THIS AGREEMENT is made on {circle}
BETWEEN:
(1) XXXXXX FINANCING (NO. 7) PLC (registered number 4645659), a public limited
company incorporated under the laws of England and Wales, whose registered
office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx
XX0 0XX (the "SEVENTH ISSUER");
(2) ABBEY NATIONAL PLC (registered number 2294747), a public limited company
incorporated under the laws of England and Wales, whose registered office
is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0
0XX ("ANPLC");
(3) XXXXXX FUNDING LIMITED (registered number 3982428), a private limited
company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX ("FUNDING");
(4) XXXXXX TRUSTEES LIMITED (registered number 3982431), a private limited
company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (the "MORTGAGES TRUSTEE");
(5) X.X. XXXXXX SECURITIES INC., a corporation organised under the laws of
Delaware whose registered office is at 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000, and XXXXXXX XXXXX XXXXXX INC., a corporation organised under the
laws of New York whose registered office is at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "LEAD MANAGERS"); and
(6) CREDIT SUISSE FIRST BOSTON LLC, a corporation organised under the laws of
{circle} whose registered office is at {circle}, DEUTSCHE BANK SECURITIES
INC., a corporation organised under the laws of {circle} whose registered
office is at {circle}, XXXXXX BROTHERS INC., a corporation organised
under the laws of {circle} whose registered office is at {circle} and
XXXXXX XXXXXXX & CO. INCORPORATED, a corporation organised under the laws
of {circle} whose registered office is at {circle}, (together with the
Lead Managers, the "UNDERWRITERS" and each an "UNDERWRITER").
WHEREAS:
(A) The Seventh Issuer, by resolutions of its Board of Directors passed on
[{circle}], 2003, has duly authorised and has determined to create and
issue US$[750,000,000] in principal amount of its Floating Rate Series 1
Class A Seventh Issuer Notes due April 2004 (the "SERIES 1 CLASS A SEVENTH
ISSUER NOTES"), US$[22,500,000] in principal amount of its Floating Rate
Series 1 Class B Seventh Issuer Notes due July 2040 (the "SERIES 1 CLASS B
SEVENTH ISSUER NOTES"), US$[38,250,000] in principal amount of its
Floating Rate Series 1 Class M Seventh Issuer Notes due July 2040 (the
"SERIES 1 CLASS M SEVENTH ISSUER NOTES" and, together with the Series 1
Class A Seventh Issuer Notes and the Series 1 Class B Seventh Issuer
Notes, the "SERIES 1 SEVENTH ISSUER NOTES"), US$[1,250,000,000] in
principal amount of its Floating Rate Series 2 Class A Seventh Issuer
Notes due January 2008 (the "SERIES 2 CLASS A SEVENTH ISSUER NOTES"),
US$[37,500,000] in principal amount of its Floating Rate Series 2 Class B
Seventh Issuer Notes due July 2040 (the "SERIES 2 CLASS B SEVENTH ISSUER
NOTES"),
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US$[63,750,000] in principal amount of its Floating Rate Series 2
Class M Seventh Issuer Notes due July 2040 (the "SERIES 2 CLASS M SEVENTH
ISSUER NOTES" together with the Series 1 Class B Seventh Issuer Notes, the
Series 1 Class M Seventh Issuer Notes and the Series 2 Class B Seventh
Issuer Notes, the "CLASS B/M SEVENTH ISSUER NOTES" and together with the
Series 2 Class A Seventh Issuer Notes and the Series 2 Class B Seventh
Issuer Notes, the "SERIES 2 SEVENTH ISSUER NOTES"), and US$[500,000,000]
in principal amount of its Floating Rate Series 3 Class A Seventh Issuer
Notes due July 2020 (the "SERIES 3 CLASS A SEVENTH ISSUER NOTES" and
together with the Series 1 Class A Seventh Issuer Notes and the Series 2
Class A Seventh Issuer Notes, the "CLASS A SEVENTH ISSUER NOTES" and
together with the Series 2 Seventh Issuer Notes and the Series 1 Seventh
Issuer Notes, the "SEVENTH ISSUER NOTES", which expression where the
context so requires shall include the Global Seventh Issuer Notes defined
below).
(B) The Seventh Issuer Notes will be in registered form in the denominations
of US$1,000, US$10,000 or US$100,000 each or integral multiples thereof.
The Seventh Issuer Notes will be issued on [{circle}], 2003 at 10:00 a.m.
or on such other time (not being later than 2:00 p.m.) (London time) on
[{circle}] or on such other date as the Seventh Issuer and the Lead
Managers may agree (the "CLOSING DATE"). The issue of the Seventh Issuer
Notes is referred to in this Agreement as the "ISSUE".
(C) Simultaneously with the Issue, the Seventh Issuer intends to issue
{pound-sterling}[15,000,000] in principal amount of its Floating Rate
Series 3 Class B Seventh Issuer Notes due July 2040,
{pound-sterling}[20,000,000] in principal amount of its Floating Rate
Series 3 Class M Seventh Issuer Notes due July 2040, *[500,000,000] in
principal amount of its Floating Rate Series 4 Class A1 Seventh Issuer
Notes due July 2040, {pound-sterling}[250,000,000] in principal amount of
its Floating Rate Series 4 Class A2 Seventh Issuer Notes due July 2040,
*[41,000,000] in principal amount of its Floating Rate Series 4 Class B
Seventh Issuer Notes due July 2040 and *[56,000,000] in principal amount
of its Floating Rate Series 4 Class M Seventh Issuer Notes due July 2040
(together, the "REG S SEVENTH ISSUER NOTES"). By a Subscription Agreement
of today's date (the "REG S SEVENTH ISSUER NOTES SUBSCRIPTION AGREEMENT")
between the Seventh Issuer, ANPLC, Funding, the Mortgages Trustee and the
respective managers named therein, such managers have agreed to subscribe
and pay for the Reg S Seventh Issuer Notes upon the terms and subject to
the conditions therein contained.
The Seventh Issuer Notes and the Reg S Seventh Issuer Notes will be
constituted by, issued subject to and have the benefit of a trust deed
(the "SEVENTH ISSUER TRUST DEED") to be entered into on or before the
Closing Date between the Seventh Issuer and The Bank of New York, London
Branch as trustee for the Noteholders (the "NOTE TRUSTEE").
(D) The Seventh Issuer Notes and the Reg S Seventh Issuer Notes (together with
the Seventh Issuer's obligations to its other creditors) will be secured
with the benefit of security interests created by a deed of charge and
assignment (the "SEVENTH ISSUER DEED OF CHARGE") to be entered into on or
before the Closing Date by the Seventh Issuer, The Bank of New York,
London Branch (in such capacity, the "SEVENTH ISSUER SECURITY TRUSTEE"),
the Note Trustee, JPMorgan Chase Bank, London Branch (the "PRINCIPAL
PAYING AGENT" and the "AGENT BANK"), ANPLC in its capacity as cash manager
to the Seventh Issuer under the Seventh Issuer Cash Management Agreement
(the "SEVENTH ISSUER CASH MANAGER") and in its capacity as sterling
account bank to the Seventh Issuer under the Seventh Issuer Bank Account
Agreement (the "SEVENTH ISSUER STERLING ACCOUNT BANK"), Citibank N.A.,
London Branch in its capacity as the non-sterling account bank to the
Seventh Issuer (the "SEVENTH
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ISSUER NON-STERLING ACCOUNT BANK"), JPMorgan Chase Bank, New York Branch
(the "US PAYING AGENT"), X.X. Xxxxxx Bank Luxembourg S.A. as registrar in
respect of the Seventh Issuer Notes and the Reg S Seventh Issuer Notes
(the "REGISTRAR"), [{circle}], [{circle}] and [{circle}] as swap providers
to the Seventh Issuer (the "SEVENTH ISSUER SWAP PROVIDERS") and SPV
Management Limited in its capacity as corporate services provider to the
Issuer under the Seventh Issuer Corporate Services Agreement (the "SEVENTH
ISSUER CORPORATE SERVICES PROVIDER").
(E) Payments of principal and interest on the Seventh Issuer Notes and the
Reg S Seventh Issuer Notes will be made by the Seventh Issuer to the
Principal Paying Agent and by the Principal Paying Agent to Noteholders
on behalf of the Seventh Issuer under a paying agent and agent bank
agreement to be entered into on or before the Closing Date (the "SEVENTH
ISSUER PAYING AGENT AND AGENT BANK AGREEMENT") between the Seventh
Issuer, the Principal Paying Agent, the Agent Bank, the US Paying Agent,
the Registrar, the Transfer Agent and the Seventh Issuer Security
Trustee.
(F) The Seventh Issuer Notes will be payable in U.S. dollars. Each class of
the Seventh Issuer Notes will be represented by a global note (a "GLOBAL
SEVENTH ISSUER NOTE"), without interest coupons, substantially in the
form set out in the Seventh Issuer Trust Deed.
(G) The Seventh Issuer will use an amount equal to the gross proceeds of the
Issue and the gross proceeds of the issue of the Reg S Seventh Issuer
Notes (net of underwriting commissions and various out-of-pocket
expenses) converted under the relevant Seventh Issuer Swap Agreement (as
defined below), to make a loan to Funding pursuant to an intercompany
loan agreement to be entered into on or before the Closing Date (the
"SEVENTH ISSUER INTERCOMPANY LOAN AGREEMENT" and the loan made thereunder
the "SEVENTH ISSUER INTERCOMPANY LOAN") between the Seventh Issuer,
Funding, JPMorgan Chase Bank, London Branch (in such capacity, the
"SECURITY TRUSTEE") and the Seventh Issuer Security Trustee.
(H) Funding will pay the proceeds of the Seventh Issuer Intercompany Loan to
ANPLC in consideration for the assignment by ANPLC of a part of ANPLC's
interest in a portfolio of first residential mortgage loans (the "LOANS")
and an interest in the related insurances and their related security
(together, the "RELATED SECURITY").
(I) ANPLC transferred by way of equitable assignment the portfolio of Loans
and their Related Security to the Mortgages Trustee on 26th July, 2000
and on subsequent distribution dates, pursuant to a mortgage sale
agreement entered into on 26th July, 2000, amended on 29th November, 2000
and amended and restated on 23rd May, 2001, 5th July, 2001, 8th November,
2001 and 7th November, 2002 and to be amended prior to or on the Closing
Date (the "MORTGAGE SALE AGREEMENT") between ANPLC, the Mortgages
Trustee, Funding and the Security Trustee. In relation to Loans secured
over properties in Scotland, the transfer of the beneficial interest
therein to the Mortgages Trustee has been affected by a declaration of
trust entered into on 8th January, 2003 and further declarations of trust
in respect of further loans sold to the Mortgages Trustee (the "SCOTTISH
TRUST DEED" the form of which is incorporated into the Mortgage Sale
Agreement), between ANPLC and the Mortgages Trustee. Each of the
Mortgages Trustee, Funding and the Security Trustee appointed ANPLC as
servicer to service the Loans and their Related Security pursuant to a
servicing agreement entered into on 26th July, 2000, as amended and
restated on 23rd May, 2001 and 7th November, 2002 (the "SERVICING
AGREEMENT").
