Exhibit 1.1
EXECUTION COPY
UNDERWRITING AGREEMENT
dated November 24, 2006
GRANITE MASTER ISSUER PLC
and
NORTHERN ROCK PLC
and
GRANITE FINANCE FUNDING 2 LIMITED
and
GRANITE FINANCE TRUSTEES LIMITED
and
DEUTSCHE BANK SECURITIES INC.
and
XXXXXX BROTHERS INC.
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
BARCLAYS CAPITAL INC.
and
CITIGROUP GLOBAL MARKETS LIMITED
and
X. X. XXXXXX SECURITIES INC.
and
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
and
UBS SECURITIES LLC
relating to GRANITE MASTER ISSUER PLC
U.S. $650,000,000 Series 2006-4 Class A1 Notes due December 2030
U.S. $704,300,000 Series 2006-4 Class A4 Notes due December 2054
U.S. $1,130,000,000 Series 2006-4 Class A6 Notes due December 2054
U.S. $60,600,000 Series 2006-4 Class B1 Notes due December 2054
U.S. $47,800,000 Series 2006-4 Class M1 Notes due December 2054
U.S. $10,000,000 Series 2006-4 Class M2 Notes due December 2054
U.S. $32,600,000 Series 2006-4 Class C1 Notes due December 2054
U.S. $15,000,000 Series 2006-4 Class C2 Notes due December 0000
XXXXXX XXXXXX
WOOLGATE EXCHANGE
00 XXXXXXXXXX XXXXXX
XXXXXX, XX0X 0XX
TELEPHONE 000 0000 0000
FACSIMILE 020 7626 7937
CONTENTS
Clause Page
1. Agreement to Issue and Subscribe....................................................................5
2. Stabilization.......................................................................................8
3. Agreements by the Underwriters......................................................................9
4. Listing............................................................................................16
5. Representations and Warranties of the Master Issuer................................................17
6. Representations and Warranties of Funding 2 and the Mortgages Trustee..............................23
7. Representations and Warranties of NRPLC............................................................28
8. Covenants of the Master Issuer, Funding 2, the Mortgages Trustee and NRPLC.........................31
9. Conditions Precedent...............................................................................40
10. Expenses...........................................................................................44
11. Indemnification....................................................................................45
12. Termination........................................................................................49
13. Survival of Representations and Obligations........................................................50
14. Notices............................................................................................51
15. Time...............................................................................................52
16. Non Petition and Limited Recourse..................................................................52
17. Governing Law and Jurisdiction.....................................................................53
18. Counterparts.......................................................................................54
19. Authority of the Lead Underwriters.................................................................54
20. Successors.........................................................................................54
Schedule 1 ................................................................................................S-1
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THIS UNDERWRITING AGREEMENT (this "Agreement") is made as of November 24, 2006
BETWEEN:
(1) GRANITE MASTER ISSUER PLC, a public limited company incorporated under
the laws of England and Wales, whose registered office is at Xxxxx Xxxxx,
000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (the "Master Issuer");
(2) NORTHERN ROCK PLC, a public limited company incorporated under the laws
of England and Wales, whose registered office is at Xxxxxxxx Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX ("NRPLC");
(3) GRANITE FINANCE FUNDING 2 LIMITED, a private limited company incorporated
under the laws of England and Wales, whose registered office is at Xxxxx
Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX ("Funding 2");
(4) GRANITE FINANCE TRUSTEES LIMITED, a private limited company incorporated
under the laws of Jersey, Channel Islands, whose registered office is at
00 Xxxxxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands (the
"Mortgages Trustee");
(5) DEUTSCHE BANK SECURITIES INC., a Delaware corporation, whose registered
office is at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXXXXX BROTHERS
INC., a corporation organized under the laws of the State of Delaware,
whose registered office is at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
00000, and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, a
corporation organized under the laws of the State of Delaware, whose
registered office is at c/o The Corporation Trust Company, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the "Lead Underwriters"); and
(6) BARCLAYS CAPITAL INC., a corporation organized under the laws of the
State of Connecticut, whose registered office is at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, CITIGROUP GLOBAL MARKETS LIMITED, a limited
liability company incorporated under the laws of England and Wales, whose
registered office is at Citigroup Centre, Canada Square, Xxxxxx Xxxxx,
Xxxxxx X00 0XX, X.X. XXXXXX SECURITIES INC., a corporation organized
under the laws of the State of New York, whose registered office is at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXXXXX XXXXXXX & CO.
INTERNATIONAL LIMITED, a private limited company incorporated under the
laws of England and Wales, whose registered office is 00 Xxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxxxxx X00 0XX and UBS SECURITIES LLC, a limited liability
company organized under the laws of the State of Delaware, whose
registered office is at c/o Corporation Service Company, 0000 Xxxxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (together with the Lead
Underwriters, the "Underwriters" and each an "Underwriter").
WHEREAS:
(A) The Master Issuer proposes to issue and sell to the Underwriters the
mortgage-backed notes of the series and class specified in Schedule 1
hereto and described in Clause 1.3 hereof (the "US Notes" as set forth on
the cover page of the Prospectus Supplement).
(B) The US Notes will be issued in U.S. dollars and in minimum denominations
of $100,000 and integral multiples of $1,000 in excess thereof. The US
Notes will be issued on the date and at the time specified in the
Prospectus Supplement, which date and time may be changed by agreement
between the Master Issuer and the Lead Underwriters on behalf of the
Underwriters (such date and time of delivery of and payment for such US
Notes being
hereinafter referred to as the "Closing Date"). The issue of the US Notes
is referred to in this Agreement as the "Issue".
(C) Simultaneously with the Issue, the Master Issuer intends to issue other
classes and series of notes (the "Reg S Notes", and together with the US
Notes, the "Notes") specified in the subscription agreement dated as of
the date hereof (the "Subscription Agreement") among the Master Issuer,
NRPLC, Funding 2, the Mortgages Trustee and the respective dealers named
therein (the "Dealers"). Such Dealers have agreed to subscribe and pay
for the Reg S Notes upon the terms and subject to the conditions
contained in the Subscription Agreement and the programme agreement dated
as of January 19, 2005 (the "Programme Date"), as amended by a Deed of
Amendment dated August 26, 2005, among the Master Issuer, NRPLC, Funding
2, the Mortgages Trustee and the respective dealers named therein (the
"Programme Agreement").
(D) The Notes will be constituted by, issued subject to and have the benefit
of a supplemental trust deed to the Issuer Trust Deed (the "Supplemental
Issuer Trust Deed") to be entered into on or before the Closing Date
between the Master Issuer and The Bank of New York, London Branch as
trustee for the Noteholders (the "Note Trustee").
(E) The Notes (together with the Master Issuer's obligations to its other
creditors) will be secured by the benefit of security interests created
under a deed of charge and assignment by way of security dated the
Programme Date, which includes any deed of accession entered into in
connection therewith or supplement thereto (the "Issuer Deed of Charge")
by the Master Issuer, The Bank of New York (in its separate capacities as
the Note Trustee and the Issuer Security Trustee), Citibank, N.A. (in its
separate capacities as the Principal Paying Agent, the US Paying Agent,
the Registrar, the Transfer Agent, an Issuer Account Bank and the Agent
Bank), NRPLC (in its separate capacities as the Issuer Cash Manager, the
Issuer GIC Provider, an Issuer Account Bank and the Start-up Loan
Provider), and Law Debenture Corporate Services Limited in its capacity
as the Corporate Services Provider. The deed of accession to the Issuer
Deed of Charge to be entered into on the Closing Date is herein referred
to as the "Issuer Deed of Accession".
(F) Payments of principal of, and interest on, the US Notes will be made by
the Master Issuer to the US Paying Agent and by the US Paying Agent to
Noteholders on behalf of the Master Issuer under a paying agent and agent
bank agreement entered into on or before the Programme Date (the "Issuer
Paying Agent and Agent Bank Agreement") among the Master Issuer, the Note
Trustee, the Issuer Security Trustee, the Agent Bank, the Principal
Paying Agent, the US Paying Agent, the Transfer Agent and the Registrar.
(G) Each class of the US Notes will be in fully registered permanent global
form. The Registrar will maintain a register in respect of the US Notes
in accordance with the Issuer Paying Agent and Agent Bank Agreement. The
global note certificates representing the US Notes (the "Dollar Global
Note Certificates") will be deposited on behalf of the beneficial owners
of the US Notes with Citibank N.A. in New York, as custodian for, and
registered in the name of Cede & Co. as nominee of, The Depository Trust
Company ("DTC").
(H) The Master Issuer will use an amount in Sterling equal to the gross
proceeds of the Issue as well as an amount in Sterling equal to the gross
proceeds of the Reg S Notes issue to make advances (each a loan tranche)
to Funding 2 pursuant to the terms of the global intercompany loan
agreement entered into on or before the Programme Date among the Master
Issuer, Funding 2, the Agent Bank and The Bank of New York, London Branch
in its capacity as security trustee (the "Funding 2 Security Trustee")
(the "Global Intercompany Loan Agreement" and each loan tranche made
thereunder, a "Loan Tranche"). Reference to the
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Global Intercompany Loan Agreement shall include reference to a loan
tranche supplement in respect of the Global Intercompany Loan Agreement
to be entered into on or about the Closing Date among Funding 2, the
Master Issuer, the Funding 2 Security Trustee and the Agent Bank, as
amended, restated, novated, verified or supplemented from time to time
and shall include any additional and/or replacement intercompany loan
terms and conditions entered into from time to time in accordance with
the Legal Agreements.
(I) Funding 2 will pay the proceeds of each Loan Tranche to the Mortgages
Trustee (or to its order) in consideration for the increase of its
beneficial share of a trust portfolio made up of, amongst other things,
first residential mortgage loans (the "Mortgage Loans") and an interest
in the related insurances and their related security (together, the
"Related Security").
(J) On March 26, 2001, NRPLC assigned the initial portfolio of Mortgage Loans
and their Related Security to the Mortgages Trustee and may assign
further Mortgage Loans on subsequent assignment dates pursuant to a
mortgage sale agreement dated March 26, 2001 among NRPLC, the Mortgages
Trustee, Funding 2 and the Funding 2 Security Trustee (the "Mortgage Sale
Agreement"). Each of the Mortgages Trustee and Funding 2 has appointed
NRPLC as administrator to service the Mortgage Loans and their Related
Security pursuant to an Administration Agreement dated March 26, 2001
(the "Administration Agreement").
(K) The Mortgages Trustee holds the Mortgage Loans and their Related Security
on a bare trust in undivided shares for the benefit of Funding, Funding 2
and NRPLC pursuant to the mortgages trust deed dated March 26, 2001
entered into by NRPLC, Funding, Funding 2 and the Mortgages Trustee (the
"Mortgages Trust Deed"). The Mortgages Trustee also entered into a
guaranteed investment contract dated on or about May 26, 2004 in respect
of its principal bank account (the "Mortgages Trustee Guaranteed
Investment Contract"), among the Mortgages Trustee, the Security Trustee,
the Cash Manager and NRPLC (in its capacity as the Mortgages Trustee GIC
Provider).
(L) Funding 2's obligations to the Master Issuer under the Global
Intercompany Loan Agreement and to Funding 2's other creditors are
secured by the benefit of security interests created by a deed of charge
and assignment dated the Programme Date, which will include any deed of
accession to be entered into in connection therewith or supplement
thereto (the "Funding 2 Deed of Charge"), by and among Funding 2, the
Master Issuer, the Mortgages Trustee, the Funding 2 Security Trustee, the
Issuer Security Trustee, Law Debenture Corporate Services Limited and
NRPLC (in its separate capacities as Cash Manager, Account Bank, Funding
2 Basis Rate Swap Provider and Funding 2 GIC Provider).
(M) In connection with Funding 2's purchase of a beneficial interest in a
mortgage portfolio and the issue of certain notes by the Master Issuer,
Funding 2, in addition to the documents described above, entered into on
the Programme Date (1) a cash management agreement with the Cash Manager,
the Mortgages Trustee, the Seller, Funding and the Funding 2 Security
Trustee (the "Cash Management Agreement"); (2) a bank account agreement
with the Account Banks, the Funding 2 Security Trustee and the Cash
Manager (the "Funding 2 Bank Account Agreement"); (3) a guaranteed
investment contract with, inter alios, NRPLC as Funding 2 GIC Provider
and Cash Manager and the Funding 2 Security Trustee (the "Funding 2
Guaranteed Investment Contract"); (4) a corporate services agreement (the
"Corporate Services Agreement") with, inter alios, Law Debenture
Corporate Services Limited as corporate services provider to Funding 2
and the Master Issuer; and (5) an ISDA Master Agreement including the
Schedule thereto and confirmations thereunder in the respect of the
Funding 2 (mortgage rates) basis rate swap and Funding 2 (LIBOR rate)
basis rate swap with Funding 2, the Basis Rate Swap Provider and the Note
Trustee (the "Basis Rate Swap Agreements").
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(N) In connection with the Issue, the Master Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Note Certificates
relating to each class of the Notes; (2) a start-up loan tranche
supplement with the Start-up Loan Provider and the Issuer Security
Trustee (the "Start-Up Loan Tranche Supplement"); (3) an ISDA Master
Agreement, including the Schedule thereto and confirmations thereunder in
respect of Dollar/Sterling currency swaps with the relevant Issuer Swap
Provider(s) and the Note Trustee (the "Dollar Currency Swap Agreements");
and (4) an ISDA Master Agreement, including the Schedule thereto and
confirmations thereunder in respect of Euro/Sterling currency swaps with
the relevant Issuer Swap Provider(s) and the Note Trustee (the "Euro
Currency Swap Agreements" and together with the Dollar Currency Swap
Agreements, the "Currency Swap Agreements").
(O) In connection with the Issue, the Master Issuer has executed and
delivered, on or before the Programme Date, (1) the Corporate Services
Agreement; (2) a cash management agreement between the Master Issuer, the
Issuer Cash Manager and the Issuer Security Trustee (the "Issuer Cash
Management Agreement"); (3) a bank account agreement between the Master
Issuer, the Issuer Security Trustee, the Issuer Cash Manager, the Issuer
GIC Account Bank and the Issuer Transaction Account Bank (the "Issuer
Bank Account Agreement"); (4) a post-enforcement call option agreement
(the "Post-Enforcement Call Option Agreement") between the Master Issuer,
the Note Trustee and GPCH Limited; and (5) a start-up loan agreement with
the Start-up Loan Provider, the Master Issuer and the Issuer Security
Trustee (the "Start-Up Loan Agreement").
(P) As required, the Master Issuer, Funding 2, the Mortgages Trustee and/or
NRPLC will enter into any other relevant documents to be signed and
delivered on or before the Closing Date (such documents, together with
the Mortgage Sale Agreement, the Mortgages Trust Deed, the Administration
Agreement, the Mortgages Trustee Guaranteed Investment Contract, the
Global Intercompany Loan Agreement, the Post-Enforcement Call Option
Agreement, the Funding 2 Guaranteed Investment Contract, the Cash
Management Agreement, the Funding 2 Bank Account Agreement, the
Collection Bank Agreement, the Start-up Loan Agreement, the Start-up Loan
Tranche Supplement, the Funding 2 Deed of Charge, the Basis Rate Swap
Agreements, the Issuer Deed of Charge (as amended by the Issuer Deed of
Accession), the Supplemental Issuer Trust Deed, the Issuer Cash
Management Agreement, the Issuer Paying Agent and Agent Bank Agreement,
the Issuer Bank Account Agreement, the Corporate Services Agreement, the
Currency Swap Agreements, this Agreement, the Programme Agreement and the
Subscription Agreement, each as they have been or may be amended,
restated, varied or supplemented from time to time are collectively
referred to herein as the "Legal Agreements").
(Q) The Master Issuer (together with Funding 2 and the Mortgages Trustee) has
prepared a registration statement on Form S-3, including a prospectus
relating to the US Notes and additional series of notes, for the
registration under the Securities Act of 1933, as amended (the
"Securities Act"), of the offering and sale thereof from time to time in
accordance with Rule 415 under the Securities Act. At or prior to the
time when sales to purchasers of the US Notes were first made by the
Underwriters, which was approximately 3:00 p.m. (London time) on November
22, 2006 (the "Time of Sale"), the Master Issuer (together with Funding 2
and the Mortgages Trustee) had prepared the following information (when
read together, the "Time of Sale Information"): (i) the Preliminary
Prospectus Supplement dated November 9, 2006 to the base prospectus dated
September 12, 2006 (including information referred to under the caption
"Static Pool Data" in Annex D therein regardless of whether it is deemed
a part of the Registration Statement or Prospectus), together with such
base prospectus (the "Initial Preliminary Prospectus") and (ii) the
Preliminary Prospectus Supplement dated November 21, 2006 to the base
prospectus dated September 12, 2006 (including information referred to
under the caption "Static Pool Data" in Annex D therein regardless of
whether it is
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deemed a part of the Registration Statement or Prospectus) together with
such base prospectus (the "Revised Preliminary Prospectus"). If,
subsequent to the Time of Sale and prior to the Closing Date, the Revised
Preliminary Prospectus included an untrue statement of material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and as a result investors in the US Notes may
terminate their old "Contracts of Sale" (within the meaning of Rule 159
under the Securities Act) for any US Notes and the Underwriters enter
into new Contracts of Sale with investors in the US Notes, then "Time of
Sale Information" will refer to the information conveyed to investors at
the time of entry into the first such new Contract of Sale, in an amended
preliminary prospectus approved by the Master Issuer (together with
Funding 2 and the Mortgages Trustee) and the Lead Underwriters that
corrects such material misstatements or omissions (a "Corrected
Prospectus") and "Time of Sale" will refer to the time and date on which
such new Contracts of Sale were entered into.
