Exhibit 1.1
UNDERWRITING AGREEMENT
DATED 23RD JANUARY, 2004
GRANITE MORTGAGES 04-1 PLC
And
NORTHERN ROCK PLC
And
GRANITE FINANCE FUNDING LIMITED
And
GRANITE FINANCE TRUSTEES LIMITED
And
BARCLAYS CAPITAL INC.
And
CITIGROUP GLOBAL MARKETS LIMITED
And
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
And
▇▇▇▇▇▇ BROTHERS, INC.
And
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
relating to GRANITE MORTGAGES 04-1 PLC
$1,185,000,000 Series 1 Class A1 Floating Rate Notes due December 2004
$1,185,000,000 Series 1 Class A2 Floating Rate Notes due March 2025
$52,000,000 Series 1 Class B Floating Rate Notes due March 2044
$72,000,000 Series 1 Class M Floating Rate Notes due March 2044
$108,000,000 Series 1 Class C Floating Rate Notes due March 2044
$1,185,000,000 Series 2 Class A1 Floating Rate Notes due March 2044
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CONTENTS
Clause Page
1. Agreement to Issue and Subscribe...............................................5
2. Stabilisation..................................................................7
3. Agreements by the Underwriters.................................................7
4. Listing.......................................................................10
5. Representations and Warranties of the Current Issuer..........................11
6. Representations and Warranties of Funding and the Mortgages Trustee...........16
7. Representations and Warranties of NRPLC.......................................20
8. Covenants of the Current Issuer, Funding, the Mortgages Trustee and NRPLC.....23
9. Conditions Precedent..........................................................29
10. Closing.......................................................................33
11. Commissions...................................................................34
12. Expenses......................................................................34
13. Indemnification...............................................................35
14. Termination...................................................................39
15. Survival of Representations and Obligations...................................40
16. Notices.......................................................................41
17. Time..........................................................................43
18. Non Petition and Limited Recourse.............................................43
19. Governing Law and Jurisdiction................................................44
20. Counterparts..................................................................44
21. Authority of the Lead Underwriters............................................44
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THIS AGREEMENT is made as of 23rd January, 2004
BETWEEN:
(1) GRANITE MORTGAGES 04-1 PLC, a public limited company incorporated under
the laws of England and Wales, whose registered office is at ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Current Issuer");
(2) NORTHERN ROCK PLC, a public limited company incorporated under the laws
of England and Wales, whose registered office is at ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ("NRPLC");
(3) GRANITE FINANCE FUNDING LIMITED, a private limited company incorporated
under the laws of Jersey, Channel Islands, through its branch at ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("Funding");
(4) GRANITE FINANCE TRUSTEES LIMITED, a private limited company
incorporated under the laws of Jersey, Channel Islands, whose
registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇, Channel Islands (the "Mortgages Trustee");
(5) BARCLAYS CAPITAL INC., a corporation organised under the laws of
Connecticut whose registered office is at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇, CITIGROUP GLOBAL MARKETS LIMITED, a company
incorporated in England and Wales (registered number 01763297) whose
registered office is at Citigroup Centre, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇, and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., a corporation organised under the
laws of New York whose registered office is at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, ▇▇▇ (the "Lead Underwriters"); and
(6) ▇▇▇▇▇▇ BROTHERS INC., a corporation organised under the laws of New
York whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, ▇▇▇, and ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED, a corporation organised under the laws of Delaware whose
registered office is at c/o The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ (together with the Lead
Underwriters, the "Underwriters" and each an "Underwriter").
WHEREAS:
(A) The Current Issuer, by resolutions of its Board of Directors passed on
21st January, 2004, has duly authorised and determined to create and
issue $1,185,000,000 Series 1 Class A1 Floating Rate Notes due December
2004 (the "Series 1 Class A1 Notes"), $1,185,000,000 Series 1 Class A2
Floating Rate Notes due March 2025 (the "Series 1 Class A2 Notes"),
$52,000,000 Series 1 Class B Floating Rate Notes due March 2044 (the
"Series 1 Class B Notes"), $72,000,000 Series 1 Class M Floating Rate
Notes due March 2044 (the "Series 1 Class M Notes"), $108,000,000
Series 1 Class C Floating Rate Notes due March 2044 (the "Series 1
Class C Notes" and together with the Series 1 Class A1 Notes, the
Series 1 Class A2 Notes, the Series 1 Class B Notes and the Series 1
Class M Notes, the "Series 1 Notes"), $1,185,000,000 Series 2 Class A1
Floating Rate Notes due March 2044 (the "Series 2 Class A1 Notes" and
together with the Series 1 Notes, the "Dollar Notes").
(B) The Dollar Notes will be denominated in U.S. dollars and in
denominations of $10,000 and $1,000. The Dollar Notes will be issued on
or about 28th January, 2004 or at such other time and/or date as the
Current Issuer and the Lead Underwriters on behalf of the Underwriters
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may agree acting reasonably (the "Closing Date"). The issue of the
Dollar Notes is referred to in this Agreement as the "Issue".
(C) Simultaneously with the Issue, the Current Issuer intends to
issue(euro)900,000,000 Series 2 Class A2 Floating Rate Notes due March
2044 (the "Series 2 Class A2 Notes"),(euro)91,000,000 Series 2 Class B
Floating Rate Notes due March 2044 (the "Series 2 Class B
Notes"),(euro)45,000,000 Series 2 Class M Floating Rate Notes due March
2044 (the "Series 2 Class M Notes"), (euro)60,000,000 Series 2 Class C
Floating Rate Notes due March 2044 (the "Series 2 Class C
Notes"),(GBP)600,000,000 Series 3 Class A Floating Rate Notes due March
2044 (the "Series 3 Class A Notes"),(GBP)23,000,000 Series 3 Class B
Floating Rate Notes due March 2044 (the "Series 3 Class B
Notes"),(GBP)10,000,000 Series 3 Class M Floating Rate Notes due March
2044 (the "Series 3 Class M Notes") and(GBP)20,000,000 Series 3 Class C
Floating Rate Notes due March 2044 (the "Series 3 Class C Notes", and
together with the Series 2 Class A2 Notes, the Series 2 Class B Notes,
the Series 2 Class M Notes, the Series 2 Class C Notes, the Series 3
Class A Notes, the Series 3 Class B Notes and the Series 3 Class M
Notes, the "Reg S Notes"). The Reg S Notes and the Dollar Notes are
collectively referred to as the "Notes". By a subscription agreement
dated as of the date hereof (the "Subscription Agreement") between the
Current Issuer, NRPLC, Funding, the Mortgages Trustee and the
respective managers named therein (the "Managers"), such Managers have
agreed to subscribe and pay for the Reg S Notes upon the terms and
subject to the conditions therein contained.
The Notes will be constituted by, issued subject to and have the
benefit of a trust deed (the "Current Issuer Trust Deed") to be entered
into on or before the Closing Date between the Current Issuer and The
Bank of New York, London Branch as trustee for the Noteholders (the
"Note Trustee").
(D) The Notes (together with the Current Issuer's obligations to its other
creditors) will be secured by the benefit of security interests created
under a deed of charge and assignment by way of security (the "Current
Issuer Deed of Charge") to be entered into on or before the Closing
Date by the Current Issuer, the Note Trustee, Citibank, N.A., (in its
separate capacities as the "Principal Paying Agent", the "US Paying
Agent", the "Registrar", the "Transfer Agent" and the "Agent Bank"),
Swiss Re Financial Products Corporation as dollar currency swap
provider to the Current Issuer in respect of the Series 1 Notes (the
"Series 1 Dollar Currency Swap Provider"), Banque AIG as dollar
currency swap provider to the Current Issuer in respect of the Series 2
Class A1 Notes (the "Series 2 Class A1 Dollar Currency Swap Provider"
and together with the Series 1 Dollar Currency Swap Provider, the
"Dollar Currency Swap Providers"), Citibank, N.A. as euro currency swap
provider to the Current Issuer (the "Euro Currency Swap Provider" and
together with the Dollar Currency Swap Providers, the "Currency Rate
Swap Providers"), NRPLC in its capacity as cash manager to the Current
Issuer under the Current Issuer cash management agreement (the "Current
Issuer Cash Manager"), NRPLC as basis rate swap provider to the Current
Issuer (the "Basis Rate Swap Provider"), Citibank, N.A. in its capacity
as account bank to the Current Issuer under the Current Issuer Bank
Account Agreement (the "Current Issuer Account Bank") and Law Debenture
Corporate Services Limited in its capacity as corporate services
provider to the Current Issuer under the corporate services provider
agreement (the "Current Issuer Corporate Services Provider").
(E) Payments of principal of, and interest on, the Dollar Notes will be
made by the Current Issuer to the US Paying Agent and by the US Paying
Agent to Noteholders on behalf of the Current Issuer under a paying
agent and agent bank agreement to be entered into on or before the
Closing Date (the "Current Issuer Paying Agent and Agent Bank
Agreement") between the Current Issuer, the Note Trustee, the Agent
Bank, the paying agents named therein, the Transfer Agent and the
Registrar.
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(F) Each class of the Dollar Notes will be in fully registered permanent
global form. The Registrar will maintain a register (the "Register") in
respect of the Dollar Notes in accordance with the Current Issuer
Paying Agent and Agent Bank Agreement. The global note certificates
representing the Dollar Notes (the "Dollar Global Note Certificates")
will be deposited on behalf of the beneficial owners of the Dollar
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").
(G) The Current Issuer will use an amount in Sterling equal to the gross
proceeds of the Issue as well as an amount in Sterling equal to the
gross proceeds of the Reg S Notes issue to make a loan to Funding
pursuant to an intercompany loan agreement to be entered into on or
before the Closing Date between the Current Issuer, Funding, the Agent
Bank and The Bank of New York, London Branch in its capacity as
security trustee (the "Security Trustee") (the "Intercompany Loan
Agreement" and the loan made thereunder, the "Intercompany Loan").
Reference to the Intercompany Loan Agreement shall include reference to
a loan confirmation in respect of the Intercompany Loan Agreement to be
entered into on or about the Closing Date and made between Funding, the
Current Issuer, the Security Trustee and the Agent Bank (the "Current
Issuer Intercompany Loan Confirmation"), and the general terms and
conditions applicable to the Intercompany Loan Agreement which has been
signed for the purposes of identification by the Security Trustee, the
Agent Bank and Funding on the Initial Closing Date, as amended and
restated, novated, verified or supplemented from time to time and shall
include any additional and/or replacement intercompany loan terms and
conditions entered into from time to time in accordance with the Legal
Agreements (the "Intercompany Loan Terms and Conditions").
(H) Funding will pay the proceeds of the Intercompany Loan to the Mortgages
Trustee (or to its order) in consideration for the acquisition of part
of the beneficial share of the additional assigned mortgage trust
portfolio of first residential mortgage loans (the "Additional Assigned
Mortgage Loans") and an interest in the related insurances and their
related security (together, the "Related Security").
(I) NRPLC will assign the portfolio of Additional Assigned Mortgage Loans
and their Related Security to the Mortgages Trustee on 26th January,
2004 and may assign further Mortgage Loans on subsequent assignment
dates pursuant to a mortgage sale agreement dated 26th March, 2001
between NRPLC, the Mortgages Trustee, Funding and the Security Trustee
(the "Mortgage Sale Agreement"). Each of the Mortgages Trustee and
Funding has appointed NRPLC as administrator to service the Additional
Assigned Mortgage Loans and their Related Security pursuant to an
Administration Agreement dated 26th March, 2001 (the "Administration
Agreement").
(J) The Mortgages Trustee will hold the Additional Assigned Mortgage Loans
and their Related Security on a bare trust in undivided shares for the
benefit of Funding and NRPLC pursuant to the mortgages trust deed dated
26th March, 2001 entered into by NRPLC, Funding and the Mortgages
Trustee (the "Mortgages Trust Deed"). The Mortgages Trustee also
entered into a guaranteed investment contract dated on or about 26th
March, 2001 in respect of its principal bank account (the "Mortgages
Trustee Guaranteed Investment Contract") between the Mortgages Trustee
and Lloyds TSB Bank plc, Jersey International Branch (in such capacity,
the "Mortgages Trustee GIC Provider").
(K) Funding's obligations to the Current Issuer under the Intercompany Loan
Agreement and to Funding's other creditors are secured by the benefit
of security interests created by a deed of charge and assignment dated
26th March, 2001, which includes any deed of accession entered into in
connection therewith or supplement thereto (the "Funding Deed of
Charge") and
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entered into by Funding, Granite Mortgages 01-1 plc (the "First
Issuer"), the Mortgages Trustee, the Security Trustee, NRPLC in its
capacity as cash manager to the Mortgages Trustee and Funding (the
"Cash Manager") Lloyds TSB Bank plc, Jersey International Branch in its
capacity as account bank to the Mortgages Trustee, Lloyds TSB Bank plc
in its capacity as account bank to Funding (in such capacities, each an
"Account Bank") and NRPLC in its capacity as Current Issuer start-up
loan provider to Funding (the "Current Issuer Start-up Loan Provider")
and acceded to pursuant to deeds of accession dated 28th September,
2001 by Granite Mortgages 01-2 plc (the "Second Issuer") and the
Current Issuer Start-up Loan Provider respectively, 20th March, 2002 by
Granite Mortgages 02-1 plc (the "Third Issuer") and the Current Issuer
Start-up Loan Provider, respectively, 23rd September, 2002 by Granite
Mortgages 02-2 plc (the "Fourth Issuer") and the Current Issuer
Start-up Loan Provider, respectively, 27th January, 2003 by Granite
03-1 plc (the "Fifth Issuer") and the Current Issuer Start-Up Loan
Provider, respectively, 21st May, 2003 by Granite Mortgages 03-2 plc
(the "Sixth Issuer") and the Current Issuer Start-up Loan Provider,
respectively, and 24th September, 2003 by Granite Mortgages 03-3 plc
(the "Seventh Issuer") and the Current Issuer Start-up Loan Provider,
respectively (together the "Deeds of Accession"). On or before the
Closing Date, the Current Issuer and the Current Issuer Start-up Loan
Provider will, pursuant to a deed of accession (the "Current Deed of
Accession") accede to the terms of the Funding Deed of Charge and
thereby become secured creditors of Funding.
