers, sells or delivers Sixth 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 Sixth Issuer Notes or publish any prospectus, form of
application, offering circular, advertisement or other offering
material except under circumstances that will, to the best of its
knowledge and belief, result in compliance with any applicable laws
and regulations, and all offers, sales and deliveries of Sixth 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 Sixth 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
Sixth Issuer shall have no responsibility for them.
4. LISTING
4.1 APPLICATION FOR LISTING
The Sixth Issuer confirms that it has authorised X.X. Xxxxxx Securities
Ltd. and Barclays Bank PLC to make or cause to be made at the Sixth
Issuer's expense applications on the Sixth Issuer's behalf for the Sixth
Issuer Notes to be listed on the official list of the UK Listing Authority
and for the Sixth Issuer Notes to be admitted to trading on the London
Stock Exchange plc (the "STOCK EXCHANGE").
4.2 SUPPLY OF INFORMATION
The Sixth Issuer agrees to supply to X.X. Xxxxxx Securities Ltd. and
Barclays Bank PLC 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.
S-11
4.3 MAINTENANCE OF LISTING AND TRADING
The Sixth Issuer agrees to use its reasonable endeavours to maintain a
listing of the Sixth Issuer Notes on the official list of the UK Listing
Authority and the admission of the Sixth Issuer Notes to trading on the
Stock Exchange for as long as any of the Sixth 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 Sixth Issuer will obtain, and will thereafter use its best endeavours
to maintain, a quotation for, or listing of, the Sixth 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 X.X. Xxxxxx Securities Ltd.
and Barclays Bank PLC (such approval not to be unreasonably withheld or
delayed), decide.
5. REPRESENTATIONS AND WARRANTIES OF THE SIXTH ISSUER
The Sixth Issuer represents and warrants to, and agrees with, the
Underwriters and each of them that:
(a) THE REGISTRATION STATEMENT
The Sixth Issuer has prepared and filed with the United States
Securities and Exchange Commission (the "COMMISSION") a registration
statement (file number 333-99349) 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 Sixth Issuer Notes.
The Sixth Issuer may have filed one or more amendments thereto,
including a related preliminary prospectus, each of which has
previously been furnished to you. The Sixth Issuer will next file with
the Commission one of the following: either (1) prior to the date and
time that such Registration Statement becomes effective (the
"EFFECTIVE DATE"), a further amendment to such Registration Statement,
including the form of final prospectus, or (2) after the Effective
Date of such Registration Statement, a final prospectus in accordance
with Rules 430A and 424(b) under the Securities Act. In the case of
CLAUSE (2), the Sixth Issuer has included in such Registration
Statement, as amended at the Effective Date, all information (other
than information with respect to the Sixth 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 Lead Managers
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you 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 Sixth Issuer has advised you, prior to the Execution Time, will
be included or made therein.
S-12
(b) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Securities Act, the 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 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 Sixth 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 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 Sixth 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 Sixth Issuer by or on behalf of any Underwriter through the
Lead Managers specifically for inclusion in the Registration Statement
or the Prospectus (or any 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
Sixth Issuer and constitutes, and the other Legal Agreements to which
the Sixth Issuer is a party have been duly authorised by the Sixth
Issuer and on the Closing Date will constitute, valid and legally
binding obligations of the Sixth Issuer, enforceable in accordance
with their terms subject to applicable bankruptcy, insolvency and
similar laws affecting the rights of creditors generally;
S-13
(e) VALIDITY OF THE SIXTH ISSUER NOTES
The Sixth Issuer Notes, the Reg S Sixth Issuer Notes and the Swiss Reg
S Sixth Issuer Notes have been duly authorised by the Sixth Issuer
and, when executed and authenticated in accordance with the Sixth
Issuer Trust Deed and the Sixth Issuer Paying Agent and Agent Bank
Agreement and the Sixth Issuer Swiss Paying Agent and Agent Bank
Agreement (as applicable), will constitute valid and legally binding
obligations of the Sixth Issuer, enforceable in accordance with their
terms subject to applicable bankruptcy, insolvency and similar laws
affecting the rights of creditors generally and, upon effectiveness of
the Registration Statement, the Sixth Issuer Trust Deed will have been
duly qualified under the Trust Indenture Act;
(f) CONSENTS
All consents, approvals, authorisations and other orders of all United
States, United Kingdom and Swiss regulatory authorities required for
the issue and offering of the Sixth Issuer Notes, the Reg S Sixth
Issuer Notes and the Swiss Reg S Sixth Issuer Notes or in connection
with the execution and performance of the transactions contemplated by
the Legal Agreements or the compliance by the Sixth Issuer with the
terms of the Sixth Issuer Notes, the Reg S Sixth Issuer Notes and the
Swiss Reg S Sixth 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 Sixth 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 Sixth Issuer Notes, the Reg S Sixth Issuer
Notes and the Swiss Reg S Sixth Issuer Notes and the security therefor
under the Sixth Issuer Deed of Charge, the offering and issue of the
Sixth Issuer Notes, the Reg S Sixth Issuer Notes and the Swiss Reg S
Sixth Issuer Notes on the terms and conditions of this Agreement, the
Reg S Sixth Issuer Notes Subscription Agreement and the Swiss Reg S
Sixth 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 Sixth Issuer or any agreement or
instrument to which the Sixth Issuer is a party or by which any of its
properties is bound; (ii) infringe any applicable law, rule,
regulation, judgement, order or decree of any government, governmental
body or court, having jurisdiction over the Sixth 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;
S-14
(h) FINANCIAL STATEMENTS
(i) The auditor's report by Deloitte & Touche, as independent
auditors to the Sixth Issuer, set out in the Prospectus presents
fairly the financial position of the Sixth 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
Sixth 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 Sixth Issuer; and
(iii) Deloitte & Touche are independent public accountants with
respect to the Sixth 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, registration, transfer or
turnover taxes, customs or other duties or taxes of any kind in
connection with the authorisation, execution or delivery of the Legal
Agreements or with the authorisation, issue, sale or delivery of the
Sixth Issuer Notes, the Reg S Sixth Issuer Notes and the Swiss Reg S
Sixth Issuer Notes and (except as disclosed in the Prospectus) the
performance of the Sixth Issuer's, Funding's and/or, as the case may
be, the Mortgages Trustee's obligations under the Legal Agreements,
the Sixth Issuer Notes, the Reg S Sixth Issuer Notes and the Swiss Reg
S Sixth 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 Sixth Issuer Notes, the Reg S Sixth Issuer Notes and
the Swiss Reg S Sixth Issuer Notes;
(j) BREACH OF OTHER AGREEMENTS
The Sixth 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 Sixth
Issuer Notes and/or the Reg S Sixth Issuer Notes and/or the Swiss Reg
S Sixth 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 Sixth Issuer Notes;