IT IS AGREED as follows:
1. AGREEMENT TO ISSUE AND SUBSCRIBE
1.1 Definitions and Interpretation
(a) Capitalized terms used herein and not otherwise defined herein
or pursuant hereto, unless the context otherwise requires, shall
have the meanings given to them in the Programme Master
Definitions Schedule signed for the purposes of identification
only by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx & Xxxxx LLP on the
Programme Date and the Issuer Master Definitions Schedule signed
for the purposes of identification only by Sidley Xxxxxx Xxxxx &
Wood and Xxxxx & Xxxxx LLP on the Programme Date (each as
amended, varied or supplemented from time to time). In the event
of a conflict between the Programme Master Definitions Schedule
and the Issuer Master Definitions Schedule, the Issuer Master
Definitions Schedule will control.
(b) For purposes of this Agreement, "Investor Presentation" means
the investor presentation in respect of the Notes prepared by
NRPLC for purposes of investor meetings in the United States
beginning on November 13, 2006.
(c) In this Agreement:
(i) words denoting the singular number only shall include the
plural number also and vice versa;
(ii) words denoting one gender only shall include the other
genders;
(iii) words denoting persons only shall include firms and
corporations and vice versa;
(iv) references to any statutory provision shall be deemed
also to refer to any statutory modification or
re-enactment thereof or any statutory instrument, order
or regulation made thereunder or under any such
re-enactment;
(v) references to any agreement or other document (including
any of the Legal Agreements) shall be deemed also to
refer to such agreement or document as amended, varied,
supplemented, restated or novated from time to time;
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(vi) clause, paragraph and schedule headings are for ease of
reference only;
(vii) reference to a statute shall be construed as a reference
to such statute as the same may have been, or may from
time to time be, amended or re-enacted to the extent such
amendment or re-enactment is substantially to the same
effect as such statute on the date hereof;
(viii) reference to a time of day, unless otherwise specified,
shall be construed as a reference to London time; and
(ix) references to any person shall include references to his
successors, transferees and assigns and any person
deriving title under or through him.
1.2 Offering
Each of the Master Issuer, Funding 2 and the Mortgages Trustee
understands that the Underwriters have offered and will offer the US
Notes upon the terms set forth in the Time of Sale Information and the
Prospectus, and in compliance with all applicable laws and regulations.
1.3 Purchase and Sale
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Agreement, the Master
Issuer agrees to issue and sell the US Notes on the Closing Date to the
Underwriters as hereinafter provided, and each Underwriter agrees to
purchase, severally and not jointly, from the Master Issuer the
respective principal amount of the US Notes set forth opposite such
Underwriter's name in Schedule 1 hereto at a price equal to the
aggregate of 100 per cent. of the aggregate principal amount of the
Series 2006-4 Class A1 Notes, 100 per cent. of the aggregate principal
amount of the Series 2006-4 Class A4 Notes, 100 per cent. of the
aggregate principal amount of the Series 2006-4 Class A6 Notes, 100 per
cent. of the aggregate principal amount of the Series 2006-4 Class B1
Notes, 100 per cent. of the aggregate principal amount of the Series
2006-4 Class M1 Notes, 100 per cent. of the aggregate principal amount
of the Series 2006-4 Class M2 Notes, 100 per cent. of the aggregate
principal amount of the Series 2006-4 Class C1 Notes and 100 per cent.
of the aggregate principal amount of the Series 2006-4 Class C2 Notes
(the "Issue Price"). The Series 2006-4 Class A1 Notes, Series 2006-4
Class A4 Notes, Series 2006-4 Class A6 Notes, Series 2006-4 Class B1
Notes, Series 2006-4 Class M1 Notes, Series 2006-4 Class M2 Notes,
Series 2006-4 Class C1 Notes and Series 2006-4 Class C2 Notes are
collectively referred to as the "US Notes".
The Master Issuer acknowledges and agrees that each of the Underwriters
in providing investment banking services to the Master Issuer in
connection with the offering, including in acting pursuant to the terms
of this Agreement, has acted and is acting as an arm's-length
counterparty and not as a fiduciary and the Master Issuer does not
intend any of the Underwriters to act in any capacity other than as an
arm's-length counterparty, including as a fiduciary or in any other
position of higher trust.
1.4 Commissions
In consideration of the obligations undertaken herein by the
Underwriters, the Master Issuer agrees to pay to the Underwriters a
selling commission (the "Selling Commission") of 0.0267 per cent.
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of the aggregate principal amount of the Series 2006-4 Class A1 Notes,
0.0400 per cent. of the aggregate principal amount of the Series 2006-4
Class A4 Notes, 0.0500 per cent. of the aggregate principal amount of
the Series 2006-4 Class A6 Notes, 0.0933 per cent. of the aggregate
principal amount of the Series 2006-4 Class B1 Notes, 0.1400 per cent.
of the aggregate principal amount of the Series 2006-4 Class M1 Notes,
0.1400 per cent. of the aggregate principal amount of the Series 2006-4
Class M2 Notes, 0.2867 per cent. of the aggregate principal amount of
the Series 2006-4 Class C1 Notes and 0.2867 per cent. of the aggregate
principal amount of the Series 2006-4 Class C2 Notes and a combined
management and underwriting commission (the "Management and
Underwriting Commission") of 0.0133 per cent. of the aggregate
principal amount of the Series 2006-4 Class A1 Notes, 0.0200 per cent.
of the aggregate principal amount of the Series 2006-4 Class A4 Notes,
0.0250 per cent. of the aggregate principal amount of the Series 2006-4
Class A6 Notes, 0.0467 per cent. of the aggregate principal amount of
the Series 2006-4 Class B1 Notes, 0.0700 per cent. of the aggregate
principal amount of the Series 2006-4 Class M1 Notes, 0.0700 per cent.
of the aggregate principal amount of the Series 2006-4 Class M2 Notes,
0.1433 per cent. of the aggregate principal amount of the Series 2006-4
Class C1 Notes and 0.1433 per cent. of the aggregate principal amount
of the Series 2006-4 Class C2 Notes.
The Master Issuer undertakes and covenants that on the Closing Date it
will pay to the Lead Underwriters on behalf of the Underwriters the
aggregate Selling Commission and aggregate Management and Underwriting
Commission calculated in accordance with this Clause 1.4.
1.5 Delivery and Payment
No later than 3:00 p.m. (London time) on the Closing Date, the Master
Issuer will (a) cause the Global Note Certificate for each of the US
Notes to be registered in the name of Cede & Co. as nominee for DTC for
credit on the Closing Date to the account of the Lead Underwriters with
DTC or to such other account with DTC as the Lead Underwriters may
direct; and (b) deliver the Global Note Certificate for each of the US
Notes duly executed on behalf of the Master Issuer and authenticated in
accordance with the Paying Agent and Agent Bank Agreement to Citibank
N.A., as custodian for DTC.
Against delivery of the US Notes (i) the Underwriters will pay to the
Lead Underwriters the gross underwriting proceeds for the US Notes and
(ii) the Lead Underwriters will pay to the Master Issuer or to a third
party, as directed by the Master Issuer, the gross underwriting
proceeds for the US Notes. Payment for the US Notes shall be made by
the Lead Underwriters in Dollars in immediately available funds to the
account of the Master Issuer, account number 00000000, or to such other
accounts as the Master Issuer may direct, and shall be evidenced by a
confirmation from the Lead Underwriters that they have so made that
payment to the Master Issuer.
1.6 The Legal Agreements
To the extent that each of the Master Issuer, Funding 2, the Mortgages
Trustee and NRPLC is a signatory to the Legal Agreements, each will on
or before the Closing Date, have entered into or enter into each of the
Legal Agreements to which it is a party, substantially in the form of
the draft reviewed by Xxxxx & Xxxxx LLP and Sidley Austin (any draft of
any document so reviewed being called an "agreed form"), with such
amendments as the Lead Underwriters, on behalf of the Underwriters, may
agree with the Master Issuer and, if it is a signatory, Funding 2, the
Mortgages Trustee and/or NRPLC.
1.7 The Notes
The Notes will be issued on the Closing Date in accordance with the
terms of the Supplemental Issuer Trust Deed and will be in, or
substantially in, the form set out therein.
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1.8 Prospectus
The Master Issuer confirms that it has prepared the Initial Preliminary
Prospectus, the Revised Preliminary Prospectus and the Prospectus for
use in connection with the issue of the US Notes and hereby authorizes
the Underwriters to distribute copies of the Prospectus in connection
with the offering and sale of the US Notes, copies of the Initial
Preliminary Prospectus and the Revised Preliminary Prospectus having
already been distributed with the consent of the Master Issuer.
1.9 Authority to Offer
The Master Issuer confirms that it has authorized the Lead Underwriters
to offer the US Notes on its behalf to the Underwriters for
subscription at the Issue Price subject to signature of this Agreement.
Subject to Clause 3.2(a), the Master Issuer acknowledges and agrees
that the Underwriters may offer and sell US Notes to or through any
affiliate of an Underwriter and that any such affiliate may offer and
sell US Notes purchased by it to or through any Underwriter.
2. STABILIZATION
2.1 Stabilization
(a) In connection with the issue of the US Notes, the Underwriter(s)
(if any) named as the stabilizing underwriter(s) (the
"Stabilizing Underwriter(s)") (or persons acting on behalf of
any Stabilizing Underwriter) in the Prospectus Supplement may
over-allot US Notes (provided that the aggregate principal
amount of US Notes allotted does not exceed 105 per cent. of the
aggregate principal amount of the US Notes) or effect
transactions with a view to supporting the market price of the
US Notes at a level higher than that which might otherwise
prevail. However, there is no assurance that the Stabilizing
Underwriter(s) (or persons acting on behalf of any Stabilizing
Underwriter) will undertake stabilization action. Any
stabilization action may begin on or after the date on which
adequate public disclosure of the terms of the offer of the US
Notes is made and, if begun, may be ended at any time, but it
must end no later than the earlier of 30 days after the issue
date of the US Notes and 60 days after the date of the allotment
of the US Notes.
(b) The Master Issuer confirms that it has not issued and will not
issue, without the prior consent of the Stabilizing
Underwriter(s) (if any) (such consent not to be unreasonably
withheld), any press or other public announcement referring to
the proposed issue of US Notes unless the announcement
adequately discloses that stabilizing action may take place in
relation to the US Notes to be issued.
(c) The Master Issuer authorises the Stabilizing Underwriter(s) to
make all appropriate announcements in relation to any
stabilization or ancillary stabilization action taken in respect
of the US Notes.
(d) In carrying on any stabilization activity, the Stabilizing
Underwriter(s) shall act as principal and not as agent of the
Master Issuer.
2.2 Stabilization Profits and Losses
As between the Master Issuer and the Stabilizing Underwriter any loss
resulting from stabilization transactions entered into by the
Stabilizing Underwriter pursuant to Clause 2.1
8
shall be borne, and any profit arising therefrom shall be retained, by
the Stabilizing Underwriter for its own account.
3. AGREEMENTS BY THE UNDERWRITERS
3.1 Default of Underwriters
(a) If any Underwriter shall default on its obligation to purchase
US Notes which it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange to
purchase, or for another party or other parties reasonably
satisfactory to NRPLC to purchase, such US Notes on the terms
contained herein. If within thirty-six hours after such default
by any Underwriter, the non-defaulting Underwriters do not
arrange for the purchase of such US Notes, then NRPLC shall be
entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the
non-defaulting Underwriters to purchase such US Notes on such
terms. In the event that, within the respective prescribed
periods, the Lead Underwriters on behalf of the non-defaulting
Underwriters notify NRPLC that the non-defaulting Underwriters
have so arranged for the purchase of such US Notes, or NRPLC
notifies the non-defaulting Underwriters that it has so arranged
for the purchase of such US Notes, the non-defaulting
Underwriters or NRPLC shall have the right to postpone the
Closing Date for a period of time agreed by the Lead
Underwriters and NRPLC acting reasonably, in order to effect
whatever changes may thereby be made necessary in any documents
or arrangements relating to the offering and sale of the US
Notes. Any substitute purchaser of US Notes pursuant to this
paragraph shall be deemed to be an Underwriter, for purposes of
this Agreement, in connection with the offering and sale of the
US Notes.
(b) If, after giving effect to any arrangements for the purchase of
US Notes of a defaulting Underwriter by the non-defaulting
Underwriters, as provided in Clause 3.1(a) above, the aggregate
principal amount of the US Notes which remains unpurchased does
not exceed ten per cent. of the aggregate principal amount of
the US Notes, NRPLC shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
the US Notes which such Underwriter agreed to purchase hereunder
and, in addition to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of
the US Notes which such Underwriter agreed to purchase
hereunder) of the principal amount of the US Notes of such
defaulting Underwriter for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the principal amount of the US Notes of a defaulting Underwriter
by the non-defaulting Underwriters as provided in Clause 3.1(a)
above, the aggregate principal amount of the US Notes which
remains unpurchased exceeds ten per cent. of the aggregate
principal amount of the US Notes, or if NRPLC shall not exercise
the right described in Clause 3.1(b) above to require
non-defaulting Underwriters to purchase the US Notes of a
defaulting Underwriter, then this Agreement shall thereupon
terminate, without liability on the part of the non-defaulting
Underwriters; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
9
3.2 Selling
Each Underwriter severally (and not jointly) agrees as follows:
(a) United States
It is understood that several Underwriters propose to offer the
US Notes for sale to the public in the United States as set
forth in the Time of Sale Information and the Prospectus. Any
Underwriters that are not U.S. registered broker dealers will
offer and sell the US Notes in the United States only through
U.S. registered broker dealers.
(b) United Kingdom
Each Underwriter represents and agrees that:
(i) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received
by it in connection with the issue or sale of any US
Notes in circumstances in which Section 21(1) of the FSMA
does not apply to the Master Issuer; and
(ii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by
it in relation to the US Notes in, from or otherwise
involving the United Kingdom.
(c) Italy
Each of the Underwriters represents and agrees that the offering
of the US Notes has not been cleared by CONSOB (the "Italian
Securities Exchange Commission") pursuant to Italian securities
legislation and, accordingly, each of the Underwriters
represents and agrees that no US Notes may be offered, sold or
delivered, nor may copies of the Prospectus or of any other
document relating to the US Notes be distributed in the Republic
of Italy, except:
(i) to professional investors ("operatori qualificati"), as
defined in Article 31, second paragraph, of CONSOB
Regulation No. 11522 of 1 July, 1998, as amended; or
(ii) in circumstances which are exempted from the rules on
solicitation of investments pursuant to Article 100 of
Legislative Decree No. 58 of 24 February, 1998 (the
"Financial Services Act") and Article 33, first
paragraph, of CONSOB Regulation No. 11971 of 14 May,
1999, as amended.
Each of the Underwriters represents and agrees that any offer,
sale or delivery of the US Notes or distribution of copies of
the Prospectus or any other document relating to the US Notes in
the Republic of Italy under (i) or (ii) above must be:
(a) made by an investment firm, bank or financial
intermediary permitted to conduct such activities in the
Republic of Italy in accordance with the Financial
Services Act and Legislative Decree No. 385 of 1
September, 1993, as amended from time to time (the
"Banking Act");
10
(b) in compliance with Article 129 of the Banking Act and the
implementing guidelines of the Bank of Italy, as amended
from time to time, pursuant to which the issue or the
offer of securities in the Republic of Italy may need to
be preceded and followed by an appropriate notice to be
filed with the Bank of Italy depending, inter alia, on
the aggregate value of the securities issued or offered
in the Republic of Italy and their characteristics; and
(c) in accordance with any other applicable laws and
regulations.
(d) Ireland
Each Underwriter represents and agrees that:
(i) it will not underwrite the issue of, or place, the US
Notes, otherwise than in conformity with the provisions
of the Irish Investment Intermediaries Act 1995 (as
amended), including, without limitation, Sections 9 and
23 thereof and any codes of conduct rules made under
Section 37 thereof and the provisions of the Investor
Compensation Xxx 0000;
(ii) it will not underwrite the issue of, or place, the US
Notes, otherwise than in conformity with the provisions
of the Irish Central Bank Acts 1942 - 1999 (as amended)
and any codes of conduct rules made under Section 117(1)
thereof;
(iii) it will not underwrite the issue of, or place, or do
anything in Ireland in respect of the US Notes otherwise
than in conformity with the provisions of the Irish
Prospectus (Directive 2003/71/EC) Regulations 2005 and
any rules issued under Section 51 of the Irish Investment
Funds, Companies and Miscellaneous Provisions Xxx 0000,
by the Irish Central Bank and Financial Services
Regulatory Authority ("IFSRA"); and
(iv) it will not underwrite the issue of, place or otherwise
act in Ireland in respect of the US Notes, otherwise than
in conformity with the provisions of the Irish Market
Abuse (Directive 2003/6/EC) Regulations 2005 and any
rules issued under Section 34 of the Irish Investment
Funds, Companies and Miscellaneous Provisions Xxx 0000 by
IFSRA.
(e) France
Each Underwriter represents and agrees that it has not
offered or sold and will not offer or sell, directly or
indirectly, US Notes to the public in France, and has not
distributed or caused to be distributed and will not
distribute or cause to be distributed to the public in
France, the Prospectus or any other offering material
relating to the US Notes, and that such offers, sales and
distributions have been made and will be made in France
only to (a) providers of investment services relating to
portfolio management for the account of third parties
and/or (b) qualified investors (investisseurs qualifies),
all as defined in, and in accordance with, articles
L.411-1, L.411-2 and D.411-1 of the French Code monetaire
et financier.