(L) In connection with the purchase of an initial mortgage portfolio and
the issue of certain notes by the First Issuer, Funding, in addition to
the documents described above, entered into on 26th March, 2001 (the
"Initial Closing Date") (1) a cash management agreement with the Cash
Manager, the Mortgages Trustee and the Security Trustee (the "Cash
Management Agreement"); (2) a bank account agreement with the Account
Banks, the Mortgages Trustee, Funding, the Security Trustee and the
Cash Underwriter (the "Bank Account Agreement"); (3) a guaranteed
investment contract with, inter alios, Lloyds TSB Bank plc as GIC
provider to Funding (the "Funding GIC Provider") (the "Funding
Guaranteed Investment Contract"); (4) a corporate services provider
agreement (the "Funding Corporate Services Agreement") with Mourant &
Co. Capital (SPV) Limited as corporate services provider to Funding,
each of which will remain in effect, as applicable, in respect of the
Issue and (5) a start-up loan agreement made between the Current Issuer
Start-up Loan Provider and the Security Trustee (the "Start-Up Loan
Agreement").
(M) In connection with the Issue, the Current Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Notes relating
to each class of the Notes; (2) the Current Issuer Corporate Services
Agreement with respect to the Current Issuer; (3) a cash management
agreement between the Current Issuer, the Current Issuer Cash Manager
and the Note Trustee (the "Current Issuer Cash Management Agreement");
(4) a bank account agreement between the Current Issuer, the Note
Trustee, the Current Issuer Cash Manager and the Current Issuer Account
Bank (the "Current Issuer Bank Account Agreement"); (5) a
post-enforcement call option agreement (the "Post-Enforcement Call
Option Agreement") between the Current Issuer, the Note Trustee, the
Registrar, the Transfer Agent and GPCH Limited; (6) the Start-Up Loan
Agreement; (7) ISDA Master Agreements including the Schedules thereto
and confirmations thereunder in respect of Dollar/Sterling currency
swaps between the Current Issuer, the Dollar Currency Swap Providers
and the Note Trustee (the "Dollar Currency Swap Agreements"); (8) ISDA
Master Agreements including the Schedules thereto and confirmations
thereunder in respect of Euro/Sterling currency swaps between the
Current Issuer, the Euro Currency Swap Provider and the Note Trustee
(the "Euro Currency Swap Agreements" and the together with the Dollar
Currency Swap Agreements, the "Currency Swap Agreements"); and (9) an
ISDA Master Agreement including the Schedule thereto and confirmations
thereunder in respect of a variable rate swap
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and a fixed rate swap between the Current Issuer, the Basis Rate Swap
Provider and the Note Trustee (the "Basis Rate Swap Agreement", and
together with the Currency Swap Agreements, the "Swap Agreements").
(N) As required, the Current Issuer, Funding, the Mortgages Trustee and/or
NRPLC have entered or will enter into any other relevant documents to
be signed and delivered on or before the Closing Date (such documents,
together with the Mortgage Sale Agreement, the Mortgages Trust Deed,
the Mortgages Trustee Corporate Services Agreement, the Administration
Agreement, the Mortgages Trustee Guaranteed Investment Contract, the
Intercompany Loan Agreement (including, for the avoidance of doubt, the
Intercompany Loan Terms and Conditions and the Current Issuer
Intercompany Loan Confirmation), the Post-Enforcement Call Option
Agreement, the Funding (Granite 04-1) Guaranteed Investment Contract,
the Funding Guaranteed Investment Contract, the Cash Management
Agreement, the Bank Account Agreement, the Collection Bank Agreement,
the Start-up Loan Agreement with respect to the Current Issuer, the
Funding (Granite 04-1) Bank Account Agreement, the Funding Deed of
Charge, the Current Issuer Deed of Charge, the Current Issuer Trust
Deed, the Current Issuer Cash Management Agreement, the Current Issuer
Paying Agent and Agent Bank Agreement, the Current Issuer Bank Account
Agreement, the Current Issuer Corporate Services Agreement, the Swap
Agreements, the Funding Corporate Services Agreement, this Agreement
and the Subscription Agreement, each as they have been or may be
amended, restated, varied or supplemented from time to time are
collectively referred to herein as the "Legal Agreements").
IT IS AGREED as follows:
1. AGREEMENT TO ISSUE AND SUBSCRIBE
1.1 Definitions and Interpretation
(a) Capitalised terms used herein and not otherwise defined herein or
pursuant hereto shall have the meanings given to them in the
Prospectus (as defined below) unless the context otherwise
requires.
(b) In this Agreement:
(i) words denoting the singular number only shall include the
plural number also and vice versa;
(ii) words denoting one gender only shall include the other
genders;
(iii) words denoting persons only shall include firms and
corporations and vice versa;
(iv) references to any statutory provision shall be deemed also
to refer to any statutory modification or re-enactment
thereof or any statutory instrument, order or regulation
made thereunder or under any such re-enactment;
(v) references to any agreement or other document (including
any of the Legal Agreements) shall be deemed also to refer
to such agreement or document as amended, varied,
supplemented, restated or novated from time to time;
(vi) clause, paragraph and schedule headings are for ease of
reference only;
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(vii) reference to a statute shall be construed as a reference to
such statute as the same may have been, or may from time to
time be, amended or re-enacted to the extent such amendment
or re-enactment is substantially to the same effect as such
statute on the date hereof;
(viii) reference to a time of day, unless otherwise specified,
shall be construed as a reference to London time; and
(ix) references to any person shall include references to his
successors, transferees and assigns and any person deriving
title under or through him.
1.2 Agreement to Issue and Underwrite
Subject to the terms and conditions of this Agreement, the Current
Issuer agrees to issue the Dollar Notes on the Closing Date to the
Underwriters or as they may direct. The Dollar Notes will be issued at
a price equal to the aggregate of 100 per cent. of the aggregate
principal amount of the Series 1 Class A1 Notes, 100 per cent. of the
aggregate principal amount of the Series 1 Class A2 Notes, 100 per
cent. of the aggregate principal amount of the Series 1 Class B Notes,
100 per cent. of the aggregate principal amount of the Series 1 Class M
Notes, 100 per cent. of the aggregate principal amount of the Series 1
Class C Notes and 100 per cent. of the aggregate principal amount of
the Series 2 Class A1 Notes (the "Issue Price").
1.3 The Legal Agreements
To the extent that each of the Current Issuer, Funding, the Mortgages
Trustee and NRPLC is a signatory of the Legal Agreements, each will on
or before the Closing Date, have entered into or enter into each of the
Legal Agreements to which it is a party, substantially in the form of
the draft reviewed by ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ (any
draft of any document so reviewed being called an "agreed form"), with
such amendments as the Lead Underwriters, on behalf of the
Underwriters, may agree with the Current Issuer and, if it is a
signatory, Funding, the Mortgages Trustee and/or NRPLC.
1.4 The Notes
The Dollar Notes will be issued on the Closing Date in accordance with
the terms of the Current Issuer Trust Deed and will be in, or
substantially in, the form set out therein.
1.5 Prospectus
The Current Issuer confirms that it has prepared a prospectus dated on
or around today's date (together with the preliminary prospectus of the
Current Issuer dated 7th January, 2004, the "Prospectus") for use in
connection with the issue of the Dollar Notes and hereby authorises the
Underwriters to distribute copies of the Prospectus in connection with
the offering and sale of the Dollar Notes.
1.6 Authority to Offer
The Current Issuer confirms that it has authorised the Lead
Underwriters to offer the Dollar 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 Current Issuer
acknowledges and agrees that the Underwriters may offer and sell Dollar
Notes to or through any affiliate of an Underwriter and that any such
affiliate may offer and sell Dollar Notes purchased by it to or through
any Underwriter.
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2. STABILISATION
2.1 Stabilisation
The Underwriters or their affiliates may, to the extent permitted by
applicable laws and regulations, engage in over-allotment transactions,
stabilising transactions, syndicate covering transactions and penalty
bids and otherwise effect transactions in the open market or otherwise
in connection with the distribution of the Notes with a view to
stabilising or maintaining the respective market prices of the Notes at
levels other than those which might otherwise prevail in the open
market. Such stabilising, if commenced, may be discontinued at any
time. In doing so the Underwriters or their affiliates shall act as
principal and in no circumstances shall the Current Issuer be obliged
to issue more than (i) $1,185,000,000 in aggregate principal amount of
the Series 1 Class A1 Notes, (ii) $1,185,000,000 in aggregate principal
amount of the Series 1 Class A2 Notes, (iii) $52,000,000 in aggregate
principal amount of the Series 1 Class B Notes, (iv) $72,000,000 in
aggregate principal amount of the Series 1 Class M Notes, (v)
$108,000,000 in aggregate principal amount of the Series 1 Class C
Notes, or (vi) $1,185,000,000 in aggregate principal amount of the
Series 2 Class A1 Notes.
2.2 Stabilisation Profits and Losses
As between the Current Issuer and the Underwriters any loss resulting
from stabilisation transactions entered into by the Underwriters or
their affiliates, pursuant to Clause 2.1 shall be borne, and any profit
arising therefrom shall be retained, by the Underwriters.
3. AGREEMENTS BY THE UNDERWRITERS
3.1 Purchase
Each Underwriter severally agrees to purchase and pay for such
principal amount of the Dollar Notes set out against its name in the
Schedule hereto on the Closing Date at the Issue Price, all on the
terms set out in this Agreement.
(a) If any Underwriter shall default on its obligation to purchase
Dollar 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 Dollar 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 Dollar 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 Dollar 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 Dollar Notes, or NRPLC
notifies the non-defaulting Underwriters that it has so arranged
for the purchase of such Dollar 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 Dollar Notes. Any
substitute purchaser of Notes pursuant to this paragraph shall be
deemed to be an Underwriter, for purposes of this Agreement, in
connection with the offering and sale of the Dollar Notes.
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(b) If, after giving effect to any arrangements for the purchase of
Dollar Notes of a defaulting Underwriter by the non-defaulting
Underwriters, as provided in Clause 3.1(a) above, the aggregate
principal amount of the Dollar Notes which remains unpurchased
does not exceed ten per cent. of the aggregate principal amount of
the Dollar Notes, NRPLC shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of the
Dollar 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
Dollar Notes which such Underwriter agreed to purchase hereunder)
of the principal amount of the Dollar 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 Dollar Notes of a defaulting
Underwriter by the non-defaulting Underwriters as provided in
Clause 3.1(a) above, the aggregate principal amount of the Dollar
Notes which remains unpurchased exceeds ten per cent. of the
aggregate principal amount of the Dollar Notes, or if NRPLC shall
not exercise the right described in Clause 3.1(b) above to require
non-defaulting Underwriters to purchase the Dollar Notes of a
defaulting Underwriter, then this Agreement shall thereupon
terminate, without liability on the part of the non-defaulting
Underwriters; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
3.2 Selling
Each Underwriter severally (and not jointly) agrees as follows:
(a) United States
It is understood that several Underwriters propose to offer the
Dollar Notes for sale to the public in the United States as set
forth in the Prospectus. These Underwriters will offer and sell
the Dollar Notes in the United States only through their U.S.
registered broker dealers.
(b) United Kingdom
Each Underwriter represents and agrees that:
(1) it has not offered or sold, and will not offer or sell, any
Dollar Notes to persons in the United Kingdom prior to
admission of the Dollar Notes to listing in accordance with
Part VI of the Financial Services and Markets ▇▇▇ ▇▇▇▇, as
amended (the "FSMA") except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for
purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to
the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995 (as amended)
or the FSMA;
(2) it has 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 Dollar
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Notes in circumstances in which Section 21(1) of the FSMA
does not apply to the Current Issuer; and
(3) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it
in relation to the Dollar Notes in, from or otherwise
involving the United Kingdom.
(c) Italy
Each Underwriter represents and agrees that the offering of the
Dollar Notes has not been cleared by CONSOB (the Italian
Securities Exchange Commission) pursuant to Italian securities
legislation and, accordingly, the Dollar Notes have not been and
will not be offered, sold or delivered, and the copies of the
Prospectus or any other document relating to the Dollar Notes have
not been and will not be distributed in the Republic of Italy,
except:
(i) to professional investors (operatori qualificati), as
defined in Article 31, second paragraph, of CONSOB
Regulation No. 11522 of 1st July, 1998, as amended; or
(ii) in circumstances which are exempted from the rules on
solicitation of investments pursuant to Article 100 of
Legislative Decree No. 58 of 24th February, 1998 (the
"Financial Services Act") and Article 33, first paragraph
of CONSOB Regulation No. 11971 of 14th May, 1999, as
amended; or
(iii) to an Italian resident who submits an unsolicited offer to
purchase the Dollar Notes.
In addition, each Underwriter represents and agrees that any
offer, sale or delivery of the Dollar Notes or distribution of
copies of the Prospectus or any other document relating to the
Dollar Notes in the Republic of Italy under (i) or (ii) above has
been and will 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 ▇▇. ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ (▇▇▇
"▇▇▇▇▇▇▇ ▇▇▇"); and
(B) in compliance with Article 129 of the Banking Act and the
implementing guidelines of the Bank of Italy, as amended
from time to time, pursuant to which the issue or the offer
of securities in the Republic of Italy may need to be
preceded and followed by an appropriate notice to be filed
with the Bank of Italy depending, inter alia, on the
aggregate value of the securities issued or offered in the
Republic of Italy and their characteristics.