(l) NO SUBSIDIARIES
The Sixth Issuer has no subsidiaries or subsidiary undertakings within
the meanings of Sections 258 and 736 of the Companies Xxx 0000;
S-15
(m) XXXXXX HOLDINGS LIMITED
The First Issuer, the Second Issuer, the Third Issuer, the Fourth
Issuer, the Fifth Issuer, the Sixth 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 Sixth 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 Sixth Issuer Notes, the Reg S
Sixth Issuer Notes and the Swiss Reg S Sixth Issuer Notes. The Sixth
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;
(o) LISTING RULES
Prior to the delivery of the Prospectus to the Registrar of Companies
in England and Wales, the Prospectus has been approved by or on behalf
of the competent authority as listing particulars as required by the
listing rules made pursuant to Part VI of the FSMA and the Prospectus
complies with the listing rules made under Section 74(4) of the FSMA;
(p) LITIGATION
There are no pending actions, suits or proceedings against or
affecting the Sixth 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
Sixth Issuer or could adversely affect the ability of the Sixth Issuer
to perform its obligations under the Legal Agreements, the Sixth
Issuer Notes, the Reg S Sixth Issuer Notes and the Swiss Reg S Sixth
Issuer Notes or which are otherwise material in the context of the
issue or offering of the Sixth Issuer Notes, the Reg S Sixth Issuer
Notes and the Swiss Reg S Sixth Issuer Notes and, to the best of the
Sixth 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 Sixth Issuer and, other than the Legal Agreements,
the Sixth Issuer has not entered into any indenture or trust deed;
S-16
(r) SECURITY FOR THE SIXTH ISSUER NOTES
The Sixth Issuer Notes and the obligations of the Sixth Issuer under
the Sixth Issuer Trust Deed will be secured in the manner provided in
the Sixth 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 Sixth 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 and
the Fifth Deed of Accession to the Funding Deed of Charge), the Sixth
Issuer Swap Agreements, the Sixth Issuer Liquidity Facility Agreement,
the Sixth Issuer Trust Deed, the Sixth Issuer Paying Agent and Agent
Bank Agreement, the Sixth Issuer Swiss Paying Agent and Agent Bank
Agreement, the Sixth Issuer Cash Management Agreement, the Sixth
Issuer Corporate Services Agreement, the Sixth Issuer Bank Account
Agreement, the Sixth Issuer Post-Enforcement Call Option Agreement and
any other relevant documents to be signed on or before the Closing
Date to which the Issuer is a party; (ii) a charge by way of first
fixed charge over the Sixth Issuer Accounts (as defined in the Sixth
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 Sixth Issuer Accounts; and (iv) a first ranking
floating charge over the other assets of the Issuer;
(s) CAPITALISATION
The authorised capital of the Sixth Issuer is as set out in the
Prospectus;
(t) INVESTMENT COMPANY ACT
The Sixth 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 Sixth Issuer
Notes in the United States will not subject the Sixth Issuer to
registration under, or result in a violation of, the Investment
Company Act;
(u) UNITED STATES INCOME TAX
The Sixth 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; and
(v) REPRESENTATIONS AND WARRANTIES IN THE LEGAL AGREEMENTS
The representations and warranties given by the Sixth Issuer in the
Legal Agreements are true and accurate.
S-17
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 Sixth Issuer, they have prepared and filed with the
Commission the Registration Statement (file number 333-99349) on Form
S-11, including a related preliminary prospectus, for registration
under the Securities Act of the offering and sale of the Sixth Issuer
Notes. They may have filed one or more amendments thereto, including a
related preliminary prospectus, each of which has previously been
furnished to you. They will next file with the Commission one of the
following either (1) prior to the Effective Date of such Registration
Statement, a further amendment to such Registration Statement,
including the form of final prospectus, or (2) after the Effective
Date of such Registration Statement, a final prospectus in accordance
with Rules 430A and 424(b). In the case of CLAUSE (2), they have
included in such Registration Statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by
the Securities Act and the rules thereunder to be included in such
Registration Statement and the Prospectus. As filed, such amendment
and form of final prospectus, or such final prospectus, shall contain
all Rule 430A Information, together with all other such required
information, and, except to the extent that the Lead Managers shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you 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
you, 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
supplements thereto) will, comply in all material respects with the
applicable requirements of the Securities Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the 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 Sixth 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
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
S-18
(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 through the Lead Managers
specifically for inclusion in the Registration Statement or the
Prospectus (or any 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 applicable bankruptcy, insolvency and similar laws
affecting the rights of creditors generally;
(e) CONSENTS
All consents, approvals, authorisations and other orders of all United
States, United Kingdom and Swiss 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 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, judgement,
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
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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, 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 Sixth
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 Sixth 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 companies 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 and the Sixth 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 or the Fifth 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;
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(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 ANPLC 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, the Mortgages Trustee held (and
continues to hold) the portfolio on trust for the benefit of Funding
and ANPLC 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 SIXTH ISSUER INTERCOMPANY LOAN
Funding's obligations under, inter alia, the Sixth Issuer Intercompany
Loan Agreement will be secured in the manner provided in the Funding
Deed of Charge and with the benefit of the charges, covenants and
other security provided for therein including, without limitation, (i)
a first 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 Servicing Agreement, the
Funding Swap Agreement, the First 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 Funding Liquidity Facility
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 Funding Guaranteed Investment Contract, the Corporate
Services Agreement, the Cash Management Agreement, the Bank Account
Agreement and any other relevant documents 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 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;
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(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 Sixth 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, 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) the unaudited financial statements for the six months ended 30th
June, 2002 set out in appendix C of the Prospectus, present
fairly the financial position of Funding as at the date at which