(f) The Netherlands
Each Underwriter represents and agrees that it has not
and will not, directly or indirectly, offer, sell,
transfer or deliver any US Notes as part of their initial
distribution or at any time thereafter (including rights
representing an interest in a
11
global note) to individuals or legal entities who or
which are established, domiciled or have their residence
in The Netherlands other than to the following entities
(hereinafter referred to as "Professional Market
Parties") provided they acquire the US Notes for their
own account and trade or invest in securities in the
conduct of a business or profession:
(i) anyone who is subject to supervision of the Dutch
Central Bank, the Dutch Authority for the
Financial Markets or a supervisory authority from
another member state and who is authorised to be
active on the financial markets;
(ii) anyone who otherwise performs a regulated activity
on the financial markets;
(iii) the State of the Netherlands, the Dutch Central
Bank, a foreign central government body, a foreign
central bank, Dutch regional and local governments
and comparable foreign decentralised government
bodies, international treaty organisations and
supranational organisations;
(iv) a company or entity which, according to its last
annual (consolidated) accounts, meets at least two
of the following three criteria: an average number
of employees during the financial year of at least
250, a total balance sheet of at least
EUR43,000,000 and an annual net turnover of at
least EUR50,000,000;
(v) a company or entity with its statutory seat in the
Netherlands other than a company as referred to in
(iv) above, which has requested the Dutch
Authority for the Financial Markets to be treated
as a Professional Market Party;
(vi) a natural person, living in the Netherlands, who
has requested the Dutch Authority for the
Financial Markets to be treated as a Professional
Market Party, and who meets at least two of the
following three criteria: the person has carried
out transactions of a significant size on
securities markets at an average frequency of, at
least, ten per quarter over the previous four
quarters; the size of the securities portfolio is
at least EUR500,000 and the person works or has
worked for at least one year in the financial
sector in a professional position which requires
knowledge of securities investment;
(vii) a company or entity whose only purpose is
investing in securities;
(viii) a company or entity whose purpose is to acquire
assets and issue asset backed securities;
(ix) an enterprises or entity with total assets of at
least EUR500,000,000 (or the equivalent thereof in
another currency) as per the balance sheet as of
the year end preceding the obtaining of the
repayable funds;
(x) an enterprise, entity or individual with net
assets of at least EUR10,000,000 (or the
equivalent thereof in another currency) as of the
year end preceding the obtaining of the repayable
funds who has been active in the financial markets
on average twice a month over a period of at least
two consecutive years preceding the obtaining of
the repayable funds;
12
(xi) a subsidiary of any of the persons or entities
referred to under (i)-(viii) above, provided such
subsidiaries are subject to consolidated
supervision; and
(xii) an enterprise or entity which has a rating from a
rating agency that, in the opinion of the Dutch
Central Bank, has sufficient expertise, or which
issues securities that have a rating from a rating
agency that, in the opinion of the Dutch Central
Bank, has sufficient expertise.
(g) Germany
Each Underwriter represents and agrees that:
(i) the US Notes have not been and will not be offered
or sold or publicly promoted or advertised by it
in the Federal Republic of Germany other than in
compliance with the provisions of the German
Securities Prospectus Act
(Wertpapierprospektgesetz) June 22, 2005, or of
any other laws applicable in the Federal Republic
of Germany governing the offer and sale of
securities; and
(ii) it shall not offer or sell US Notes in the Federal
Republic of German in a manner which could result
in the Master Issuer being subject to any license
requirement under the Germany Banking Act
(Kreditwesengesetz).
(h) Sweden
Each Underwriter represents and agrees that it will not,
directly or indirectly, offer for subscription or
purchase or issue invitations to subscribe for or buy US
Notes or distribute any draft or definite document in
relation to any such offer, invitation or sale except in
circumstances that will not result in a requirement to
prepare a prospectus pursuant to the provisions of the
Swedish Financial Instruments Trading Act (lag (1991:980)
xx xxxxxx med finansiella instrument).
(i) Norway
Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not,
directly or indirectly, offer or sell in the Kingdom of
Norway any US Notes other than to persons who are
registered with the Oslo Stock Exchange as professional
investors.
(j) Belgium
Each Underwriter represents and agrees that it will not:
(i) offer for sale, sell or market in Belgium US Notes
by means of a public offer within the meaning of
the law of June 16, 2006 on the public offer of
investment instruments and the admission to
trading of investment instruments on a regulated
market; or
(ii) sell US Notes to any person qualifying as a
consumer within the meaning of Article 1.7 of the
Belgian law of July 14, 1991 on consumer
protection and trade practices unless such sale is
made in compliance with this law and its
implementing regulation.
13
(k) Spain
Each Underwriter represents and agrees that it will not offer or
sell US Notes in Spain by means of a public offer as defined and
construed in Chapter I of Title III of Law 24/1988, of 28 July,
on the Securities Act (as amended by Royal Decree Law 5/2005 of
11 March and related legislation). The Prospectus has not been
registered with the Comision Nacional del Xxxxxxx de Valores and
therefore it is not intended for any public offer of US Notes in
Spain.
(l) Japan
Each Underwriter acknowledges that the US Notes have not been
and will not be registered under the Securities and Exchange Law
of Japan and each Underwriter agrees that, except pursuant to an
exemption from the registration requirements of, or otherwise in
compliance with, the Securities and Exchange Law of Japan and
any other applicable laws, regulations and ministerial
guidelines of Japan, it will not, directly or indirectly, offer
or sell any US Notes in Japan or to, or for the benefit of, any
resident of Japan (which term as used in this paragraph means
any person resident in Japan, including any corporation or other
legal entity organized under the laws of Japan) or to any person
or entity for re-offering or resale, directly or indirectly, in
Japan or to, or for the benefit of, a resident of Japan.
(m) Republic of Korea
Each Underwriter represents and agrees that the US Notes have
not been and will not be offered, delivered or sold directly or
indirectly in Korea or to any resident of Korea or to others for
re-offering or resale directly or indirectly in Korea or to any
resident of Korea except as otherwise permitted under applicable
Korean laws and regulations. Each Underwriter has undertaken to
ensure that any securities dealer to which it sells US Notes
confirms that it is purchasing such US Note as principal and
agrees with such Underwriter that it will comply with the
restrictions set out in this paragraph (m).
(n) Hong Kong
Each Underwriter represents and agrees that:
(i) it has not offered or sold, and will not offer or sell,
in Hong Kong, by means of any document, any US Notes
other than (i) to persons whose ordinary business is to
buy or sell shares or debentures (whether as principal or
agent), or (ii) to "professional investors" within the
meaning of the Securities and Futures Ordinance (Cap.571,
Laws of Hong Kong) and any rules made thereunder, or
(iii) in other circumstances which do not result in the
document being a "prospectus" within the meaning of the
Companies Ordinance (Cap.32, Laws of Hong Kong) or which
do not constitute an offer to the public thereunder; and
(ii) it has not issued, or had in its possession for the
purpose of issue (in each case whether in Hong Kong or
elsewhere), any advertisement, invitation or document
relating to the US Notes which is directed at, or the
contents of which are likely to be accessed or read by,
the public in Hong Kong (except if permitted to do so
under the laws of Hong Kong) other than with respect to
the US Notes which are or are intended to be disposed of
only to persons
14
outside Hong Kong or only to "professional investors"
within the meaning of the Securities and Futures
Ordinance (Cap.571, Laws of Hong Kong) and any rules made
thereunder.
(o) Singapore
The Prospectus has not been registered as a prospectus with the
Monetary Authority of Singapore under the Securities and Futures
Act, Chapter 289 of Singapore (the "Securities and Futures
Act"). Accordingly, each Underwriter represents and agrees that
the US Notes may not be offered or sold or made the subject of
an invitation for subscription or purchase nor may the
Prospectus or any other document or material in connection with
the offer or sale or invitation for subscription or purchase of
any US Notes be circulated or distributed, whether directly or
indirectly, to any person in Singapore other than (i) to an
institutional investor pursuant to Section 274 of the Securities
and Futures Act, (ii) to a relevant person, or any person
pursuant to Section 275(1A) of the Securities and Futures Act,
and in accordance with the conditions specified in Section 275
of the Securities and Futures Act, or (iii) pursuant to, and in
accordance with the conditions of, any other applicable
provision of the Securities and Futures Act.
(p) Taiwan
Each Underwriter represents and agrees that the US Notes have
not been and will not be registered with the Financial
Supervisory Commission of Taiwan, the Republic of China pursuant
to relevant securities laws and regulations and may not be
offered or sold in Taiwan, the Republic of China through a
public offering or in circumstances which constitute an offer
within the meaning of the Securities and Exchange Law of Taiwan,
the Republic of China that requires a registration or approval
of the Financial Supervisory Commission of Taiwan, the Republic
of China. Each Underwriter agrees that no person or entity in
Taiwan, the Republic of China has been authorized to offer or
sell US Notes in Taiwan, the Republic of China.
(q) People's Republic of China
Each Underwriter represents and agrees that neither it nor any
of its affiliates has offered or sold or will offer or sell any
of the US Notes in the People's Republic of China (excluding
Hong Kong, Macau and Taiwan) as part of the initial distribution
of the US Notes.
(r) Other
For each jurisdiction outside the United States and the United
Kingdom (a "Relevant Jurisdiction"), neither the Master Issuer
nor any Underwriter represents that US Notes may at any time
lawfully be sold in compliance with any application,
registration or other requirement in any Relevant Jurisdiction
by the Master Issuer or any Underwriter (other than as described
above), or pursuant to any exemption available thereunder, or
assume any responsibility for facilitating such sale.
Each Underwriter represents and agrees that it has complied and
will comply with all applicable securities laws and regulations
in force in any Relevant Jurisdiction in which it purchases,
offers, sells or delivers US Notes or has in its possession or
distributes the Prospectus or any other offering material, in
all cases at its own expense, and it will obtain any consent,
approval or permission required by it for the
15
purchase, offer, sale or delivery by it of US Notes under the
laws and regulations in force in any Relevant Jurisdiction to
which it is subject or in which it makes such purchases, offers,
sales or deliveries and the Master Issuer shall have not
responsibility for them, in all cases at its own expense. Each
Underwriter represents and agrees that it has not and will not
directly or indirectly offer, sell or deliver any US Notes or
distribute or publish any prospectus, form of application,
offering circular, advertisement or other offering material
except under circumstances that will, to the best of its
knowledge and belief, result in compliance with any applicable
laws and regulations, and all offers, sales and deliveries of US
Notes by it will be made on the same terms.
Each Underwriter agrees that it will, unless prohibited by
applicable law, furnish to each person to whom it offers or
sells US Notes a copy of the Prospectus, as then amended or
supplemented or, unless delivery of the Prospectus is required
by applicable law, inform each such person that a copy will be
made available upon request. Each Underwriter is not authorized
to give any information or to make any representation not
contained in the Prospectus in connection with the offer and
sale of US Notes to which the Prospectus relates.
4. LISTING
4.1 Application for Listing
The Master Issuer confirms that it has authorized the Lead Underwriters
to make or cause to be made at the Master Issuer's expense applications
on the Master Issuer's behalf for the Notes to be listed on the
Official List and for the Notes to be admitted to trading on the London
Stock Exchange plc's Gilt Edged and Fixed Interest Market or such other
Market of the London Stock Exchange plc as shall be designated as a
"regulated market" within the meaning of Directive 93/22/EC (the
"Market").
4.2 Supply of Information
The Master Issuer agrees to supply to the Lead Underwriters for
delivery to the UK Listing Authority and the London Stock Exchange
copies of the Prospectus and such other documents, information and
undertakings as may be required for the purpose of obtaining such
listing and admission to trading.
4.3 Maintenance of Listing
The Master Issuer agrees to use its reasonable endeavors to maintain a
listing of the US Notes on the Official List and the admission of the
Notes to trading on the Market for as long as any of the US Notes are
outstanding and to pay all fees and supply all further documents,
information and undertakings and publish all advertisements or other
material as may be necessary for such purpose. However, if such listing
or admission to trading becomes impossible, the Master Issuer will
obtain, and will thereafter use its best endeavors to maintain, a
quotation for, or listing of, the US Notes on or by such other stock
exchange, competent listing authority and/or quotation system as is
commonly used for the quotation or listing of debt securities as it may
decide with the approval of the Lead Underwriters (such approval not to
be unreasonably withheld or delayed).
16
5. REPRESENTATIONS AND WARRANTIES OF THE MASTER ISSUER
The Master Issuer represents and warrants to, and agrees with, Funding
2, the Mortgages Trustee, the Underwriters and each of them that:
(a) The Registration Statement
A registration statement on Form S-3 (File No.s 333-133279,
000-000000-00 and 333-133279-01) relating to the US Notes has been
filed by the Master Issuer (together with Funding 2 and the Mortgages
Trustee) with the United States Securities and Exchange Commission
("Commission") and has become effective and is still effective as of
the date hereof under the Securities Act. No stop order suspending the
effectiveness of the Registration Statement has been issued under the
Securities Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Master Issuer, are
threatened by the Commission.
The Master Issuer (together with Funding 2 and the Mortgages Trustee)
has filed with the Commission the Initial Preliminary Prospectus and
the Revised Preliminary Prospectus and, in each case, it has done so
within the applicable period of time required under the Securities Act
and the rules and regulations of the Commission under the Securities
Act (the "Rules and Regulations"). The Master Issuer (together with
Funding 2 and the Mortgages Trustee) will file with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, promptly upon or
after the execution and delivery of this Agreement, a prospectus
supplement dated November 24, 2006 (together with information referred
to under the caption "Static Pool Data" in Annex D therein regardless
of whether it is deemed a part of the Registration Statement or
Prospectus, the "Prospectus Supplement") to the prospectus dated
September 12, 2006 (the "Base Prospectus"), relating to the US Notes
and the method of distribution thereof. Such registration statement,
including exhibits thereto, and such prospectus, as amended or
supplemented to the date hereof, and as further supplemented by the
Prospectus Supplement, are hereinafter referred to as the "Registration
Statement" and the "Prospectus", respectively. Any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Base Prospectus or the Prospectus
Supplement shall include, without limitation, any document filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Base Prospectus and the Prospectus Supplement, as the case may be,
deemed to be incorporated therein pursuant to the Securities Act.
The conditions to the use of a registration statement on Form S-3 under
the Securities Act have been satisfied. The Registration Statement, at
the time it became effective, any post-effective amendment thereto, at
the time it became effective, the Initial Preliminary Prospectus, as of
its date, the Revised Preliminary Prospectus, as of its date, and the
Prospectus, as of the date of the Prospectus Supplement, complied and
on the Closing Date will comply in all material respects with the
applicable requirements of the Securities Act and the Rules and
Regulations and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder.
(b) No Material Misstatements or Omissions
(I) The Registration Statement, as of the applicable effective
date as to each part of the Registration Statement and any
amendment thereto pursuant to Rule 430B(f)(2) under the
Securities Act, did not include any untrue statement of a
material fact and
17
did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that the Master Issuer makes no
representations, warranties or agreements as to: (i) that part
of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Note Trustee
under the Trust Indenture Act, and (ii) statements or omissions
in the Registration Statement made in reliance upon and in
conformity with information furnished in writing to the Master
Issuer by or on behalf of any Underwriter through the Lead
Underwriters specifically for inclusion therein, it being agreed
that the only such information consists of the statements under
the heading "Underwriting" in each of the Initial Preliminary
Prospectus, the Revised Preliminary Prospectus and the
Prospectus that specify (A) the list of Underwriters and their
respective participation in the sale of the US Notes, (B) the
sentences related to concessions and reallowances and (C) the
paragraphs related to short sales, stabilization, short covering
transactions and penalty bids (such information, the
"Underwriter Information");
(II) the Initial Preliminary Prospectus (except for the omission
of any pricing related information and any information relating
to an Issuer Swap Provider), as of its date and as of the Time
of Sale, did not contain an untrue statement of a material fact
and did not omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that the Master Issuer makes no representations, warranties or
agreements as to statements or omissions in the Initial
Preliminary Prospectus made in reliance upon and in conformity
with the Underwriter Information;
(III) the Revised Preliminary Prospectus (except for the
omission of any pricing related information), as of its date and
as of the Time of Sale, did not contain an untrue statement of a
material fact and did not omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the Master Issuer makes no
representations, warranties or agreements as to statements or
omissions in the Revised Preliminary Prospectus made in reliance
upon and in conformity with the Underwriter Information;
(IV) the information and statements contained in the Investor
Presentation, as of November 13, 2006 and as of the Time of
Sale, did not contain an untrue statement of a material fact and
did not omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(V) the Master Issuer was not, as of any date on or after which
a bona fide offer (as used in Rule 164(h)(2) under the
Securities Act) of the US Notes was made, an "ineligible
issuer", as defined in Rule 405 under the Securities Act;
(VI) the Prospectus, as of the date of the Prospectus Supplement
and as of the Closing Date, did not and will not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the Master Issuer makes no
representations, warranties or agreements as to statements or
omissions in the Prospectus (or any amendment or supplement
thereto) made in reliance upon and in conformity with the
Underwriter Information; and
18
(VII) the documents incorporated by reference in the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus and
the Prospectus, when they were filed with the Commission under
the Exchange Act, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated
by reference in the Prospectus, when such documents are filed
with the Commission, will conform in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; provided, however, that the Master Issuer makes no
representations, warranties or agreements as to the documents
incorporated by reference under the heading "The issuer swap
provider" in the Revised Preliminary Prospectus and the
Prospectus.
(c) Incorporation, Capacity and Authorization
The Master Issuer is a public limited company duly incorporated
and validly existing under the laws of England and Wales, with
full power and capacity to conduct its business as described in
the Prospectus, to create and issue the Notes, to execute this
Agreement and the other Legal Agreements to which it is a party
and to undertake and perform the obligations expressed to be
assumed by it herein and therein; and has taken all necessary
action to approve and authorize the same; and the Master Issuer
is lawfully qualified to do business in England and Wales. The
Master Issuer has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been
taken or legal proceedings been started or threatened against it
for its winding-up, dissolution or reorganization or for the
appointment of a receiver, administrator, administrative
receiver or similar officer of it or of any or all of its assets
or revenues.