4
(J) The Mortgages Trustee holds the Loans and their Related Security on a
bare trust in undivided shares for the benefit of Funding and ANPLC
pursuant to a mortgages trust deed entered into on 25th July, 2000,
amended on 29th November, 2000 and 23rd May, 2001, amended and restated
on 5th July, 2001, 8th November, 2001 and 7th November, 2002 and to be
amended and restated on or before the Closing Date (the "MORTGAGES TRUST
DEED") between ANPLC, Funding and the Mortgages Trustee. The Mortgages
Trustee entered into, on 26th July, 2000, a guaranteed investment
contract in respect of its principal bank account (the "MORTGAGES TRUSTEE
GUARANTEED INVESTMENT CONTRACT") between the Mortgages Trustee and ANPLC
(in such capacity, the "MORTGAGES TRUSTEE GIC PROVIDER").
(K) Funding's obligations to the Seventh Issuer under the Seventh Issuer
Intercompany Loan Agreement and to Funding's other creditors will be
secured with the benefit of security interests created by a deed of
charge and assignment entered into on 26th July, 2000, amended on
29th November, 0000, 00xx Xxx, 0000, 0xx July, 2001, 8th November, 2001
and 7th November, 2002 and to be acceded to on or before the Closing Date
(the "FUNDING DEED OF CHARGE) between Funding, Xxxxxx Financing (No. 1)
PLC (the "FIRST ISSUER"), the Security Trustee, Abbey National Treasury
Services plc (in such capacity, the "FUNDING SWAP PROVIDER"), The Royal
Bank of Scotland plc as liquidity facility provider to Funding (the
"FUNDING LIQUIDITY FACILITY PROVIDER"), ANPLC in its capacity as cash
manager to the Mortgages Trustee and Funding (the "CASH MANAGER") and in
its capacity as account bank to the Mortgages Trustee and Funding (the
"ACCOUNT BANK"), Citibank N.A. in its capacity as start-up loan provider
to Funding in relation to an issue of notes by the First Issuer (the
"FIRST START-UP LOAN PROVIDER") and SPV Management Limited (the
"CORPORATE SERVICES PROVIDER"), acceded to pursuant to the deed of
accession dated 29th November, 2000 (the "FIRST DEED OF ACCESSION TO THE
FUNDING DEED OF CHARGE") by Xxxxxx Financing (No. 2) PLC (the "SECOND
ISSUER") and by Citibank N.A. in its capacity as start-up loan provider
to Funding in relation to an issue of notes by the Second Issuer (the
"SECOND START-UP LOAN PROVIDER"), acceded to pursuant to a deed of
accession dated 23rd May, 2001 (the "SECOND DEED OF ACCESSION TO THE
FUNDING DEED OF CHARGE") by Xxxxxx Financing (No. 3) PLC (the "THIRD
ISSUER") and by ANPLC in its capacity as start-up loan provider to
Funding in relation to an issue of notes by the Third Issuer (the "THIRD
START-UP LOAN PROVIDER"), acceded to pursuant to a deed of accession
dated 5th July, 2001 (the "THIRD DEED OF ACCESSION TO THE FUNDING DEED OF
CHARGE") by Xxxxxx Financing (No. 4) PLC (the "FOURTH ISSUER") and by
ANPLC in its capacity as start-up loan provider to Funding in relation to
an issue of notes by the Fourth Issuer (the "FOURTH START-UP LOAN
PROVIDER"), acceded to pursuant to a deed of accession dated 8th
November, 2001 (the "FOURTH DEED OF ACCESSION TO THE FUNDING DEED OF
CHARGE") by Xxxxxx Financing (No. 5) PLC (the "FIFTH ISSUER") and by
ANPLC in its capacity as start-up loan provider to Funding in relation to
an issue of notes by the Fifth Issuer (the "FIFTH START-UP LOAN
PROVIDER") and amended and restated pursuant to the amendment and
restatement of the Funding Deed of Charge dated 7th November, 2002 by
Xxxxxx Financing (No. 6) PLC (the "SIXTH ISSUER") and ANPLC in its
capacity as start-up loan provider to Funding in relation to an issue of
notes by the Sixth Issuer (the "SIXTH START-UP LOAN PROVIDER"). On or
before the Closing Date, the Seventh Issuer and ANPLC in its capacity as
start-up loan provider to Funding in relation to the issue (the "SEVENTH
START-UP LOAN PROVIDER") will, together with the other secured creditors
of Funding, accede to the Funding Deed of Charge and thereby become
secured creditors of Funding.
(L) In connection with the issue of notes by the First Issuer, Funding, in
addition to the documents described above, on 26th July, 2000 entered
into (1) a cash management
5
agreement amended on 29th November, 2000 (the "CASH MANAGEMENT AGREEMENT")
with the Cash Manager, the Mortgages Trustee and the Security Trustee; (2)
a bank account agreement (the "FUNDING BANK ACCOUNT AGREEMENT") with the
Account Bank, the Mortgages Trustee and Funding; (3) a guaranteed
investment contract (the "FUNDING GUARANTEED INVESTMENT CONTRACT") with
the Account Bank; (4) a liquidity facility agreement amended on 29th
November, 2000 (the "FUNDING LIQUIDITY FACILITY AGREEMENT") with the
Funding Liquidity Facility Provider and the Security Trustee; (5) a
start-up loan agreement (the "FIRST START-UP LOAN AGREEMENT") with the
First Start-up Loan Provider and the Security Trustee; and (6) a corporate
services agreement amended and restated on 29th November, 2000 and 23rd
May, 2001 (the "CORPORATE SERVICES AGREEMENT") with the Mortgages Trustee,
the Security Trustee and the Corporate Services Provider, each of which
will remain in effect, as applicable, in respect of the Issue. In
connection with the issue of notes by the Second Issuer, Funding, in
addition to the documents described above, on 29th November, 2000 entered
into a start-up loan agreement (the "SECOND START-UP LOAN AGREEMENT") with
the Second Start-up Loan Provider and the Security Trustee. In connection
with the issue of notes by the Third Issuer, Funding, in addition to the
documents described above, on 23rd May, 2001 entered into a start-up loan
agreement (the "THIRD START-UP LOAN AGREEMENT") with the Third Start-up
Loan Provider and the Security Trustee. In connection with the issue of
notes by the Fourth Issuer, Funding, in addition to the documents
described above, on 5th July, 2001 entered into a start-up loan agreement
(the "FOURTH START-UP LOAN AGREEMENT") with the Fourth Start-up Loan
Provider and the Security Trustee. In connection with the issue of notes
by the Fifth Issuer, Funding, in addition to the documents described
above, on 8th November, 2001 entered into a start-up loan agreement (the
"FIFTH START-UP LOAN AGREEMENT") with the Fifth Start-up Loan Provider and
the Security Trustee. In connection with the issue of notes by the Sixth
Issuer, Funding, in addition to the documents described above, on 7th
November, 2002 entered into a start-up loan agreement (the "SIXTH START-
UP AGREEMENT") with the Sixth Start-up Loan Provider and the Security
Trustee. In connection with the Issue, Funding will additionally enter
into a start-up loan agreement (the "SEVENTH START-UP LOAN AGREEMENT")
with the Seventh Start-up Loan Provider and the Security Trustee.
(M) In connection with an intercompany loan agreement entered into on 26th
July, 2000 (the "FIRST ISSUER INTERCOMPANY LOAN AGREEMENT") between the
First Issuer, Funding and the Security Trustee, Funding entered into an
ISDA Master Agreement (including the schedule thereto) and confirmations
documented between Funding, the Funding Swap Provider and the Security
Trustee (as amended, the "FUNDING SWAP AGREEMENT"). In connection with an
intercompany loan agreement entered into on 29th November, 2000 (the
"SECOND ISSUER INTERCOMPANY LOAN AGREEMENT") between the Second Issuer,
Funding and the Security Trustee, the parties to the Funding Swap
Agreement agreed to amend the terms of that ISDA Master Agreement and to
replace the previous confirmations with a new confirmation that provided
for a variable rate of interest to be paid by Funding to the Funding Swap
Provider (based on the weighted average rates of interest on the Loans in
the Portfolio) and for the Funding Swap Provider to pay a rate of
interest to Funding equal to LIBOR for three-month Sterling deposits and
a margin, and in connection with a further intercompany loan agreement
entered into on 23rd May, 2001 (the "THIRD ISSUER INTERCOMPANY LOAN
AGREEMENT") between the Third Issuer, Funding and the Security Trustee,
the parties to the Funding Swap Agreement agreed to further amend the
Funding Swap Agreement.
(N) In connection with the Issue, the Seventh Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Seventh Issuer
Notes relating to each class of the Seventh
6
Issuer Notes; (2) a corporate services agreement (the "SEVENTH ISSUER
CORPORATE SERVICES AGREEMENT") between the Seventh Issuer, the Seventh
Issuer Security Trustee and the Seventh Issuer Corporate Services
Provider; (3) a cash management agreement (the "SEVENTH ISSUER CASH
MANAGEMENT AGREEMENT") between the Seventh Issuer, the Seventh Issuer
Security Trustee and the Seventh Issuer Cash Manager; (4) a bank account
agreement (the "SEVENTH ISSUER BANK ACCOUNT AGREEMENT") between the
Seventh Issuer, the Seventh Issuer Sterling Account Bank, the Seventh
Issuer Non-Sterling Account Bank and the Seventh Issuer Security Trustee;
(5) ISDA Master Agreements (including the schedule thereto and
confirmation thereunder) in respect of currency swap transactions relating
to the Series 1 Seventh Issuer Notes and the Series 2 Seventh Issuer
Notes, between the Seventh Issuer, [{circle}] and the Seventh Issuer
Security Trustee (the "SEVENTH ISSUER DOLLAR CURRENCY SWAP AGREEMENTS")
and, together with the other swap agreements to be entered into in
relation to certain of the Reg S Seventh Issuer Notes, each as referred to
in the Prospectus (as defined below), the "SEVENTH ISSUER SWAP
AGREEMENTS"); and (6) a post- enforcement call option agreement (the
"SEVENTH ISSUER POST-ENFORCEMENT CALL OPTION AGREEMENT") between the
Seventh Issuer, the Seventh Issuer Security Trustee and PECOH Limited.
(O) On or before the Closing Date, Xxxxx & Xxxxx and Xxxxxxxxx and May will
sign for the purposes of identification an amended and restated master
definitions and construction schedule (the "AMENDED AND RESTATED MASTER
DEFINITIONS SCHEDULE") and a master definitions and construction schedule
in respect of the Seventh Issuer (the "SEVENTH ISSUER MASTER DEFINITIONS
SCHEDULE").