they were prepared;
(iii) since the date of each such report there has been no change (nor
any development or event involving a prospective change of which
Funding is, or might reasonably be expected to be, aware) which
is materially adverse to the condition (financial or otherwise),
prospects, results of operations or general affairs of Funding;
and
(iv) Deloitte & Touche are independent public accountants with respect
to Funding within the meaning of the standards established by the
American Institute of Certified Public Accountants; and
(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 ANPLC
ANPLC represents and warrants to, and agrees with, the Underwriters and
each of them that:
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(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
ANPLC and constitutes, and the other Legal Agreements to which ANPLC
is a party have been duly authorised by ANPLC and on the Closing Date
will constitute, valid and legally binding obligations of ANPLC,
enforceable in accordance with their terms subject to applicable
bankruptcy, insolvency and similar laws affecting the rights of
creditors generally;
(c) RELATED SECURITY
ANPLC 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 ANPLC for or in
connection with the execution and performance of the transactions
contemplated by the Legal Agreements to which ANPLC is a party have
been obtained and are in full force and effect including, without
limiting the generality of the foregoing, ANPLC having received a
standard licence under the Consumer Credit Xxx 0000 and ANPLC being
registered under the DPA;
(e) COMPLIANCE
The sale of the Portfolio and the related property and rights, the
execution and delivery of the Legal Agreements to which ANPLC 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 ANPLC, or any
agreement or instrument to which ANPLC 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
Sixth Issuer Notes, the Reg S Sixth Issuer Notes or the Swiss Reg S
Sixth Issuer Notes; or (ii) infringe any applicable law, rule,
regulation, judgement, order or decree of any government, governmental
body or court having jurisdiction over ANPLC or any of its properties;
or (iii) result in the creation or imposition of any mortgage, charge,
pledge, lien or other security interest on any of its properties,
other than those created in, or imposed by, the Legal Agreements
themselves;
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(f) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Securities Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the 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 Sixth 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
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 ANPLC
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 ANPLC by or on behalf of any Underwriter through the
Lead Managers specifically for inclusion in the Registration Statement
or the Prospectus (or any 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 ANPLC of its interest in the portfolio (as
defined in the Prospectus) to the Mortgages Trustee pursuant to, and
in accordance with, the Mortgage Sale Agreement on 26th July, 2000 and
on subsequent distribution dates the Mortgages Trustee held (and
continues to hold) the portfolio on trust for the benefit of Funding
and ANPLC 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 ANPLC in the Mortgage Sale
Agreement will be true and accurate when made or deemed to be
repeated; and
(j) BREACH OF OTHER AGREEMENTS
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ANPLC 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
ANPLC 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.
8. COVENANTS OF THE SIXTH ISSUER, FUNDING, THE MORTGAGES TRUSTEE AND ANPLC
8.1 The Sixth Issuer and, where expressly provided, Funding, the Mortgages
Trustee and ANPLC covenants to, and agrees with, the Underwriters and each
of them that:
(a) THE REGISTRATION STATEMENT
The Sixth Issuer, Funding, the Mortgages Trustee and ANPLC 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 Sixth
Issuer Notes, none of the Sixth Issuer, Funding, the Mortgages Trustee
or ANPLC will file any amendment to the Registration Statement or
supplement to the Prospectus or any Rule 462(b) Registration Statement
unless the Sixth Issuer, Funding, the Mortgages Trustee and ANPLC have
furnished the Lead Managers with a copy for their review prior to
filing and none of them will file any such proposed amendment or
supplement to which the Lead Managers 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 Sixth Issuer, Funding,
the Mortgages Trustee and ANPLC will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Lead
Managers of such timely filing. The Sixth Issuer, Funding, the
Mortgages Trustee and ANPLC will promptly advise the Lead Managers
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 Sixth Issuer Notes,
any amendment to the Registration Statement shall have been filed
or become effective;
(b) DELIVERY OF COPIES
The Sixth Issuer will deliver (i) to the Lead Managers, one copy of
the Registration Statement as originally filed and each amendment
thereto, in each case including all exhibits and consents filed
therewith; and (ii) to each Underwriter (A) a conformed copy of the
Registration Statement as originally filed and each amendment thereto,
in each case including all exhibits and consents filed therewith and
(B) during the Marketing Period, as many copies of the Prospectus
(including all amendments and
S-25
supplements thereto) as the Lead Managers may reasonably request. As
used herein, the term "MARKETING PERIOD" means any period during which
a prospectus relating to the Sixth 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 Sixth Issuer
will promptly notify the Underwriters; (ii) the Sixth Issuer shall
promptly prepare and timely file with the Commission any amendment or
supplement to the Registration Statement or any Prospectus that may,
in the reasonable judgement of the Sixth Issuer or the Underwriters,
be required by the Securities Act or requested by the Commission;
(iii) the Sixth Issuer will, without charge, supply to the
Underwriters as many copies as the Lead Managers 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 Sixth 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 8.1(C), the Sixth
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 Sixth Issuer on the
Closing Date and will take such steps as may be reasonably requested
by the Lead Managers 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 Sixth Issuer, Funding or the Mortgages Trustee
will, without the prior approval of the Lead Managers on behalf 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 Sixth Issuer Notes;
(f) STAMP DUTY
(i) The Sixth 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, Switzerland or the
United States, including interest and penalties, in connection
with the creation, issue, distribution and offering of the Sixth
Issuer Notes or in connection with the execution, delivery or
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enforcement of any of the Legal Agreements to which it is a party
together with any value added, turnover or similar tax payable in
respect of that amount (and references in this Agreement to such
amount shall be deemed to include any such taxes so payable in
addition to it);
(ii) Funding will pay any stamp duty, issue, registration, documentary
or other taxes of a similar nature and duties payable in the
United Kingdom, Belgium, Luxembourg, Switzerland 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 Sixth
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,
Switzerland 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; and
(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,