(d) Validity of Legal Agreements
This Agreement has been duly authorized, executed and delivered
by the Master Issuer and constitutes, and the other Legal
Agreements to which the Master Issuer is a party have been duly
authorized by the Master Issuer and on the Closing Date will
constitute, legal, valid and binding obligations of the Master
Issuer, enforceable against the Master Issuer in accordance with
their respective terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors rights generally and to
general equitable principles.
(e) Validity of Notes
The creation, sale and issue of the Notes have been duly
authorized by the Master Issuer and, when executed and
authenticated in accordance with the Supplemental Issuer Trust
Deed and the Issuer Paying Agent and Agent Bank Agreement, the
Notes will constitute legal, valid and binding obligations of
the Master Issuer and, upon effectiveness of the Registration
Statement, the Supplemental Issuer Trust Deed will have been
duly qualified under the Trust Indenture Act.
(f) Consents
All consents, approvals, authorizations and other orders of all
United States and United Kingdom regulatory authorities required
for the creation, issue and offering of the Notes by the Master
Issuer or in connection with the execution and performance
19
by the Master Issuer of the transactions contemplated by the
Legal Agreements or the compliance by the Master Issuer with the
terms of the Notes and the Legal Agreements as the case may be,
except for (i) such consents, approvals, authorizations,
registrations or qualifications as may be required under
applicable United States state securities, Blue Sky or similar
laws in connection with the purchase and distribution of the
Notes by the Underwriters and (ii) those which will on the
Closing Date be, in full force and effect.
(g) Compliance
The authorization of the Notes and the granting of security
interests in relation thereto under the Issuer Deed of Charge
(as amended by the Deed of Accession), the offering and issue of
the Notes on the terms and conditions of this Agreement, the
Supplemental Issuer Trust Deed and the Prospectus, the execution
and delivery of the Legal Agreements to which it is a party and
the implementation of the transactions contemplated by such
Legal Agreements and compliance with the terms of the Legal
Agreements to which it is a party do not, and will not, (i)
conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, the Memorandum and
Articles of Association of the Master Issuer or any agreement or
instrument to which the Master Issuer is a party or by which any
of its assets or properties is bound; (ii) infringe any
applicable law, rule, regulation, judgment, order or decree of
any government, governmental body or court having jurisdiction
over the Master Issuer or any of its assets or properties; or
(iii) result in the creation or imposition of any mortgage,
charge, pledge, lien or other security interest on any of its
assets or properties, other than those created in, or imposed
by, the Legal Agreements themselves.
(h) Accountants
PricewaterhouseCoopers LLP are a registered public accounting
firm and independent with respect to the Master Issuer within
the meaning of the Securities Act.
(i) Taxation
Save as described in the legal opinions referred to in Clause
9.1(d) of this Agreement, no stamp or other similar duty is
assessable or payable in the United Kingdom, and no withholding
or deduction for or on account of any taxes, duties, assessments
or governmental charges of whatever nature is imposed or made
for or on account of any income, registration, transfer or
turnover taxes, customs or other duties or taxes of any kind in
connection with the authorization, execution or delivery of the
Legal Agreements or with the authorization, issue, sale or
delivery of the Notes and (except as disclosed in the
Prospectus) the performance of the Master Issuer's, Funding 2's
and/or, as the case may be, the Mortgages Trustee's obligations
under the Legal Agreements and the Notes. This warranty does not
apply to any United Kingdom corporation tax on net income,
profits or gains received or receivable which may be levied,
collected, withheld or assessed in connection with the
authorization, execution or delivery of the Legal Agreements or
with the authorization, issue, sale or delivery of the Notes.
20
(j) Breach of other agreements
The Master Issuer is not in breach of or in default under any
agreement to which it is a party or which is binding on it or
any of its assets or revenues.
(k) Events of Default
No event has occurred or circumstance arisen which, had the
Notes already been issued, would (whether or not with the giving
of notice and/or the passage of time and/or the fulfillment of
any other requirement) constitute an Event of Default as set out
in the Conditions of the Notes.
(l) No Subsidiaries
The Master Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies Xxx
0000.
(m) Granite Finance Holdings Limited
The Funding Issuers, the Master Issuer, Funding, Funding 2, the
Mortgages Trustee and GPCH Limited are the only subsidiaries or
subsidiary undertakings of Granite Finance Holdings Limited
within the meanings of Sections 258 and 736 of the Companies Xxx
0000.
(n) No Activities
The Master Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any
registration or re-registration as a public limited company
under the Companies Acts 1985 and 1989 and various changes to
its directors, secretary, registered office, Memorandum and
Articles of Association; (ii) the authorization and execution of
the Legal Agreements to which it is a party; (iii) the
activities referred to or contemplated in the Legal Agreements
to which it is a party and (iv) the authorization and issue by
it of the Notes. The Master Issuer has not prepared any accounts
and has neither paid any dividends nor made any distributions
since the date of its incorporation.
(o) Prospectus Rules
The Reg S Prospectus has been (i) approved by the UK Listing
Authority as an approved prospectus for the purposes of Section
85(2) of the FSMA and the Prospectus Rules; and (ii) published
in accordance with the Prospectus Rules.
(p) Litigation
There are no pending actions, suits or proceedings against or
affecting the Master Issuer which could individually or in the
aggregate have an adverse effect on the condition (financial or
other), prospects, results of operations or general affairs of
the Master Issuer or could adversely affect the ability of the
Master Issuer to perform its obligations under the Legal
Agreements or the Notes or which are otherwise material in the
context of the issue or offering of the Notes and, to the best
of the Master Issuer's knowledge, no such actions, suits or
proceedings are threatened or contemplated.
21
(q) No Prior Security
Save as set out in any of the Legal Agreements, there exists no
mortgage, lien, pledge or other charge on or over the assets of
the Master Issuer and, other than the Legal Agreements, the
Master Issuer has not entered into any indenture or trust deed.
(r) Security for the Notes
The Notes and the obligations of the Master Issuer under the
Supplemental Issuer Trust Deed will be secured in the manner
provided in the Issuer Deed of Charge (as amended by the Issuer
Deed of Accession) and with the benefit of the charges,
covenants and other security interests provided for therein
including, without limitation, (i) an assignment by way of first
fixed security of the Master Issuer's rights and claims in
respect of all security and other rights held on trust by the
Funding 2 Security Trustee pursuant to the Funding 2 Deed of
Charge, (ii) an assignment by way of first fixed security of the
Master Issuer's right, title, interest and benefit in the Global
Intercompany Loan Agreement, the Currency Swap Agreements, the
Funding 2 Deed of Charge, the Supplemental Issuer Trust Deed,
the Notes, the Issuer Paying Agent and Agent Bank Agreement, the
Issuer Cash Management Agreement, the Corporate Services
Agreement, the Issuer Bank Account Agreement, the
Post-Enforcement Call Option Agreement, this Agreement, the
Programme Agreement, the Subscription Agreement and any other
agreements to which the Master Issuer is a party; (iii) an
assignment by way of first fixed charge over the Issuer Bank
Accounts; (iv) a first fixed charge (which may take effect as a
floating charge) over the Master Issuer's right, title, interest
and benefit to any Authorized Investments made with moneys
standing to the credit of any of the Issuer Bank Accounts; and
(v) a first ranking floating charge over the whole of the assets
and undertaking of the Master Issuer which are not otherwise
effectively subject to any fixed charge or assignment by way of
security.
(s) Investment Company Act
The Master Issuer is not an "investment company" as defined in
the U.S. Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the offer and sale of the US
Notes in the United States will not subject the Master Issuer to
registration under, or result in a violation of, the Investment
Company Act.
(t) United States Income Tax
The Master Issuer will not engage in any activities in the
United States (directly or through agents), derive any income
from United States sources as determined under the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), or hold any
property if doing so would cause it to be engaged or deemed to
be engaged in a trade or business within the United States as
determined under the Code.
(u) Legal Agreements
The representations and warranties given by the Master Issuer in
the Legal Agreements are true and accurate, and the description
of the Legal Agreements as set out in the Prospectus is true and
correct in all material respects.
Unless otherwise indicated, the representations and warranties set out
in this Clause 5 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
22
6. REPRESENTATIONS AND WARRANTIES OF FUNDING 2 AND THE MORTGAGES TRUSTEE
Each of Funding 2 and the Mortgages Trustee (except where otherwise
provided below) severally represents and warrants (in respect of itself
only) to, and agrees with, the Underwriters and each of them that:
(a) The Registration Statement
The Registration Statement has been filed by Funding 2 and the
Mortgages Trustee (together with the Master Issuer) with the
Commission and has become effective and is still effective as of
the date hereof under the Securities Act. No stop order
suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge
of Funding 2 and the Mortgages Trustee, are threatened by the
Commission.
Funding 2 and the Mortgages Trustee (together with the Master
Issuer) have filed with the Commission the Initial Preliminary
Prospectus and the Revised Preliminary Prospectus and, in each
case, they have done so within the applicable period of time
required under the Securities Act and the Rules and Regulations.
Funding 2 and the Mortgages Trustee (together with the Master
Issuer) will file with the Commission the Prospectus pursuant to
Rule 424(b) of the Rules and Regulations, promptly upon or after
the execution and delivery of this Agreement.
The conditions to the use of a registration statement on Form
S-3 under the Securities Act have been satisfied. The
Registration Statement, at the time it became effective, any
post-effective amendment thereto, at the time it became
effective, the Initial Preliminary Prospectus, as of its date,
and the Revised Preliminary Prospectus, as of its date, and the
Prospectus, as of the date of the Prospectus Supplement,
complied and on the Closing Date will comply in all material
respects with the applicable requirements of the Act and the
Rules and Regulations and the Trust Indenture Act and the rules
and regulations of the Commission thereunder.
(b) No Material Misstatements or Omissions
(I) The Registration Statement, as of the applicable effective
date as to each part of the Registration Statement and any
amendment thereto pursuant to Rule 430B(f)(2) under the Act, did
not include any untrue statement of a material fact and did not
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that neither Funding 2 nor the Mortgages
Trustee makes any representations, warranties or agreements as
to: (i) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Note Trustee under the Trust Indenture Act, and (ii)
statements or omissions in the Registration Statement made in
reliance upon and in conformity with the Underwriter
Information;
(II) the Initial Preliminary Prospectus (except for the omission
of any pricing related information and any information relating
to an Issuer Swap Provider), as of its date and as of the Time
of Sale, did not contain an untrue statement of a material fact
and did not omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that neither Funding 2 nor the Mortgages Trustee
23
makes any representations, warranties or agreements as to
statements or omissions in the Initial Preliminary Prospectus
made in reliance upon and in conformity with the Underwriter
Information;
(III) the Revised Preliminary Prospectus (except for the
omission of any pricing related information), as of its date and
as of the Time of Sale, did not contain an untrue statement of a
material fact and did not omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that neither Funding 2 nor the Mortgages
Trustee makes any representations, warranties or agreements as
to statements or omissions in the Revised Preliminary Prospectus
made in reliance upon and in conformity with the Underwriter
Information;
(IV) in the case of Funding 2 only, the information and
statements contained in the Investor Presentation, as of
November 13, 2006 and as of the Time of Sale, did not contain an
untrue statement of a material fact and did not omit to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made,
not misleading;
(V) the Prospectus, as of the date of the Prospectus Supplement
and as of the Closing Date, did not and will not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that neither Funding 2 nor the
Mortgages Trustee makes any representations, warranties or
agreements as to statements or omissions in the Prospectus (or
any amendment or supplement thereto) made in reliance upon and
in conformity with the Underwriter Information; and
(VI) the documents incorporated by reference in the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus and
the Prospectus, when they were filed with the Commission under
the Exchange Act, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated
by reference in the Prospectus, when such documents are filed
with the Commission, will conform in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; provided, however, that neither Funding 2 nor the
Mortgages Trustee makes any representation, warranty or
agreement as to the documents incorporated by reference under
the heading "The issuer swap provider" in the Revised
Preliminary Prospectus and the Prospectus.
(c) Incorporation, Capacity and Authorization
(I) Funding 2 is a private limited company duly incorporated and
validly existing under the laws of England and Wales, with full
power and capacity to conduct its business as described in the
Prospectus, to execute this Agreement and the other Legal
Agreements to which it is a party and to undertake and perform
the obligations expressed to be assumed by it herein and
therein; and has taken all necessary action to approve and
authorize the same; and Funding 2 is lawfully qualified to do
business in England and Wales. Funding 2 has not taken any
corporate action nor (to the best of its knowledge and belief)
have any other steps been taken or legal proceedings been
started or threatened against it for its winding-up, dissolution
or reorganization or for
24
the appointment of a receiver, administrator, administrative
receiver or similar officer of it or of any or all of its assets
or revenues; and
(II) The Mortgages Trustee is duly incorporated and validly
existing under the laws of Jersey, Channel Islands, with full
power and authority to conduct its business as described in the
Prospectus, is lawfully qualified to do business in Jersey and
has full power and capacity to execute this Agreement and the
other Legal Agreements to which it is a party, and to undertake
and perform the obligations expressed to be assumed by it herein
and therein; and it has taken all necessary action to approve
and authorize the same. The Mortgages Trustee has not taken any
corporate action nor (to the best of its knowledge and belief)
have any other steps been taken or legal proceedings been
started or threatened against it for its winding-up, dissolution
or reorganization or for the appointment of a receiver,
administrator, administrative receiver or similar officer of it
or of any or all of its assets or revenues.
(d) Validity of Legal Agreements
This Agreement has been duly authorized, executed and delivered
by each of Funding 2 and the Mortgages Trustee and constitutes,
and the other Legal Agreements to which Funding 2 and the
Mortgages Trustee are a party have been duly authorized by each
of Funding 2 and the Mortgages Trustee and on the Closing Date
will constitute, legal, valid and binding obligations of each of
Funding 2 and the Mortgages Trustee, enforceable against each of
Funding 2 and the Mortgages Trustee in accordance with their
respective terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the
enforcement of creditors rights generally and to general
equitable principles.
(e) Consents
All consents, approvals, authorizations and other orders of all
United States, Jersey, Channel Islands and United Kingdom
regulatory authorities required in connection with the execution
of and performance by Funding 2 and/or the Mortgages Trustee of
the transactions contemplated by the Legal Agreements to which
Funding 2 and/or the Mortgages Trustee, as the case may be, is a
party or the compliance by each of them with the terms of the
Legal Agreements are, or will on the Closing Date be, in full
force and effect.
(f) Compliance
The authorization of the terms and conditions of this Agreement,
the execution and delivery of the Legal Agreements to which
Funding 2 and/or, as the case may be, the Mortgages Trustee is
party and the implementation of the transactions contemplated by
such Legal Agreements and compliance with the terms of the Legal
Agreements do not, and will not, (i) conflict with, or result in
a breach of, any of the terms or provisions of, or constitute a
default under, the Memorandum and Articles of Association of
Funding 2 or the Mortgages Trustee or any agreement or
instrument to which Funding 2 or the Mortgages Trustee is a
party or by which any of its assets or properties is bound; (ii)
infringe any applicable law, rule, regulation, judgment, order
or decree of any government, governmental body or court having
jurisdiction over either Funding 2 or the Mortgages Trustee or
any of its assets or properties; or (iii) result in the creation
or imposition of any mortgage, charge, pledge, lien or other
25
security interest on any of its or their assets or properties,
other than those created in, or imposed by, the Legal Agreements
themselves.
(g) Breach of other agreements
Neither Funding 2 nor the Mortgages Trustee is in breach of or
in default under any agreement to which it is a party or which
is binding on it or any of its assets or revenues.
(h) Events of Default
No event has occurred or circumstance arisen which, had the
Global Intercompany Loan Agreement been entered into, would
(whether or not with the giving of notice and/or the passage of
time and/or the fulfillment of any other requirement) constitute
a Funding 2 Intercompany Loan Event of Default as set out in the
Global Intercompany Loan Agreement.
(i) No Subsidiaries
The Mortgages Trustee does not have any subsidiaries or
subsidiary undertakings within the meanings of Sections 258 and
736 of the Companies Xxx 0000. Funding 2 does not have any
subsidiaries or subsidiary undertakings within the meanings of
Sections 258 and 736 of the Companies Xxx 0000 save for the
Master Issuer.
(j) No Activities
(I) Funding 2 has not engaged in any activities since its
incorporation other than (i) those incidental to any
registration or re-registration as a private limited company
under the Companies Acts 1985 and 1989 and various changes to
its directors, secretary, registered office, Memorandum and
Articles of Association; (ii) the authorization, execution and
in certain cases, amendment, of the Legal Agreements to which
each is a party; (iii) the activities referred to or
contemplated in the Legal Agreements; and (iv) the filing of a
notification by it under the Data Protection Act 1998 (the
"DPA") and the application for a standard license under the
Consumer Credit Xxx 0000. Funding 2 has not prepared any
accounts and has neither paid any dividends nor made any
distributions since the date of its incorporation; and
(II) The Mortgages Trustee has not engaged in any activities
since its incorporation other than (i) those incidental to any
registration as a private limited company under the laws of
Jersey and (if any) various changes to its directors, secretary,
registered office, Memorandum and Articles of Association; (ii)
the authorization, execution and in certain cases, amendment, of
the Legal Agreements to which each is a party; (iii) the
activities referred to or contemplated in the Legal Agreements
or in the Prospectus; (iv) the activities undertaken in
connection with the establishment of the Mortgages Trust
pursuant to the Mortgages Trust Deed; (v) the filing of a
notification by the Mortgages Trustee under the DPA and the
application for a standard license under the Consumer Credit Xxx
0000; and (vi) any activities in connection with or incidental
to the issue of notes by the Funding Issuers and the issue of
the Notes by the Master Issuer. The Mortgages Trustee has not
prepared any accounts and has neither paid any dividends nor
made any distributions since the date of its incorporation.