(d) Spain
Each Underwriter represents and agrees that it has not, directly
or indirectly, offered or sold and will not offer or sell any
Dollar Notes in Spain by means of a public offer as defined and
construed by Spanish law unless such public offer is made in
compliance with the requirements of Law 24/1988 of 28th July (as
amended by Law 37/1998, of 16th November), on the Spanish
Securities Market and the Royal Decree 291/1992, of 27th March (as
amended by Royal Decree 2590/1998, of 7th December
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and Royal Decree 705/2002, of 19th July), on issues and public
offers for the sale of securities.
(e) Ireland
Each Underwriter represents and agrees that it has not and will
not, directly or indirectly, offer or sell in Ireland any Dollar
Notes other than to persons whose ordinary business it is to buy
or sell shares or debentures whether as principal or agent.
(f) Other
For each jurisdiction outside the United States and the United
Kingdom (a "Relevant Jurisdiction"), each Underwriter acknowledges
that no representation is made by the Current Issuer or any
Underwriter that any action has been or will be taken in any
Relevant Jurisdiction by the Current Issuer or any Underwriter
that would permit a public offering of the Dollar Notes (other
than as described above), or possession or distribution of the
Prospectus or any other offering material, in any country or
Relevant Jurisdiction where action for that purpose is required.
Each Underwriter will comply with all applicable securities laws
and regulations in any Relevant Jurisdiction in which it
purchases, offers, sells or delivers Dollar Notes or has in its
possession or distributes the Prospectus or any other offering
material, in all cases at its own expense. Each Underwriter
represents that it has not and will not directly or indirectly
offer, sell or deliver any offered notes or publish any
prospectus, form of application, offering circular, advertisement
or other offering material except under circumstances that will,
to the best of its knowledge and belief, result in compliance with
any applicable laws and regulations, and all offers, sales and
deliveries of offered notes by it will be made on the same terms
and will obtain any consent, approval or permission required by it
for the purchase, offer, sale or delivery by it of Dollar Notes
under the laws and regulations in force in any Relevant
Jurisdictions to which it is subject or in which it makes such
purchases, offers, sales or deliveries and the Current Issuer
shall have no responsibility for them.
4. LISTING
4.1 Application for Listing
The Current Issuer confirms that it has authorised the Lead
Underwriters to make or cause to be made at the Current Issuer's
expense applications on the Current Issuer's behalf for the Notes to be
listed on the Official List of the UK Listing Authority and for the
Notes to be admitted to trading by the London Stock Exchange plc (the
"Stock Exchange").
4.2 Supply of Information
The Current Issuer agrees to supply to the Lead Underwriters for
delivery to the UK Listing Authority and the Stock Exchange copies of
the Prospectus and such other documents, information and undertakings
as may be required for the purpose of obtaining such listing.
4.3 Maintenance of Listing
The Current Issuer agrees to use its reasonable endeavours to maintain
a listing of the Dollar Notes on the Official List of the UK Listing
Authority and the admission of the Notes to trading by the Stock
Exchange for as long as any of the Dollar Notes are outstanding and to
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pay all fees and supply all further documents, information and
undertakings and publish all advertisements or other material as may be
necessary for such purpose. However, if such listing becomes
impossible, the Current Issuer will obtain, and will thereafter use its
best endeavours to maintain, a quotation for, or listing of, the Dollar
Notes on or by such other stock exchange, competent listing authority
and/or quotation system as is commonly used for the quotation or
listing of debt securities as it may, with the approval of the Lead
Underwriters (such approval not to be unreasonably withheld or
delayed), decide.
5. REPRESENTATIONS AND WARRANTIES OF THE CURRENT ISSUER
The Current Issuer represents and warrants to, and agrees with,
Funding, the Mortgages Trustee, the Underwriters and each of them that:
(a) The Registration Statement
The Current Issuer has prepared and filed with the United States
Securities and Exchange Commission (the "Commission") a
registration statement (file number 333-110773) on Form S-11 (the
"Registration Statement"), including a related preliminary
prospectus dated 7th January, 2004, for registration under the
U.S. Securities Act of 1933, as amended (the "Securities Act") of
the offering and sale of the Dollar Notes. The Current Issuer may
have filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been
furnished to the Underwriters. The Current Issuer will next file
with the Commission one of the following, either (1) prior to the
date and time that such Registration Statement becomes effective
(the "Effective Date"), a further amendment to such Registration
Statement, including the form of final prospectus, or (2) after
the Effective Date of such Registration Statement, a final
prospectus in accordance with Rules 430A and 424(b) under the
Securities Act. In the case of clause (2), the Current Issuer has
included in such Registration Statement, as amended at the
Effective Date, all information (other than information with
respect to the Notes and the Issue permitted to be omitted from
the Registration Statement when it becomes effective pursuant to
Rule 430A ("Rule 430A Information")) required by the Securities
Act and the rules thereunder to be included in such Registration
Statement and the Prospectus. As filed, such amendment and form of
final prospectus, or such final prospectus, shall contain all Rule
430A Information, together with all other such required
information, and, except to the extent that the Lead Underwriters
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Underwriters
prior to the date and time that this Agreement is executed and
delivered by the parties hereto (the "date of this Agreement"),
or, to the extent not completed at the date of this Agreement,
shall contain only specific additional information and other
changes (beyond that contained in the latest preliminary
prospectus) as the Current Issuer has advised the Lead
Underwriters, prior to the date of this Agreement, will be
included or made therein;
(b) No Material Misstatements or Omissions
On the Effective Date, the Registration Statement, as amended, did
or will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the
Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the
Securities Act, the U.S. Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the U.S. Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the respective
rules thereunder; on the Effective Date and at the date of this
Agreement,
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the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on
the Closing Date the Current Issuer Trust Deed did or will comply
in all material respects with the applicable requirements of the
Trust Indenture Act and the rules thereunder; and on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), will
not, and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the
Current Issuer makes no representations or warranties as to the
information contained in or omitted from the Registration
Statement, or the Prospectus (or any statement thereto) in
reliance upon and in conformity with information furnished in
writing to the Current Issuer by or on behalf of any Underwriter
through the Lead Underwriters specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement
thereto), which information is described in Clause 13.2;
(c) Incorporation, Capacity and Authorisation
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
capacity to conduct its business as described in the Prospectus,
has full power and capacity to create and issue the Notes, to
execute this Agreement and the Legal Agreements to which it is a
party and to undertake and perform the obligations expressed to be
assumed by it herein and therein; and has taken all necessary
action to approve and authorise the same; and the Current Issuer
is lawfully qualified to do business in England and Wales. The
Current Issuer has not taken any corporate action nor (to the best
of its knowledge and belief) have any other steps been taken or
legal proceedings been started or threatened against it for its
winding-up, dissolution or reorganisation or for the appointment
of a receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues;
(d) Validity of Legal Agreements
This Agreement has been duly authorised, executed and delivered by
the Current Issuer and constitutes, and the other Legal Agreements
to which the Current Issuer is a party have been duly authorised
by the Current Issuer and on the Closing Date will constitute,
valid and legally binding obligations of the Current Issuer;
(e) Validity of Notes
The creation, sale and issue of the Notes have been duly
authorised by the Current Issuer and, when executed and
authenticated in accordance with the Current Issuer Trust Deed and
the Current Issuer Paying Agent and Agent Bank Agreement, the
Notes will constitute valid and legally binding obligations of the
Current Issuer and, upon effectiveness of the Registration
Statement, the Current Issuer Trust Deed will have been duly
qualified under the Trust Indenture Act;
(f) Consents
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required
for the creation, issue and offering of
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the Notes or in connection with the execution and performance of
the transactions contemplated by the Legal Agreements or the
compliance by the Current Issuer with the terms of the Notes and
the Legal Agreements as the case may be, except for (i) such
consents, approvals, authorisations, registrations or
qualifications as may be required under applicable United States
state securities, Blue Sky or similar laws in connection with the
purchase and distribution of the Notes by the Underwriters and
(ii) those which will on the Closing Date be, in full force and
effect;
(g) Compliance
The authorisation of the Notes and the granting of security
interests in relation thereto under the Current Issuer Deed of
Charge, the offering and issue of the Notes on the terms and
conditions of this Agreement, the Trust Deed and the Prospectus,
the execution and delivery of the Legal Agreements to which it is
a party and the implementation of the transactions contemplated by
such Legal Agreements and compliance with the terms of the Legal
Agreements to which it is a party do not, and will not, (i)
conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, the Memorandum and
Articles of Association of the Current Issuer or any agreement or
instrument to which the Current Issuer is a party or by which its
properties is bound; (ii) infringe any applicable law, rule,
regulation, judgment, order or decree of any government,
governmental body or court, having jurisdiction over the Current
Issuer or any of its properties; or (iii) result in the creation
or imposition of any mortgage, charge, pledge, lien or other
security interest on any of its properties, other than those
created in, or imposed by, the Legal Agreements themselves;
(h) Financial Statements
(i) The auditor's report by PricewaterhouseCoopers LLP, as
independent auditor to the Current Issuer, set out in the
Prospectus presents fairly the financial position of the
Current Issuer as at the date at which it has been
prepared;
(ii) Since the date of each such report there has been no change
(nor any development or event involving a prospective
change of which the Current Issuer is, or might reasonably
be expected to be, aware) since the date of incorporation
of the Current Issuer which is materially adverse to the
condition (financial or other), prospects, results of
operations or general affairs of the Current Issuer; and
(iii) PricewaterhouseCoopers LLP are independent public
accountants with respect to the Current Issuer within the
meaning of the standards established by the American
Institute of Certified Public Accountants;
(i) Taxation
Save as described in the legal opinions referred to in Clause 9(d)
of this Agreement, no stamp or other similar duty is assessable or
payable in the United Kingdom, and no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever
nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties
or taxes of any kind in connection with the authorisation,
execution or delivery of the Legal Agreements or with the
authorisation, issue, sale or delivery of the Notes and (except as
disclosed in the Prospectus) the performance of the Current
Issuer's, Funding's and/or, as the case
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14
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may be, the Mortgages Trustee's obligations under the Legal
Agreements and the Notes. This warranty does not apply to any
United Kingdom corporation tax which may be levied, collected,
withheld or assessed in connection with the authorisation,
execution or delivery of the Legal Agreements or with the
authorisation, issue, sale or delivery of the Notes;
(j) Breach of other agreements
The Current Issuer is not in breach of or in default under any
agreement to which it is a party or which is binding on it or any
of its assets or revenues;
(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 fulfilment of any
other requirement) constitute an Event of Default as set out in
the Conditions of the Notes;
(l) No Subsidiaries
The Current Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies ▇▇▇
▇▇▇▇;
(m) Granite Finance Holdings Limited
The Previous Issuers, the Current Issuer, Funding, the Mortgages
Trustee and GPCH Limited are the only subsidiaries or subsidiary
undertakings of Granite Finance Holdings Limited within the
meanings of Sections 258 and 736 of the Companies ▇▇▇ ▇▇▇▇;
(n) No Activities
The Current Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any registration
or re-registration as a public limited company under the Companies
Acts 1985 and 1989 and various changes to its directors,
secretary, registered office, Memorandum and Articles of
Association; (ii) the authorisation and execution of the Legal
Agreements to which it is a party; (iii) the activities referred
to or contemplated in the Legal Agreements to which it is a party
or in the Prospectus and (v) the authorisation and issue by it of
the Notes. The Current Issuer has not (other than as set out in
the Prospectus) prepared any accounts and has neither paid any
dividends nor made any distributions since the date of its
incorporation;
(o) Listing Rules
Prior to the delivery of the Prospectus to the Registrar of
Companies in England and Wales, the Prospectus has been approved
by or on behalf of the United Kingdom Listing Authority as listing
particulars as required by the listing rules made pursuant to Part
VI of the FSMA and the Prospectus complies with the listing rules
made under Section 74 of the FSMA;
(p) Litigation
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There are no pending actions, suits or proceedings against or
affecting the Current Issuer which could individually or in the
aggregate have an adverse effect on the condition (financial or
other), prospects, results of operations or general affairs of the
Current Issuer or could adversely affect the ability of the
Current Issuer to perform its obligations under the Legal
Agreements or the Notes or which are otherwise material in the
context of the issue or offering of the Notes and, to the best of
the Current Issuer's knowledge, no such actions, suits or
proceedings are threatened or contemplated;
(q) No Prior Security
Save as set out in any of the Legal Agreements, there exists no
mortgage, lien, pledge or other charge on or over the assets of
the Current Issuer and, other than the Legal Agreements, the
Current Issuer has not entered into any indenture or trust deed;
(r) Security for the Notes
The Notes and the obligations of the Current Issuer under the
Current Issuer Trust Deed will be secured in the manner provided
in the Current Issuer Deed of Charge and with the benefit of the
charges, covenants and other security interests provided for
therein including, without limitation, (i) an assignment by way of
first fixed security of the Current Issuer's right, title,
interest and benefit in the Intercompany Loan Agreement, the Swap
Agreements, the Funding Deed of Charge (as amended by the Deeds of
Accession and the Current Deed of Accession), the Current Issuer
Trust Deed, the Notes, the Current Issuer Paying Agent and Agent
Bank Agreement, the Current Issuer Cash Management Agreement, the
Current Issuer Corporate Services Agreement, the Current Issuer
Bank Account Agreement, the Post-Enforcement Call Option
Agreement, this Agreement, the Subscription Agreement and any
other of the Legal Agreements to which the Current Issuer is a
party; (ii) an assignment by way of first fixed charge over the
Current Issuer Transaction Accounts; (iii) a first fixed charge
(which may take effect as a floating charge) over the Current
Issuer's right, title, interest and benefit to any Authorised
Investments made with moneys standing to the credit of any of the
Current Issuer Bank Accounts; and (iv) a first ranking floating
charge over the whole of the assets and undertaking of the Current
Issuer which are not otherwise effectively subject to any fixed
charge or assignment by way of security;
(s) Capitalisation
The authorised capital of the Current Issuer is as set out in the
Prospectus;
(t) Investment Company Act
The Current Issuer is not an "investment company" as defined in
the U.S. Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the offer and sale of the Notes in
the United States will not subject the Current Issuer to
registration under, or result in a violation of, the Investment
Company Act;
(u) United States Income Tax
The Issuer will not engage in any activities in the United States
(directly or through agents), derive any income from United States
sources as determined under the U.S. Internal Revenue Code of
1986, as amended (the "Code"), or hold any property if
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doing so would cause it to be engaged or deemed to be engaged in a
trade or business within the United States as determined under the
Code; and
(v) Legal Agreements
The representations given by the Current Issuer in the Legal
Agreements are true and accurate, and the description of the Legal
Agreements as set out in the Prospectus is materially complete and
accurate.