Switzerland 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 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 (1) 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 any New Issuer and (2) 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 Sixth
Issuer will pay all and any fees, charges, costs and duties and
any stamp and other similar
S-27
taxes or duties, including interest and penalties, arising from
or in connection with the creation of the security for the Sixth
Issuer Notes, the Reg S Sixth Issuer Notes and the Swiss Reg S
Sixth Issuer Notes and the obligations of the Sixth Issuer under
the Sixth Issuer Trust Deed and for the other amounts to be
secured as contemplated by the Sixth 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 Sixth 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 and the Fifth Deed of
Accession to the Funding Deed of Charge and the perfection of
such security at any time; and
(iii) Without prejudice to the generality of CLAUSE 12.1, the
Mortgages Trustee will pay all and any fees, charges, costs and
duties and any stamp and other similar taxes or duties, including
interest and penalties, arising from or in connection with the
purchase of the Related Security (and related property and
rights) excluding H.M. Land Registry and Registers of Scotland
fees (it being agreed that registration or recording at H.M. 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 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 Sixth 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 Sixth 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 ANPLC complies with its obligations under the
Servicing Agreement;
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(k) CHARGES AND SECURITIES
(i) The Sixth Issuer will procure that each of the charges and other
securities created by or pursuant to or contained in the Sixth
Issuer Deed of Charge is registered within all applicable time
limits in all appropriate registers; and
(ii) Funding will procure that each of the charges and other
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 and the Fifth Deed of Accession to the Funding Deed of
Charge is registered within all applicable time limits in all
appropriate registers other than at H.M. Land Registry;
(l) RATINGS
None of the Sixth 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 Sixth 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"); the Series 2 Class A Sixth Issuer Notes and the
Series 4 Class A1 Sixth 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; the Series 1 Class B Sixth Issuer Notes, the Series
2 Class B Sixth Issuer Notes and the Series 4 Class B Sixth Issuer
Notes not being assigned an AA rating by Fitch Ratings, an Aa3 rating
by Moody's and an AA rating by Standard and Poor's; and the Series 1
Class C Sixth Issuer Notes, the Series 2 Class C Sixth Issuer Notes
and the Series 4 Class C Sixth Issuer Notes not being assigned a BBB
rating by Fitch Ratings, a Baa2 rating by Moody's and a BBB rating by
Standard and Poor's;
(m) LEGAL AGREEMENTS
Prior to closing on the Closing Date none of the Sixth Issuer, Funding
or the Mortgages Trustee will amend the terms of the executed Legal
Agreements, nor execute any of the other Legal Agreements other than
in the agreed form, without the consent of the Lead Managers (such
consent not to be unreasonably withheld or delayed);
(n) COMMISSION FILINGS
The Sixth 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 Sixth Issuer, Funding or the Mortgages
Trustee will file any such document or amendment unless the Sixth
Issuer, Funding and the Mortgages Trustee have furnished the Lead
Managers with a copy for their review prior to filing and none of them
will file any
S-29
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 FILINGS AND COMMISSION
During the Marketing Period, if there is (i) any amendment or
supplement to the Registration Statement, (ii) any amendment or
supplement to any Prospectus, or (iii) any material document filed by
the Sixth Issuer, Funding or the Mortgages Trustee with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
including but not limited to 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 Sixth 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 Sixth 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 Sixth 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 Sixth 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 ANPLC or the Sixth Issuer of any notification with respect
to the suspension of the qualification of the Sixth 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
Sixth Issuer Notes or any debt securities of ANPLC or the Sixth 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 ANPLC or the Sixth Issuer or
made any public announcement that any such organisation has under
surveillance or review its rating of any debt securities of ANPLC or
the Sixth 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
ANPLC or the Sixth Issuer is so informed;
(q) STOP ORDERS
The Sixth 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(R) above and if, during the Marketing Period, the
Commission shall issue a stop order suspending the
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effectiveness of the Registration Statement or such qualification of
the Sixth Issuer Notes for sale in any jurisdiction is suspended, the
Sixth Issuer will make every reasonable effort to obtain the lifting
of that order or suspension at the earliest possible time; and
(r) BLUE SKY QUALIFICATIONS
The Sixth Issuer will arrange, in co-operation with the Underwriters,
to qualify the Sixth Issuer Notes for offering and sale under the
securities laws of such jurisdictions with 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
Sixth Issuer Notes, and to file such statements and reports as may be
required by the laws of each jurisdiction in which the Sixth Issuer
Notes have been qualified as above, provided that in connection
therewith the Sixth 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 Sixth Issuer Notes in such
jurisdiction or to register as a dealer in securities or to become
subject to taxation in any jurisdiction.
8.2 ANPLC covenants to and agrees with the Underwriters and each of them that:
(a) NOTIFY CHANGE
ANPLC 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 Sixth Issuer on the Closing Date and will take such steps as
may be reasonably requested by the Lead Managers 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 ANPLC 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, ANPLC 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
ANPLC will deliver to the Lead Managers 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 ANPLC and the
Underwriters from Deloitte & Touche;
(d) RATINGS
ANPLC 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 Sixth Issuer Notes not being
assigned an F1+ rating by Fitch Ratings, a P-1 rating
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by Moody's and an A-1+ rating by Standard & Poor's; the Series 2 Class
A Sixth Issuer Notes and the Series 4 Class A1 Sixth 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; the Series 1 Class B
Sixth Issuer Notes, the Series 2 Class B Sixth Issuer Notes and the
Series 4 Class B Sixth Issuer Notes not being assigned an AA rating by
Fitch Ratings, an Aa3 rating by Moody's and an AA rating by Standard
and Poor's; and the Series 1 Class C Sixth Issuer Notes, the Series 2
Class C Sixth Issuer Notes and the Series 4 Class C Sixth Issuer Notes
not being assigned a BBB rating by Fitch Ratings, a Baa2 rating by
Moody's and a BBB rating by Standard and Poor's; and
(e) LEGAL AGREEMENTS
Prior to closing on the Closing Date ANPLC will not amend the terms of
any of the already executed Legal Agreements, nor execute any of the
other Legal Agreements other than in the agreed form, without the
consent of the Lead Managers (such consent not to be unreasonably
withheld or delayed).