26
(k) Beneficial Owner
Following the completion of the assignment of the New Mortgage
Portfolios to the Mortgages Trustee on October 30, 2006 and
November 20, 2006, respectively, pursuant to and in accordance
with the Mortgage Sale Agreement and pursuant to and in
accordance with the terms of the Mortgages Trust Deed, the
Mortgages Trustee has held the New Mortgage Portfolios, and has
held and will continue to hold, the Mortgage Portfolio on a bare
trust for the benefit of Funding, Funding 2 and NRPLC in
undivided shares absolutely.
(l) Litigation
There are no pending actions, suits or proceedings against or
affecting Funding 2 or the Mortgages Trustee which could
individually or in the aggregate have an adverse effect on the
condition (financial or otherwise), prospects, results of
operations or general affairs of the Mortgages Trustee or
Funding 2 (as the case may be) or could adversely affect the
ability of the Mortgages Trustee or Funding 2 (as the case may
be) to perform their respective obligations under the Legal
Agreements, or which are otherwise material in the context of
the transaction contemplated by the Prospectus and, to the best
of the knowledge of Funding 2 and the Mortgages Trustee, no such
actions, suits or proceedings are threatened or contemplated.
(m) No Prior Security
Save as set out in any of the Legal Agreements there exists no
mortgage, lien, pledge or other charge on or over the assets of
Funding 2 or the Mortgages Trustee and, other than the Legal
Agreements, neither Funding 2 nor the Mortgages Trustee has
entered into any indenture or trust deed.
(n) Security for the Loan Tranches under the Global Loan Facility
Funding 2's obligations under, inter alia, the Global
Intercompany Loan Agreement will be secured in the manner
provided in the Funding 2 Deed of Charge and with the benefit of
the charges, covenants and other security provided for therein
including, without limitation, (i) a first fixed charge over and
assignment by way of security of Funding 2's share of the Trust
Property (as defined in the Mortgages Trust Deed); (ii) an
assignment by way of first fixed security of all of Funding 2's
right, title, interest and benefit in the Mortgage Sale
Agreement, the Mortgages Trust Deed, the Administration
Agreement, the Global Intercompany Loan Agreement, the Start-Up
Loan Agreement, the Funding 2 Guaranteed Investment Contract,
the Corporate Services Agreement, the Cash Management Agreement,
the Funding 2 Bank Account Agreement and any other of the Legal
Agreements (excluding all of Funding 2's right, title, interest
and benefit in the Funding 2 Deed of Charge) to which Funding 2
is a party); (iii) a first fixed charge (which may take effect
as a floating charge) of Funding 2's right, title, interest and
benefit in the Funding 2 Bank Accounts; (iv) a first fixed
charge (which may take effect as a floating charge) of Funding
2's right, title, interest and benefit in all Authorized
Investments purchased with moneys standing to the credit of the
Funding 2 Bank Accounts; and (v) a first floating charge over
all the assets and the undertaking of Funding 2 which are not
effectively subject to a fixed charge or assignment by way of
security (including all the assets and undertakings of Funding 2
which are situated in or governed by the laws of Scotland).
27
(o) Investment Company Act
Neither Funding 2 nor the Mortgages Trustee is an "investment
company" as defined in the Investment Company Act, and the offer
and sale of the Notes in the United States will not subject
Funding 2 or the Mortgages Trustee to registration under, or
result in a violation of, the Investment Company Act.
(p) United States Income Tax
Neither Funding 2 nor the Mortgages Trustee will engage in any
activities in the United States (directly or through agents),
derive any income from United States sources as determined under
the Code, or hold any property if doing so would cause it to be
engaged or deemed to be engaged in a trade or business within
the United States as determined under the Code.
(q) Accountants
PricewaterhouseCoopers LLP are a registered public accounting
firm and independent with respect to Funding 2 within the
meaning of the Securities Act.
(r) Legal Agreements
The representations and warranties given by Funding 2 and the
Mortgages Trustee in the Legal Agreements are true and accurate,
and the description of the Legal Agreements as set out in the
Prospectus is true and correct in all material respect.
Unless otherwise indicated, the representations and warranties set out
in this Clause 6 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF NRPLC
NRPLC represents and warrants to, and agrees with, the Underwriters and
each of them and, in the case of the matters referred to in Clause 7(f)
below, to and with the Mortgages Trustee that:
(a) Incorporation, Capacity and Authorization
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power
and authority to conduct its business as described in the
Prospectus, to execute this Agreement and the Legal Agreements
to which it is a party and to undertake and perform the
obligations expressed to be assumed by it herein and therein and
has taken all necessary action to approve and authorize the same
and is lawfully qualified to do business in England and Wales;
and NRPLC has not taken any corporate action nor (to the best of
its knowledge and belief) have any other steps been taken or
legal proceedings been started or threatened against it for its
winding-up, dissolution or reorganization or for the appointment
of a receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues; and it
is not in liquidation.
(b) Validity of Legal Agreements
This Agreement has been duly authorized, executed and delivered
by NRPLC and constitutes, and the other Legal Agreements to
which NRPLC is a party will be
28
duly authorized by NRPLC prior to the Closing Date and on the
Closing Date will constitute, legal, valid and binding
obligations of NRPLC, enforceable against NRPLC in accordance
with their respective terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar
laws affecting the enforcement of creditors rights generally and
to general equitable principles.
(c) Related Security
NRPLC has not received notice of, and no solicitor employed in
the NRPLC Solicitors' Department is actually aware of, any
material litigation or claim, of any pending material litigation
or claim, calling into question NRPLC's title to any Related
Security or the value of any security therefor or its right to
assign any such Related Security to the Mortgages Trustee.
(d) Consents
All consents, approvals and authorizations of all United Kingdom
regulatory authorities required on the part of NRPLC for or in
connection with the execution and performance of the
transactions contemplated by the Legal Agreements to which NRPLC
is a party have been, or will be prior to the Closing Date be,
obtained and are, or will prior to the Closing Date be, in full
force and effect including, without limiting the generality of
the foregoing, NRPLC having received a standard license under
the Consumer Credit Xxx 0000 and NRPLC being registered under
the DPA.
(e) Compliance
The authorization of the terms and conditions of this Agreement,
the execution and delivery of the Legal Agreements to which
NRPLC is a party, the implementation of the transactions
contemplated by such Legal Agreements and compliance with the
terms of such Legal Agreements do not and will not (i) conflict
with, or result in a breach of, any of the terms or provisions
of, or constitute a default under, the Memorandum and Articles
of Association of NRPLC, or any agreement or instrument to which
NRPLC is a party or by which it or any of its assets or
properties is bound, where such breach or default might have a
material adverse effect in the context of the issue of the
Notes; or (ii) infringe any existing applicable law, rule,
regulation, judgment, order or decree of any government,
governmental body or court having jurisdiction over NRPLC or any
of its assets or properties; or (iii) result in the creation or
imposition of any mortgage, charge, pledge, lien or other
security interest on any of its assets or properties, other than
those created in, or imposed by, the Legal Agreements
themselves.
(f) No Material Misstatements or Omissions
(I) The conditions to the use of a registration statement on
Form S-3 under the Securities Act have been satisfied. The
Registration Statement, at the time it became effective, any
post-effective amendment thereto, at the time it became
effective, the Initial Preliminary Prospectus, as of its date,
the Revised Preliminary Prospectus, as of its date, and the
Prospectus, as of the date of the Prospectus Supplement,
complied and on the Closing Date will comply in all material
respects with the applicable requirements of the Securities Act
and the Rules and Regulations and the Trust Indenture Act and
the rules and regulations of the Commission thereunder. The
Registration Statement, as of the applicable effective date as
to each part of the
29
Registration Statement and any amendment thereto pursuant to
Rule 430B(f)(2) under the Act, did not include any untrue
statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that
NRPLC makes no representations, warranties or agreements as to:
(i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) of the
Note Trustee under the Trust Indenture Act, and (ii) statements
or omissions in the Registration Statement made in reliance upon
and in conformity with the Underwriter Information;
(II) the Initial Preliminary Prospectus (except for the omission
of any pricing related information and any information relating
to an Issuer Swap Provider), as of its date and as of the Time
of Sale, did not contain an untrue statement of a material fact
and did not omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that NRPLC makes no representations, warranties or agreements as
to statements or omissions in the Initial Preliminary Prospectus
made in reliance upon and in conformity with the Underwriter
Information;
(III) the Revised Preliminary Prospectus (except for the
omission of any pricing related information), as of its date and
as of the Time of Sale, did not contain an untrue statement of a
material fact and did not omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that NRPLC makes no representations,
warranties or agreements as to statements or omissions in the
Revised Preliminary Prospectus made in reliance upon and in
conformity with the Underwriter Information;
(IV) the information and statements contained in the Investor
Presentation, as of November 13, 2006 and as of the Time of
Sale, did not contain an untrue statement of a material fact and
did not omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(V) the Prospectus, as of the date of the Prospectus Supplement
and as of the Closing Date, did not and will not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that NRPLC makes no
representations, warranties or agreements as to statements or
omissions in the Prospectus (or any amendment or supplement
thereto) made in reliance upon and in conformity with the
Underwriter Information; and
(VI) the documents incorporated by reference in the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus and
the Prospectus, when they were filed with the Commission under
the Exchange Act, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and any further documents so filed and incorporated
by reference in the Prospectus, when such documents are filed
with the Commission, will conform in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; provided, however, that NRPLC makes no
representation, warranty or agreement as to the documents
incorporated by
30
reference under the heading "The issuer swap provider" in the
Revised Preliminary Prospectus and the Prospectus.
(g) Beneficial Owner
Following the completion of the assignment of the New Mortgage
Portfolios to the Mortgages Trustee on October 30, 2006 and
November 20, 2006, respectively, pursuant to and in accordance
with the Mortgage Sale Agreement and pursuant to and in
accordance with the terms of the Mortgages Trust Deed, the
Mortgages Trustee has held the New Mortgage Portfolios and has
held and will continue to hold the Mortgage Portfolio on a bare
trust for the benefit of Funding, Funding 2 and NRPLC in
undivided shares absolutely.
(h) Litigation
It is not a party to, and no solicitor in NRPLC's Solicitors'
Department is actually aware of, any actions, suits or
proceedings in relation to claims or amounts which could, if
determined adversely to NRPLC, materially adversely affect
NRPLC's ability to perform its obligations under the Legal
Agreements.
(i) Mortgage Sale Agreement and Mortgages Trust Deed
The representations and warranties given by NRPLC in the
Mortgage Sale Agreement are true and accurate in all material
respects as when stated to be made and the representations and
warranties given by NRPLC in the Mortgages Trust Deed are true
and accurate in all material respects as when stated to be made.
Unless otherwise indicated, the representations and warranties set out
in this Clause 7 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
8. COVENANTS OF THE MASTER ISSUER, FUNDING 2, THE MORTGAGES TRUSTEE AND
NRPLC
8.1 Each of the Master Issuer and, where expressly provided, Funding 2, the
Mortgages Trustee and NRPLC severally (and not jointly) covenants to,
and agrees each for itself with, the Underwriters and each of them
that:
(a) The Registration Statement
The Master Issuer, Funding 2 and the Mortgages Trustee will (i)
file with the Commission the final Prospectus (in a form
approved by the Lead Underwriters) pursuant to Rule 424(b) under
the Securities Act not later than the relevant time period
prescribed therein, (ii) make no further amendment to the
Registration Statement or supplement to the Prospectus prior to
the Closing Date except as permitted herein, (iii) advise the
Lead Underwriters, promptly after they receive notice thereof,
of the time, during the period a Prospectus is required to be
delivered in connection with the offer and sale of the US Notes,
when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, (iv)
furnish the Lead Underwriters with copies thereof for their
review prior to filing and not to file any such proposed
amendment or supplement to which the Lead Underwriters
reasonably object and (v) provide evidence satisfactory to the
Lead Underwriters of such timely filing(s).
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(b) Signed Prospectus
The Master Issuer will deliver to the Underwriters, without
charge, on the date of this Agreement and during the Prospectus
Delivery Period, such number of copies of the Prospectus
(including all amendments and supplements thereto) as the
Underwriters may reasonably request, and the Master Issuer will
furnish to the Lead Underwriters on the date of this Agreement
four copies of the Prospectus signed by a duly authorized
director of the Master Issuer. The Master Issuer will also
promptly furnish each Underwriter (to the extent not already
furnished) and its counsel one signed copy of the Registration
Statement as originally filed and each amendment or supplement
thereto, including all consents and exhibits filed therewith and
all documents incorporated by reference therein. As used herein,
the term "Prospectus Delivery Period" means such period of time
after the first date of the public offering of the US Notes as
in the opinion of counsel for the Underwriters a prospectus
relating to the US Notes is required by law to be delivered in
connection with sales of the US Notes by any Underwriter or
dealer.
(c) Notify Material Omission
If, during such period of time after the first date of the
public offering of the US Notes that a prospectus is required by
law to be delivered in connection with offers and sales by the
Underwriters or any dealer, (i) any event shall have occurred as
a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or (ii) if for any other reason it shall be
necessary to amend or supplement the Registration Statement or
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Registration Statement or the
Prospectus in order to comply with the Securities Act or the
Exchange Act, then the Master Issuer will promptly (A) notify
the Underwriters, (B) prepare and file with the Commission any
amendment or supplement to the Registration Statement or the
Prospectus which corrects such statement or omission or effects
such compliance, and (C) furnish without charge to the
Underwriters as many copies as the Lead Underwriters may
reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or
effect such compliance. The provisions of Clauses 5(a), 5(b),
5(c), 5(o), 6(a), 6(b), 6(c), 7(a) and 7(f) shall be deemed to
be repeated by, as applicable, the Master Issuer, Funding 2, the
Mortgages Trustee and NRPLC (as applicable) as of the date of
each such amended or supplemented Prospectus on the basis that
each reference to "Prospectus" in such provisions of Clauses 5,
6 and 7 shall be deemed to be a reference to the Prospectus as
amended or supplemented as of such date.
(d) Notify Change
Without prejudice to its obligations under Clause 8.1(c), the
Master Issuer will notify the Underwriters promptly of any
change affecting any of its representations, warranties,
covenants, agreements or indemnities in this Agreement at any
time prior to payment of the gross underwriting proceeds for the
Notes being made to the Master Issuer on the Closing Date and
will take such steps as may be reasonably requested by the Lead
Underwriters to remedy and/or publicize the same.
32
(e) Official Announcements
Between the date of this Agreement and the Closing Date (both
dates inclusive) none of NRPLC, the Master Issuer, Funding 2 or
the Mortgages Trustee will, without the prior approval of the
Lead Underwriters on behalf of the Underwriters (such approval
not to be unreasonably withheld or delayed), make any official
announcement which would have an adverse effect on the
marketability of the US Notes.
(f) Stamp Duty
(i) The Master Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar
nature and duties that it is required to pay under any
obligation in the Legal Agreements to which it is a party
payable in the United Kingdom, Belgium, Luxembourg or the
United States, including interest and penalties, in
connection with the creation, issue, distribution and
offering of the Notes, or in connection with the
execution, delivery or enforcement of any of the Legal
Agreements to which it is a party together with any value
added, turnover or similar tax payable in respect of that
amount (and references in this Agreement to such amount
shall be deemed to include any such taxes so payable in
addition to it);
(ii) Funding 2 will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and duties
that it is required to pay under any obligation in the
Legal Agreements to which it is a party payable in the
United Kingdom or the United States, including interest
and penalties, or in connection with the execution,
delivery or enforcement of any of the Legal Agreements to
which it is a party (other than in respect of the
execution, delivery or enforcement of the Mortgages Trust
Deed and any Legal Agreement to which the Master Issuer
is a party) together with any value added, turnover or
similar tax payable in respect of that amount (and
references in this Agreement to such amount shall be
deemed to include any such taxes so payable in addition
to it); and
(iii) The Mortgages Trustee will pay any stamp duty, issue,
registration, documentary or other taxes of a similar
nature and duties that it is required to pay under any
obligation in the Legal Agreements to which it is a party
payable in the United Kingdom, Jersey, Channel Islands or
the United States, including interest and penalties, or
in connection with the execution, delivery or enforcement
of the Mortgages Trust Deed (including any amendment
thereto) and the Mortgage Sale Agreement (including any
amendment thereto) (together with any value added,
turnover or similar tax payable in respect of that amount
(and references in this Agreement to such amount shall be
deemed to include any such taxes so payable in addition
to it)) but will be promptly reimbursed an amount equal
to any such payments by the Beneficiaries in accordance
with the terms of the Mortgages Trust Deed.
(g) United States Income Tax
The Master Issuer will not engage in any activities in the
United States (directly or through agents), will not derive any
income from United States sources as determined under the Code
and will not hold any property if doing so would cause it to be
engaged or deemed to be engaged in a trade or business within
the United States as determined under the Code.