Unless otherwise indicated, the representations and warranties set out
in this Clause 5 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF FUNDING AND THE MORTGAGES TRUSTEE
Each of Funding and the Mortgages Trustee severally represents and
warrants (in respect of itself only) to, and agrees with each other,
the Underwriters, the Current Issuer, NRPLC and each of them that:
(a) The Registration Statement
Together with the Current Issuer they have prepared and filed with
the Commission the Registration Statement, including a related
preliminary prospectus dated 7th January, 2004, for registration
under the Securities Act of the offering and sale of the Dollar
Notes. They may have filed one or more amendments thereto,
including a related preliminary prospectus, each of which has
previously been furnished to the Underwriters. They will next file
with the Commission one of the following either (1) prior to the
Effective Date of such Registration Statement, a further amendment
to such Registration Statement, including the form of final
prospectus or (2) after the Effective Date of such Registration
Statement, a final prospectus in accordance with Rules 430A and
424(b). In the case of clause (2), they have included in such
Registration Statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Securities Act and the rules thereunder to be included in such
Registration Statement and the Prospectus. As filed, such
amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other
such required information, and, except to the extent that the Lead
Underwriters shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to the Underwriters
prior to the date of this Agreement, or, to the extent not
completed at the date of this Agreement, shall contain only
specific additional information and other changes (beyond that
contained in the latest preliminary prospectus) as they have
advised the Lead Underwriters, prior to the date of this
Agreement, will be included or made therein;
(b) No Material Misstatements or Omissions
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with
the applicable requirements of the Securities Act, the Exchange
Act and the Trust Indenture Act and the respective rules
thereunder; on the Effective Date and at the date of this
Agreement, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein not
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misleading; on the Effective Date and on the Closing Date the
Current Issuer Trust Deed did or will comply in all material
respects with the applicable requirements of the Trust Indenture
Act and the rules thereunder; and on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing
Date, the Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that neither Funding nor
the Mortgages Trustee makes any representations or warranties as
to the information contained in or omitted from the Registration
Statement, or the Prospectus (or any statement thereto) in
reliance upon and in conformity with information furnished in
writing to them by or on behalf of any Underwriter through the
Lead Underwriters specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto), which
information is described in Clause 13.2;
(c) Incorporation, Capacity and Authorisation
Each is duly incorporated and validly existing under the laws of
Jersey, Channel Islands and Funding has lawfully constituted a
branch office in Great Britain in accordance with Ch. I of Part
XXIII of the Companies Act of 1985, as amended, with full power
and authority to conduct its business as described in the
Prospectus, is lawfully qualified to do business in Jersey and has
full power and capacity to execute this Agreement and the Legal
Agreements to which each is respectively a party, and to undertake
and perform the obligations expressed to be assumed by each herein
and therein; and each has taken all necessary action to approve
and authorise the same. Neither Funding nor the Mortgages Trustee
has taken any corporate action nor (to the best of its knowledge
and belief) have any other steps been taken or legal proceedings
been started or threatened against it for its winding-up,
dissolution or reorganisation or for the appointment of a
receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues;
(d) Validity of Legal Agreements
This Agreement has been duly authorised, executed and delivered by
each of Funding and the Mortgages Trustee and constitutes, and the
other Legal Agreements to which each of Funding and/or the
Mortgages Trustee is a party have been duly authorised by, as
applicable, Funding and the Mortgages Trustee and on the Closing
Date will constitute, valid and legally binding obligations of
each of Funding and the Mortgages Trustee;
(e) Consents
All consents, approvals, authorisations and other orders of all
United States, Jersey, Channel Islands and United Kingdom
regulatory authorities required in connection with the execution
of and performance by, Funding and/or the Mortgages Trustee, of
the transactions contemplated by the Legal Agreements to which
Funding and/or the Mortgages Trustee, as the case may be, is a
party or the compliance by each of them with the terms of the
Legal Agreements are, or will on the Closing Date be, in full
force and effect;
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(f) Compliance
The authorisation of the terms and conditions of this Agreement,
the execution and delivery of the Legal Agreements to which
Funding and/or, as the case may be, the Mortgages Trustee is party
and the implementation of the transactions contemplated by such
Legal Agreements and compliance with the terms of the Legal
Agreements do not, and will not, (i) conflict with, or result in a
breach of, any of the terms or provisions of, or constitute a
default under, the Memorandum and Articles of Association of
Funding or the Mortgages Trustee or any agreement or instrument to
which Funding or the Mortgages Trustee is a party or by which its
properties is bound; (ii) infringe any applicable law, rule,
regulation, judgment, order or decree of any government,
governmental body or court, having jurisdiction over either
Funding or the Mortgages Trustee or any of its properties; or
(iii) result in the creation or imposition of any mortgage,
charge, pledge, lien or other security interest on any of its or
their properties, other than those created in, or imposed by, the
Legal Agreements themselves;
(g) Breach of other agreements
Neither Funding nor the Mortgages Trustee is in breach of or in
default under any agreement to which it is a party or which is
binding on it or any of its assets or revenues;
(h) Events of Default
No event has occurred or circumstance arisen which, had the
Intercompany Loan Agreement been entered into, would (whether or
not with the giving of notice and/or the passage of time and/or
the fulfilment of any other requirement) constitute an Event of
Default as set out in the Intercompany Loan Agreement;
(i) No Subsidiaries
The Mortgages Trustee does not have any subsidiaries or subsidiary
undertakings within the meanings of Sections 258 and 736 of the
Companies ▇▇▇ ▇▇▇▇. Funding does not have any subsidiaries or
subsidiary undertakings within the meanings of Sections 258 and
736 of the Companies ▇▇▇ ▇▇▇▇ save for the Previous Issuers and
the Current Issuer;
(j) No Activities
Neither Funding nor the Mortgages Trustee has engaged in any
activities since its incorporation other than (i) those incidental
to any registration as private limited companies under the laws of
Jersey and (if any) various changes to its directors, secretary,
registered office, Memorandum and Articles of Association; (ii)
the authorisation, execution and in certain cases, amendment, of
the Legal Agreements to which each is a party; (iii) the
activities referred to or contemplated in the Legal Agreements or
in the Prospectus; (iv) the activities undertaken in connection
with the establishment of the Mortgages Trust pursuant to the
Mortgages Trust Deed and the establishment of a branch in the
United Kingdom; (v) the filing of a notification by the Mortgages
Trustee and Funding under the Data Protection Act 1998 (the "DPA")
and the application for a standard licence under the Consumer
Credit ▇▇▇ ▇▇▇▇; and (vi) any activities in connection with or
incidental to the issue of Previous Notes by the Previous Issuers
and the issue of the Notes by the Current Issuer. The first
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statutory accounts of Funding were prepared and drawn up from the
date of incorporation to 31 December, 2001. The Mortgages Trustee
has not (other than as set out in the Prospectus) prepared any
accounts. Neither Funding nor the Mortgages Trustee has paid any
dividends nor made any distributions since their respective dates
of incorporation;
(k) Beneficial Owner
As of 26th January, 2004, following (i) the completion of the
assignment of the Additional Assigned Mortgage Portfolio to the
Mortgages Trustee pursuant to or in accordance with the Mortgage
Sale Agreement and (ii) the declaration of trust over the
Additional Assigned Mortgage Portfolio by the Mortgages Trustee
pursuant to and in accordance with the terms of the Mortgages
Trust Deed, the Mortgages Trustee will hold the Additional
Assigned Mortgage Portfolio, and has held and will continue to
hold, the Mortgage Portfolio on a bare trust for the benefit of
Funding and NRPLC in undivided shares absolutely;
(l) Litigation
There are no pending actions, suits or proceedings against or
affecting Funding or the Mortgages Trustee which could
individually or in the aggregate have an adverse effect on the
condition (financial or otherwise), prospects, results of
operations or general affairs of the Mortgages Trustee or Funding
(as the case may be) or could adversely affect the ability of the
Mortgages Trustee or Funding (as the case may be) to perform their
respective obligations under the Legal Agreements, or which are
otherwise material in the context of the transaction contemplated
by the Prospectus and, to the best of the knowledge of Funding and
the Mortgages Trustee, no such actions, suits or proceedings are
threatened or contemplated;
(m) No Prior Security
Save as set out in any of the Legal Agreements there exists no
mortgage, lien, pledge or other charge on or over the assets of
Funding and, other than the Legal Agreements, it has not entered
into any indenture or trust deed;
(n) Security for the Intercompany Loan
Funding's obligations under, inter alia, the Intercompany Loan
Agreement will be secured in the manner provided in the Funding
Deed of Charge and with the benefit of the charges, covenants and
other security provided for therein including, without limitation,
(i) a first fixed charge (which may take effect as a floating
charge) over Funding's share of the Trust Property (as defined in
the Mortgages Trust Deed); (ii) an assignment by way of first
fixed security of all of Funding's right, title, interest and
benefit in the Mortgage Sale Agreement, the Mortgages Trust Deed,
the Administration Agreement, the Intercompany Loan Agreement,
each Previous Intercompany Loan Agreement, each Start-Up Loan
Agreement, the Funding Guaranteed Investment Contract, the Funding
Corporate Services Agreement, the Funding Cash Management
Agreement, the Bank Account Agreement and any other of the Legal
Agreements to which Funding is a party, save to the extent that
the same are situated in Jersey; (iii) an assignment by way of
first fixed security over Funding's right, title, interest and
benefit in the Funding Bank Accounts; (iv) a first fixed charge
(which may take effect as a floating charge) of Funding's right,
title, interest and benefit in all Authorised Investments
purchased with moneys standing to the credit of
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the Funding Bank Accounts; and (v) a first floating charge over
all the assets and the undertaking of Funding which are not
effectively subject to a fixed charge or assignment by way of
security;
(o) Capitalisation
The authorised capital of each of Funding and the Mortgages
Trustee is as set out in the Prospectus;
(p) Investment Company Act
Neither Funding nor the Mortgages Trustee is an "investment
company" as defined in the Investment Company Act, and the offer
and sale of the Notes in the United States will not subject
Funding or the Mortgages Trustee to registration under, or result
in a violation of, the Investment Company Act;
(q) United States Income Tax
Neither Funding nor the Mortgages Trustee will engage in any
activities in the United States (directly or through agents),
derive any income from United States sources as determined under
the Code, or hold any property if doing so would cause it to be
engaged or deemed to be engaged in a trade or business within the
United States as determined under the Code;
(r) Financial Statements
(i) The auditor's report by PricewaterhouseCoopers LLP, as
independent auditor to Funding, set out in the Prospectus
presents fairly the financial position of Funding as at the
date at which it has been prepared;
(ii) since the date of each such report there has been no change
(nor any development or event involving a prospective
change of which Funding is or might reasonably be expected
to be aware) which is materially adverse to the condition
(financial or other), prospects, results of operations or
general affairs of Funding; and
(iii) PricewaterhouseCoopers LLP are independent public
accountants with respect to Funding within the meaning of
the standards established by the American Institute of
Certified Public Accountants; and
(s) Legal Agreements
The representations given by Funding and the Mortgages Trustee in
the Legal Agreements are true and accurate, and the description of
the Legal Agreements as set out in the Prospectus is materially
complete and accurate.