9. CONDITIONS PRECEDENT
The obligation of the Underwriters under this Agreement to subscribe for
the Sixth 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 Lead Managers agree in writing to
a later time, the Registration Statement will become effective
not later than (i) 6:00 p.m. New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such
date, or (ii) 9:30 a.m. New York City time on the next business
day in New York following the day on which the public offering
price was determined, if such determination occurred after 3:00
p.m. New York City time on such date;
(ii) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed in the manner and within the time
period required by Rule 424(b); and
(iii) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened;
(b) EXECUTION OF LEGAL AGREEMENTS AND THE GLOBAL SIXTH ISSUER NOTES
The execution and delivery by all parties thereto of the Legal
Agreements and the Global Sixth Issuer Notes representing each class
of the Sixth Issuer Notes on or prior to the Closing Date;
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(c) ADMISSION TO LISTING AND TRADING
The UK Listing Authority having agreed to admit the Sixth Issuer Notes
to the official list of the UK Listing Authority and the Stock
Exchange having agreed to admission of the Sixth 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
Sixth Issuer, the Underwriters, the Note Trustee, the Sixth Issuer
Security Trustee and the Security Trustee copies of opinions and
disclosure letters, in form and substance satisfactory to the Lead
Managers, the Note Trustee, the Sixth Issuer Security Trustee, the
Security Trustee and the Rating Agencies, dated the Closing Date, of:
(i) Xxxxxxxxx and May, legal advisers to the Sixth Issuer as to
English law, addressed to the Sixth Issuer and the Underwriters,
substantially to the effect set forth in Annex A hereto;
(ii) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, legal advisers to the Sixth
Issuer as to US law, addressed to the Sixth Issuer and the
Underwriters, substantially to the effect set forth in Annex B
hereto;
(iii) Xxxxx & Overy, legal advisers to the Underwriters, the Note
Trustee, the Sixth Issuer Security Trustee and the Security
Trustee, addressed to the Underwriters, the Note Trustee, the
Sixth Issuer Security Trustee and the Security Trustee,
substantially to the effect set forth in Annex C hereto;
(iv) Xxxxxxxx Xxxxx & Xxxx, legal advisers to the Managers, the Note
Trustee, the Sixth Issuer Security Trustee, the Security Trustee
and the Sixth Issuer as to Swiss law, addressed to the Managers,
the Note Trustee, the Sixth Issuer Security Trustee and the
Security Trustee, substantially to the effect set forth in Annex
D hereto;
(v) Tods Xxxxxx XX, legal advisers to the Underwriters, the Note
Trustee, the Sixth Issuer Security Trustee, the Security Trustee,
the Sixth Issuer and ANPLC as to Scots law, addressed to the
Underwriters, the Note Trustee, the Sixth Issuer Security
Trustee, the Security Trustee, the Sixth Issuer and ANPLC,
substantially to the effect set forth in Annex E hereto; and
(vi) _____, legal advisers to Funding and the Sixth Issuer Swap
Providers, addressed to the Sixth Issuer, the Sixth Issuer
Security Trustee, the Security Trustee [and the Underwriters,]
substantially to the effect set forth in Annex F hereto.
(e) AUDITORS' LETTERS
On the date of this Agreement and on the Closing Date, there having
been addressed and delivered to the Underwriters letters, in form and
substance satisfactory to the Lead Managers, dated the date of this
Agreement and the Closing Date, respectively, from Deloitte & Touche,
the independent auditors of the Sixth Issuer and Funding;
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(f) CERTIFIED CONSTITUTIONAL DOCUMENTS
On or prior to the Closing Date, there having been delivered to the
Lead Managers on behalf of the Underwriters a copy, certified by a
duly authorised director of, as applicable, the Sixth Issuer, Funding
and the Mortgages Trustee, of: (i) the Memorandum and Articles of
Association of each of the Sixth Issuer, Funding and the Mortgages
Trustee; (ii) the resolution of the Board of Directors of each of the
Sixth 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 Sixth Issuer, the issue of the Sixth
Issuer Notes, the Reg S Sixth Issuer Notes and the Swiss Reg S Sixth
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
Sixth Issuer, Funding, the Mortgages Trustee and ANPLC in this
Agreement being true, accurate and correct at, and as if made on, the
Closing Date and the Sixth Issuer, Funding, the Mortgages Trustee and
ANPLC having performed all of their obligations in the Legal
Agreements to be performed on or before the Closing Date, and (ii)
there having been delivered to the Underwriters a certificate to that
effect signed by a duly authorised officer of, as applicable, the
Sixth Issuer, Funding, the Mortgages Trustee and ANPLC, 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 Sixth Issuer,
Funding, the Mortgages Trustee or ANPLC which is material in the
context of the issue of the Sixth Issuer Notes, the Reg S Sixth Issuer
Notes or the Swiss Reg S Sixth Issuer Notes;
(h) CIRCUMSTANCES FOR TERMINATION
On or prior to the Closing Date, in the opinion of the Lead Managers,
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, Moody's and Standard &
Poor's that the ratings for the Sixth Issuer Notes, the Reg S Sixth
Issuer Notes and the Swiss Reg S Sixth 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
"creditwatch" with negative implications or with implications of a
possible change that does not indicate the direction of such possible
change (or other similar publication of formal review by the relevant
rating agency) any existing credit rating assigned to the Sixth Issuer
Notes, the Reg S Sixth Issuer Notes the Swiss Reg S Sixth Issuer Notes
or the long term debt of ANPLC;
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(j) REG S SIXTH ISSUER NOTES SUBSCRIPTION AGREEMENT AND SWISS REG S SIXTH
ISSUER NOTES SUBSCRIPTION AGREEMENT
The Reg S Sixth Issuer Notes Subscription Agreement and the Swiss Reg
S Sixth Issuer Notes Subscription Agreement having been entered into;
(k) OTHER ISSUES
The Reg S Sixth Issuer Notes and the Swiss Reg S Sixth Issuer Notes
having been or being issued and subscribed and paid for pursuant to
the Reg S Sixth Issuer Notes Subscription Agreement and the Swiss Reg
S Sixth Issuer Notes Subscription Agreement, respectively, prior to or
contemporaneously with the issue, subscription and payment for the
Sixth 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
Lead Managers, be materially adverse to the financial or trading
condition of the Sixth Issuer, Funding, the Mortgages Trustee or ANPLC
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 Sixth
Issuer, Funding, the Mortgages Trustee or ANPLC 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 Sixth 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
Sixth Issuer in the agreed form;
(ii) Funding having furnished or caused to be furnished to the Sixth
Issuer and the Security Trustee a solvency certificate, dated the
Closing Date, of a duly authorised director of Funding in the
agreed form; and
(iii) ANPLC 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 ANPLC in the agreed form;
(n) MORTGAGE SALE AGREEMENT
All of the steps required by CLAUSE 4 of the Mortgage Sale Agreement
for the purposes of the purchase of a New Portfolio (as defined
therein) by the Mortgages Trustee from ANPLC on the Closing Date and
related rights to be acquired from ANPLC pursuant thereto having been
taken; and
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(o) 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 Lead
Managers such further information, certificates and documents as the
Lead Managers 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 Lead Managers, this
Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Lead
Managers. Notice of such cancellation shall be given to the Sixth
Issuer in writing or by telephone or facsimile confirmed in writing.