33
(h) Payment of Fees, Charges, Costs and Duties
(i) Without prejudice to the generality of Clause 10.1, the
Master Issuer will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or
duties that it is required to pay under the Legal
Agreements to which it is a party, including interest and
penalties, arising from or in connection with the
creation of the security for the Notes and the
obligations of the Master Issuer under the Supplemental
Issuer Trust Deed and for the other amounts to be secured
as contemplated by the Issuer Deed of Charge (as amended
by the Issuer Deed of Accession), and the perfection of
such security at any time;
(ii) Without prejudice to the generality of Clause 10.1,
Funding 2 will pay all and any fees, charges, costs and
duties and any stamp and other similar taxes or duties
that it is required to pay under the Legal Agreements to
which it is a party, including interest and penalties,
arising from or in connection with the creation of the
security for the Loan Tranches under the Global Loan
Facility and for the other amounts to be secured as
contemplated by the Funding 2 Deed of Charge and the
perfection of such security at any time; and
(iii) Without prejudice to the generality of Clause 10.1, the
Mortgages Trustee will pay all and any fees, charges,
costs and duties and any stamp and other similar taxes or
duties that it is required to pay under the Legal
Agreements to which it is a party, including interest and
penalties, arising from or in connection with the
purchase of the Related Security (and related property
and rights) excluding H.M. Land Registry fees and/or
Registers of Scotland fees (as applicable) (it being
agreed that registration or recording at H.M. Land
Registry and/or the Registers of Scotland (as applicable)
of the transfer of the Related Security to the Mortgages
Trustee will not be applied for except in the
circumstances specified in the Administration Agreement);
but on the basis that the Mortgages Trustee will be
reimbursed such fees, charges, costs and duties and any
stamp and other similar taxes or duties (including
interest and penalties) by the Beneficiaries pursuant to
the terms of the Mortgages Trust Deed.
(i) Perform All Required Actions
On or prior to the Closing Date each of NRPLC, the Master
Issuer, Funding 2 and the Mortgages Trustee will do all things
reasonably within each of their respective powers and required
of each of them on such date under the terms of the Legal
Agreements to which each is a party.
(j) Review of Related Security
NRPLC will deliver to the Lead Underwriters on or about the date
of this Agreement a letter (referred to as the auditors' pool
audit report) addressed to the Underwriters or their affiliates
(relating to the review by PricewaterhouseCoopers LLP of the
Mortgage Loans and their Related Security) dated on or about the
date of this Agreement in the agreed form addressed to NRPLC and
the Underwriters from PricewaterhouseCoopers LLP.
34
(k) Conditions Precedent
The Master Issuer will use all reasonable endeavors to procure
satisfaction on or before the Closing Date of the conditions
referred to in Clause 9 of this Agreement.
(l) Issuer Cash Management Agreement
The Master Issuer will use all reasonable endeavors to procure
that NRPLC complies with its obligations under the Issuer Cash
Management Agreement.
(m) Administration Agreement
Funding 2 and the Mortgages Trustee will use all reasonable
endeavors to procure that NRPLC complies with its obligations
under the Administration Agreement.
(n) Charges and Security Interests
(i) The Master Issuer will procure that each of the charges
and other security interests created by or contained in
the Issuer Deed of Accession is registered within all
applicable time limits in all appropriate registers; and
(ii) Funding 2 will procure that each of the charges and other
security interests created by or contained in the Funding
2 Deed of Charge is registered within all applicable time
limits in all appropriate registers.
(o) Ratings
None of NRPLC, the Master Issuer, Funding 2 or the Mortgages
Trustee will take, or cause to be taken, any action and none of
them will permit any action to be taken which it knows or has
reason to believe would result in the US Notes not being
assigned an AAA rating for the Series 2006-4 Class A1 Notes, the
Series 2006-4 Class A4 Notes and the Series 2006-4 Class A6
Notes, an AA rating for the Series 2006-4 Class B1 Notes, an A
rating for the Series 2006-4 Class M1 Notes and the Series
2006-4 Class M2 Notes and a BBB rating for the Series 2006-4
Class C1 Notes and the Series 2006-4 Class C2 Notes by Fitch
Ratings Ltd. ("Fitch Ratings"); an Aaa rating for the Series
2006-4 Class A1 Notes, the Series 2006-4 Class A4 Notes and the
Series 2006-4 Class A6 Notes, an Aa3 rating for the Series
2006-4 Class B1 Notes, an A2 rating for the Series 2006-4 Class
M1 Notes and the Series 2006-4 Class M2 Notes and a Baa2 rating
for the Series 2006-4 Class C1 Notes and the Series 2006-4 Class
C2 Notes by Xxxxx'x Investors Service Limited ("Moody's"); and
an AAA rating for the Series 2006-4 Class A1 Notes, the Series
2006-4 Class A4 Notes and the Series 2006-4 Class A6 Notes, an
AA rating for the Series 2006-4 Class B1 Notes, an A rating for
the Series 2006-4 Class M1 Notes and the Series 2006-4 Class M2
Notes and a BBB rating for the Series 2006-4 Class C1 Notes and
the Series 2006-4 Class C2 Notes by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc.
("Standard & Poor's").
(p) Legal Agreements
Prior to closing on the Closing Date none of NRPLC, the Master
Issuer, Funding 2 or the Mortgages Trustee will amend the terms
of the executed Legal Agreements, nor execute any of the other
Legal Agreements other than in the agreed form, without the
35
consent of the Lead Underwriters (such consent not to be
unreasonably withheld or delayed).
(q) Commission Filings
The Master Issuer, Funding 2 and the Mortgages Trustee will
file, in a timely manner, with the Commission during any period
during which a prospectus relating to the Notes is required to
be delivered under the Securities Act until three months after
the Closing Date (the "Marketing Period"), all documents (and
any amendments to previously filed documents) required to be
filed by them pursuant to Sections 13(a), 13(c) or 15(d) of the
Exchange Act; provided that none of the Master Issuer, Funding 2
or the Mortgages Trustee will file any such document or
amendment unless the Master Issuer, Funding 2 and the Mortgages
Trustee have furnished the Lead Underwriters with copies for
their review prior to filing and none of them will file any such
proposed document or amendment until the Underwriters have been
consulted and given a reasonable opportunity to comment on such
document or amendment.
(r) Copies of Filings and Commission
If during the Marketing Period there is (i) any amendment to the
Registration Statement, (ii) any amendment or supplement to the
Prospectus, or (iii) any material document filed by the Master
Issuer, Funding 2 or the Mortgages Trustee with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act including but not limited to (A) any interim or any report
submitted to the Commission on Form 6-K ("Form 6-K") or Form
20-F ("Form 20-F") under the Exchange Act and the rules and
regulations thereunder or (B) any amendment of or supplement to
any such document, the Master Issuer, Funding 2 and the
Mortgages Trustee, as the case may be, will furnish a copy
thereof to each Underwriter, and counsel to the Underwriters.
(s) Notice to Underwriters of Certain Events
During the Marketing Period, the Master Issuer will advise the
Underwriters immediately (i) when any post-effective amendment
to the Registration Statement becomes effective, (ii) of any
request by the Commission whether written or oral, for an
amendment or supplement to the Registration Statement, to any
Prospectus or to any material document filed by the Master
Issuer, Funding 2 or the Mortgages Trustee with or submitted to
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act and the rules and regulations thereunder or for
any additional information and the Master Issuer, Funding 2 and
the Mortgages Trustee will afford the Underwriters a reasonable
opportunity to comment on any such proposed amendment or
supplement, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement
or any part thereof or the initiation or threat of any stop
order proceeding or of any challenge to the accuracy or adequacy
of the Prospectus or any document incorporated by reference
therein, (iv) of receipt by NRPLC or the Master Issuer of any
notification with respect to the suspension of the qualification
of the US Notes for sale in any jurisdiction or the initiation
or threat of any proceeding for that purpose and (v) of any
downgrading in the rating of the Notes or any debt securities of
NRPLC or the Master Issuer by any "nationally recognized
statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or if any such
organisation shall have informed NRPLC or the Master Issuer or
made any public
36
announcement that any such organisation has under surveillance
or review its rating of any debt securities of NRPLC or the
Master Issuer (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading of such rating) as soon as such
announcement is made or NRPLC or the Master Issuer is so
informed.
(t) Stop Orders
The Master Issuer will use its best efforts to prevent the
issuance of any stop order or the suspension of any
qualification and if, during the Marketing Period, the
Commission shall issue a stop order suspending the effectiveness
of the Registration Statement or such qualification of the US
Notes for sale in any jurisdiction is suspended, the Master
Issuer will make every reasonable effort to obtain the lifting
of that order or suspension at the earliest possible time.
(u) Blue Sky Qualifications
The Master Issuer will co-operate with the Underwriters to
qualify the US Notes for offering and sale under the securities
laws of such jurisdictions of the United States as the
Underwriters may designate, to maintain such qualifications in
effect for as long as may be required for the distribution of
the US Notes and to file such statements and reports as may be
required by the laws of each jurisdiction in which the US Notes
have been qualified as above provided that in connection
therewith the Master Issuer shall not be required to qualify as
a foreign corporation or to file a general consent to service of
process in any jurisdiction or to take any other action that
would subject it to service of process in suits in any
jurisdiction other than those arising out of the offering or
sale of the US Notes in such jurisdiction or to register as a
dealer in securities or to become subject to taxation in any
jurisdiction.
8.2 NRPLC covenants to and agrees with the Underwriters and each of them
that:
(a) Notify Change
NRPLC will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time prior to
payment of the gross underwriting proceeds of the Notes being
made to the Master Issuer on the Closing Date and will take such
steps as may be reasonably requested by the Lead Underwriters to
remedy and/or publicize the same. In the event that the
Prospectus is amended or supplemented pursuant to Clause 8.1(c)
above, then the representations and warranties contained in
Clause 7(f) shall be deemed to be repeated by NRPLC as of the
date of such amended Prospectus or supplement to the Prospectus,
on the basis that each reference to "Prospectus" in Clause 7(f)
shall be deemed to be a reference to the Prospectus as amended
or supplemented as at such date.
(b) Perform All Required Actions
On or prior to the Closing Date, NRPLC will do all things
reasonably within its power and required of it on such date
under the terms of the Legal Agreements to which it is a party.
37
(c) Legal Agreements
Prior to closing on the Closing Date NRPLC will not amend the
terms of any of the already executed Legal Agreements, nor
execute any of the other Legal Agreements other than in the
agreed form, without the consent of the Lead Underwriters (such
consent not to be unreasonably withheld or delayed).
8.3 Written Communications
(a) The following terms have the specified meanings for purposes of
this Agreement:
"Bloomberg Submission" means the pricing material (in electronic
form) sent via Bloomberg e-mail by the Underwriters to
investors; provided, that references to Bloomberg Submission in
this Agreement shall mean the final pricing information
accurately displayed on Bloomberg;
"Free Writing Prospectus" means and includes any information
relating to the US Notes disseminated by the Master Issuer or
any Underwriter that constitutes a "free writing prospectus"
within the meaning of Rule 405 under the Securities Act;
"Issuer Information" means (1) the information contained in any
Underwriter Free Writing Prospectus (as defined below) which
information is also included in the Initial Preliminary
Prospectus or the Revised Preliminary Prospectus (other than
Underwriter Information), (2) information in the Initial
Preliminary Prospectus or the Revised Preliminary Prospectus or
provided by the Master Issuer, Funding 2, the Mortgages Trustee
or NRPLC that is used to calculate or create any Derived
Information, in each case in its final form and as filed under
Rule 433 under the Securities Act and (3) any computer tape or
data in respect of the US Notes or the related Mortgage Loans
furnished by the Master Issuer, Funding 2, the Mortgages Trustee
or NRPLC to any Underwriter; and
"Derived Information" means such written information regarding
the US Notes as is disseminated by any Underwriter to a
potential investor, which information is neither (1) Issuer
Information nor (2) contained in the Registration Statement, the
Initial Preliminary Prospectus, the Revised Preliminary
Prospectus, the Prospectus or any amendment or supplement to any
of them, taking into account information incorporated therein by
reference (other than information incorporated by reference from
any information regarding the US Notes that is disseminated by
any Underwriter to a potential investor).
(b) The Master Issuer will not disseminate to any potential investor
any information relating to the US Notes that constitutes a
"written communication" within the meaning of Rule 405 under the
Securities Act, other than the Time of Sale Information and the
Prospectus, unless the Master Issuer has obtained the prior
consent of the Lead Underwriters (which consent will not be
unreasonably withheld).
(c) Neither the Master Issuer nor any Underwriter shall disseminate
or file with the Commission any information relating to the US
Notes in reliance on Rule 167 or 426 under the Securities Act,
nor shall the Master Issuer or any Underwriter disseminate any
Underwriter Free Writing Prospectus (as defined below) "in a
manner reasonably designed to lead to its broad unrestricted
dissemination" within the meaning of Rule 433(d) under the
Securities Act.
38
(d) The Master Issuer and the Underwriters each agree that any Free
Writing Prospectus prepared by it shall comply in all material
respects with the Securities Act and the Rules and Regulations
and shall bear the following legend, or a substantially similar
legend that complies with Rule 433 under the Securities Act:
The issuing entity has filed a registration statement (including
a prospectus) with the Commission for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents
the depositor has filed with the Commission for more complete
information about the issuing entity and this offering. You may
get these documents for free by visiting XXXXX on the Commission
Web site at xxx.xxx.xxx. Alternatively, the issuing entity, any
underwriter or any dealer participating in the offering will
arrange to send you the prospectus if you request it by calling
toll-free _________.
(e) In the event the Master Issuer or NRPLC becomes aware that, as
of the Time of Sale, any Time of Sale Information contains or
contained any untrue statement of material fact or omits or
omitted to state a material fact necessary in order to make the
statements contained therein (when read in conjunction with all
Time of Sale Information) in the light of the circumstances
under which they were made, not misleading (a "Defective
Prospectus"), the Master Issuer or NRPLC shall promptly notify
the Lead Underwriters of such untrue statement or omission no
later than one business day after discovery and the Master
Issuer shall, if requested by the Lead Underwriters, prepare and
deliver to the Underwriters a Corrected Prospectus.
(f) In the event that any Underwriter shall incur any costs to any
investor in connection with the reformation of the Contract of
Sale with such investor that received a Defective Prospectus,
the Master Issuer agrees to reimburse such Underwriter for such
costs.
(g) Each Underwriter represents, warrants, covenants and agrees with
the Master Issuer that:
(i) Other than the Initial Preliminary Prospectus, the
Revised Preliminary Prospectus and the Prospectus, it has
not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize,
approve or refer to any "written communication" (as
defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer
to buy the US Notes; provided, however, that (A) each
Underwriter may prepare and convey -------- ------- one
or more "written communications" (as defined in Rule 405
under the Securities Act) containing no more than the
following: (1) information included in the Initial
Preliminary Prospectus or the Revised Preliminary
Prospectus with the consent of the Master Issuer, (2)
information relating to the class, size, rating, price,
CUSIPs, coupon, yield, spread, benchmark, status and/or
legal maturity date of the US Notes, the weighted average
life, expected final payment date, the trade date and
payment window of one or more classes of US Notes and any
credit enhancement expected to be provided with respect
to the US Notes, (3) the eligibility of the US Notes to
be purchased by ERISA plans, (4) a column or other entry
showing the status of the subscriptions for the US Notes
(both for the issuance as a whole and for each
Underwriter's retention) and/or expected pricing
parameters of the US Notes and (5) any "ABS informational
and computational materials" as defined in Item 1101(a)
39
of Regulation AB under the Securities Act (each such
written communication, an "Underwriter Free Writing
Prospectus"); (B) unless otherwise consented to by the
Master Issuer, no Underwriter Free Writing Prospectus
shall be conveyed if, as a result of such conveyance, the
Master Issuer shall be required to make any registration
or other filing solely as a result of such Underwriter
Free Writing Prospectus pursuant to Rule 433(d) under the
Securities Act other than the filing of the final terms
of the US Notes pursuant to Rule 433(d)(5)(ii) of the
Securities Act; and (C) each Underwriter will be
permitted to provide information (including the Bloomberg
Submission) customarily included in confirmations of sale
of securities and notices of allocations and information
delivered in compliance with Rule 134 under the
Securities Act.
(ii) If a Defective Prospectus has been corrected with a
Corrected Prospectus, it shall comply with the
requirements for reformation of the original Contract of
Sale, as described in Section IV.A.2.c. of the
Commission's Securities Offering Reform Release No.
33-8591.
(h) The Master Issuer agrees to file with the Commission when
required under the Rules and Regulations the following:
(i) any Free Writing Prospectus that is included in the Time
of Sale Information (any such Free Writing Prospectus, an
"Issuer Free Writing Prospectus");
(ii) subject to the Underwriters' compliance with Clause
8.3(g), any Underwriter Free Writing Prospectus at the
time required to be filed; and
(iii) any Free Writing Prospectus for which the Master Issuer
or any person acting on its behalf provided, authorized
or approved information that is prepared and published or
disseminated by a person unaffiliated with the Master
Issuer or any other offering participant that is in the
business of publishing, radio or television broadcasting
or otherwise disseminating communications.
(i) NRPLC, Funding 2 and the Mortgages Trustee will cause any Issuer
Free Writing Prospectus with respect to the US Notes to be filed
with the Commission to the extent required by Rule 433 under the
Securities Act.
(j) Notwithstanding the provisions of Clauses 8.3(h) and 8.3(i), the
Master Issuer, Funding 2, the Mortgages Trustee and NRPLC will
not be required to file any Free Writing Prospectus that does
not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
9. CONDITIONS PRECEDENT
9.1 The obligation of the Underwriters under this Agreement to subscribe
for the US Notes is subject to the following conditions precedent:
(a) The Registration Statement
(i) If a post-effective amendment is required to be filed
with the Commission, such post-effective amendment shall
have become effective not later than 9:00 a.m. New York
City time on the date hereof;
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(ii) If filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and
any such supplement, will be filed in the manner and
within the applicable time period prescribed for such
filing by Rule 424(b) and in accordance with Clause 5(a)
hereof; and
(iii) No stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose
shall be pending before or threatened by the Commission.