(P) As required, the Seventh Issuer, Funding, the Mortgages Trustee and/or
ANPLC have entered or will enter into any other relevant documents to be
signed and delivered on or before the Closing Date (such documents,
together with the Mortgage Sale Agreement, the Mortgages Trust Deed, the
Scottish Trust Deed, the Servicing Agreement, the Mortgages Trustee
Guaranteed Investment Contract, the First Issuer Intercompany Loan
Agreement, the Second Issuer Intercompany Loan Agreement, the Third
Issuer Intercompany Loan Agreement, the Fourth Issuer Intercompany Loan
Agreement, the Fifth Issuer Intercompany Loan Agreement, the Sixth Issuer
Intercompany Loan Agreement, the Seventh Issuer Intercompany Loan
Agreement, the Funding Swap Agreement, the Funding Guaranteed Investment
Contract, the Funding Liquidity Facility Agreement, the Cash Management
Agreement, the Bank Account Agreement, the First Start-up Loan Agreement,
the Second Start-up Loan Agreement, the Third Start-up Loan Agreement,
the Fourth Start-up Loan Agreement, the Fifth Start-up Loan Agreement,
the Sixth Start-up Loan Agreement, the Seventh Start-up Loan Agreement,
the Corporate Services Agreement, the Funding Deed of Charge, the Seventh
Issuer Deed of Charge, the Seventh Issuer Trust Deed, the Seventh
Issuer Cash Management Agreement, the Seventh Issuer Paying Agent and
Agent Bank Agreement, the Seventh Issuer Bank Account Agreement, the
Seventh Issuer Swap Agreements, the Seventh Issuer Corporate Services
Agreement, this Agreement and the Reg S Seventh Issuer Notes Subscription
Agreement, each as they have been or may be amended, restated, varied or
supplemented from time to time, are collectively referred to herein as
the "LEGAL AGREEMENTS").
7
IT IS AGREED as follows:
1. ISSUE OF THE SEVENTH ISSUER NOTES
1.1 AGREEMENT TO ISSUE
Subject to the terms and conditions of this Agreement, the Seventh Issuer
agrees to issue the Class A Seventh Issuer Notes on the Closing Date to
the Underwriters or as they may direct and the Class B/M Seventh Issuer
Notes on the Closing Date to the Lead Managers (the "CLASS B/M
UNDERWRITERS") or as they may direct. The Seventh Issuer Notes will be
issued at a price equal to the aggregate of 100 per cent. of the principal
amount of the Series 1 Seventh Issuer Notes, 100 per cent. of the
principal amount of the Series 2 Seventh Issuer Notes and 100 per cent. of
the principal amount of the Series 3 Class A Seventh Issuer Notes (the
"ISSUE PRICE").
1.2 THE LEGAL AGREEMENTS
To the extent that each of the Seventh Issuer, Funding, the Mortgages
Trustee and ANPLC is a signatory of the Legal Agreements, each has
entered or will, not later than the Closing Date, enter into each of the
Legal Agreements to which it is a party, substantially in the form of the
draft signed for the purposes of identification by Xxxxx & Overy and
Xxxxxxxxx and May (any draft of any document so signed being called an
"AGREED FORM"), with such amendments as the Lead Managers, on behalf of
the Underwriters, may agree with the Seventh Issuer and, if it is such a
signatory, Funding, the Mortgages Trustee and/or ANPLC.
1.3 THE SEVENTH ISSUER NOTES
The Seventh Issuer Notes will be issued on the Closing Date in accordance
with the terms of the Seventh Issuer Trust Deed and will be in the form
set out therein.
1.4 PROSPECTUS
The Seventh Issuer confirms that it has prepared a preliminary prospectus
dated 5th March, 2003 and a prospectus dated today's date (together, the
"PROSPECTUS") for use in connection with the issue of the Seventh Issuer
Notes and hereby authorises the Underwriters to distribute copies of the
Prospectus in connection with the offering and sale of the Seventh Issuer
Notes.
1.5 AUTHORITY TO OFFER
The Seventh Issuer confirms that it has authorised the Lead Managers to
offer the Class A Seventh Issuer Notes on its behalf to the Underwriters
for subscription at the Issue Price subject to signature of this
Agreement.
2. STABILISATION
Xxxxxxx Xxxxx Barney Inc., on behalf of itself and the other
Underwriters, may, to the extent permitted by applicable laws and
regulations, engage in over-allotment transactions, stabilising
transactions, syndicate covering transactions and penalty bids and
otherwise effect transactions in the open market or otherwise in
connection with the distribution of the Seventh Issuer Notes with a view
to stabilising or maintaining the respective market prices of
8
the Seventh Issuer Notes at levels other than those which might otherwise
prevail in the open market but in doing so Xxxxxxx Xxxxx Xxxxxx Inc. shall
act as principal and in no circumstances shall the Seventh Issuer be
obliged to issue (i) more than US$[750,000,000] in principal amount of
Series 1 Class A Seventh Issuer Notes; (ii) more than US$[22,500,000] in
principal amount of Series 1 Class B Seventh Issuer Notes; (iii) more than
US$[38,250,000] in principal amount of Series 1 Class M Seventh Issuer
Notes; (iv) more than US$[1,250,000,000] in principal amount of Series 2
Class A Seventh Issuer Notes; (v) more than US$[37,500,000] in principal
amount of Series 2 Class B Seventh Issuer Notes; (vi) more than
US$[63,750,000] in principal amount of Series 2 Class M Seventh Issuer
Notes; or (vii) more than US$[500,000,000] in principal amount of Series 3
Class A Seventh Issuer Notes.
3. AGREEMENTS BY THE UNDERWRITERS
3.1 PURCHASE
Each Underwriter severally agrees to purchase and pay for such principal
amount of Seventh Issuer Notes set out against its name in the Schedule
hereto on the Closing Date at the Issue Price all on the terms set out in
this Agreement.
(a) If any Underwriter shall default in its obligation to purchase
Class A Seventh Issuer Notes which it has agreed to
purchase hereunder, the non-defaulting Underwriters may in their
discretion arrange to purchase, or for another party or other
parties reasonably satisfactory to ANPLC to purchase, such
Class A Seventh Issuer Notes on the terms contained herein.
If within thirty-six hours after such default by any Underwriter,
the non-defaulting Underwriters do not arrange for the purchase of
such Class A Seventh Issuer Notes, then ANPLC shall be
entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the non-
defaulting Underwriters to purchase such Class A Seventh
Issuer Notes on such terms. In the event that, within the
respective prescribed periods, the Lead Managers on behalf of the
non-defaulting Underwriters notify ANPLC that the non-defaulting
Underwriters have so arranged for the purchase of such Class A
Seventh Issuer Notes, or ANPLC notifies the non-defaulting
Underwriters that they have so arranged for the purchase of such
Class A Seventh Issuer Notes, the non-defaulting
Underwriters or ANPLC shall have the right to postpone the Closing
Date for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in any documents or
arrangements relating to the offering and sale of the Class A
Seventh Issuer Notes. Any substitute purchaser of Class A
Seventh Issuer Notes pursuant to this paragraph shall be
deemed to be an Underwriter, for the purposes of this Agreement,
in connection with the offering and sale of the Class A
Seventh Issuer Notes.
If either Class B/M Underwriter shall default in its
obligation to purchase Class B/M Seventh Issuer Notes which it has
agreed to purchase hereunder, the non-defaulting Class B/M
Underwriter may in its discretion arrange to purchase, or for
another party or other parties reasonably satisfactory to ANPLC to
purchase, such Class B/M Seventh Issuer Notes on the terms
contained herein. If within thirty-six hours after such default
by either Class B/M Underwriter, the non-defaulting Class B/M
Underwriter does not arrange for the purchase of such Class B/M
Seventh Issuer Notes, then ANPLC shall be entitled to a further
period of thirty-six hours within which to procure another party
or other parties satisfactory to the non-defaulting
9
Class B/M Underwriter to purchase such Class B/M Seventh Issuer
Notes on such terms. In the event that, within the respective
prescribed periods, the non-defaulting Class B/M Underwriter
notifies ANPLC that the non-defaulting Class B/M Underwriter has
so arranged for the purchase of such Class B/M Seventh Issuer
Notes, or ANPLC notifies the non-defaulting Class B/M Underwriter
that they have so arranged for the purchase of such Class B/M
Seventh Issuer Notes, the non-defaulting Class B/M Underwriter or
ANPLC shall have the right to postpone the Closing Date for a
period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in any documents or
arrangements relating to the offering and sale of the Class B/M
Seventh Issuer Notes. Any substitute purchaser of Class B/M
Seventh Issuer Notes pursuant to this paragraph shall be deemed to
be a Class B/M Underwriter, for the purposes of this Agreement, in
connection with the offering and sale of the Class B/M Seventh
Issuer Notes.
(b) If, after giving effect to any arrangements for the purchase of
Class A Seventh Issuer Notes of a defaulting Underwriter by the
non-defaulting Underwriters, as provided in CLAUSE 3.1(A) above,
the aggregate principal amount of the Class A Seventh Issuer Notes
which remains unpurchased does not exceed 10 per cent. of the
aggregate principal amount of the Class A Seventh Issuer Notes,
then ANPLC shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of the Class A
Seventh Issuer Notes which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal
amount of the Class A Seventh Issuer Notes which such Underwriter
agreed to purchase hereunder) of the principal amount of the Class
A Seventh Issuer Notes of such defaulting Underwriter for which
such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
If, after giving effect to any arrangements for the purchase of
Class B/M Seventh Issuer Notes of a defaulting Class B/M
Underwriter by the non-defaulting Class B/M Underwriter, as
provided in CLAUSE 3.1(A) above, the aggregate principal amount of
the Class B/M Seventh Issuer Notes which remains unpurchased does
not exceed 10 per cent. of the aggregate principal amount of all
Class B/M Seventh Issuer Notes, then ANPLC shall have the right to
require the non-defaulting Class B/M Underwriter to purchase the
principal amount of the Class B/M Seventh Issuer Notes which such
Class B/M Underwriter agreed to purchase hereunder and, in
addition, to require the non-defaulting Class B/M Underwriter to
purchase its pro rata share (based on the principal amount of the
Class B/M Seventh Issuer Notes which such Class B/M Underwriter
agreed to purchase hereunder) of the principal amount of the Class
B/M Seventh Issuer Notes of the defaulting Class B/M Underwriter
for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Class B/M Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the principal amount of the Class A Seventh Issuer Notes of a
defaulting Underwriter by the non-defaulting Underwriters as
provided in CLAUSE 3.1(A) above, the aggregate principal amount of
the Class A Seventh Issuer Notes which remains unpurchased exceeds
10 per cent. of the aggregate principal amount of the Class A
Seventh Issuer Notes, or if ANPLC shall not exercise the right
described in CLAUSE 3.1(B) above to require non-defaulting
Underwriters to purchase the Class A Seventh Issuer Notes of a
defaulting
10
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.