Unless otherwise indicated, the representations and warranties set out
in this Clause 6 shall be made on the date of the Prospectus and, if
different, the date of this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF NRPLC
NRPLC represents and warrants to, and agrees with, the Current Issuer,
Funding, the Mortgages Trustee, the Underwriters and each of them that:
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(a) Incorporation
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
authority to conduct its business as described in the Prospectus,
to execute this Agreement and the Legal Agreements to which it is
a party and to undertake and perform the obligations expressed to
be assumed by it herein and therein and has taken all necessary
action to approve and authorise the same and is lawfully qualified
to do business in England and Wales; and NRPLC has not taken any
corporate action nor (to the best of its knowledge and belief)
have any other steps been taken or legal proceedings been started
or threatened against it for its winding-up, dissolution or
reorganisation or for the appointment of a receiver,
administrator, administrative receiver or similar officer of it or
of any or all of its assets or revenues; and it is not in
liquidation;
(b) Validity of Legal Agreements
This Agreement has been duly authorised, executed and delivered by
NRPLC and constitutes, and the other Legal Agreements to which
NRPLC is a party will be duly authorised by NRPLC prior to the
Closing Date and on the Closing Date will constitute, valid and
legally binding obligations of NRPLC;
(c) Related Security
NRPLC has not received notice of, and no solicitor employed in the
NRPLC Solicitors' Department is actually aware of, any material
litigation or claim, of any pending material litigation or claim,
calling into question NRPLC's title to any Related Security or the
value of any security therefor or its right to assign any such
Related Security to the Mortgages Trustee;
(d) Consents
All consents, approvals and authorisations of all United Kingdom
regulatory authorities required on the part of NRPLC for or in
connection with the execution and performance of the transactions
contemplated by the Legal Agreements to which NRPLC is a party
have been, or will be prior to the Closing Date be, obtained and
are, or will prior to the Closing Date be, in full force and
effect including, without limiting the generality of the
foregoing, NRPLC having received a standard licence under the
Consumer Credit ▇▇▇ ▇▇▇▇ and NRPLC being registered under the DPA;
(e) Compliance
The sale on 26th January, 2004, of the Additional Assigned
Mortgage Portfolio and the related property and rights will not,
and the execution and delivery of the Legal Agreements to which
NRPLC is a party, the implementation of the transactions
contemplated by such Legal Agreements and compliance with the
terms of such Legal Agreements do not and will not (i) conflict
with, or result in a breach of, any of the terms or provisions of,
or constitute a default under, the Memorandum and Articles of
Association of NRPLC, or any agreement or instrument to which
NRPLC is a party or by which it or any of its properties is bound,
where such breach or default might have a material adverse effect
in the context of the issue of the Notes; or (ii) infringe any
existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental body or court having
jurisdiction over NRPLC or any of its properties; or (iii) result
in the creation or imposition of any mortgage,
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charge, pledge, lien or other security interest on any of its
properties, other than those created in, or imposed by, the Legal
Agreements themselves;
(f) No Material Misstatements or Omissions
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with
the applicable requirements of the Securities Act, the Exchange
Act and the Trust Indenture Act and the respective rules
thereunder; on the Effective Date and at the date of this
Agreement, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein not misleading; on the Effective
Date and the Closing Date the Current Issuer Trust Deed did or
will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder;
and on the Effective Date, the Prospectus, if not filed pursuant
to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Prospectus (together
with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that NRPLC makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any statement
thereto) in reliance upon and in conformity with information
furnished in writing to NRPLC by or on behalf of any Underwriter
through the Lead Underwriters specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement
thereto), which information is described in Clause 13.2;
(g) Beneficial Owner
As of 26th January, 2004, following (i) the completion of the
assignment of the Additional Assigned Mortgage Portfolio (as
defined in the Prospectus) to the Mortgages Trustee pursuant to
and in accordance with the Mortgage Sale Agreement and (ii) the
declaration of trust over the Additional Assigned Mortgage
Portfolio by the Mortgages Trustee pursuant to and in accordance
with the terms of the Mortgages Trust Deed, the Mortgages Trustee
will hold the Additional Assigned Mortgage Portfolio and has held
and will continue to hold the Mortgage Portfolio on a bare trust
for the benefit of Funding and NRPLC in undivided shares
absolutely;
(h) Litigation
It is not a party to, and no solicitor in NRPLC's Solicitors'
Department is actually aware of, any actions, suits or proceedings
in relation to claims or amounts which could, if determined
adversely to NRPLC, materially adversely affect NRPLC's ability to
perform its obligations under the Legal Agreements; and
(i) Mortgage Sale Agreement and Mortgages Trust Deed
The representations and warranties given by NRPLC in the Mortgage
Sale Agreement are true and accurate in all material respects as
when stated to be made and the representations and warranties
given by NRPLC in the Mortgages Trust Deed are true and accurate
in all material respects as when stated to be made.
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Unless otherwise indicated, the representations and warranties set
out in this Clause 7 shall be made on the date of the Prospectus
and, if different, the date of this Agreement.
8. COVENANTS OF THE CURRENT ISSUER, FUNDING, THE MORTGAGES TRUSTEE AND
NRPLC
8.1 The Current Issuer and, where expressly provided, Funding, the
Mortgages Trustee and NRPLC severally covenants to, and agrees each for
itself with, the Underwriters and each of them that:
(a) The Registration Statement
The Current Issuer, Funding, the Mortgages Trustee and NRPLC will
use their best efforts to cause the Registration Statement, if not
effective at the date of this Agreement, and any amendment
thereof, to become effective. Prior to the termination of the
offering of the Notes, none of the Current Issuer, Funding, the
Mortgages Trustee or NRPLC will file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Current Issuer, Funding,
the Mortgages Trustee and NRPLC have furnished the Lead
Underwriters with copies for their review prior to filing and none
of them will file any such proposed amendment or supplement to
which the Lead Underwriters reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Current
Issuer, Funding, the Mortgages Trustee and NRPLC will cause the
Prospectus, properly completed, and any supplement thereto to be
filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Lead Underwriters of such timely
filing. The Current Issuer, Funding, the Mortgages Trustee and
NRPLC will promptly advise the Lead Underwriters:
(i) when the Registration Statement, if not effective at the
date of this Agreement, shall have become effective;
(ii) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission; and
(iii) when, prior to termination of the offering of the Notes,
any amendment to the Registration Statement shall have been
filed or become effective;
(b) Signed Prospectus
The Current Issuer will deliver to the Underwriters, without
charge, on the date of this Agreement, such number of copies of
the Prospectus as the Underwriters may reasonably request, and the
Current Issuer will furnish to the Lead Underwriters on the date
of this Agreement four copies of the Prospectus signed by a duly
authorised director of the Current Issuer. The Current Issuer will
also promptly furnish each Underwriter (to the extent not already
furnished) and its counsel one conformed copy of the Registration
Statement as originally filed and each amendment or supplement
thereto including all consents and exhibits filed therewith;
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(c) Notify Material Omission
If at any time prior to the earlier of (i) completion (in the
reasonable view of the Lead Underwriters) of the distribution of
the Notes and (ii) three months after the Closing Date, any event
shall have occurred as a result of which the Registration
Statement or Prospectus, as then amended or supplemented, would
include a statement of fact which is not true and accurate in all
material respects or omit any fact the omission of which would
make misleading in any material respect any statement therein
whether of fact or opinion, or if for any other reason it shall be
necessary to amend or supplement the Registration Statement or
Prospectus, then: (i) the Current Issuer will promptly notify the
Underwriters; (ii) the Current Issuer shall promptly prepare and
timely file with the Commission any amendment or supplement to the
Registration Statement or any Prospectus that may, in the
reasonable judgement of the Current Issuer or the Underwriters, be
required by the Securities Act or requested by the Commission;
(iii) the Current Issuer will, without charge, supply to the
Underwriters as many copies as the Lead Underwriters may
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission; and (iv)
the provisions of Clauses 5(a), 5(b), 5(c), 5(h), 5(o), 5(s),
6(a), 6(b), 6(c), 6(o), 6(r), 7(a) and 7(f) shall be deemed to be
repeated by, as applicable, the Current Issuer, Funding, the
Mortgages Trustee and NRPLC as of the date of each such amended
Prospectus or supplement to the Prospectus on the basis that each
reference to "Prospectus" in such provisions of Clauses 5, 6 and 7
shall be deemed to be a reference to the Prospectus as amended or
supplemented as at such date;
(d) Notify Change
Without prejudice to its obligations under Clause 8.1(c), the
Current Issuer will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time prior to
payment of the gross underwriting proceeds for the Notes being
made to the Current Issuer on the Closing Date and will take such
steps as may be reasonably requested by the Lead Underwriters to
remedy and/or publicise the same;
(e) Official Announcements
Between the date of this Agreement and the Closing Date (both
dates inclusive) none of NRPLC, the Current Issuer, Funding or the
Mortgages Trustee will, without the prior approval of the Lead
Underwriters on behalf of the Underwriters (such approval not to
be unreasonably withheld or delayed), make any official
announcement which would have an adverse effect on the
marketability of the Notes;
(f) Stamp Duty
(i) The Current Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar
nature and duties that it is required to pay under the
Legal Agreements to which it is a party payable in the
United Kingdom, Belgium, Luxembourg or the United States,
including interest and penalties in connection with the
creation, issue, distribution and offering of the Notes or
in connection with the execution, delivery or enforcement
of any of the Legal Agreements to which it is a party
together with any value added, turnover or similar tax
payable in respect of that amount (and references in this
Agreement to such amount shall be deemed to include any
such taxes so payable in addition to it);
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(ii) Funding will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and duties
that it is required to pay under the Legal Agreements to
which it is a party payable in the United Kingdom, Jersey,
Channel Islands or the United States, including interest
and penalties in connection with the execution, delivery or
enforcement of any of the Legal Agreements to which it is a
party (other than in respect of the execution, delivery or
enforcement of the Mortgages Trust Deed and any Legal
Agreement to which the Current Issuer is a party) together
with any value added, turnover or similar tax payable in
respect of that amount (and references in this Agreement to
such amount shall be deemed to include any such taxes so
payable in addition to it); and
(iii) The Mortgages Trustee will pay any stamp duty, issue,
registration, documentary or other taxes of a similar
nature and duties that it is required to pay under the
Legal Agreements to which it is a party payable in the
United Kingdom, Jersey, Channel Islands or the United
States, including interest and penalties in connection with
the execution, delivery or enforcement of the Mortgages
Trust Deed (including any amendment thereto) and the
Mortgage Sale Agreement (including any amendment thereto)
(together with any value added, turnover or similar tax
payable in respect of that amount (and references in this
Agreement to such amount shall be deemed to include any
such taxes so payable in addition to it)) but will be
promptly reimbursed an amount equal to any such payments by
the Beneficiaries in accordance with the terms of the
Mortgages Trust Deed;
(g) United States Income Tax
The Current Issuer will not engage in any activities in the United
States (directly or through agents), will not derive any income
from United States sources as determined under the Code and will
not hold any property if doing so would cause it to be engaged or
deemed to be engaged in a trade or business within the United
States as determined under the Code;
(h) Payment of Fees, Charges, Costs and Duties
(i) Without prejudice to the generality of Clause 12.1, the
Current Issuer will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or duties
that it is required to pay under the Legal Agreements to
which it is a party, including interest and penalties,
arising from or in connection with the creation of the
security for the Notes and the obligations of the Current
Issuer under the Current Issuer Trust Deed and for the
other amounts to be secured as contemplated by the Current
Issuer Deed of Charge, and the perfection of such security
at any time;
(ii) Without prejudice to the generality of Clause 12.1, Funding
will pay all and any fees, charges, costs and duties and
any stamp and other similar taxes or duties that it is
required to pay under the Legal Agreements to which it is a
party, including interest and penalties, arising from or in
connection with the creation of the security for the
Intercompany Loan and for the other amounts to be secured
as contemplated by the Funding Deed of Charge the Deeds of
Accession and the Current Deed of Accession and the
perfection of such security at any time; and
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(iii) Without prejudice to the generality of Clause 12.1, the
Mortgages Trustee will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or duties
that it is required to pay under the Legal Agreements to
which it is a party, including interest and penalties,
arising from or in connection with the purchase of the
Related Security (and related property and rights)
excluding H.M. Land Registry fees (it being agreed that
registration or recording at H.M. Land Registry of the
transfer of the Related Security to the Mortgages Trustee
will not be applied for except in the circumstances
specified in the Administration Agreement); but on the
basis that the Mortgages Trustee will be reimbursed such
fees, charges, costs and duties and any stamp and other
similar taxes or duties (including interest and 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 Current Issuer,
Funding and the Mortgages Trustee will do all things reasonably
within each of their respective powers and required of each of
them on such date under the terms of the Legal Agreements to which
each is a party;
(j) Review of Related Security
NRPLC will deliver to the Lead Underwriters on or around the date
of this Agreement a letter addressed to the Underwriters or their
affiliates (relating to the review by PricewaterhouseCoopers LLP
of the Related Security and referred to in the Signing and Closing
Memorandum as the Auditors' pool audit report letter) dated on or
around the date of this Agreement in the agreed form addressed to
NRPLC and the Underwriters from PricewaterhouseCoopers LLP;
(k) Conditions Precedent
The Current Issuer will use all reasonable endeavours to procure
satisfaction on or before the Closing Date of the conditions
referred to in Clause 9 of this Agreement;
(l) Administration Agreement
Funding and the Mortgages Trustee will use all reasonable
endeavours to procure that NRPLC complies with its obligations
under the Administration Agreement;
(m) Charges and Security Interests
(i) The Current Issuer will procure that each of the charges
and other security interests created by or contained in the
Current Issuer Deed of Charge is registered within all
applicable time limits in all appropriate registers; and
(ii) Funding will procure that each of the charges and other
security interests created by or contained in the Funding
Deed of Charge, the Deeds of Accession and the Current Deed
of Accession is registered within all applicable time
limits in all appropriate registers;
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(n) Ratings
None of NRPLC, the Current Issuer, Funding or the Mortgages
Trustee will take, or cause to be taken, any action and none of
them will permit any action to be taken which it knows or has
reason to believe would result in the Notes not being assigned a
F1+ rating for the Series 1 Class A1 Notes, an AAA rating for the
Series 1 Class A2 Notes and the Series 2 Class A1 Notes, an AA
rating for the Series 1 Class B Notes, an A rating for the Series
1 Class M Notes and a BBB rating for the Series 1 Class C Notes by
Fitch Ratings Ltd. ("Fitch Ratings"), a P-1 rating for the Series
1 Class A1 Notes, an Aaa rating for the Series 1 Class A2 Notes
and the Series 2 Class A1 Notes, an Aa3 rating for the Series 1
Class B Notes, an A2 rating for the Series 1 Class M Notes and a
Baa2 rating for the Series 1 Class C Notes by Moody's Investors
Services Limited ("Moody's") and an A-1+ rating for the Series 1
Class A1 Notes, an AAA rating for the Series 1 Class A2 Notes and
the Series 2 Class A1 Notes, an AA rating for the Series 1 Class B
Notes, an A rating for the Series 1 Class M Notes and a BBB rating
for the Series 1 Class C Notes by Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard
& Poor's");
(o) Legal Agreements
Prior to closing on the Closing Date none of NRPLC, the Current
Issuer, Funding or the Mortgages Trustee will amend the terms of
the executed Legal Agreements, nor execute any of the other Legal
Agreements other than in the agreed form, without the consent of
the Lead Underwriters (such consent not to be unreasonably
withheld or delayed);
(p) Commission Filings
The Current Issuer, Funding and the Mortgages Trustee will file,
in a timely manner, with the Commission during any period during
which a prospectus relating to the Notes is required to be
delivered under the Securities Act until three months after the
Closing Date (the "Marketing Period"), all documents (and any
amendments to previously filed documents) required to be filed by
them pursuant to Sections 13(a), 13(c) or 15(d) of the Exchange
Act, provided that none of the Current Issuer, Funding or the
Mortgages Trustee will file any such document or amendment unless
the Current Issuer, Funding and the Mortgages Trustee have
furnished the Lead Underwriters with copies for their review prior
to filing and none of them will file any such proposed document or
amendment until the Underwriters have been consulted and given a
reasonable opportunity to comment on such document or amendment;
(q) Copies of Filings and Commission
Prior to filing with the Commission during the Marketing Period,
if there is (i) any amendment or supplement to the Registration
Statement, (ii) any amendment or supplement to any Prospectus, or
(iii) any material document filed by the Current Issuer, Funding
or the Mortgages Trustee with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act including but not
limited to (A) any interim or any report submitted to the
Commission on Form 6-K ("Form 6-K") or Form 20-F ("Form 20-F")
under the Exchange Act and the rules and regulations thereunder or
(B) any amendment of or supplement to any such document, the
Current Issuer, Funding and the Mortgages Trustee, as the case may
be, will furnish a copy thereof to each Underwriter, and counsel
to the Underwriters;
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(r) Notice to Underwriters of Certain Events
During the Marketing Period, the Current Issuer will advise the
Underwriters immediately (i) when any post-effective amendment to
the Registration Statement becomes effective, (ii) of any request
or proposed request by the Commission, whether written or oral,
for an amendment or supplement to the Registration Statement, to
any Rule 462(b) Registration Statement, to any Prospectus or to
any material document filed by the Current Issuer, Funding or the
Mortgages Trustee with or submitted to the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and the
rules and regulations thereunder or for any additional information
and the Current Issuer, Funding and the Mortgages Trustee will
afford the Underwriters a reasonable opportunity to comment on any
such proposed amendment or supplement, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or any part thereof or any order
directed to the Prospectus or any document incorporated therein by
reference or the initiation or threat of any stop order proceeding
or of any challenge to the accuracy or adequacy of any document
incorporated by reference in the Prospectus, (iv) of receipt by
NRPLC or the Current Issuer of any notification with respect to
the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threat of any proceeding for
that purpose and (v) of any downgrading in the rating of the Notes
or any debt securities of NRPLC or the Current Issuer by any
"nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or
if any such organisation shall have informed NRPLC or the Current
Issuer or made any public announcement that any such organisation
has under surveillance or review its rating of any debt securities
of NRPLC or the Current Issuer (other than an announcement with
positive implications of a possible upgrading, and no implication
of a possible downgrading of such rating) as soon as such
announcement is made or NRPLC or the Current Issuer is so
informed;
(s) Stop Orders
The Current Issuer will use its best efforts to prevent the
issuance of any stop order or the suspension of any qualification
referred to in Clause 8.1(q) above and if, during the Marketing
Period, the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement or such qualification
of the Notes for sale in any jurisdiction is suspended, the
Current Issuer will make every reasonable effort to obtain the
lifting of that order or suspension at the earliest possible time;
and
(t) Blue Sky Qualifications
The Current Issuer will co-operate with the Underwriters to
qualify the Dollar 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
Dollar Notes and to file such statements and reports as may be
required by the laws of each jurisdiction in which the Dollar
Notes have been qualified as above provided that in connection
therewith the Current Issuer shall not be required to qualify as a
foreign corporation or to file a general consent to service of
process in any jurisdiction or to take any other action that would
subject it to service of process in suits in any jurisdiction
other than those arising out of the offering or sale of the Dollar
Notes in such jurisdiction or to register as a dealer in
securities or to become subject to taxation in any jurisdiction.