(b) Execution of Legal Agreements and the Global Notes
The execution and delivery by all parties thereto of the Legal
Agreements and the Global Notes representing each class of the
US Notes on or prior to the Closing Date.
(c) Admission to Trading
The US Notes having been admitted to the Official List, on the
Market and the London Stock Exchange having agreed to admission
of the US Notes to trading on the Market on or about the Closing
Date.
(d) Legal Opinions
On or prior to the Closing Date, there having been delivered to
the Master Issuer, the Underwriters, the Note Trustee and the
Issuer Security Trustee copies of the following, in form and
substance satisfactory to the Lead Underwriters, the Note
Trustee, the Issuer Security Trustee and the Rating Agencies,
dated the Closing Date:
(i) Opinions of Sidley Austin, legal and tax advisers as to
English law and legal counsel as to US federal securities
law and New York law to NRPLC, addressed to NRPLC, the
Mortgages Trustee, Funding 2, the Master Issuer, the
Underwriters, the Dealers, the Note Trustee and the
Issuer Security Trustee;
(ii) A disclosure letter of Sidley Austin, legal counsel as to
US federal securities law to NRPLC, addressed to the
Underwriters;
(iii) An opinion of Sidley Austin LLP, tax counsel as to US
federal income tax law, addressed to the Underwriters;
(iv) An opinion of Mourant du Feu & Jeune, legal advisers as
to Jersey law to the Mortgages Trustee, addressed to
Funding 2, the Mortgages Trustee, the Underwriters, the
Dealers, the Note Trustee and the Issuer Security
Trustee;
(v) An opinion of Tods Xxxxxx LLP, legal advisers as to Scots
law to NRPLC, addressed to NRPLC, the Mortgages Trustee,
Funding 2, the Master Issuer, the Underwriters, the
Dealers, the Note Trustee and the Issuer Security
Trustee;
(vi) A disclosure letter of Xxxxx & Overy LLP, legal advisers
as to US federal securities law to the Underwriters and
the Dealers, addressed to the Underwriters and the
Dealers; and
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(vii) An opinion of in-house counsel for each Issuer Swap
Provider, addressed to the Issuer, the Note Trustee, the
Issuer Security Trustee, NRPLC and the Underwriters.
(e) Auditors' Letter
There having been addressed and delivered to the Underwriters
(i) a letter, dated on or about the date of this Agreement, in
form and substance satisfactory to the Lead Underwriters,
containing statements and information of the type ordinarily
included in auditors' "comfort letters" with respect to certain
financial, statistical and other information contained in the
Initial Preliminary Prospectus, the Revised Preliminary
Prospectus and the Prospectus from PricewaterhouseCoopers LLP,
and (ii) a letter (referred to as a "bring down letter"), dated
the Closing Date, in form and substance satisfactory to the Lead
Underwriters, containing statements with respect to matters
specified in sub-clause (i) above, in each case from
PricewaterhouseCoopers LLP.
(f) Additional Auditors' Letter
On or about the date of this Agreement, there having been
addressed and delivered to the Underwriters a letter, in form
and substance satisfactory to the Lead Underwriters, containing
statements and information of the type ordinarily included in
auditors' "comfort letters" with respect to certain financial,
statistical and other information contained in the Initial
Preliminary Prospectus, the Revised Preliminary Prospectus and
the Prospectus from KPMG LLP.
(g) Certified Constitutional Documents
On or prior to the Closing Date, there having been delivered to
the Lead Underwriters on behalf of the Underwriters a copy,
certified by a duly authorized director or the company secretary
of, as applicable, the Master Issuer, Funding 2 and the
Mortgages Trustee of: (i) the Memorandum and Articles of
Association of each of the Master Issuer, Funding 2 and the
Mortgages Trustee; (ii) the resolution of the Board of Directors
of each of the Master Issuer, Funding 2 and the Mortgages
Trustee authorizing the execution of this Agreement and the
other Legal Agreements and the entry into and performance of the
transactions contemplated thereby; and (iii) in respect of the
Master Issuer, the issue of the Notes and the entry into and
performance of the transactions contemplated thereby.
(h) Accuracy of Representations
At the Closing Date: (i) the representations and warranties of
the Master Issuer, Funding 2, the Mortgages Trustee and NRPLC in
this Agreement being true, accurate and correct at, and as if
made on, the Closing Date and the Master Issuer, Funding 2, the
Mortgages Trustee and NRPLC having performed all of their
obligations in the Legal Agreements to be performed on or before
the Closing Date; and (ii) there having been delivered to the
Underwriters a certificate to that effect signed by a duly
authorized officer of, as applicable, the Master Issuer, Funding
2, the Mortgages Trustee and NRPLC, dated the Closing Date and
confirming that, since the date of this Agreement, there has
been no adverse change, nor any development involving a
prospective adverse change, in or affecting the operations,
properties, financial condition or prospects of the Master
Issuer, Funding 2, the Mortgages Trustee or NRPLC which is
material in the context of the issue of the Notes.
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(i) Circumstances for Termination
On or prior to the Closing Date, in the opinion of the Lead
Underwriters (after consultation with NRPLC, if practicable),
none of the circumstances described in Clause 12.1(c) or 12.1(d)
having arisen.
(j) Ratings
Receipt of notification from Fitch Ratings, Xxxxx'x and Standard
& Poor's that the ratings for the Notes described in the
Prospectus have been assigned either without conditions or
subject only to the execution and delivery on or before the
Closing Date of the Legal Agreements and legal opinions in all
material respects in the form in which they shall then have been
executed and delivered on or prior to the Closing Date, there
not having been a public announcement from any of the above
rating agencies that such agency has revised downwards or
withdrawn or placed on review or "creditwatch" with negative
implications or with implications of a possible change that does
not indicate the direction of such possible change (or other
similar publication of formal review by the relevant rating
agency) any existing credit rating assigned to the Notes or the
long term debt of NRPLC.
(k) Other Issues
The Reg S Notes having been or being issued and subscribed and
paid for pursuant to the Subscription Agreement and the
Programme Agreement prior to or contemporaneously with the
issue, subscription and payment for the US Notes hereunder.
(l) Material Adverse Event
There not having been between the date of this Agreement and the
Closing Date any change or any development or event reasonably
likely to involve a prospective change which would, in the
judgement of the Lead Underwriters, be materially adverse to the
financial or trading condition of the Master Issuer, Funding 2,
the Mortgages Trustee or NRPLC from that set forth in the Time
of Sale Information or the Prospectus, or rendering untrue and
incorrect any of the representations and warranties contained in
Clauses 5, 6 and 7 as though the said representations and
warranties had been given on the Closing Date with reference to
the facts and circumstances prevailing at that date nor the
failure of the Master Issuer, Funding 2, the Mortgages Trustee
or NRPLC to perform each and every covenant to be performed by
it pursuant to the Legal Agreements, the Mortgage Loans and the
Related Security on or prior to the Closing Date.
(m) Solvency Certificates
(i) The Master Issuer having furnished or caused to be
furnished to the Underwriters and the Note Trustee a
solvency certificate, dated the Closing Date, of a duly
authorized director of the Master Issuer in the agreed
form;
(ii) Funding 2 having furnished or caused to be furnished to
the Master Issuer, NRPLC and the Issuer Security Trustee
a solvency certificate, dated the Closing Date, of a duly
authorized director of Funding 2 in the agreed form;
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(iii) The Mortgages Trustee having furnished or caused to be
furnished to the Underwriters, the Master Issuer, the
Issuer Security Trustee and NRPLC a solvency certificate,
dated the Closing Date, of a duly authorized director of
the Mortgages Trustee in the agreed form; and
(iv) NRPLC having furnished or caused to be furnished to the
Underwriters, the Master Issuer, the Issuer Security
Trustee, Funding 2 and the Mortgages Trustee a solvency
certificate, dated the Closing Date, of a duly authorized
officer or director of NRPLC in the agreed form.
(n) Mortgage Sale Agreement
All of the steps required by Clause 4 of the Mortgage Sale
Agreement for the purposes of the purchase of a New Mortgage
Portfolio (as defined therein) by the Mortgages Trustee from
NRPLC on the applicable Assignment Date and related rights to be
acquired from NRPLC pursuant thereto having been taken.
9.2 Prior to the Closing Date, there shall be furnished to the Lead
Underwriters such further information, certificates, opinions and
documents as the Lead Underwriters may reasonably request.
9.3 If any of the conditions specified in this Clause 9 have not been
fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement shall not be reasonably satisfactory in
all material respects in form and substance to the Lead Underwriters,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled (provided, however, that the liability of the Master Issuer
in relation to expenses as provided under, or under any arrangements
referred to in, Clause 10 and any liability arising before or in
relation to such termination shall not be cancelled) at, or at any time
prior to, the Closing Date by the Lead Underwriters. Notice of such
cancellation shall be given to the Master Issuer in writing or by
telephone or facsimile confirmed in writing.
9.4 The Lead Underwriters, on behalf of the Underwriters, may, in their
discretion, waive compliance with the whole or any part of this Clause
9.
10. EXPENSES
10.1 General Expenses
The Master Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Master
Issuer, any amount in respect of value added tax or similar tax payable
in respect thereof against production of a valid tax invoice and (ii)
in respect of taxable supplies made to a person other than the Master
Issuer, any amount in respect of Irrecoverable VAT (for the purposes of
this Agreement "Irrevocable VAT" means any amount in respect of VAT
incurred by a party to the Transaction Documents (for the purposes of
this definition, a "Relevant Party") as part of a payment in respect of
which it is entitled to be indemnified under the relevant Transaction
Documents to the extent that the Relevant Party does not or will not
receive and retain a credit or repayment of such VAT as input tax (as
that expression is defined in section 24(1) of the Value Added Tax Act
1994) for the prescribed accounting period (as that expression is used
in section 25(1) of the Value Added Tax Act 1994) to which such input
tax relates) or similar tax payable in respect thereof against
production of a valid tax invoice): (a) the fees, disbursements and
expenses of the Master Issuer's legal advisers and accountants and all
other expenses of the Master Issuer in
44
connection with the issue (including without limitation any filing fees
payable to the Commission in connection with the registration of the US
Notes under the Securities Act and any fees payable in connection with
the qualification of the US Notes for offering and sale pursuant to any
NASD regulatory provisions or under any applicable United States state
securities, Blue Sky or similar laws) and listing of the Notes
(including without limitation, any advertisements required in
connection therewith); the preparation and delivery of each class of
the Notes in global form and (if required) definitive form; the costs
of the initial delivery and distribution of the Notes (including,
without limitation, transportation, packaging and insurance) and the
initial fees and expenses of The Depository Trust Company in relation
to the Notes (excluding any such fees and expenses arising as a result
of any transfer of the Notes); the preparation and printing of the Time
of Sale Information and the Prospectus (in proof, preliminary and final
form) and any amendments and supplements thereto and the mailing and
delivery of copies of this Agreement to the Underwriters; (b) the cost
of printing or reproducing the Legal Agreements and any other documents
prepared in connection with the offering, issue and initial delivery of
the Notes; (c) the fees and expenses of the Note Trustee and the Issuer
Security Trustee (including fees and expenses of legal advisers to the
Note Trustee and the Issuer Security Trustee), the US Paying Agent and
the Agent Bank in each case reasonably incurred in connection with the
preparation and execution of the Legal Agreements and any other
relevant documents and the issue of the Notes and compliance with the
Conditions of the Notes; (d) the fees and expenses incurred or payable
in connection with obtaining a rating for the Notes from Fitch Ratings,
Xxxxx'x and Standard & Poor's and annual fees in connection with such
rating or any other rating from such institution for the Notes; (e) the
fees and expenses payable in connection with obtaining and maintaining
the admission to trading of the Notes on the Market; (f) reasonable
out-of-pocket expenses (excluding legal expenses) incurred by the Lead
Underwriters on behalf of the Underwriters in connection with the
transactions contemplated hereby; and (g) any reasonable amount in
respect of the fees and disbursements of the Underwriters' legal
advisers in relation thereto.
10.2 Reimbursement
The Master Issuer will reimburse the Underwriters for all amounts in
connection with the issue of the Notes which it has agreed to pay
pursuant to Clause 10.1.
For the avoidance of doubt, references to costs and expenses in this
Agreement shall be deemed to include, in addition, references to any
irrecoverable UK value added tax payable in respect of such costs and
expenses.
10.3 Gross Underwriting Proceeds
The Master Issuer undertakes that on the Closing Date it will apply the
gross underwriting proceeds for the Notes forthwith in making the
relevant Loan Tranches to Funding 2 pursuant to the terms of the Global
Intercompany Loan Agreement. Funding 2 undertakes that it will apply
the proceeds of such Loan Tranches in accordance with Clause 4.1
(Purpose and application of a Loan Tranche) of the Global Intercompany
Loan Agreement.
11. INDEMNIFICATION
11.1 Issuer, Funding 2, Mortgages Trustee and NRPLC Indemnity
Each of the Master Issuer, Funding 2, the Mortgages Trustee and NRPLC
jointly and severally agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange
45
Act (each an "Indemnified Person") against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject, including without limitation any such losses,
claims, damages or liabilities arising under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Initial Preliminary
Prospectus, the Revised Preliminary Prospectus, the Prospectus, the
Issuer Information or any Issuer Free Writing Prospectus or any
information provided by the Master Issuer or NRPLC to any holder or
prospective purchaser of US Notes (or in any amendment thereof or
supplement thereto) or the Investor Presentation (save in the case of
the Mortgages Trustee, which gives no indemnity herein in relation to
the Investor Presentation) or arise out of or are based upon the
omission or alleged omission to state therein a material fact
(excluding, in the case of the Initial Preliminary Prospectus, the
pricing related information and information relating to an Issuer Swap
Provider omitted therefrom and, in the case of the Revised Preliminary
Prospectus, the pricing related information omitted therefrom) required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and agrees to reimburse each such Indemnified Person,
as incurred, for any legal or other reasonable expenses incurred by
them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Master
Issuer, Funding 2, the Mortgages Trustee and NRPLC will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in (x)
the Registration Statement, the Initial Preliminary Prospectus, the
Revised Preliminary Prospectus (excluding, in the case of the Initial
Preliminary Prospectus, the pricing related information and information
relating to an Issuer Swap Provider omitted therefrom and, in the case
of the Revised Preliminary Prospectus, the pricing related information
omitted therefrom), the Prospectus, any Issuer Free Writing Prospectus
or the Issuer Information (or any amendment thereof or supplement
thereto) in reliance upon and in conformity with the Underwriter
Information or (y) any Derived Information or the Bloomberg Submission
unless such untrue statement or alleged untrue statement or omission or
alleged omission made in any Derived Information or the Bloomberg
Submission results from an error or omission in the Initial Preliminary
Prospectus, the Revised Preliminary Prospectus, the Prospectus, the
Issuer Information or the Investor Presentation. The Master Issuer,
Funding 2, the Mortgages Trustee and NRPLC further agree to reimburse
each Underwriter and each such controlling person for any legal and
other expenses reasonably incurred by such Underwriter or controlling
person in investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action, as such expenses are
incurred. The foregoing indemnity agreement is in addition to any
liability which the Master Issuer, Funding 2, the Mortgages Trustee and
NRPLC may otherwise have to any Underwriter or any controlling person
of any Underwriter.
No Underwriter or controlling person of any Underwriter shall have any
duty or obligation, whether as fiduciary for any Indemnified Person or
otherwise, to recover any such payment or to account to any other
person for any amounts paid to it under this Clause 11.1.
The foregoing shall be subject to the following:
(a) Any right which at any time the Mortgages Trustee has under the
existing or future laws of Jersey whether by virtue of the droit
de discussion or otherwise to require that recourse be had to
the assets of any other person before any claim is enforced
against such person in respect of the obligations hereby assumed
by such person is hereby abandoned and waived.
46
(b) The Mortgages Trustee undertakes that if at any time any person
indemnified sues the Mortgages Trustee in respect of any such
obligations and the person in respect of whose obligations the
indemnity is given is not sued also, the Mortgages Trustee shall
not claim that such person be made a party to the proceedings
and each agrees to be bound by this indemnity whether or not it
is made a party to legal proceedings for the recovery of the
amount due or owing to the person indemnified, as aforesaid, by
the person in respect of whose obligations the indemnity is
given and whether the formalities required by any law of Jersey
whether existing or future in regard to the rights or
obligations of sureties shall or shall not have been observed.
(c) Any right which the Mortgages Trustee may have under the
existing or future laws of Jersey whether by virtue of the droit
de division or otherwise to require that any liability under
this indemnity be divided or apportioned with any other person
or reduced in any manner whatsoever is hereby abandoned and
waived.