If, after giving effect to any arrangements for the purchase of
the principal amount of the Class B/M Seventh Issuer Notes of the
defaulting Class B/M Underwriter by the non-defaulting Class B/M
Underwriter as provided in CLAUSE 3.1(A) above, the aggregate
principal amount of the Class B/M Seventh Issuer Notes which
remains unpurchased exceeds 10 per cent. of the aggregate
principal amount of all Class B/M Seventh Issuer Notes, or if
ANPLC shall not exercise the right described in CLAUSE 3.1(B)
above to require the non-defaulting Class B/M Underwriter to
purchase the Class B/M Seventh Issuer Notes of the defaulting
Class B/M Underwriter, then this Agreement shall thereupon
terminate, without liability on the part of the non-defaulting
Class B/M Underwriter; but nothing herein shall relieve a
defaulting Class B/M Underwriter from liability for its default.
3.2 SELLING
Each Underwriter severally (and not jointly) agrees as follows:
(a) UNITED STATES
It is understood that the several Underwriters propose to
offer the Seventh Issuer Notes for sale to the public in the
United States as set forth in the Prospectus.
(b) UNITED KINGDOM
Each Underwriter represents and agrees that:
(1) it has not offered or sold, and will not offer or sell, any
Seventh Issuer Notes to any persons in the United Kingdom
prior to admission of the Seventh Issuer Notes to listing in
accordance with Part VI of the Financial Services and
Markets Xxx 0000 (the "FSMA"), except to persons whose
ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in
an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995,
as amended, or the FSMA;
(2) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it
in relation to the Seventh Issuer Notes in, from or
otherwise involving the United Kingdom; and
(3) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any
invitation or inducement to engage in investment activities
(within the meaning of Section 21 of the FSMA) received by
it in connection with the issue or sale of any Seventh
Issuer Notes in circumstances in which Section 21(1) of the
FSMA does not apply to the Seventh Issuer.
11
(c) ITALY
Each underwriter acknowledges that the Floating Rate Series 1
Class A Seventh Issuer Notes may not be placed, offered or
distributed to Italian investors at any time.
(d) OTHER
Each Underwriter acknowledges that no representation is made by
the Seventh Issuer or any Underwriter that any action has been or
will be taken in any jurisdiction by the Seventh Issuer or any
Underwriter that would permit a public offering of the Seventh
Issuer Notes (other than as described above), or possession or
distribution of the Prospectus or any other offering material, in
any country or jurisdiction where action for that purpose is
required. Each Underwriter will comply with all applicable
securities laws and regulations in each jurisdiction in which it
purchases, offers, sells or delivers Seventh Issuer Notes or has
in its possession or distributes the Prospectus or any other
offering material, in all cases at its own expense. Each
Underwriter represents that it will not directly or indirectly
offer, sell or deliver any Seventh Issuer Notes or publish any
prospectus, form of application, offering circular, advertisement
or other offering material except under circumstances that will,
to the best of its knowledge and belief, result in compliance with
any applicable laws and regulations, and all offers, sales and
deliveries of Seventh Issuer Notes by it will be made on the same
terms, and it will obtain any consent, approval or permission
required by it for the purchase, offer, sale or delivery by it of
Seventh Issuer Notes under the laws and regulations in force in
any jurisdictions to which it is subject or in which it makes such
purchases, offers, sales or deliveries, and the Seventh Issuer
shall have no responsibility for them.
4. LISTING
4.1 APPLICATION FOR LISTING
The Seventh Issuer confirms that it has authorised X.X. Xxxxxx Securities
Ltd. and Salomon Brothers International Limited to make or cause to be
made at the Seventh Issuer's expense applications on the Seventh Issuer's
behalf for the Seventh Issuer Notes to be listed on the official list of
the UK Listing Authority and for the Seventh Issuer Notes to be admitted
to trading on the London Stock Exchange plc (the "STOCK EXCHANGE").
4.2 SUPPLY OF INFORMATION
The Seventh Issuer agrees to supply to X.X. Xxxxxx Securities Ltd. and
Salomon Brothers International Limited for delivery to the UK Listing
Authority and the Stock Exchange copies of the Prospectus and such other
documents, information and undertakings as may be required for the
purpose of obtaining such listing.
4.3 MAINTENANCE OF LISTING AND TRADING
The Seventh Issuer agrees to use its reasonable endeavours to maintain a
listing of the Seventh Issuer Notes on the official list of the UK
Listing Authority and the admission of the Seventh Issuer Notes to
trading on the Stock Exchange for as long as any of the Seventh Issuer
Notes are outstanding and to pay all fees and supply all further
documents, information and undertakings and publish all advertisements or
other material as may be
12
necessary for such purpose. However, if such listing becomes impossible,
the Seventh Issuer will obtain, and will thereafter use its best
endeavours to maintain, a quotation for, or listing of, the Seventh Issuer
Notes on such other stock exchange as is commonly used for the quotation
or listing of debt securities as it may, with the approval of X.X. Xxxxxx
Securities Ltd. and Salomon Brothers International Limited (such approval
not to be unreasonably withheld or delayed), decide.
5. REPRESENTATIONS AND WARRANTIES OF THE SEVENTH ISSUER
The Seventh Issuer represents and warrants to, and agrees with, the
Underwriters and each of them that:
(a) THE REGISTRATION STATEMENT
The Seventh Issuer has prepared and filed with the United States
Securities and Exchange Commission (the "COMMISSION") a
registration statement (file number 333-103179) on
Form S-11 (the "REGISTRATION STATEMENT"), including a related
preliminary prospectus, for registration under the U.S. Securities
Act of 1933, as amended (the "SECURITIES ACT"), of the offering
and sale of the Seventh Issuer Notes. The Seventh Issuer may have
filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been
furnished to you. The Seventh 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 Seventh Issuer has
included in such Registration Statement, as amended at the
Effective Date, all information (other than information with
respect to the Seventh Issuer Notes and the Issue permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A ("RULE 430A INFORMATION")) required by the
Securities Act and the rules thereunder to be included in such
Registration Statement and the Prospectus. As filed, such
amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other
such required information, and, except to the extent that the Lead
Managers shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
date and time that this Agreement is executed and delivered by the
parties hereto (the "EXECUTION TIME"), or, to the extent not
completed at the Execution Time, shall contain only specific
additional information and other changes (beyond that contained in
the latest preliminary prospectus) as the Seventh Issuer has
advised you, prior to the Execution Time, will be included or made
therein.
(b) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with
the applicable requirements of the Securities Act, the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT"), and the respective rules thereunder; on the Effective Date
and at the Execution Time, the Registration
13
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
Seventh Issuer Trust Deed did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act
and the rules thereunder; and on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing
Date, the Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Seventh Issuer
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Note Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
statement thereto) in reliance upon and in conformity with
information furnished in writing to the Seventh Issuer by or on
behalf of any Underwriter through the Lead Managers specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto);
(c) INCORPORATION
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
authority to conduct its business as described in the Prospectus,
and is lawfully qualified to do business in England and Wales, and
it has not taken any corporate action nor (to the best of its
knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against it for its
winding-up, dissolution or reorganisation or for the appointment
of a receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues;
(d) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
the Seventh Issuer and constitutes, and the other Legal Agreements
to which the Seventh Issuer is a party have been duly authorised
by the Seventh Issuer and on the Closing Date will constitute,
valid and legally binding obligations of the Seventh Issuer,
enforceable in accordance with their terms subject to applicable
bankruptcy, insolvency and similar laws affecting the rights of
creditors generally;
(e) VALIDITY OF THE SEVENTH ISSUER NOTES
The Seventh Issuer Notes and the Reg S Seventh Issuer Notes have
been duly authorised by the Seventh Issuer and, when executed and
authenticated in accordance with the Seventh Issuer Trust Deed and
the Seventh Issuer Paying Agent and Agent Bank Agreement, will
constitute valid and legally binding obligations of the Seventh
Issuer, enforceable in accordance with their terms subject to
applicable bankruptcy, insolvency and similar laws affecting the
rights of creditors generally and, upon effectiveness of the
Registration Statement, the Seventh Issuer Trust Deed will have
been duly qualified under the Trust Indenture Act;
14
(f) CONSENTS
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required
for the issue and offering of the Seventh Issuer Notes and the Reg
S Seventh Issuer Notes or in connection with the execution and
performance of the transactions contemplated by the Legal
Agreements or the compliance by the Seventh Issuer with the terms
of the Seventh Issuer Notes and the Reg S Seventh Issuer 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 Seventh Issuer Notes by the Underwriters and
(ii) those which have been, or will prior to the Closing Date be
taken, fulfilled or done, are, or will on the Closing Date be, in
full force and effect;
(g) COMPLIANCE
The authorisation of the Seventh Issuer Notes and the Reg S
Seventh Issuer Notes and the security therefor under the Seventh
Issuer Deed of Charge, the offering and issue of the Seventh
Issuer Notes and the Reg S Seventh Issuer Notes on the terms and
conditions of this Agreement and the Reg S Seventh Issuer Notes
Subscription Agreement (as applicable) and as described in the
Prospectus, the execution and delivery of the Legal Agreements to
which it is a party and the implementation of the transactions
contemplated by such Legal Agreements and compliance with the
terms of the Legal Agreements to which it is a party do not, and
will not, (i) conflict with, or result in a breach of, any of the
terms or provisions of, or constitute a default under, the
Memorandum and Articles of Association of the Seventh Issuer or
any agreement or instrument to which the Seventh Issuer is a party
or by which any of its properties is bound; (ii) infringe any
applicable law, rule, regulation, judgement, order or decree of
any government, governmental body or court, having jurisdiction
over the Seventh Issuer or any of its properties; or (iii) result
in the creation or imposition of any mortgage, charge, pledge,
lien or other security interest on any of its properties, other
than those created in, or imposed by, the Legal Agreements
themselves;
(h) FINANCIAL STATEMENTS
(i) The auditor's report by Deloitte & Touche, as independent
auditors to the Seventh Issuer, set out in the Prospectus
presents fairly the financial position of the Seventh Issuer
as at the date at which it has been prepared;
(ii) since the date of such report there has been no change (nor
any development or event involving a prospective change of
which the Seventh Issuer is, or might reasonably be expected
to be, aware) which is materially adverse to the condition
(financial or otherwise), prospects, results of operations
or general affairs of the Seventh Issuer; and
(iii) Deloitte & Touche are independent public accountants with
respect to the Seventh Issuer within the meaning of the
standards established by the American Institute of Certified
Public Accountants;
15
(i) TAXATION
No stamp or other similar duty is assessable or payable in the
United Kingdom, and no withholding or deduction for any taxes,
duties, assessments or governmental charges of whatever nature is
imposed or made for or on account of any income, registration,
transfer or turnover taxes, customs or other duties or taxes of
any kind in connection with the authorisation, execution or
delivery of the Legal Agreements or with the authorisation, issue,
sale or delivery of the Seventh Issuer Notes and the Reg S Seventh
Issuer Notes and (except as disclosed in the Prospectus) the
performance of the Seventh Issuer's, Funding's and/or, as the case
may be, the Mortgages Trustee's obligations under the Legal
Agreements, the Seventh Issuer Notes and the Reg S Seventh Issuer
Notes. This warranty does not apply to any United Kingdom
corporation tax which may be levied, collected, withheld or
assessed in connection with the authorisation, execution or
delivery of the Legal Agreements or with the authorisation, issue,
sale or delivery of the Seventh Issuer Notes and the Reg S Seventh
Issuer Notes;
(j) BREACH OF OTHER AGREEMENTS
The Seventh 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
Seventh Issuer Notes and/or the Reg S Seventh Issuer Notes already
been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfilment of any other
requirement) constitute an Event of Default as set out in the
Conditions of the Seventh Issuer Notes;
(l) NO SUBSIDIARIES
The Seventh Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies Xxx
0000;
(m) XXXXXX HOLDINGS LIMITED
The First Issuer, the Second Issuer, the Third Issuer, the Fourth
Issuer, the Fifth Issuer, the Sixth Issuer, the Seventh Issuer,
Funding, the Mortgages Trustee, PECOH Limited, Xxxxxx Funding Xx.