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8.2 NRPLC covenants to and agrees with the Underwriters and each of them
that:
(a) Notify Change
NRPLC will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time prior to
payment of the gross underwriting proceeds of the Notes being made
to the Current Issuer on the Closing Date and will take such steps
as may be reasonably requested by the Lead Underwriters to remedy
and/or publicise the same. In the event that the Prospectus is
amended or supplemented pursuant to Clause 8.1(c) above, then the
representations and warranties contained in Clause 7(f) shall be
deemed to be repeated by NRPLC as of the date of such amended
Prospectus or supplement to the Prospectus, on the basis that each
reference to "Prospectus" in Clause 7(f) shall be deemed to be a
reference to the Prospectus as amended or supplemented as at such
date;
(b) Perform all required actions
On or prior to the Closing Date, NRPLC will do all things
reasonably within its power and required of it on such date under
the terms of the Legal Agreements to which it is a party;
(c) Ratings
NRPLC will not take, or cause to be taken, any action and will not
permit any action to be taken which it knows or has reason to
believe would result in the Current Issuer not being assigned a
F1+ rating for the Series 1 Class A1 Notes, an AAA rating for the
Series 1 Class A2 Notes and the Series 2 Class A1 Notes, an AA
rating for the Series 1 Class B Notes, an A rating for the Series
1 Class M Notes and a BBB rating for the Series 1 Class C Notes by
Fitch Ratings, a P-1 rating for the Series 1 Class A1 Notes, an
Aaa rating for the Series 1 Class A2 Notes and the Series 2 Class
A1 Notes, an Aa3 rating for the Series 1 Class B Notes, an A2
rating for the Series 1 Class M Notes and a Baa2 rating for the
Series 1 Class C Notes and an A-1+ rating for the Series 1 Class
A1 Notes, an AAA rating for the Series 1 Class A2 Notes and the
Series 2 Class A1 Notes, an AA rating for the Series 1 Class B
Notes, an A rating for the Series 1 Class M Notes and a BBB rating
for the Series 1 Class C Notes by Standard & Poor's; and
(d) Legal Agreements
Prior to closing on the Closing Date NRPLC will not amend the
terms of any of the already executed Legal Agreements, nor execute
any of the other Legal Agreements other than in the agreed form,
without the consent of the Lead Underwriters (such consent not to
be unreasonably withheld or delayed).
9. CONDITIONS PRECEDENT
9.1 The obligation of the Underwriters under this Agreement to subscribe
for the Dollar Notes is subject to the following conditions precedent:
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(a) The Registration Statement
(i) If the Registration Statement has not become effective
prior to the date of this Agreement, unless the Lead
Underwriters agree in writing to a later time, the
Registration Statement will become effective not later than
(i) 6:00 p.m. New York City time on the date of
determination of the public offering price, if such
determination occurred at or prior to 3:00 pm New York City
time on such date or (ii) 9:30 a.m. New York City time on
the next business day in New York following the day on
which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time
on such date;
(ii) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any
such supplement, will be filed in the manner and within the
time period required by Rule 424(b); and
(iii) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened;
(b) Execution of Legal Agreements and the Global Notes
The execution and delivery by all parties thereto of the Legal
Agreements and the Global Notes representing each class of the
Dollar Notes on or prior to the Closing Date;
(c) Admission to Trading
The Dollar Notes having been admitted to the Official List
maintained by UK Listing Authority and the Stock Exchange having
agreed to admission of the Dollar Notes to trading on or about the
Closing Date;
(d) Legal Opinions
On or prior to the Closing Date, there having been delivered to
the Current Issuer, the Underwriters, the Note Trustee and the
Security Trustee copies of opinions and disclosure letters, in
form and substance satisfactory to the Lead Underwriters, the Note
Trustee, the Security Trustee and the Rating Agencies, dated the
Closing Date, of:
(i) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, legal and tax advisers as to
English law and as to US law to NRPLC, the Mortgages
Trustee, Funding and the Current Issuer, addressed to
NRPLC, the Mortgages Trustee, Funding, the Current Issuer,
the Underwriters, the Managers, the Note Trustee and the
Security Trustee;
(ii) Mourant du Feu & Jeune, legal advisers as to Jersey law to
Funding and the Mortgages Trustee, addressed to Funding,
the Mortgages Trustee, the Underwriters, the Managers, the
Note Trustee and the Security Trustee;
(iii) Tods ▇▇▇▇▇▇ ▇▇, legal and tax advisers as to Scots law to
NRPLC, the Mortgages Trustee, Funding and the Current
Issuer, addressed to NRPLC, the Mortgages Trustee, Funding,
the Current Issuer, the Underwriters, the Managers, the
Note Trustee and the Security Trustee;
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(iv) ▇▇▇▇▇ & ▇▇▇▇▇, legal advisers as to US law to the
Underwriters and the Managers, addressed to the
Underwriters and the Managers;
(v) Dundas & ▇▇▇▇▇▇, legal advisers as to Scots law to the
Underwriters and the Managers, addressed to the
Underwriters and the Managers; and
(vi) Counsel for each of the Currency Rate Swap Providers;
(e) Auditors' Letters
(A) On or around the date of this Agreement, there having been
addressed and delivered to the Underwriters letters, in
form and substance satisfactory to the Lead Underwriters,
dated on or around the date of this Agreement, from
PricewaterhouseCoopers LLP, the independent auditors of the
Current Issuer and Funding; and
(B) On the Closing Date, there having been addressed and
delivered to the Current Issuer, in form and substance
satisfactory to the Lead Underwriters, a pool report in
respect of agreed upon procedures in connection with the
Northern Rock plc mortgage files (with no material
exceptions to the results stated therein) from
PricewaterhouseCoopers LLP;
(f) Certified Constitutional Documents
On or prior to the Closing Date, there having been delivered to
the Lead Underwriters on behalf of the Underwriters a copy,
certified by a duly authorised director or the company secretary
of, as applicable, the Current Issuer, Funding and the Mortgages
Trustee of: (i) the Memorandum and Articles of Association of each
of the Current Issuer, Funding and the Mortgages Trustee; (ii) the
resolution of the Board of Directors of each of the Current
Issuer, Funding and the Mortgages Trustee authorising the
execution of this Agreement and the other Legal Agreements and the
entry into and performance of the transactions contemplated
thereby; and (iii) in respect of the Current Issuer, the issue of
the Notes and the entry into and performance of the transactions
contemplated thereby;
(g) Accuracy of Representations
At the Closing Date: (i) the representations and warranties of the
Current Issuer, Funding, the Mortgages Trustee and NRPLC in this
Agreement being true, accurate and correct at, and as if made on,
the Closing Date and the Current Issuer, Funding, the Mortgages
Trustee and NRPLC having performed all of their obligations in the
Legal Agreements to be performed on or before the Closing Date;
and (ii) there having been delivered to the Underwriters a
certificate to that effect signed by a duly authorised officer of,
as applicable, the Current Issuer, Funding, the Mortgages Trustee
and NRPLC, dated the Closing Date and confirming that, since the
date of this Agreement, there has been no adverse change, nor any
development involving a prospective adverse change, in or
affecting the operations, properties, financial condition or
prospects of the Current Issuer, Funding, the Mortgages Trustee or
NRPLC which is material in the context of the issue of the Notes;
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(h) Circumstances for Termination
On or prior to the Closing Date, in the opinion of the Lead
Underwriters (after consultation with NRPLC, if practicable), none
of the circumstances described in Clause 14.1(c) or 14.1(d) having
arisen;
(i) Ratings
Receipt of notification from Fitch Ratings, ▇▇▇▇▇'▇ and Standard &
Poor's that the ratings for the Notes described in the Prospectus
have been assigned either without conditions or subject only to
the execution and delivery on or before the Closing Date of the
Legal Agreements and legal opinions in all material respects in
the form in which they shall then have been executed and delivered
on or prior to the Closing Date, there not having been a public
announcement from any of the above rating agencies that such
agency has revised downwards or withdrawn or placed on review or
"creditwatch" with negative implications or with implications of a
possible change that does not indicate the direction of such
possible change (or other similar publication of formal review by
the relevant rating agency) any existing credit rating assigned to
the Notes or the long term debt of NRPLC;
(j) Other Issues
The Reg S Notes having been or being issued and subscribed and
paid for pursuant to the Subscription Agreement prior to or
contemporaneously with the issue, subscription and payment for the
Dollar Notes hereunder;
(k) Material Adverse Event
There not having been between the date of this Agreement and the
Closing Date any change or any development or event reasonably
likely to involve a prospective change which would, in the
judgment of the Lead Underwriters, be materially adverse to the
financial or trading condition of the Current Issuer, Funding, the
Mortgages Trustee or NRPLC from that set forth in the Prospectus,
or rendering untrue and incorrect any of the representations and
warranties contained in Clauses 5, 6 and 7 as though the said
representations and warranties had been given on the Closing Date
with reference to the facts and circumstances prevailing at that
date nor the failure of the Current Issuer, Funding, the Mortgages
Trustee or NRPLC to perform each and every covenant to be
performed by it pursuant to the Legal Agreements, the Mortgage
Loans and the Related Security on or prior to the Closing Date;
(l) Solvency Certificates
(i) The Current Issuer having furnished or caused to be
furnished to the Underwriters and the Note Trustee at the
Closing Date a solvency certificate, dated the Closing
Date, of a duly authorised director of the Current Issuer
in the agreed form;
(ii) Funding having furnished or caused to be furnished to the
Current Issuer, NRPLC and the Security Trustee a solvency
certificate, dated the Closing Date, of a duly authorised
director of Funding in the agreed form;
(iii) The Mortgages Trustee having furnished or caused to be
furnished to the Underwriters, the Current Issuer, the
Security Trustee and NRPLC a solvency
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certificate, dated the Closing Date, of a duly authorised
director of the Mortgages Trustee in the agreed form; and
(iv) NRPLC having furnished or caused to be furnished to the
Underwriters, the Current Issuer, the Security Trustee,
Funding and the Mortgages Trustee a solvency certificate,
dated the Closing Date, of a duly authorised officer or
director of NRPLC in the agreed form; and
(m) 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 26th January, 2004 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 Current Issuer
in relation to expenses as provided under, or under any arrangements
referred to in, Clause 12 and any liability arising before or in
relation to such termination shall not be cancelled) at, or at any time
prior to, the Closing Date by the Lead Underwriters. Notice of such
cancellation shall be given to the Current Issuer in writing or by
telephone or facsimile confirmed in writing.