The Lead Managers, on behalf of the Underwriters, may, at their
discretion, waive compliance with the whole or any part of this CLAUSE
9.
10. CLOSING
10.1 ISSUE OF SIXTH ISSUER NOTES
Not later than 4:00 p.m. (London time) on the Closing Date, the Sixth
Issuer will issue and deliver to the Underwriters, or to their order, a
Global Sixth Issuer Note for each of the Series 1 Class A Sixth Issuer
Notes, the Series 1 Class B Sixth Issuer Notes, the Series 1 Class C Sixth
Issuer Notes, the Series 2 Class A Sixth Issuer Notes, the Series 2 Class B
Sixth Issuer Notes, the Series 2 Class C Sixth Issuer Notes, the Series 4
Class A1 Sixth Issuer Notes, the Series 4 Class B Sixth Issuer Notes and
the Series 4 Class C Sixth Issuer Notes.
10.2 PAYMENT
Against such delivery ___ on behalf of the Underwriters will pay to the
Sixth Issuer the gross subscription moneys for the Sixth Issuer Notes
(being the Issue Price). Such payment shall be made by ___ in Dollars in
immediately available funds to the account of the Sixth Issuer, account
number ______, sort code ______, SWIFT code ______, reference Xxxxxx
Financing (No. 6) PLC.
Such payment shall be evidenced by a confirmation by ___ that it has so
made that payment to the Sixth Issuer.
10.3 GROSS SUBSCRIPTION MONEYS
The Sixth Issuer undertakes that on the Closing Date it will apply the
gross subscription moneys for the Sixth Issuer Notes together with the
gross subscription moneys for the Reg S Sixth Issuer Notes and the
subscription moneys for the Swiss Reg S Sixth Issuer Notes (net of
underwriting commissions and various out-of-pocket expenses) plus an
additional amount, where applicable converted under the relevant Sixth
Issuer Swap Agreement, forthwith in
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making a loan to Funding pursuant to the terms of the Sixth Issuer
Intercompany Loan Agreement. Funding undertakes that it will apply the
proceeds of the Sixth Issuer Intercompany Loan to make payment to ANPLC or
at ANPLC'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 Sixth Issuer agrees to pay to the Underwriters a selling commission
(the "SELLING COMMISSION") of ___ per cent. of the aggregate principal
amount of the Series 1 Class A Sixth Issuer Notes, of ___ per cent. of the
aggregate principal amount of the Series 1 Class B Sixth Issuer Notes, of
___ per cent. of the aggregate principal amount of the Series 1 Class C
Sixth Issuer Notes, of ___ per cent. of the aggregate principal amount of
the Series 2 Class A Sixth Issuer Notes, of ___ per cent. of the aggregate
principal amount of the Series 2 Class B Sixth Issuer Notes, of ___ per
cent. of the aggregate principal amount of the Series 2 Class C Sixth
Issuer Notes, of ___ per cent. of the aggregate principal amount of the
Series 4 Class A1 Sixth Issuer Notes, of ___ per cent. of the aggregate
principal amount of the Series 4 Class B Sixth Issuer Notes and of ___ per
cent. of the aggregate principal amount of the Series 4 Class C Sixth
Issuer Notes and a combined management and underwriting commission (the
"MANAGEMENT AND UNDERWRITING COMMISSION") of ___ per cent. of the aggregate
principal amount of the Series 1 Class A Sixth Issuer Notes, of ___ per
cent. of the aggregate principal amount of the Series 1 Class B Sixth
Issuer Notes, of ___ per cent. of the aggregate principal amount of the
Series 1 Class C Sixth Issuer Notes, of ___ per cent. of the aggregate
principal amount of the Series 2 Class A Sixth Issuer Notes, of ___ per
cent. of the aggregate principal amount of the Series 2 Class B Sixth
Issuer Notes, of ___ per cent. of the aggregate principal amount of the
Series 2 Class C Sixth Issuer Notes, of ___ per cent. of the aggregate
principal amount of the Series 4 Class A1 Sixth Issuer Notes, of ___ per
cent. of the aggregate principal amount of the Series 4 Class B Sixth
Issuer Notes and of ___ per cent. of the aggregate principal amount of the
Series 4 Class C Sixth Issuer Notes.
11.2 The Sixth Issuer undertakes that on the Closing Date it will pay to ______
the aggregate Selling Commission and aggregate Management and Underwriting
Commission calculated in accordance with CLAUSE 11.1.