0 XXX xxx Xxxxxx Xxxxxxx Xx. 0 XXX are the only subsidiaries or
subsidiary undertakings of Xxxxxx Holdings Limited within the
meanings of Sections 258 and 736 of the Companies Xxx 0000;
(n) NO ACTIVITIES
The Seventh Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any registration
or re-registration as a public limited company under the Companies
Acts 1985 and 1989 and changes to its name, directors, secretary,
registered office, Memorandum and Articles of Association;
(ii) the authorisation and execution of the Legal Agreements to
which it is a party; (iii) the activities referred to or
contemplated in the Legal Agreements to which it is
16
a party or in the Prospectus; and (iv) the authorisation and issue
by it of the Seventh Issuer Notes and the Reg S Seventh Issuer
Notes. The Seventh Issuer has not (other than as set out in the
Prospectus) made up any accounts and has neither paid any
dividends nor made any distributions since its incorporation;
(o) LISTING RULES
Prior to the delivery of the Prospectus to the Registrar of
Companies in England and Wales, the Prospectus has been approved
by or on behalf of the competent authority as listing particulars
as required by the listing rules made pursuant to Part VI of the
FSMA and the Prospectus complies with the listing rules made under
Section 74(4) of the FSMA;
(p) LITIGATION
There are no pending actions, suits or proceedings against or
affecting the Seventh 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
Seventh Issuer or could adversely affect the ability of the
Seventh Issuer to perform its obligations under the Legal
Agreements, the Seventh Issuer Notes and the Reg S Seventh Issuer
Notes or which are otherwise material in the context of the issue
or offering of the Seventh Issuer Notes and the Reg S Seventh
Issuer Notes and, to the best of the Seventh Issuer's knowledge,
no such actions, suits or proceedings are threatened or
contemplated;
(q) NO PRIOR SECURITY
Save as set out in any of the Legal Agreements, there exists no
mortgage, lien, pledge or other charge or security interest on or
over the assets of the Seventh Issuer and, other than the Legal
Agreements, the Seventh Issuer has not entered into any indenture
or trust deed;
(r) SECURITY FOR THE SEVENTH ISSUER NOTES
The Seventh Issuer Notes and the obligations of the Seventh Issuer
under the Seventh Issuer Trust Deed will be secured in the manner
provided in the Seventh Issuer Deed of Charge and with the benefit
of the charges, covenants and other security provided for therein
including, without limitation, (i) an assignment by way of first
fixed security over its interests in the Seventh Issuer
Intercompany Loan Agreement, the Funding Deed of Charge, the
Seventh Issuer Swap Agreements, the Seventh Issuer Trust
Deed, the Seventh Issuer Paying Agent and Agent Bank Agreement,
the Seventh Issuer Cash Management Agreement, the Seventh Issuer
Corporate Services Agreement, the Seventh Issuer Bank Account
Agreement, the Seventh Issuer Post-Enforcement Call Option
Agreement and any other relevant documents to be signed on or
before the Closing Date to which the Issuer is a party; (ii) a
charge by way of first fixed charge over the Seventh Issuer
Accounts (as defined in the Seventh Issuer Deed of Charge); (iii)
a charge by way of first fixed charge over any authorised
investments made with moneys standing to the credit of any of the
Seventh Issuer Accounts; and (iv) a first ranking floating charge
over the other assets of the Issuer (extending over all of the
Seventh Issuer's Scottish assets);
17
(s) CAPITALISATION
The authorised capital of the Seventh Issuer is as set out in the
Prospectus;
(t) INVESTMENT COMPANY ACT
The Seventh Issuer is not an "investment company" as defined in
the United States Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"), and the offer and sale of the Seventh
Issuer Notes in the United States will not subject the Seventh
Issuer to registration under, or result in a violation of, the
Investment Company Act;
(u) UNITED STATES INCOME TAX
The Seventh Issuer will not engage in any activities in the United
States (directly or through agents), will not derive any income
from United States sources as determined under United States
income tax principles, and will not hold any property if doing so
would cause it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under United
States income tax principles; and
(v) REPRESENTATIONS AND WARRANTIES IN THE LEGAL AGREEMENTS
The representations and warranties given by the Seventh Issuer in
the Legal Agreements are true and accurate.
6. REPRESENTATIONS AND WARRANTIES OF FUNDING AND THE MORTGAGES TRUSTEE
Each of Funding and the Mortgages Trustee severally represents and
warrants (in respect of itself only) to, and agrees with, the
Underwriters and each of them that:
(a) THE REGISTRATION STATEMENT
Together with the Seventh Issuer, they have prepared and filed
with the Commission the Registration Statement (file number 333-
103179) on Form S-11, including a related
preliminary prospectus, for registration under the Securities Act
of the offering and sale of the Seventh Issuer Notes. They may
have filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been
furnished to you. They will next file with the Commission one of
the following either (1) prior to the Effective Date of such
Registration Statement, a further amendment to such Registration
Statement, including the form of final prospectus, or (2) after
the Effective Date of such Registration Statement, a final
prospectus in accordance with Rules 430A and 424(b). In the case
of CLAUSE (2), they have included in such Registration Statement,
as amended at the Effective Date, all information (other than Rule
430A Information) required by the Securities Act and the rules
thereunder to be included in such Registration Statement and the
Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information,
and, except to the extent that the Lead Managers shall agree in
writing to a modification, shall be in all substantive respects in
the form furnished to
18
you prior to the Execution Time, or, to the extent not completed
at the Execution Time, shall contain only specific additional
information and other changes (beyond that contained in the latest
preliminary prospectus) as they have advised you, prior to the
Execution Time, will be included or made therein;
(b) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with
the applicable requirements of the Securities Act, the Exchange
Act and the Trust Indenture Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on
the Closing Date, the Seventh Issuer Trust Deed did or will comply
in all material respects with the applicable requirements of the
Trust Indenture Act and the rules thereunder; and on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that neither Funding nor the Mortgages Trustee makes any
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Note Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
statement thereto) in reliance upon and in conformity with
information furnished in writing to them by or on behalf of any
Underwriter through the Lead Managers specifically for inclusion
in the Registration Statement or the Prospectus (or any supplement
thereto);
(c) INCORPORATION
Each is duly incorporated and validly existing under the laws of
England and Wales, with full power and authority to conduct its
business as described in the Prospectus, and is lawfully qualified
to do business in England and Wales and it has not taken any
corporate action nor (to the best of its knowledge and belief)
have any other steps been taken or legal proceedings been started
or threatened against it for its winding-up, dissolution or
reorganisation or for the appointment of a receiver,
administrator, administrative receiver or similar officer of it or
of any or all of its assets or revenues;
(d) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
each of Funding and the Mortgages Trustee and constitutes, and the
other Legal Agreements to which each of Funding and/or the
Mortgages Trustee is a party have been duly authorised by, as
applicable, Funding and the Mortgages Trustee and on the Closing
Date will constitute, valid and legally binding obligations of
each of Funding and the
19
Mortgages Trustee, enforceable in accordance with their terms
subject to applicable bankruptcy, insolvency and similar laws
affecting the rights of creditors generally;
(e) CONSENTS
All consents, approvals, authorisations and other orders of all
United States and United Kingdom regulatory authorities required
in connection with the execution and performance of the
transactions contemplated by the Legal Agreements to which Funding
and/or the Mortgages Trustee, as the case may be, is a party or
the compliance by each of them with the terms of the Legal
Agreements (except for those which have been, or will prior to the
Closing Date be taken, fulfilled or done), are, or will on the
Closing Date be, in full force and effect;
(f) COMPLIANCE
The authorisation of the terms and conditions of this Agreement,
the execution and delivery of the Legal Agreements to which
Funding and/or, as the case may be, the Mortgages Trustee is party
and the implementation of the transactions contemplated by such
Legal Agreements and compliance with the terms of the Legal
Agreements do not, and will not, (i) conflict with, or result in a
breach of, any of the terms or provisions of, or constitute a
default under, the Memorandum and Articles of Association of
Funding or the Mortgages Trustee or any agreement or instrument to
which Funding or the Mortgages Trustee is a party or by which any
of its properties is bound; (ii) infringe any applicable law,
rule, regulation, judgement, order or decree of any government,
governmental body or court, having jurisdiction over either
Funding or the Mortgages Trustee or any of its properties; or
(iii) result in the creation or imposition of any mortgage,
charge, pledge, lien or other security interest on any of its or
their properties, other than those created in, or imposed by, the
Legal Agreements themselves;
(g) BREACH OF OTHER AGREEMENTS
Neither Funding nor the Mortgages Trustee is in breach of or in
default under any agreement to which it is a party or which is
binding on it or any of its assets or revenues;
(h) XXXXXX HOLDINGS LIMITED
The First Issuer, the Second Issuer, the Third Issuer, the Fourth
Issuer, the Fifth Issuer, the Sixth Issuer, the Seventh Issuer,
Funding, the Mortgages Trustee, PECOH Limited, Xxxxxx Funding Xx.