9.4 The Lead Underwriters, on behalf of the Underwriters, may, in their
discretion, waive compliance with the whole or any part of this Clause 9.
10. CLOSING
10.1 Issue of Dollar Notes
(a) No later than 3:00 p.m. (London time) on the Closing Date, the
Current Issuer will cause the Global Note Certificate for each of
the Series 1 Class A1 Notes, Series 1 Class A2 Notes, Series 1
Class B Notes, Series 1 Class M Notes, Series 1 Class C Notes and
Series 2 Class A1 Notes to be registered in the name of Cede & Co.
as nominee for DTC for credit on the Closing Date to the account
of the Lead Underwriters with DTC or to such other account with
DTC as the Lead Underwriters may direct; and
(b) Deliver the Global Note Certificate for each of the Series 1 Class
A1 Notes, Series 1 Class A2 Notes, Series 1 Class B Notes, Series
1 Class M Notes, Series 1 Class C Notes and Series 2 Class A1
Notes duly executed on behalf of the Current Issuer and
authenticated in accordance with the Paying Agent and Agent Bank
Agreement, to Citibank N.A., as custodian for DTC.
10.2 Payment
Against delivery of the Dollar Notes (i) the Underwriters will pay to
the Lead Underwriters the gross underwriting proceeds for the Dollar
Notes and (ii) the Lead Underwriters will pay
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proceeds to the Current Issuer or to a third party, as directed by the
Current Issuer, the gross underwriting proceeds for the Dollar Notes.
Payment for the Dollar Notes shall be made by the Lead Underwriters in
Dollars in immediately available funds to the accounts of the Current
Issuer, account number ▇▇▇▇▇▇▇▇, sort code 18-50-08, or such other
accounts as the Current Issuer may direct, and shall be evidenced by a
confirmation from the Lead Underwriters that they have so made that
payment to the Current Issuer.
10.3 Gross Underwriting Proceeds
The Current Issuer undertakes that on the Closing Date it will apply
the gross underwriting proceeds for the Notes forthwith in making a
loan to Funding pursuant to the terms of the Intercompany Loan
Agreement. Funding undertakes that it will apply the proceeds of the
Intercompany Loan to make payment to the Mortgages Trustee or at the
Mortgages Trustee's direction of the purchase price of a portion of
Funding's beneficial share of the Additional Assigned Mortgage
Portfolio and related rights pursuant to the Mortgage Sale Agreement.
11. COMMISSIONS
11.1 In consideration of the obligations undertaken herein by the
Underwriters, the Current Issuer agrees to pay to the Underwriters a
selling commission (the "Selling Commission") of 0.036 per cent. of the
aggregate principal amount of the Series 1 Class A1 Notes, 0.045 per
cent. of the aggregate principal amount of the Series 1 Class A2 Notes,
0.10125 per cent. of the aggregate principal amount of the Series 1
Class B Notes, 0.14063 per cent. of the aggregate principal amount of
the Series 1 Class M Notes, 0.18 per cent. of the aggregate principal
amount of the Series 1 Class C Notes and 0.07875 per cent. of the
aggregate principal amount of the Series 2 Class A1 Notes respectively,
and a combined management and underwriting commission (the "Management
and Underwriting Commission") of 0.024 per cent. of the aggregate
principal amount of the Series 1 Class A1 Notes, 0.03 per cent. of the
aggregate principal amount of the Series 1 Class A2 Notes, 0.0675 per
cent. of the aggregate principal amount of the Series 1 Class B Notes,
0.09375 per cent. of the aggregate principal amount of the Series 1
Class M Notes, 0.12 per cent. of the aggregate principal amount of the
Series 1 Class C Notes and 0.0525 per cent. of the aggregate principal
amount of the Series 2 Class A1 Notes respectively.
11.2 The Current Issuer undertakes and covenants that on the Closing Date it
will pay to the Lead Underwriters the aggregate Selling Commission and
aggregate Management and Underwriting Commission calculated in
accordance with Clause 11.1.
12. EXPENSES
12.1 General Expenses
The Current Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Current
Issuer, any amount in respect of value added tax or similar tax payable
in respect thereof against production of a valid tax invoice and (ii)
in respect of taxable supplies made to a person other than the Current
Issuer, any amount in respect of Irrecoverable VAT (for the purposes of
this Agreement "Irrevocable VAT" means any amount in respect of VAT
incurred by a party to the Transaction Documents (for the purposes of
this definition, a "Relevant Party") as part of a payment in respect of
which it is entitled to be indemnified under the relevant Transaction
Documents to the extent that the Relevant Party does not or will not
receive and retain a credit or repayment of such VAT as input tax (as
that expression is defined in section 24(1) of the Value Added Tax Act
1994) for the prescribed accounting period (as that expression is used
in section 25(1) of the Value
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Added Tax Act 1994) to which such input tax relates) or similar tax
payable in respect thereof against production of a valid tax invoice):
(a) the fees, disbursements and expenses of the Current Issuer's legal
advisers and accountants and all other expenses of the Current Issuer
in connection with the issue (including without limitation any filing
fees payable to the Commission in connection with the registration of
the Dollar Notes under the Securities Act and any fees payable in
connection with the qualification of the Dollar 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 Dollar 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 Prospectus (in proof, preliminary and final form) and
any amendments and supplements thereto and the mailing and delivery of
copies of this Agreement to the Underwriters; (b) the cost of printing
or reproducing the Legal Agreements and any other documents prepared in
connection with the offering, issue and initial delivery of the Notes;
(c) the fees and expenses of the Note Trustee and the Security Trustee
(including fees and expenses of legal advisers to the Note Trustee and
the Security Trustee), the US Paying Agent and the Agent Bank in each
case reasonably incurred in connection with the preparation and
execution of the Legal Agreements and any other relevant documents and
the issue of the Notes and compliance with the Conditions of the Notes;
(d) the fees and expenses incurred or payable in connection with
obtaining a rating for the Notes from Fitch Ratings, ▇▇▇▇▇'▇ and
Standard & Poor's and annual fees in connection with such rating or any
other rating from such institution for the Notes; (e) the fees and
expenses payable in connection with obtaining and maintaining the
admission to trading of the Notes on the Stock Exchange; (f) reasonable
out-of-pocket expenses (excluding legal expenses) incurred by the Lead
Underwriters on behalf of the Underwriters in connection with the
transactions contemplated hereby; (g) any reasonable roadshow expenses
incurred by the Lead Underwriters on behalf of the Underwriters; and
(h) any reasonable amount in respect of the fees and disbursements of
the Underwriters' legal advisers in relation thereto.
12.2 Reimbursement
The Current Issuer will reimburse the Underwriters for all amounts in
connection with the issue of the Notes which it has agreed to pay
pursuant to Clause 12.1.
12.3 For the avoidance of doubt, references to costs and expenses in this
Agreement shall be deemed to include, in addition, references to any
irrecoverable UK value added tax payable in respect of such costs and
expenses.
13. INDEMNIFICATION
13.1 Current Issuer, Funding, Mortgages Trustee and NRPLC Indemnity
Each of the Current Issuer, Funding, the Mortgages Trustee and NRPLC
jointly and severally agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter (each an
"Indemnified Person") within the meaning of either the Securities Act
or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject, including without limitation any such losses, claims, damages
or liabilities arising under the Securities Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims,
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damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the
registration of the Dollar Notes as originally filed or in any
amendment thereof, or in any Registration Statement, any preliminary
prospectus or the Prospectus, or in any amendment thereof or supplement
thereto, or in any data, table, computer record, electronic record,
e-mail or printed information provided by or on behalf of NRPLC to the
Underwriters for inclusion (and to the extent included) in the
Registration Statement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other reasonable expenses incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Current
Issuer, Funding, the Mortgages Trustee and NRPLC will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission or any
representation, warranty or covenant made by NRPLC, the Current Issuer,
Funding or the Mortgages Trustee in this Agreement, or made in the
Registration Statement, any preliminary prospectus or the Prospectus in
reliance upon and in conformity with written information furnished to
the Current Issuer, Funding, the Mortgages Trustee and NRPLC by or on
behalf of any Underwriter through the Lead Underwriters specifically
for inclusion therein and provided further, that as to any preliminary
prospectus or the Prospectus, this indemnity agreement shall not inure
to the benefit of any Underwriter (or any person controlling such
Underwriter) on account of any loss, claim, damage, liability or action
arising from the sale of Notes to any person by that Underwriter if
that Underwriter failed to send or give a copy of the Prospectus, as
the same may be amended or supplemented (for the purposes of this
Clause 13, the "Final Prospectus"), to that person within the time
required by the Securities Act where required by law to do so, and the
untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such
preliminary prospectus or Prospectus was corrected in the Final
Prospectus, unless such failure resulted from non-compliance by the
Current Issuer, Funding, the Mortgages Trustee or NRPLC with Clause
8.1(b) hereof. For purposes of the final proviso to the immediately
preceding sentence, the term Final Prospectus shall not be deemed to
include the documents incorporated therein by reference, and no
Underwriter shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in the Prospectus
or in any Final Prospectus to any person other than a person to whom
such Underwriter has delivered such incorporated documents in response
to a written or oral request therefor. The Current Issuer, Funding, the
Mortgages Trustee and NRPLC further agree to reimburse each Underwriter
and each such controlling person for any legal and other expenses
reasonably incurred by such Underwriter or controlling person in
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action, as such expenses are
incurred. The foregoing indemnity agreement is in addition to any
liability which the Current Issuer, Funding, the Mortgages Trustee and
NRPLC may otherwise have to any Underwriter or any controlling person
of any Underwriter.
No Underwriter or controlling person of any Underwriter shall have any
duty or obligation, whether as fiduciary for any Indemnified Person or
otherwise, to recover any such payment or to account to any other
person for any amounts paid to it under this Clause 13.1.
The foregoing shall be subject to the following:
(a) Any right which at any time either Funding or the Mortgages
Trustee has under the existing or future laws of Jersey whether by
virtue of the droit de discussion or otherwise to require that
recourse be had to the assets of any other person before any
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claim is enforced against such person in respect of the
obligations hereby assumed by such person is hereby abandoned and
waived.
(b) Each of Funding and the Mortgages Trustee undertakes that if at
any time any person indemnified sues such either of Funding or the
Mortgages Trustee in respect of any such obligations and the
person in respect of whose obligations the indemnity is given is
not sued also, Funding or the Mortgages Trustee as the case may be
shall not claim that such person be made a party to the
proceedings and each agrees to be bound by this indemnity whether
or not it is made a party to legal proceedings for the recovery of
the amount due or owing to the person indemnified, as aforesaid,
by the person in respect of whose obligations the indemnity is
given and whether the formalities required by any law of Jersey
whether existing or future in regard to the rights or obligations
of sureties shall or shall not have been observed.
(c) Any right which either Funding or the Mortgages Trustee may have
under the existing or future laws of Jersey whether by virtue of
the droit de division or otherwise to require that any liability
under this indemnity be divided or apportioned with any other
person or reduced in any manner whatsoever is hereby abandoned and
waived.
13.2 Underwriters' Indemnity
Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Current Issuer, Funding, the Mortgages Trustee and
NRPLC, each of their directors and each of their officers who signs the
Registration Statement, their employees and each person who controls
the Current Issuer or NRPLC within the meaning of either the Securities
Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Current Issuer to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Current Issuer, Funding, the Mortgages Trustee or NRPLC by or on behalf
of such Underwriter through the Lead Underwriters specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. For purposes of this Clause 13, the
Current Issuer, Funding, the Mortgages Trustee and NRPLC acknowledge
that the statements set forth under the heading "Underwriting" that
specify, (i) the list of Underwriters and their respective
participation in the sale of the Dollar Notes, (ii) the sentences
related to concessions and reallowances and (iii) the paragraph related
to short sales, stabilisation, short covering transactions and penalty
bids in any preliminary prospectus and the Prospectus constitute the
only information furnished in writing by or on behalf of the several
Underwriters for inclusion in any preliminary prospectus or the
Prospectus.