12. EXPENSES
12.1 GENERAL EXPENSES
The Sixth Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Sixth 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 Sixth 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 Sixth Issuer's legal advisers and accountants and all other
expenses of the Sixth Issuer in connection with the issue (including,
without limitation, any filing fees payable to the Commission in connection
with the registration of the Sixth Issuer Notes under the Securities Act
and any fees payable in connection with the qualification of the Sixth
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 Sixth Issuer Notes (including, without
limitation,
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any advertisements required in connection therewith), the preparation and
delivery of each class of the Sixth Issuer Notes in global form and (if
required) definitive form, the costs of the initial delivery and
distribution of the Sixth 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 Sixth Issuer Notes (excluding any such fees and expenses
arising as a result of any transfer of the Sixth 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 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
Sixth Issuer Notes; (c) the fees and expenses of the Note Trustee, the
Security Trustee and the Sixth Issuer Security Trustee (including fees and
expenses of legal advisers to the Note Trustee, the Security Trustee and
the Sixth 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 Sixth Issuer Notes and
compliance with the Conditions of the Sixth Issuer Notes; (d) the fees and
expenses incurred or payable in connection with obtaining a rating for the
Sixth 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 Sixth Issuer Notes; (e) the fees and expenses payable
in connection with obtaining and maintaining the admission to trading of
the Sixth Issuer Notes on the Stock Exchange; (f) out-of-pocket expenses
(excluding legal expenses) incurred by the Lead Managers on behalf of the
Underwriters in connection with the transactions contemplated hereby; (g)
any roadshow expenses incurred by the Lead Managers on behalf of 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 Sixth Issuer will reimburse the Lead Managers for all amounts in
connection with the issue of the Sixth 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 SIXTH ISSUER, FUNDING, MORTGAGES TRUSTEE AND ANPLC INDEMNITY
Each of the Sixth Issuer, Funding, the Mortgages Trustee and ANPLC 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 any 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
Sixth Issuer Notes as originally filed or in any
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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 Sixth
Issuer, Funding, the Mortgages Trustee and ANPLC 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 conformity with written
information furnished to the Sixth Issuer, Funding, the Mortgages Trustee
and ANPLC by or on behalf of any Underwriter through the Lead Managers
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 Sixth Issuer, Funding, the Mortgages Trustee or ANPLC
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 Sixth Issuer, Funding, the Mortgages Trustee and
ANPLC 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 Sixth Issuer, Funding, the Mortgages
Trustee and ANPLC 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 Sixth Issuer and ANPLC, each of their directors and each of
their officers who signs the Registration Statement, and each person who
controls the Sixth Issuer or ANPLC within the meaning of either the
Securities Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Sixth Issuer to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the Sixth Issuer or ANPLC by or on
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behalf of such Underwriter through the Lead Managers 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 (i) the list of
Underwriters and their respective participation in the sale of the Sixth
Issuer Notes, (ii) the sentences related to concessions and reallowances
and (iii) the paragraph related to short sales, stabilisation, short
covering transactions and penalty bids in any preliminary prospectus and
the Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any preliminary
prospectus, the Prospectus or the Registration Statement.
13.3 PROCEEDINGS
Promptly after receipt by an indemnified party under this CLAUSE 13 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this CLAUSE 13, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under CLAUSE 13.1 or 13.2 above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defences and (ii) will not in any event relieve the indemnifying
party from any obligation to any indemnified party other than the
indemnification obligation provided in CLAUSE 13.1 or 13.2 above. If any
such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein, and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defence thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election
to assume the defence of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this CLAUSE 13 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defence thereof other than reasonable costs of
investigation; provided that each Underwriter, the Underwriters as a group,
or the Sixth Issuer, Funding, the Mortgages Trustee and ANPLC, 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 Sixth Issuer, Funding, the Mortgages
Trustee and ANPLC and their respective controlling persons, as the case may
be, who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by such indemnified parties under this CLAUSE
13 if, in the reasonable judgement of any Underwriter, the Underwriters
acting together, or the Sixth Issuer, Funding, the Mortgages Trustee and
ANPLC, 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
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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 CLAUSE (I) or (III)
is applicable, such liability shall be only in respect of the counsel
referred to in such CLAUSE (I) or (III). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, such consent not to be unreasonably withheld or delayed, but if
settled with such consent or if there be a final judgement for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
this CLAUSE 13, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 60 days after receipt by such
indemnifying party of such request and (ii) such indemnifying party shall
not have either reimbursed the indemnified party in accordance with such
request or objected to such request in writing prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and in respect of which indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
13.4 CONTRIBUTION
In the event that the indemnity provided in CLAUSE 13.1 or 13.2 is
unavailable to or insufficient to hold harmless an indemnified party for
any reason, the Sixth Issuer, ANPLC 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
Sixth Issuer, ANPLC and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits received
by the Sixth Issuer, ANPLC and the Underwriters from the offering of the
Sixth Issuer Notes. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Sixth Issuer, ANPLC 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 Sixth Issuer, ANPLC 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 Sixth Issuer and ANPLC 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 Sixth Issuer or ANPLC 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 Sixth Issuer, ANPLC 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 Sixth Issuer
S-41
Notes) be responsible for any amount in excess of the Selling Commission or
Management and Underwriting Commission applicable to the Sixth 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 Sixth Issuer or ANPLC within the meaning
of either the Securities Act or the Exchange Act, each officer of the Sixth
Issuer who shall have signed the Registration Statement and each director
of the Sixth Issuer or ANPLC shall have the same rights to contribution as
the Sixth Issuer or ANPLC, as the case may be, subject in each case to the
applicable terms and conditions of this CLAUSE 13.4.
14. TERMINATION
14.1 LEAD MANAGERS' ABILITY TO TERMINATE
Notwithstanding any other provision of this Agreement, the Lead Managers on
behalf of the Underwriters may, by notice to the Sixth Issuer given at any
time prior to payment of the gross subscription moneys for the Sixth Issuer
Notes to the Sixth 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 Sixth Issuer's or ANPLC's covenants or agreements in this
Agreement; or
(b) if any condition specified in CLAUSE 9 has not been satisfied or
waived by the Lead Managers on behalf of the Underwriters; or
(c) if, in the opinion of the Lead Managers, circumstances shall be such
as: (i) to prevent or to a material extent restrict payment for the
Sixth Issuer Notes in the manner contemplated in this Agreement or
(ii) to a material extent prevent or restrict settlement of
transactions in the Sixth Issuer Notes in the market or otherwise; or
(d) if, in the opinion of the Lead Managers, (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 Lead Managers is material and
adverse and makes it impracticable or inadvisable to market the Sixth
Issuer Notes on the terms and in the manner contemplated by this
Agreement and the Prospectus; or
(e) upon termination of either of the Reg S Sixth Issuer Notes
Subscription Agreement and/or the Swiss Reg S Sixth 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 or the over-the-counter
market or a material disruption
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has occurred in commercial banking or securities settlement or
clearance services in the United States or with respect to Clearstream
or Euroclear systems in Europe; or
(g) a general moratorium on commercial banking activities shall have been
declared by U.S. federal or New York State authorities.