0 XXX xxx Xxxxxx Xxxxxxx Xx. 0 XXX are the only subsidiaries or
subsidiary undertakings of Xxxxxx Holdings Limited within the
meanings of Sections 258 and 736 of the Companies Xxx 0000;
(i) EVENTS OF DEFAULT
No event has occurred or circumstance arisen which, had the
Seventh Issuer Intercompany Loan Agreement been entered into,
would (whether or not with the giving of notice and/or the passage
of time and/or the fulfilment of any other requirement) constitute
an Event of Default as set out in the Seventh Issuer Intercompany
Loan Agreement;
20
(j) NO SUBSIDIARIES
Neither Funding nor the Mortgages Trustee has any subsidiaries or
subsidiary undertakings within the meanings of Sections 258 and
736 of the Companies Xxx 0000;
(k) NO ACTIVITIES
Neither Funding nor the Mortgages Trustee has engaged in any
activities since its incorporation other than (i) those incidental
to any registration as a private limited company under the
Companies Acts 1985 and 1989 and changes to its name, directors,
secretary, registered office, Memorandum and Articles of
Association; (ii) the authorisation and execution of the Legal
Agreements to which each is a party; (iii) the activities referred
to or contemplated in the Legal Agreements or in the Prospectus;
(iv) the activities undertaken in connection with the
establishment of the Mortgages Trust pursuant to the Mortgages
Trust Deed and the issue of notes by the First Issuer, the Second
Issuer, the Third Issuer, the Fourth Issuer, the Fifth Issuer,
Sixth Issuer and the Seventh Issuer; and (v) the registration of
Funding under the Data Protection Xxx 0000 (the "DPA"). Neither
Funding nor the Mortgages Trustee has (other than as set out in
the Prospectus or in the prospectuses relating to the notes issued
by the First Issuer, the Second Issuer, the Third Issuer, the
Fourth Issuer, the Fifth Issuer or the Sixth Issuer and other than
as required by any applicable law) made up any accounts and
neither has paid any dividends or made any distributions since its
respective date of incorporation;
(l) BENEFICIAL OWNER
On 25th July, 2000, the Mortgages Trust was established pursuant
to the Mortgages Trust Deed and following the transfer by way of
equitable assignment by ANPLC of its interest in the portfolio (as
defined in the Prospectus) to the Mortgages Trustee pursuant to or
in accordance with the Mortgage Sale Agreement on 26th July, 2000
and on subsequent distribution dates, the Mortgages Trustee held
(and continues to hold) the portfolio on trust for the benefit of
Funding and ANPLC in undivided shares absolutely;
(m) LITIGATION
There are no pending actions, suits or proceedings against or
affecting Funding or the Mortgages Trustee which could
individually or in the aggregate have an adverse effect on the
condition (financial or otherwise), prospects, results of
operations or general affairs of either one of them or could
adversely affect the ability of the Mortgages Trustee or Funding
to perform their respective obligations under the Legal
Agreements, or which are otherwise material in the context of the
transaction contemplated by the Prospectus and, to the best of the
knowledge of Funding and the Mortgages Trustee, no such actions,
suits or proceedings are threatened or contemplated;
21
(n) NO PRIOR SECURITY
Save as set out in any of the Legal Agreements there exists no
mortgage, lien, pledge or other charge or security interest on or
over the assets of Funding and, other than the Legal Agreements,
it has not entered into any indenture or trust deed;
(o) SECURITY FOR THE SEVENTH ISSUER INTERCOMPANY LOAN
Funding's obligations under, inter alia, the Seventh Issuer
Intercompany Loan Agreement will be secured in the manner provided
in the Funding Deed of Charge and with the benefit of the charges,
covenants and other security provided for therein including,
without limitation, (i) a first ranking fixed charge over
Funding's interest in the Trust Property (as defined in the
Mortgages Trust Deed); (ii) an assignment by way of first fixed
security over its interests in the Mortgage Sale Agreement, the
Mortgages Trust Deed, the Servicing Agreement, the Funding Swap
Agreement, the First Intercompany Loan Agreement, the Second
Issuer Intercompany Loan Agreement, the Third Issuer Intercompany
Loan Agreement, the Fourth Issuer Intercompany Loan Agreement, the
Fifth Issuer Intercompany Loan Agreement, the Sixth Issuer
Intercompany Loan Agreement, the Seventh Issuer Intercompany Loan
Agreement, the Funding Liquidity Facility Agreement, the First
Start-up Loan Agreement, the Second Start-up Loan Agreement, the
Third Start-up Loan Agreement, the Fourth Start-up Loan Agreement,
the Fifth Start-up Loan Agreement, the Sixth Start-up Loan
Agreement, the Seventh Start-up Loan Agreement, the Funding
Guaranteed Investment Contract, the Corporate Services Agreement,
the Cash Management Agreement, the Bank Account Agreement and any
other relevant documents to be signed on or before the Closing
Date to which Funding is a party; (iii) a first ranking fixed
charge over the Bank Accounts (as defined in the Funding Deed of
Charge); (iv) a first ranking fixed charge over any authorised
investments made with moneys standing to the credit of the Bank
Accounts; and (v) a first ranking floating charge over the other
assets of Funding (extending over all of Funding's Scottish
assets);
(p) CAPITALISATION
The authorised capital of each of Funding and the Mortgages
Trustee is as set out in the Prospectus;
(q) INVESTMENT COMPANY ACT
Neither Funding nor the Mortgages Trustee is an "investment
company" as defined in the Investment Company Act, and the offer
and sale of the Seventh Issuer Notes in the United States will not
subject Funding or the Mortgages Trustee to registration under, or
result in a violation of, the Investment Company Act;
(r) UNITED STATES INCOME TAX
Neither Funding nor the Mortgages Trustee will engage in any
activities in the United States (directly or through agents),
derive any income from United States sources as determined under
United States income tax principles, or hold any property if doing
so would cause it to be engaged or deemed to be engaged in a trade
22
or business within the United States as determined under United
States income tax principles;
(s) FINANCIAL STATEMENTS
(i) The auditor's report by Deloitte & Touche, as independent
auditor to Funding, set out in the Prospectus presents
fairly the financial position of Funding as at the date at
which it has been prepared;
(ii) since the date of such report there has been no change (nor
any development or event involving a prospective change of
which Funding is, or might reasonably be expected to be,
aware) which is materially adverse to the condition
(financial or otherwise), prospects, results of operations
or general affairs of Funding; and
(iii) Deloitte & Touche are independent public accountants with
respect to Funding within the meaning of the standards
established by the American Institute of Certified Public
Accountants; and
(t) REPRESENTATIONS AND WARRANTIES IN THE LEGAL AGREEMENTS
The representations and warranties given by Funding and the
Mortgages Trustee in the Legal Agreements are true and accurate.
7. REPRESENTATIONS AND WARRANTIES OF ANPLC
ANPLC represents and warrants to, and agrees with, the Underwriters and
each of them that:
(a) INCORPORATION
It is a public limited company duly incorporated and validly
existing under the laws of England and Wales, with full power and
authority to conduct its business as described in the Prospectus,
and is lawfully qualified to do business in England and Wales and
it is not in liquidation;
(b) VALIDITY OF LEGAL AGREEMENTS
This Agreement has been duly authorised, executed and delivered by
ANPLC and constitutes, and the other Legal Agreements to which
ANPLC is a party have been duly authorised by ANPLC and on the
Closing Date will constitute, valid and legally binding
obligations of ANPLC, enforceable in accordance with their terms
subject to applicable bankruptcy, insolvency and similar laws
affecting the rights of creditors generally;
(c) RELATED SECURITY
ANPLC has not received written notice of any litigation or claim
calling into question its title to any Related Security or the
value of any security therefore or its right to assign any such
Related Security to the Mortgages Trustee;
23
(d) CONSENTS
All consents, approvals and authorisations of all United Kingdom
regulatory authorities required on the part of ANPLC for or in
connection with the execution and performance of the transactions
contemplated by the Legal Agreements to which ANPLC is a party
have been obtained and are in full force and effect including,
without limiting the generality of the foregoing, ANPLC having
received a standard licence under the Consumer Credit Xxx 0000 and
ANPLC being registered under the DPA;
(e) COMPLIANCE
The sale of the Portfolio and the related property and rights, the
execution and delivery of the Legal Agreements to which ANPLC is a
party, the implementation of the transactions contemplated by such
Legal Agreements and compliance with the terms of such Legal
Agreements did not, and will not, (i) conflict with, or result in
a breach of, any of the terms or provisions of, or constitute a
default under, the Memorandum and Articles of Association of
ANPLC, or any agreement or instrument to which ANPLC is a party or
by which it or any of its properties is bound, where such breach
or default might have a material adverse effect in the context of
the issue of the Seventh Issuer Notes or the Reg S Seventh Issuer
Notes; or (ii) infringe any applicable law, rule, regulation,
judgement, order or decree of any government, governmental body or
court having jurisdiction over ANPLC or any of its properties; or
(iii) result in the creation or imposition of any mortgage,
charge, pledge, lien or other security interest on any of its
properties, other than those created in, or imposed by, the Legal
Agreements themselves;
(f) NO MATERIAL MISSTATEMENTS OR OMISSIONS
On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will, comply in all material respects with
the applicable requirements of the Securities Act, the Exchange
Act and the Trust Indenture Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on
the Closing Date the Seventh Issuer Trust Deed did or will comply
in all material respects with the applicable requirements of the
Trust Indenture Act and the rules thereunder; and on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that ANPLC makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Note Trustee or (ii) the information
contained in or omitted from the Registration Statement or the
Prospectus (or any statement thereto) in reliance upon and in
conformity with information furnished in writing to ANPLC by or on
behalf of any
24
Underwriter through the Lead Managers specifically for inclusion
in the Registration Statement or the Prospectus (or any supplement
thereto);
(g) BENEFICIAL OWNER
On 25th July, 2000, the Mortgages Trust was established pursuant
to the Mortgages Trust Deed and following the transfer by way of
equitable assignment of ANPLC of its interest in the portfolio (as
defined in the Prospectus) to the Mortgages Trustee pursuant to,
and in accordance with, the Mortgage Sale Agreement on 26th July,
2000 and on subsequent distribution dates the Mortgages Trustee
held (and continues to hold) the portfolio on trust for the
benefit of Funding and ANPLC in undivided shares absolutely;
(h) LITIGATION
It is not involved in any actions, suits or proceedings in
relation to claims or amounts which could materially adversely
affect its ability to perform its obligations under the Legal
Agreements;
(i) MORTGAGE SALE AGREEMENT
The representations and warranties given by ANPLC in the Mortgage
Sale Agreement will be true and accurate when made or deemed to be
repeated; and
(j) BREACH OF OTHER AGREEMENTS
ANPLC is not in breach of or in default under any agreements to
which it is a party or which is binding on it or any applicable
laws to the extent that such breach or default is material to the
performance by ANPLC of its obligations under the Legal Agreements
to which it is a party, or would be so material, had such Legal
Agreements been entered into.
8. COVENANTS OF THE SEVENTH ISSUER, FUNDING, THE MORTGAGES TRUSTEE AND ANPLC
8.1 The Seventh Issuer and, where expressly provided, Funding, the Mortgages
Trustee and ANPLC covenants to, and agrees with, the Underwriters and
each of them that:
(a) THE REGISTRATION STATEMENT
The Seventh Issuer, Funding, the Mortgages Trustee and ANPLC will
use their best efforts to cause the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, to
become effective. Prior to the termination of the offering of the
Seventh Issuer Notes, none of the Seventh Issuer, Funding, the
Mortgages Trustee or ANPLC will file any amendment to the
Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Seventh Issuer, Funding,
the Mortgages Trustee and ANPLC have furnished the Lead Managers
with a copy for their review prior to filing and none of them will
file any such proposed amendment or supplement to which the Lead
Managers reasonably object. Subject to the foregoing sentence, if
the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise
25
required under Rule 424(b), the Seventh Issuer, Funding, the
Mortgages Trustee and ANPLC will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Lead Managers of such timely filing. The
Seventh Issuer, Funding, the Mortgages Trustee and ANPLC will
promptly advise the Lead Managers when:
(i) the Registration Statement, if not effective at the
Execution Time, shall have become effective;
(ii) the Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission; and
(iii) prior to termination of the offering of the Seventh Issuer
Notes, any amendment to the Registration Statement shall
have been filed or become effective;
(b) DELIVERY OF COPIES
The Seventh Issuer will deliver (i) to the Lead Managers, one copy
of the Registration Statement as originally filed and each
amendment thereto, in each case including all exhibits and
consents filed therewith; and (ii) to each Underwriter (A) a
conformed copy of the Registration Statement as originally filed
and each amendment thereto, in each case including all exhibits
and consents filed therewith and (B) during the Marketing Period,
as many copies of the Prospectus (including all amendments and
supplements thereto) as the Lead Managers may reasonably request.