13.3 Proceedings
Promptly after receipt by an indemnified party under this Clause 13 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Clause 13, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under Clause 13.1 or 13.2
above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defences and (ii) will not, in any
event relieve the indemnifying party from any obligation to any
indemnified party other than the indemnification obligation provided in
Clause 13.1 or 13.2 above. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate
therein, and, to the extent that it
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wishes, jointly with any other similarly notified indemnifying party,
to assume the defence thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defence of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Clause 13 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defence thereof other than reasonable costs of investigation; provided
that each Underwriter, the Underwriters as a group, or the Current
Issuer, Funding, the Mortgages Trustee and NRPLC, as the case may be,
shall have the right to employ separate counsel to represent such
Underwriter and its controlling persons, the Underwriters and their
respective controlling persons or the Current Issuer, Funding, the
Mortgages Trustee and NRPLC and their respective controlling persons,
as the case may be, who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by such indemnified
parties under this Clause 13 if in the reasonable judgement of any
Underwriter, the Underwriters acting together, or any of the Current
Issuer, Funding, the Mortgages Trustee and NRPLC, as the case may be,
it is advisable for such indemnified parties to be represented by
separate counsel, and in that event the fees and expenses of such
separate counsel (and local counsel) shall be paid by the indemnifying
party. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defence of such
action and approval by the indemnified party of counsel selected by the
indemnifying party, the indemnifying party will not be liable to such
indemnified party under this Clause 13 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defence thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defences in
accordance with the proviso to the preceding sentence (it being
understood, however that the indemnifying party shall not be liable for
the expenses of more than one such separate counsel (and local counsel)
representing the indemnified parties under Clause 13.1 or 13.2 hereof),
(ii) the indemnifying party has authorised (acting reasonably) the
employment of more than one such separate counsel (and local counsel)
representing the employed counsel satisfactory to the indemnified party
to represent the indemnified party, or (iii) the indemnifying party has
authorised the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii). The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgement for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by this Clause 13, the
indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such
indemnifying party of such request and (ii) such indemnifying party
shall not have either reimbursed the indemnified party in accordance
with such request or objected to such request in writing prior to the
date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and in respect of which indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
13.4 Contribution
In the event that the indemnity provided in Clause 13.1 or 13.2 is
unavailable to or insufficient to hold harmless an indemnified party
for any reason, the Current Issuer, NRPLC,
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Funding, the Mortgages Trustee and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which
the Current Issuer, NRPLC, Funding, the Mortgages Trustee and one or
more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Current
Issuer, NRPLC, Funding, the Mortgages Trustee and the Underwriters from
the offering of the Dollar Notes. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Current Issuer, NRPLC, Funding, the Mortgages Trustee and the
Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Current Issuer, NRPLC, Funding, the Mortgages
Trustee and the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Current Issuer,
Funding, the Mortgages Trustee and NRPLC shall be deemed to be equal to
the Issue Price (before deducting expenses), and benefits received by
the Underwriters shall be deemed to be equal to the total Selling
Commissions and the Management and Underwriting Commission, in each
case as set forth in Clause 11.1. Relative fault shall be determined by
reference to among other things, whether any untrue or any alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Current
Issuer, Funding, the Mortgages Trustee or NRPLC on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Current Issuer, NRPLC, Funding,
the Mortgages Trustee and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take
account of the equitable consideration referred to above.
Notwithstanding the provisions of this Clause 13.4, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Clause 13, each person who controls an Underwriter within the
meaning of either the Securities Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who
controls the Current Issuer, Funding, the Mortgages Trustee or NRPLC
within the meaning of either the Securities Act or the Exchange Act,
each officer of the Current Issuer who shall have signed the
Registration Statement, each employee and each director of the Current
Issuer, Funding, the Mortgages Trustee or NRPLC shall have the same
rights to contribution as the Current Issuer, Funding, the Mortgages
Trustee or NRPLC, as the case may be, subject in each case to the
applicable terms and conditions of this Clause 13.4. Notwithstanding
the foregoing, in no case shall the Underwriter (except as may be
provided in any agreement among Underwriters relating to the offering
of the Notes) be responsible for any amount in excess of the Selling
Commission or Management and Underwriting Commission applicable to the
Notes purchased by such Underwriter hereunder.
14. Termination
14.1 Lead Underwriters' Ability to Terminate
Notwithstanding any other provision of this Agreement, the Lead
Underwriters on behalf of the Underwriters may, by notice to the
Current Issuer given at any time prior to payment of the gross
underwriting proceeds for the Dollar Notes to the Current Issuer,
terminate this Agreement in any of the following circumstances:
(a) if there shall have come to the notice of the Underwriters any
breach of, or any event rendering untrue or incorrect in any
material respect, any of the warranties and
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40
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representations contained in Clause 5 or 6 or 7 (or any deemed
repetition thereof) or failure to perform any of the Current
Issuer's or NRPLC's covenants or agreements in this Agreement in
any material respect; or
(b) if any condition specified in Clause 9 has not been satisfied or
waived by the Lead Underwriters on behalf of the Underwriters; or
(c) if in the opinion of the Lead Underwriters, circumstances shall be
such as: (i) to prevent or to a material extent restrict payment
for the Dollar Notes in the manner contemplated in this Agreement
or (ii) to a material extent prevent or restrict settlement of
transactions in the Dollar 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 Dollar Notes; or
(e) upon termination of the Subscription Agreement; or
(f) if (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange, the London Stock Exchange
or the over-the-counter market shall have been suspended or
minimum prices shall have been established on such exchanges or
such market; (ii) a banking moratorium shall have been declared by
US federal or New York State or UK regulatory authorities; (iii)
there shall have occurred any change or any development involving
a prospective change, in or affecting particularly the business or
properties of the Current Issuer, Funding, the Mortgages Trustee
or NRPLC, which, in the judgement of the Lead Underwriters
materially impairs the investment quality of the Dollar Notes or
makes it impracticable or inadvisable to market the Dollar Notes
or (iv) if in the judgement of the Lead Underwriters, it otherwise
becomes impracticable or inadvisable to proceed with the offering
of the Dollar Notes.
14.2 Consequences of Termination
Upon such notice being given this Agreement shall terminate and be of
no further effect and no party hereto shall be under any liability to
any other in respect of this Agreement except that (a) the Current
Issuer shall remain liable under Clause 12 for the payment of the costs
and expenses already incurred or incurred in consequence of such
termination and (b) (i) the indemnity agreement and contribution
provisions set forth in Clause 13, (ii) the obligations of the Current
Issuer and NRPLC and (iii) the representations and warranties of the
Underwriters made in Clause 3.2(b) of this Agreement, which would have
continued in accordance with Clause 15 had the arrangements for the
underwriting and issue of the Dollar Notes been completed, shall so
continue.
15. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
15.1 The representations, warranties, agreements, undertakings and
indemnities in this Agreement will continue in full force and effect
notwithstanding completion of the arrangements for the subscription and
issue of the Dollar 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.
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41
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15.2 Save for their respective responsibilities to comply with the relevant
representations set forth herein, neither the Current Issuer, Funding,
the Mortgages Trustee nor NRPLC shall have any responsibility in
respect of the legality of the Underwriters or other persons offering
and selling the Dollar Notes in any jurisdiction or in respect of the
Dollar Notes qualifying for sale in any jurisdiction.
16. NOTICES
16.1 All communications pursuant to this Agreement will be in writing and
will be delivered at or sent by facsimile transmission to the following
addresses:
(i) if to the Current Issuer,
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: The Company Secretary
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇
Attention: Securitisation, Risk Operations
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(ii) if to NRPLC,
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇
Attention: Securitisation, Risk Operations
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(iii) if to the Underwriters,
Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Transaction Management
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
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42
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and
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
London
E14 5LB
Attention: Debt Syndicate Desk
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
and
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
(iv) if to Funding,
▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: The Company Secretary
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(v) if to the Mortgages Trustee,
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: The Company Secretary
Facsimile: ▇▇▇ (▇) ▇▇▇▇ ▇▇▇ ▇▇▇
16.2 Any communication so sent by letter shall take effect at the time of
actual delivery to the addressee, and any communication so sent by
facsimile transmission shall take effect upon acknowledgement of
receipt by the recipient. Any communication to be delivered to any
party under this Agreement which is to be sent by facsimile
transmission will be written legal evidence.
16.3 The Mortgages Trustee agrees that the process by which any proceedings
in England are begun may be secured on it by being delivered to Granite
Finance Trustees Limited c/o Mourant & Co. Capital (SPV) Limited, ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, or otherwise at the registered
office of Mourant & Co. Capital (SPV) Limited, attn: The Company
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43
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Secretary. If such person is not or ceases to be effectively appointed
to accept service of process on the Mortgages Trustee's behalf the
Mortgages Trustee shall, on the written demand of the Lead
Underwriters, appoint a further person in England to accept service of
process on its behalf and, failing such appointment within 15 days, the
Lead Underwriters shall be entitled to appoint such a person by written
notice to the Mortgages Trustee. Nothing in this sub-clause shall
affect the right of the Lead Underwriters to serve process in any other
manner permitted by law.
16.4 Funding agrees that the process by which any proceedings in England are
begun may be secured on it by being delivered to Granite Finance
Funding Limited c/o Mourant & Co. Capital (SPV) Limited, ▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, or otherwise at the registered office of
Mourant & Co. Capital (SPV) Limited, attn: The Company Secretary. If
such person is not or ceases to be effectively appointed to accept
service of process on Funding's behalf Funding shall, on the written
demand of the Lead Underwriters, appoint a 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 Funding. Nothing in this sub-clause shall
affect the right of the Lead Underwriters to serve process in any other
manner permitted by law.
17. TIME
Time shall be of the essence of this Agreement.
18. NON PETITION AND LIMITED RECOURSE
Each of the Underwriters agrees with the Current Issuer, Funding and
the Mortgages Trustee, that it shall not, until the expiry of one year
and one day after the payment of all sums outstanding and owing under
the Notes (in respect of the Current Issuer) and until the expiry of
one year and one day after the payment of all sums outstanding and
owing under any intercompany loan made to Funding by the Current Issuer
or any other company (in respect of the Mortgages Trustee and Funding)
take any corporate action or other steps or legal proceedings for the
winding-up, dissolution, arrangement, reconstruction or re-organisation
or for the appointment of a liquidator, receiver, manager,
administrator, administrative receiver or similar officer of the
Current Issuer, the Mortgages Trustee or Funding or any, or all of,
their respective assets or revenues.
To the extent permitted by law, no recourse under any obligation,
covenant or agreement of any person contained in this Agreement shall
be had against any shareholder, officer or director of the Current
Issuer, Funding or the Mortgages Trustee, by the enforcement of any
assessment or by any legal proceedings, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement
is a corporate obligation of each of the Current Issuer, Funding and
the Mortgages Trustee expressed to be a party hereto and no personal
liability shall attach to or be incurred by the shareholders, officers,
agents or directors of such person as such, or any of them, under or by
reason of any of the obligations, covenants or agreements of the
Current Issuer, Funding or the Mortgages Trustee contained in this
Agreement, or implied therefrom, and that any and all personal
liability for breaches by such person of any such obligations,
covenants or agreements, either under any applicable law or by statute
or constitution, of every such shareholder, officer, agent or director
is hereby expressly waived by each person expressed to be a party
hereto as a condition of and consideration for the execution of this
Agreement.
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19. GOVERNING LAW AND JURISDICTION
19.1 Governing Law
This Agreement shall be governed by, and shall be construed in
accordance with, the laws of New York.
19.2 Jurisdiction
Each of the parties hereto irrevocably agrees that, except as otherwise
set forth in this paragraph, any state or federal court sitting in the
City of New York shall have exclusive jurisdiction to hear and
determine any suit, action or proceeding and to settle any dispute
arising out of or relating to this Agreement and, for such purposes,
irrevocably submits to the jurisdiction of such courts. Each of the
Mortgages Trustee, Funding, the Current Issuer and NRPLC hereby
appoints the CT Corporation System at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, or, if otherwise, its principal place of business in the City of
New York from time to time, as its agent for service of process and
agrees that service of any process, summons, notice or document by hand
delivery or registered mail upon such agent shall be effective service
of process for any suit, action or proceeding brought in any such
court. Each of the Mortgages Trustee, Funding, the Current Issuer and
NRPLC irrevocably and unconditionally waives any objection to the
laying of venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum. Each of the Mortgages Trustee,
Funding, the Current Issuer and NRPLC agrees that a final judgment in
any such suit, action or proceeding brought in any such court shall be
conclusive and binding upon each of the Mortgages Trustee, Funding, the
Current Issuer and NRPLC and may be enforced in any other court to
whose jurisdiction each of the Mortgages Trustee, Funding, the Current
Issuer and NRPLC is or may in the future be subject, by suit upon
judgment. Each of the Mortgages Trustee, Funding, the Current Issuer
and NRPLC further agrees that nothing herein shall affect the
Underwriters' right to effect service of process in any other manner
permitted by law or to bring a suit, action or proceeding (including a
proceeding for enforcement of a judgement) in any other court or
jurisdiction in accordance with applicable law.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually
or by facsimile) all of which, taken together, shall constitute one and
the same agreement and any party may enter into this Agreement by
executing a counterpart.
21. AUTHORITY OF THE LEAD UNDERWRITERS
Any action by the Underwriters hereunder may be taken by Barclays
Capital Inc., Citigroup Global Markets Limited and ▇.▇. ▇▇▇▇▇▇
Securities Inc. as representatives on behalf of the Underwriters, and
any such action taken Barclays Capital Inc., Citigroup Global Markets
Limited and ▇.▇. ▇▇▇▇▇▇ Securities Inc. shall be binding upon the
Underwriters.
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45
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IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
GRANITE MORTGAGES 04-1 PLC
By:
NORTHERN ROCK PLC
By:
GRANITE FINANCE FUNDING LIMITED
By:
GRANITE FINANCE TRUSTEES LIMITED
By:
CITIGROUP GLOBAL MARKETS LIMITED
By:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the several Underwriters
listed in Schedule 1 hereto
By:
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SCHEDULE 1
Underwriters $1,185,000,000 of $1,185,000,000 of $1,185,000,000 of
Series 1 Class A1 Series 1 Class A2 Series 2 Class A1
Notes Notes Notes
Barclays Capital Inc. $382,480,438 $382,480,438 $382,480,438
Citigroup Global Markets Limited $382,480,438 $382,480,438 $382,480,438
▇.▇. ▇▇▇▇▇▇ Securities Inc. $382,480,438 $382,480,438 $382,480,438
▇▇▇▇▇▇ Brothers Inc. $18,779,343 $18,779,343 $18,779,343
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $18,779,343 $18,779,343 $18,779,343
Total $1,185,000,000 $1,185,000,000 $1,185,000,000
Underwriters $52,000,000 of $72,000,000 of $108,000,000 of
Series 1 Class B Series 1 Class M Series 1 Class C
Notes Notes Notes
Barclays Capital Inc. $17,333,333 $24,000,000 $36,000,000
Citigroup Global Markets Limited $17,333,334 $24,000,000 $36,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $17,333,333 $24,000,000 $36,000,000
Total $52,000,000 $72,000,000 $108,000,000
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