14.2 CONSEQUENCES OF TERMINATION
Upon such notice being given this Agreement shall terminate and be of no
further effect and no party hereto shall be under any liability to any
other in respect of this Agreement except that (i) the Sixth Issuer shall
remain liable under CLAUSE 12 for the payment of the costs and expenses
already incurred or incurred in consequence of such termination, (ii) the
indemnity agreement and contribution provisions set forth in CLAUSE 13
shall survive and (iii) the obligations of the Sixth Issuer and ANPLC that
would have continued in accordance with CLAUSE 15 had the arrangements for
the underwriting and issue of the Sixth 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 Sixth
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 Sixth Issuer, Funding, the Mortgages
Trustee nor ANPLC shall have any responsibility in respect of the legality
of the Underwriters or other persons offering and selling the Sixth Issuer
Notes in any jurisdiction or in respect of the Sixth 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 Sixth Issuer,
c/o Abbey House (AAM 126)
000 Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxxxx XX0 0XX
Attention: Securitisation Team, Business Relationship Management
Facsimile: x00 00 0000 0000
(b) if to ANPLC,
[Abbey Xxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx XX0 0XX]
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Attention: Company Secretary
Facsimile: x00 00 0000 0000
(c) if to the Underwriters,
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: ABS Syndicate Desk
Facsimile: 1 212 834 6081
and
c/o Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Syndicate Desk
Facsimile: 1 212 412 4020
With a copy to:
______
Attention: ______
Facsimile: ______
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
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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 Sixth Issuer, Funding, the Mortgages Trustee and ANPLC hereby
appoints CT Corporation System at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
or, if otherwise, its principal place of business in the City of New York
from time to time, as its agent for service of process, and agrees that
service of any process, summons, notice or document by hand delivery or
registered mail upon such agent shall be effective service of process for
any suit, action or proceeding brought in any such court. Each of the Sixth
Issuer, Funding, the Mortgages Trustee and ANPLC 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 Sixth Issuer, Funding, the Mortgages Trustee and ANPLC agrees
that a final judgement in any such suit, action or proceeding brought in
any such court shall be conclusive and binding upon each of the Sixth
Issuer, Funding, the Mortgages Trustee and ANPLC and may be enforced in any
other court to whose jurisdiction each of the Sixth Issuer, Funding, the
Mortgages Trustee and ANPLC is or may in the future be subject, by suit
upon judgement. Each of the Sixth Issuer, Funding, the Mortgages Trustee
and ANPLC further agrees that nothing herein shall affect the Underwriters'
right to effect service of process in any other manner permitted by law or
to bring a suit, action or proceeding (including a proceeding for
enforcement of a judgement) in any other court or jurisdiction in
accordance with applicable law.
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original.
20. AUTHORITY OF THE LEAD MANAGERS
Any action by the Underwriters hereunder may be taken by the Lead Managers
on behalf of the Underwriters, and any such action taken by the Lead
Managers shall be binding upon the Underwriters.
IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
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XXXXXX FINANCING (NO. 6) PLC
By: [XXXXXX XXXXXXXXX]
ABBEY NATIONAL PLC
By: [XXXXXX XXXXXX]
XXXXXX FUNDING LIMITED
By: [XXXXXX XXXXXXXXX]
XXXXXX TRUSTEES LIMITED
By: [XXXXXX XXXXXXXXX]
X.X. XXXXXX SECURITIES INC.
By: XXXXXXX XXXXXXX
BARCLAYS CAPITAL INC.
By: __________________
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SCHEDULE
------------------------------------------------------------------------------------------------------------------
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
SERIES 1 CLASS A SIXTH SERIES 1 CLASS B SIXTH SERIES 1 CLASS C SIXTH
UNDERWRITERS ISSUER NOTES ISSUER NOTES ISSUER NOTES
------------------------------------------------------------------------------------------------------------------
X.X. Xxxxxx Securities Inc. US$[750,000,000] US$[25,000,000] US$[43,000,000]
------------------------------------------------------------------------------------------------------------------
Barclays Capital Inc. US$[750,000,000] US$[25,000,000] US$[43,000,000]
------------------------------------------------------------------------------------------------------------------
TOTAL US$[1,500,000,000] US$[50,000,000] US$[86,000,000]
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
SERIES 2 CLASS A SIXTH SERIES 2 CLASS B SIXTH SERIES 2 CLASS C SIXTH
UNDERWRITERS ISSUER NOTES ISSUER NOTES ISSUER NOTES
------------------------------------------------------------------------------------------------------------------
X.X. Xxxxxx Securities Inc. US$[625,000,000] US$[21,000,000] US$[35,500,000]
------------------------------------------------------------------------------------------------------------------
Barclays Capital Inc. US$[625,000,000] US$[21,000,000] US$[35,500,000]
------------------------------------------------------------------------------------------------------------------
TOTAL US$[1,250,000,000] US$[42,000,000] US$[71,000,000]
------------------------------------------------------------------------------------------------------------------
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
SERIES 4 CLASS A1 SIXTH SERIES 4 CLASS B SIXTH SERIES 4 CLASS C SIXTH
UNDERWRITERS ISSUER NOTES ISSUER NOTES ISSUER NOTES
------------------------------------------------------------------------------------------------------------------
X.X. Xxxxxx Securities Inc. US$[500,000,000] US$[20,000,000] US$[34,500,000]
------------------------------------------------------------------------------------------------------------------
Barclays Capital Inc. US$[500,000,000] US$[20,000,000] US$[34,500,000]
------------------------------------------------------------------------------------------------------------------
TOTAL US$[1,000,000,000] US$[40,000,000] US$[69,000,000]
------------------------------------------------------------------------------------------------------------------