As used herein, the term "MARKETING PERIOD" means any period
during which a prospectus relating to the Seventh Issuer Notes is
required to be delivered under the Securities Act;
(c) NOTIFY MATERIAL OMISSION
If at any time during the Marketing Period any event shall have
occurred as a result of which the Registration Statement or
Prospectus, as then amended or supplemented, would include a
statement of fact which is not true and accurate in all material
respects or omit any fact the omission of which would make
misleading in any material respect any statement therein whether
of fact or opinion, or if for any other reason it shall be
necessary to amend or supplement the Registration Statement or
Prospectus, then: (i) the Seventh Issuer will promptly notify the
Underwriters; (ii) the Seventh 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 Seventh Issuer or the Underwriters, be
required by the Securities Act or requested by the Commission;
(iii) the Seventh Issuer will, without charge, supply to the
Underwriters as many copies as the Lead Managers may reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission; and (iv) the
representations and warranties contained in CLAUSES 5(A), 5(B),
5(C), 5(H), 5(O), 5(S), 6(A), 6(B), 6(C), 6(P) and 6(S) shall be
deemed to be repeated by, as applicable, the Seventh Issuer,
Funding and the Mortgages Trustee as of the date of each such
amended Prospectus
26
or supplement to the Prospectus on the basis that each reference
to "PROSPECTUS" in such representations and warranties contained
in CLAUSES 5 and 6 shall be deemed to be a reference to the
Prospectus as amended or supplemented as at such date;
(d) NOTIFY CHANGE
Without prejudice to its obligations under CLAUSE 8.1(C), the
Seventh Issuer, Funding or the Mortgages Trustee will notify the
Underwriters promptly of any change affecting any of its
representations, warranties, covenants, agreements or indemnities
in this Agreement at any time prior to payment being made to the
Seventh Issuer on the Closing Date and will take such steps as may
be reasonably requested by the Lead Managers to remedy and/or
publicise the same;
(e) OFFICIAL ANNOUNCEMENTS
Between the date of this Agreement and the Closing Date (both
dates inclusive) none of the Seventh Issuer, Funding or the
Mortgages Trustee will, without the prior approval of the Lead
Managers on behalf of the Underwriters (such approval not to be
unreasonably withheld), make any official announcement which would
have an adverse effect on the marketability of the Seventh Issuer
Notes;
(f) STAMP DUTY
(i) The Seventh Issuer will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties payable in the United Kingdom, Belgium,
Luxembourg or the United States, including interest and
penalties, in connection with the creation, issue,
distribution and offering of the Seventh Issuer Notes or in
connection with the execution, delivery or enforcement of
any of the Legal Agreements to which it is a party together
with any value added, turnover or similar tax payable in
respect of that amount (and references in this Agreement to
such amount shall be deemed to include any such taxes so
payable in addition to it);
(ii) Funding will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and duties
payable in the United Kingdom, Belgium, Luxembourg or the
United States, including interest and penalties, in
connection with the execution, delivery or enforcement of
any of the Legal Agreements to which it is a party (other
than in respect of the execution, delivery or enforcement of
the Mortgages Trust Deed (including any amendment thereto),
the Mortgage Sale Agreement (including any amendment
thereto) and any Legal Agreement to which the Seventh Issuer
is a party) together with any value added, turnover or
similar tax payable in respect of that amount (and
references in this Agreement to such amount shall be deemed
to include any such taxes so payable in addition to it);
(iii) The Mortgages Trustee will pay any stamp duty, issue,
registration, documentary or other taxes of a similar nature
and duties payable in the United Kingdom, Belgium,
Luxembourg or the United States, including interest and
penalties in connection with the execution, delivery or
enforcement of the Mortgages Trust Deed (including any
amendment thereto), the Mortgage Sale Agreement (including
any amendment thereto) and the Scottish Trust Deed
(including any amendment thereto
27
and any subsequent trust deed in substantially similar
form) (together with any value added, turnover or similar
tax payable in respect of that amount (and references in
this Agreement to such amount shall be deemed to include
any such taxes so payable in addition to it)) but will be
promptly reimbursed an amount equal to any such payments by
the Beneficiaries in accordance with the terms of the
Mortgages Trust Deed; and
(iv) For the avoidance of doubt, if Funding or the Mortgages
Trustee discharges its obligations to pay any stamp duty,
issue, registration, documentary or other taxes of a similar
nature and duties payable in the United Kingdom, Belgium,
Luxembourg or the United States, including interest and
penalties in each case as described above (together, the
"RELEVANT TAXES"), at any time while amounts are outstanding
in respect of the notes issued by the First Issuer and/or
the Second Issuer and/or the Third Issuer and/or the Fourth
Issuer and/or the Fifth Issuer and/or the Sixth Issuer
and/or the Seventh Issuer and/or any New Issuer, then
Funding and/or (as applicable) the Mortgages Trustee will
not be obliged to pay such relevant taxes multiple times (in
respect of the same obligation), in order to meet its
obligations under (1) the underwriting agreements and
subscription agreements relating to the First Issuer and/or
the Second Issuer and/or the Third Issuer and/or the Fourth
Issuer and/or the Fifth Issuer and/or the Sixth Issuer
and/or the Seventh Issuer and/or any New Issuer and (2)
paragraphs (ii) and/or (iii) (as applicable) above;
(g) PAYMENT OF FEES, CHARGES, COSTS AND DUTIES
(i) Without prejudice to the generality of CLAUSE 12.1, the
Seventh Issuer will pay all and any fees, charges, costs and
duties and any stamp and other similar taxes or duties,
including interest and penalties, arising from or in
connection with the creation of the security for the Seventh
Issuer Notes and the Reg S Seventh Issuer Notes and the
obligations of the Seventh Issuer under the Seventh Issuer
Trust Deed and for the other amounts to be secured as
contemplated by the Seventh Issuer Deed of Charge and the
perfection of such security at any time;
(ii) Without prejudice to the generality of CLAUSE 12.1, Funding
will pay all and any fees, charges, costs and duties and any
stamp and other similar taxes or duties, including interest
and penalties, arising from or in connection with the
creation of the security for the Seventh Issuer Intercompany
Loan and for the other amounts to be secured as contemplated
by the Funding Deed of Charge, the First Deed of Accession
to the Funding Deed of Charge, the Second Deed of Accession
to the Funding Deed of Charge, the Third Deed of Accession
to the Funding Deed of Charge, the Fourth Deed of Accession
to the Funding Deed of Charge, the amendment and restatement
of the Funding Deed of Charge and any accession thereto and
the perfection of such security at any time; and
(iii) Without prejudice to the generality of CLAUSE 12.1, the
Mortgages Trustee will pay all and any fees, charges, costs
and duties and any stamp and other similar taxes or duties,
including interest and penalties, arising from or in
28
connection with the purchase of the Related Security (and
related property and rights) excluding H.M. Land Registry
and Registers of Scotland fees (it being agreed that
registration or recording at H.M. Land Registry or Registers
of Scotland of the transfer of the Related Security to the
Mortgages Trustee will not be applied for except in the
circumstances specified in the Servicing Agreement); but on
the basis that the Mortgages Trustee will be reimbursed such
fees, charges, costs and duties and any stamp and other
similar taxes or duties (including interest and penalties)
by the Beneficiaries pursuant to the terms of the Mortgages
Trust Deed;
(h) PERFORM ALL REQUIRED ACTIONS
On or prior to the Closing Date each of the Seventh Issuer,
Funding and the Mortgages Trustee will do all things within each
of their respective powers and required of each of them on such
date under the terms of the Legal Agreements to which each is a
party;
(i) CONDITIONS PRECEDENT
The Seventh Issuer will use all reasonable endeavours to procure
satisfaction on or before the Closing Date of the conditions
referred to in CLAUSE 9 of this Agreement;
(j) SERVICING AGREEMENT
Funding and the Mortgages Trustee will use all reasonable
endeavours to procure that ANPLC complies with its obligations
under the Servicing Agreement;
(k) CHARGES AND SECURITIES
(i) The Seventh Issuer will procure that each of the charges and
other securities created by or pursuant to or contained in
the Seventh Issuer Deed of Charge is registered within all
applicable time limits in all appropriate registers; and
(ii) Funding will procure that each of the charges and other
securities created by or pursuant to or contained in the
Funding Deed of Charge is registered within all applicable
time limits in all appropriate registers other than at H.M.