11.2 Underwriters' Indemnity
Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Master Issuer, Funding 2, the Mortgages Trustee and
NRPLC, each of their directors and each of their officers who signs the
Registration Statement, their employees and each person who controls
the Master Issuer or NRPLC within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Master Issuer to each
Underwriter, but only with reference to (x) the Underwriter Information
furnished to the Master Issuer, Funding 2, the Mortgages Trustee or
NRPLC specifically for inclusion in the Registration Statement, the
Initial Preliminary Prospectus, the Revised Preliminary Prospectus or
the Prospectus (or in any amendment or supplement thereto) or (y) any
Derived Information or the Bloomberg Submission; provided, however,
that the indemnity with respect to clause (y) above shall not apply to
any untrue statement or alleged untrue statement or omission or alleged
omission made in any Derived Information or the Bloomberg Submission
that results from an error or omission in the Initial Preliminary
Prospectus, the Revised Preliminary Prospectus, the Prospectus or the
Issuer Information. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
11.3 Proceedings
Promptly after receipt by an indemnified party under this Clause 11 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Clause 11, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under Clause 11.1 or 11.2
above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any
event relieve the indemnifying party from any obligation to any
indemnified party other than the indemnification obligation provided in
Clause 11.1 or 11.2 above. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate
therein, and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Clause 11 for
any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable
costs of investigation; provided that
47
each Underwriter, the Underwriters as a group, or the Master Issuer,
Funding 2, the Mortgages Trustee and NRPLC, as the case may be, shall
have the right to employ separate counsel to represent such Underwriter
and its controlling persons, the Underwriters and their respective
controlling persons or the Master Issuer, Funding 2, the Mortgages
Trustee and NRPLC and their respective controlling persons, as the case
may be, who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by such indemnified parties
under this Clause 11 if in the reasonable judgement of any Underwriter,
the Underwriters acting together, or any of the Master Issuer, Funding
2, the Mortgages Trustee and NRPLC, as the case may be, it is advisable
for such indemnified parties to be represented by separate counsel, and
in that event the fees and expenses of such separate counsel (and local
counsel) shall be paid by the indemnifying party. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel selected by the indemnifying party, the
indemnifying party will not be liable to such indemnified party under
this Clause 11 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however that
the indemnifying party shall not be liable for the expenses of more
than one such separate counsel (and local counsel) representing the
indemnified parties under Clause 11.1 or 11.2 hereof), (ii) the
indemnifying party has authorized (acting reasonably) the employment of
more than one such separate counsel (and local counsel) representing
the employed counsel satisfactory to the indemnified party to represent
the indemnified party, or (iii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by this Clause 11, the indemnifying
party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 60 days after receipt by such indemnifying
party of such request and (ii) such indemnifying party shall not have
either reimbursed the indemnified party in accordance with such request
or objected to such request in writing prior to the date of such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and in respect of which indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
11.4 Contribution
In the event that the indemnity provided in Clause 11.1 or 11.2 is
unavailable to or insufficient to hold harmless an indemnified party
for any reason, the Master Issuer, NRPLC, Funding 2, the Mortgages
Trustee and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Master Issuer,
NRPLC, Funding 2, the Mortgages Trustee and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Master Issuer, NRPLC,
Funding 2, the Mortgages Trustee and the
48
Underwriters from the offering of the US Notes. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Master Issuer, NRPLC, Funding 2, the Mortgages Trustee and
the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Master Issuer, NRPLC, Funding 2, the Mortgages
Trustee and the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Master Issuer,
Funding 2, the Mortgages Trustee and NRPLC shall be deemed to be equal
to the Issue Price (before deducting expenses), and benefits received
by the Underwriters shall be deemed to be equal to the total Selling
Commissions and the Management and Underwriting Commission, in each
case as set forth in Clause 1.4. Relative fault shall be determined by
reference to among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Master
Issuer, Funding 2, the Mortgages Trustee or NRPLC on the one hand or
the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Master Issuer, NRPLC,
Funding 2, the Mortgages Trustee and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable consideration referred to above.
Notwithstanding the provisions of this Clause 11.4, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Clause 11, each person who controls an Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Master Issuer, Funding 2,
the Mortgages Trustee or NRPLC within the meaning of either the
Securities Act or the Exchange Act, each officer of the Master Issuer
who shall have signed the Registration Statement, each employee and
each director of the Master Issuer, Funding 2, the Mortgages Trustee or
NRPLC shall have the same rights to contribution as the Master Issuer,
Funding 2, the Mortgages Trustee or NRPLC, as the case may be, subject
in each case to the applicable terms and conditions of this Clause
11.4. Notwithstanding the foregoing, in no case shall the Underwriter
(except as may be provided in any agreement among Underwriters relating
to the offering of the Notes) be responsible for any amount in excess
of the Selling Commission or Management and Underwriting Commission
applicable to the Notes purchased by such Underwriter hereunder.
12. TERMINATION
12.1 Lead Underwriters' Ability to Terminate
Notwithstanding any other provision of this Agreement, the Lead
Underwriters on behalf of the Underwriters may, by notice to the Master
Issuer given at any time after the execution and delivery of this
Agreement and prior to the Closing Date, terminate this Agreement in
any of the following circumstances:
(a) if there shall have come to the notice of the Underwriters any
breach of, or any event rendering untrue or incorrect in any
material respect, any of the warranties and representations
contained in Clauses 5, 6 or 7 (or any deemed repetition
thereof) or failure to perform any of the Master Issuer's or
NRPLC's covenants or agreements in this Agreement in any
material respect; or
(b) if any condition specified in Clause 9 has not been satisfied or
waived by the Lead Underwriters on behalf of the Underwriters;
or
49
(c) if in the opinion of the Lead Underwriters, circumstances shall
be such as: (i) to prevent or to a material extent restrict
payment for the US Notes in the manner contemplated in this
Agreement or (ii) to a material extent prevent or restrict
settlement of transactions in the US Notes in the market or
otherwise; or
(d) if in the opinion of the Lead Underwriters, there shall have
been (i) any change in national or international political,
legal, tax or regulatory conditions or (ii) any calamity or
emergency, which has in its view caused a substantial
deterioration in the price and/or value of the US Notes; or
(e) upon termination of the Subscription Agreement; or
(f) if (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the Market or the
over-the-counter market shall have been suspended or minimum
prices shall have been established on such exchanges or such
market; (ii) a banking moratorium shall have been declared by US
federal or New York State or UK regulatory authorities; (iii)
there shall have occurred any change or any development
involving a prospective change, in or affecting particularly the
business or properties of the Master Issuer, Funding 2, the
Mortgages Trustee or NRPLC, which in the judgement of the Lead
Underwriters materially impairs the investment quality of the US
Notes or makes it impracticable or inadvisable to market the US
Notes or (iv) if in the judgement of the Lead Underwriters, it
otherwise becomes impracticable or inadvisable to proceed with
the offering of the US Notes.
12.2 Consequences of Termination
Upon such notice being given this Agreement shall terminate and be of
no further effect and no party hereto shall be under any liability to
any other in respect of this Agreement except that (a) the Master
Issuer shall remain liable under Clause 10 for the payment of the costs
and expenses already incurred or incurred in consequence of such
termination and (b) (i) the indemnity agreement and contribution
provisions set forth in Clause 11, (ii) the obligations of the Master
Issuer and NRPLC and the representations and warranties of the
Underwriters made in Clause 3.2(b) of this Agreement, which would have
continued in accordance with Clause 13 had the arrangements for the
underwriting and issue of the US Notes been completed, shall so
continue.
13. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
13.1 The representations, warranties, agreements, undertakings and
indemnities in this Agreement will continue in full force and effect
notwithstanding completion of the arrangements for the subscription and
issue of the US Notes or any investigation made by or on behalf of any
Underwriter or any controlling person or any of its representatives,
directors, officers, agents or employees or any of them.
13.2 Save for their respective responsibilities to comply with the relevant
representations set forth herein, neither the Master Issuer, Funding 2,
the Mortgages Trustee nor NRPLC shall have any responsibility in
respect of the legality of the Underwriters or other persons offering
and selling the US Notes in any jurisdiction or in respect of the US
Notes qualifying for sale in any jurisdiction.
50
14. NOTICES
14.1 All communications pursuant to this Agreement will be in writing and
will be delivered at or sent by facsimile transmission to the following
addresses:
(i) if to the Master Issuer,
Xxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: The Company Secretary
Facsimile: x00 (0) 00 0000 0000
With a copy to:
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx
Xxxxxxxxx xxxx Xxxx XX0 0XX
Attention: Securitization, Risk Operations
Facsimile: x00 (0) 000 000 0000
(ii) if to NRPLC,
Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx
Xxxxxxxxx xxxx Xxxx
XX0 0XX
Attention: Securitization, Risk Operations
Facsimile: x00 (0) 000 000 0000
(iii) if to the Underwriters, to the Lead Underwriters on behalf of
the Underwriters,
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Syndicate
Facsimile: x0 000 000 0000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Head of Structured Finance
Facsimile: + 1 000 000 0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx, Securitization
Facsimile: x0 000 000 0000
(iv) if to Funding 0,
Xxxxx Xxxxx
00
000 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: The Company Secretary
Facsimile: x00 (0) 00 0000 0000
(v) if to the Mortgages Trustee,
00 Xxxxxxxxx Xxxxxx
Xx. Xxxxxx
Xxxxxx XX0 0XX
Attention: The Company Secretary
Facsimile: x00 (0) 0000 000 000
14.2 Any communication so sent by letter shall take effect at the time of
actual delivery to the addressee, and any communication so sent by
facsimile transmission shall take effect upon acknowledgement of
receipt by the recipient. Any communication to be delivered to any
party under this Agreement which is to be sent by facsimile
transmission will be written legal evidence.
14.3 The Mortgages Trustee agrees that the process by which any proceedings
in England are begun may be secured on it by being delivered to Granite
Finance Trustees Limited c/o Mourant & Co. Capital (SPV) Limited, 0xx
Xxxxx, 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, or otherwise at the
registered office of Mourant & Co. Capital (SPV) Limited, attn: The
Company Secretary. If such person is not or ceases to be effectively
appointed to accept service of process on the Mortgages Trustee's
behalf the Mortgages Trustee shall, on the written demand of the Lead
Underwriters, appoint a further person in England to accept service of
process on its behalf and, failing such appointment within 15 days, the
Lead Underwriters shall be entitled to appoint such a person by written
notice to the Mortgages Trustee. Nothing in this sub-clause shall
affect the right of the Lead Underwriters to serve process in any other
manner permitted by law.
15. TIME
Time shall be of the essence of this Agreement.
16. NON PETITION AND LIMITED RECOURSE
Each of the Underwriters agrees with the Master Issuer, Funding 2 and
the Mortgages Trustee, that it shall not, until the expiry of one year
and one day after the payment of all sums outstanding and owing under
the Notes (in respect of the Master Issuer) and until the expiry of one
year and one day after the payment of all sums outstanding and owing
under any Loan Tranche made to Funding 2 by the Master Issuer or any
other company (in respect of the Mortgages Trustee) take any corporate
action or other steps or legal proceedings for the winding-up,
dissolution, arrangement, reconstruction or re-organization or for the
appointment of a liquidator, receiver, manager, administrator,
administrative receiver or similar officer of the Master Issuer, the
Mortgages Trustee or Funding 2 or any, or all of, their respective
assets or revenues.
Each of the Underwriters agrees with the Mortgages Trustee that to the
extent that any amounts due to such Underwriter from the Mortgages
Trustee hereunder exceed the assets of the Mortgages Trustee
(excluding, for the avoidance of doubt, the assets comprised in the
Mortgages Trust) available to pay such amounts and any other amounts
due to other creditors
52
of the Mortgages Trustee then the claims of such Underwriter in
relation to any such excess amounts shall be extinguished and shall not
thereafter revive.
To the extent permitted by law, no recourse under any obligation,
covenant or agreement of any person contained in this Agreement shall
be had against any shareholder, officer or director of the Master
Issuer, Funding 2 or the Mortgages Trustee, by the enforcement of any
assessment or by any legal proceedings, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement
is a corporate obligation of each of the Master Issuer, Funding 2 and
the Mortgages Trustee expressed to be a party hereto and no personal
liability shall attach to or be incurred by the shareholders, officers,
agents or directors of such person as such, or any of them, under or by
reason of any of the obligations, covenants or agreements of the Master
Issuer, Funding 2 or the Mortgages Trustee contained in this Agreement,
or implied therefrom, and that any and all personal liability for
breaches by such person of any such obligations, covenants or
agreements, either under any applicable law or by statute or
constitution, of every such shareholder, officer, agent or director is
hereby expressly waived by each person expressed to be a party hereto
as a condition of and consideration for the execution of this
Agreement.
17. GOVERNING LAW AND JURISDICTION
17.1 Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the
conflict of laws provisions thereof.
17.2 Jurisdiction
Each of the parties hereto irrevocably agrees that, except as otherwise
set forth in this paragraph, any state or federal court sitting in the
City of New York shall have exclusive jurisdiction to hear and
determine any suit, action or proceeding and to settle any dispute
arising out of or relating to this Agreement and, for such purposes,
irrevocably submits to the jurisdiction of such courts. Each of the
Mortgages Trustee, Funding 2, the Master Issuer and NRPLC hereby
appoints the CT Corporation System at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX
00000, or, if otherwise, its principal place of business in the City of
New York from time to time, as its agent for service of process and
agrees that service of any process, summons, notice or document by hand
delivery or registered mail upon such agent shall be effective service
of process for any suit, action or proceeding brought in any such
court. Each of the Mortgages Trustee, Funding 2, the Master Issuer and
NRPLC irrevocably and unconditionally waives any objection to the
laying of venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum. Each of the Mortgages Trustee,
Funding 2, the Master Issuer and NRPLC agrees that a final judgment in
any such suit, action or proceeding brought in any such court shall be
conclusive and binding upon each of the Mortgages Trustee, Funding 2,
the Master Issuer and NRPLC and may be enforced in any other court to
whose jurisdiction each of the Mortgages Trustee, Funding 2, the Master
Issuer and NRPLC is or may in the future be subject, by suit upon
judgment. Each of the Mortgages Trustee, Funding 2, the Master Issuer
and NRPLC further agrees that nothing herein shall affect the
Underwriters' right to effect service of process in any other manner
permitted by law or to bring a suit, action or proceeding (including a
proceeding for enforcement of a judgment) in any other court or
jurisdiction in accordance with applicable law.
53
18. COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually
or by facsimile) all of which, taken together, shall constitute one and
the same agreement and any party may enter into this Agreement by
executing a counterpart.
19. AUTHORITY OF THE LEAD UNDERWRITERS
Any action by the Underwriters hereunder may be taken by Deutsche Bank
Securities Inc., Xxxxxx Brothers Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated as representatives on behalf of the Underwriters,
and any such action taken by Deutsche Bank Securities Inc., Xxxxxx
Brothers Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
shall be binding upon the Underwriters.
20. SUCCESSORS
This Agreement shall inure to the benefit of and be binding upon each
of the parties hereto, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein
contained. No purchaser of US Notes from the Underwriters shall be
deemed to be a successor by reason merely of such purchase.
54
IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
GRANITE MASTER ISSUER PLC
By: /s/ Xxxxxx Xxxxx
---------------------
Xxxxxx Xxxxx
Representing L.D.C. Securitisation Director No 1 Limited
NORTHERN ROCK PLC
By: /s/ C Xxxx
---------------------
C Xxxx
GRANITE FINANCE FUNDING 2 LIMITED
By: /s/ Xxxxxx Xxxxx
---------------------
Xxxxxx Xxxxx
GRANITE FINANCE TRUSTEES LIMITED
By: /s/ Xxxxx Xxxxxx
---------------------
Xxxxx Xxxxxx
Director
DEUTSCHE BANK SECURITIES INC.
For itself and on behalf of the several Underwriters listed in Schedule 1
hereto (other than Xxxxxx Brothers Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated)
By: /s/ Xxxxx Xxxx
---------------------------
Nigel X.X. Xxxx
Managing Director/Debt Syndication
Duetsche Bank Securities Inc
By: /s/ Xxxx Xxxxxxxxx
---------------------------
Xxxx Xxxxxxxxx
Director
XXXXXX BROTHERS INC.
By: /s/ Xxxx Xxxxxxxx
---------------------------
Xxxx Xxxxxxxx
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxx Xxxxxxx
---------------------------
Xxx Xxxxxxx
Authorized Signatory
55
SCHEDULE 1
-----------------------------------------------------------------------------------------------------
$650,000,000 of $704,300,000 of $1,130,000,000
Series 2006-4 Series 2006-4 of Series 2006-4
Class A1 Notes Class A4 Notes Class A6 Notes
-----------------------------------------------------------------------------------------------------
Deutsche Bank Securities Inc. $193,000,000 $212,100,000 $354,000,000
-----------------------------------------------------------------------------------------------------
Xxxxxx Brothers Inc. $193,000,000 $211,100,000 $353,000,000
-----------------------------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $194,000,000 $211,100,000 $353,000,000
-----------------------------------------------------------------------------------------------------
Barclays Capital Inc. $14,000,000 $14,000,000 $14,000,000
-----------------------------------------------------------------------------------------------------
Citigroup Global Markets Limited $14,000,000 $14,000,000 $14,000,000
-----------------------------------------------------------------------------------------------------
X. X. Xxxxxx Securities Inc. $14,000,000 $14,000,000 $14,000,000
-----------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. International Limited $14,000,000 $14,000,000 $14,000,000
-----------------------------------------------------------------------------------------------------
UBS Securities LLC $14,000,000 $14,000,000 $14,000,000
-----------------------------------------------------------------------------------------------------
Total $650,000,000 $704,300,000 $1,130,000,000
-----------------------------------------------------------------------------------------------------
S-1
-------------------------------------------------------------------------------------------------------------------------------
$60,600,000 of $47,800,000 of $10,000,000 of $32,600,000 of $15,000,000 of
Series 2006-4 Series 2006-4 Series 2006-4 Class Series 2006-4 Class Series 2006-4 Class
Class B1 Notes Class M1 Notes M2 Notes C1 Notes C2 Notes
-------------------------------------------------------------------------------------------------------------------------------
Deutsche Bank Securities Inc. $20,200,000 $16,000,000 $3,000,000 $10,200,000 $5,000,000
-------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Brothers Inc. $20,200,000 $16,000,000 $3,000,000 $11,200,000 $5,000,000
-------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce,
Xxxxxx & SmithIncorporated $20,200,000 $15,800,000 $4,000,000 $11,200,000 $5,000,000
-------------------------------------------------------------------------------------------------------------------------------
Total $60,600,000 $47,800,000 $10,000,000 $32,600,000 $15,000,000
-------------------------------------------------------------------------------------------------------------------------------
S-2