Land Registry;
(l) RATINGS
None of the Seventh Issuer, Funding or the Mortgages Trustee will
take, or cause to be taken, any action and will not permit any
action to be taken which it knows or has reason to believe would
result in the Series 1 Class A Seventh Issuer Notes not being
assigned an F1+ rating by Fitch Ratings Ltd. ("FITCH RATINGS"), a
P-1 rating by Xxxxx'x Investors Service Limited ("MOODY'S") and an
A-1+ rating by Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies, Inc. ("STANDARD & POOR'S"); the Series
2 Class A Seventh Issuer Notes and the Series 3 Class A Seventh
Issuer Notes not being assigned an AAA rating by Fitch
Ratings, an Aaa rating by Moody's and an AAA rating by Standard &
Poor's; the Series 1 Class B Seventh Issuer Notes and the Series 2
Class B Seventh Issuer Notes not being assigned an AA rating by
Fitch Ratings, an Aa3 rating by Moody's and an AA rating
29
by Standard and Poor's; and the Series 1 Class M Seventh Issuer
Notes and the Series 2 Class M Seventh Issuer Notes not being
assigned an A rating by Fitch Ratings, an A2 rating by Moody's and
an A rating by Standard and Poor's;
(m) LEGAL AGREEMENTS
Prior to closing on the Closing Date none of the Seventh Issuer,
Funding or the Mortgages Trustee will amend the terms of the
executed Legal Agreements to which they are parties, nor execute
any of the other Legal Agreements other than in the agreed form,
without the consent of the Lead Managers (such consent not to be
unreasonably withheld or delayed);
(n) COMMISSION FILINGS
The Seventh Issuer, Funding and the Mortgages Trustee will timely
file with the Commission all documents (and any amendments to
previously filed documents) required to be filed by them pursuant
to Sections 13(a), 13(c) or 15(d) of the Exchange Act, provided
that during the Marketing Period none of the Seventh Issuer,
Funding or the Mortgages Trustee will file any such document or
amendment unless the Seventh Issuer, Funding and the Mortgages
Trustee have furnished the Lead Managers with a copy for their
review prior to filing and none of them will file any such
proposed document or amendment until the Underwriters have been
consulted and given a reasonable opportunity to comment on such
document or amendment;
(o) COPIES COMMISSION FILINGS
During the Marketing Period, if there is (i) any amendment or
supplement to the Registration Statement, (ii) any amendment or
supplement to any Prospectus, or (iii) any material document filed
by the Seventh Issuer, Funding or the Mortgages Trustee with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act including but not limited to any interim or any
report submitted to the Commission on Form 6-K ("FORM 6-K") or
Form 20-F ("FORM 20-F") under the Exchange Act and the rules and
regulations thereunder or any amendment or supplement to any such
document, the Seventh Issuer, Funding and the Mortgages Trustee,
as the case may be, will furnish a copy thereof to each
Underwriter, and counsel to the Underwriters, prior to filing with
the Commission;
(p) NOTICE TO UNDERWRITERS OF CERTAIN EVENTS
During the Marketing Period, the Seventh 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 Seventh 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 Seventh 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
30
order directed to the Prospectus or any document incorporated
therein by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in the Prospectus, (iv) of
receipt by ANPLC or the Seventh Issuer of any notification with
respect to the suspension of the qualification of the Seventh
Issuer Notes for sale in any jurisdiction or the initiation or
threat of any proceeding for that purpose, and (v) of any
downgrading in the rating of the Seventh Issuer Notes or any debt
securities of ANPLC or the Seventh Issuer by any "nationally
recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or if any such
organisation shall have informed ANPLC or the Seventh Issuer or
made any public announcement that any such organisation has under
surveillance or review its rating of any debt securities of ANPLC
or the Seventh Issuer (other than an announcement with positive
implications of a possible upgrading, and no implication of a
possible downgrading of such rating) as soon as such announcement
is made or ANPLC or the Seventh Issuer is so informed;
(q) STOP ORDERS
The Seventh Issuer will use its best efforts to prevent the
issuance of any stop order or the suspension of any qualification
referred to in CLAUSE 8.1(P) above and if, during the Marketing
Period, the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement or such qualification
of the Seventh Issuer Notes for sale in any jurisdiction is
suspended, the Seventh Issuer will make every reasonable effort to
obtain the lifting of that order or suspension at the earliest
possible time; and
(r) BLUE SKY QUALIFICATIONS
The Seventh Issuer will arrange, in co-operation with the
Underwriters, to qualify the Seventh Issuer Notes for offering and
sale under the securities laws of such jurisdictions with the
United States as the Underwriters may designate, and to maintain
such qualifications in effect for as long as may be required for
the distribution of the Seventh Issuer Notes, and to file such
statements and reports as may be required by the laws of each
jurisdiction in which the Seventh Issuer Notes have been qualified
as above, provided that in connection therewith the Seventh 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 Seventh Issuer Notes in such
jurisdiction or to register as a dealer in securities or to become
subject to taxation in any jurisdiction.
8.2 ANPLC covenants to and agrees with the Underwriters and each of them
that:
(a) NOTIFY CHANGE
ANPLC will notify the Underwriters promptly of any change
affecting any of its representations, warranties, covenants,
agreements or indemnities in this Agreement at any time prior to
payment being made to the Seventh Issuer on the Closing Date and
will take such steps as may be reasonably requested by the Lead
Managers to remedy and/or publicise the same. In the event that
the Prospectus is amended or
31
supplemented pursuant to CLAUSE 8.1(C) above, then the
representations and warranties contained in CLAUSE 7(F) shall be
deemed to be repeated by ANPLC as of the date of such amended
Prospectus or supplement to the Prospectus, on the basis that each
reference to "PROSPECTUS" in CLAUSE 7(F) shall be deemed to be a
reference to the Prospectus as amended or supplemented as at such
date;
(b) PERFORM ALL REQUIRED ACTIONS
On or prior to the Closing Date, ANPLC will do all things within
its power and required of it on such date under the terms of the
Legal Agreements;
(c) REVIEW OF RELATED SECURITY
ANPLC will deliver to the Lead Managers on the date of this
Agreement a letter (relating to its review of the Related
Security) dated the date of this Agreement in the agreed form
addressed to ANPLC and the Underwriters from Deloitte & Touche;
(d) RATINGS
ANPLC will not take, or cause to be taken, any action and will not
permit any action to be taken which it knows or has reason to
believe would result in the Series 1 Class A Seventh Issuer Notes
not being assigned an F1+ rating by Fitch Ratings, a P-1 rating by
Moody's and an A-1+ rating by Standard & Poor's; the Series 2
Class A Seventh Issuer Notes and the Series 3 Class A Seventh
Issuer notes not being assigned an AAA rating by Fitch
Ratings, an Aaa rating by Moody's and an AAA rating by Standard &
Poor's; the Series 1 Class B Seventh Issuer Notes and the Series 2
Class B Seventh Issuer Notes not being assigned an AA rating by
Fitch Ratings, an Aa3 rating by Moody's and an AA rating by
Standard and Poor's; and the Series 1 Class M Seventh
Issuer Notes and the Series 2 Class M Seventh Issuer
Notes not being assigned an A rating by Fitch
Ratings, an A2 rating by Moody's and an
A rating by Standard and Poor's;
(e) LEGAL AGREEMENTS
Prior to closing on the Closing Date ANPLC will not amend the
terms of any of the already executed Legal Agreements to which it
is a party, nor execute any of the other Legal Agreements other
than in the agreed form, without the consent of the Lead Managers
(such consent not to be unreasonably withheld or delayed).
9. CONDITIONS PRECEDENT
The obligation of the Underwriters under this Agreement to subscribe for
the Seventh Issuer Notes is subject to the following conditions
precedent:
(a) THE REGISTRATION STATEMENT
(i) If the Registration Statement has not become effective prior
to the Execution Time, unless the Lead Managers agree in
writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 p.m. New York City
time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00
p.m. New York City time on such date, or (ii) 9:30 a.m. New
York City time on
32
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 SEVENTH ISSUER NOTES
The execution and delivery by all parties thereto of the Legal
Agreements and the Global Seventh Issuer Notes representing each
class of the Seventh Issuer Notes on or prior to the Closing Date;
(c) ADMISSION TO LISTING AND TRADING
The UK Listing Authority having agreed to admit the Seventh Issuer
Notes to the official list of the UK Listing Authority and the
Stock Exchange having agreed to admission of the Seventh Issuer
Notes to trading, in each case on or prior to the Closing Date;
(d) LEGAL OPINIONS
On or prior to the Closing Date, there having been delivered to
the Seventh Issuer, the Underwriters, the Note Trustee, the
Seventh Issuer Security Trustee and the Security Trustee copies of
opinions and disclosure letters, in form and substance
satisfactory to the Lead Managers, the Note Trustee, the Seventh
Issuer Security Trustee, the Security Trustee and the Rating
Agencies, dated the Closing Date, of:
(i) Xxxxxxxxx and May, legal advisers to the Seventh Issuer as
to English law, addressed to the Seventh Issuer and the
Underwriters, substantially to the effect set forth in Annex
A hereto;
(ii) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, legal advisers to the
Seventh Issuer as to US law, addressed to the Seventh Issuer
and the Underwriters, substantially to the effect set forth
in Annex B hereto;
(iii) Xxxxx & Overy, legal advisers to the Underwriters, the Note
Trustee, the Seventh Issuer Security Trustee and the
Security Trustee, addressed to the Underwriters, the Note
Trustee, the Seventh Issuer Security Trustee and the
Security Trustee, substantially to the effect set forth in
Annex C hereto; and
(iv) Tods Xxxxxx XX, legal advisers to the Underwriters, the Note
Trustee, the Seventh Issuer Security Trustee, the Security
Trustee, the Seventh Issuer and ANPLC as to Scots law,
addressed to the Underwriters, the Note Trustee, the
33
Seventh Issuer Security Trustee, the Security Trustee, the
Seventh Issuer and ANPLC, substantially to the effect set
forth in Annex E hereto; and
(v) In-house legal counsel of each Seventh Issuer Swap Provider.
(e) AUDITORS' LETTERS
On the date of this Agreement and (in the event that a new
portfolio of Loans and Related Security is transferred to the
Mortgages Trustee, or as reasonably requested by the Lead
Managers) on the Closing Date, there having been addressed and
delivered to the Underwriters letters, in form and substance
satisfactory to the Lead Managers, dated the date of this
Agreement and the Closing Date, respectively, from Deloitte &
Touche, the independent auditors of the Seventh Issuer and
Funding;
(f) CERTIFIED CONSTITUTIONAL DOCUMENTS
On or prior to the Closing Date, there having been delivered to
the Lead Managers on behalf of the Underwriters a copy, certified
by a duly authorised director of, as applicable, the Seventh
Issuer, Funding and the Mortgages Trustee, of: (i) the Memorandum
and Articles of Association of each of the Seventh Issuer, Funding
and the Mortgages Trustee; (ii) the resolution of the Board of
Directors of each of the Seventh 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
Seventh Issuer, the issue of the Seventh Issuer Notes and the Reg
S Seventh Issuer Notes and the entry into and performance of the
transactions contemplated thereby;
(g) COMPLIANCE
At the Closing Date: (i) the representations and warranties of the
Seventh Issuer, Funding, the Mortgages Trustee and ANPLC in this
Agreement being true, accurate and correct at, and as if made on,
the Closing Date and the Seventh Issuer, Funding, the Mortgages
Trustee and ANPLC having performed all of their obligations in the
Legal Agreements to be performed on or before the Closing Date,
and (ii) there having been delivered to the Underwriters a
certificate to that effect signed by a duly authorised officer of,
as applicable, the Seventh Issuer, Funding, the Mortgages Trustee
and ANPLC, dated the Closing Date and confirming that, since the
date of this Agreement, there has been no adverse change, nor any
development involving a prospective adverse change, in or
affecting the operations, properties, financial condition or
prospects of the Seventh Issuer, Funding, the Mortgages Trustee or
ANPLC which is material in the context of the issue of the Seventh
Issuer Notes or the Reg S Seventh Issuer Notes;
(h) CIRCUMSTANCES FOR TERMINATION
On or prior to the Closing Date, in the opinion of the Lead
Managers, none of the circumstances described in CLAUSE 14.1(C),
14.1(D), 14.1(F) or 14.1(G) having arisen;
(i) RATINGS
Receipt of notification from Fitch Ratings, Xxxxx'x and Standard &
Poor's that the ratings for the Seventh Issuer Notes and the Reg S
Seventh Issuer Notes described in the Prospectus have been
assigned either without conditions or subject only to the
execution and delivery on or before the Closing Date of the Legal
Agreements and legal opinions in all material respects in the form
in which they shall then have been
34
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 Seventh Issuer Notes and the Reg S Seventh
Issuer Notes or the long term debt of ANPLC;
(j) REG S SEVENTH ISSUER NOTES SUBSCRIPTION AGREEMENT
The Reg S Seventh Issuer Notes Subscription Agreement having been
entered into;
(k) OTHER ISSUES
The Reg S Seventh Issuer Notes having been or being issued and
subscribed and paid for pursuant to the Reg S Seventh Issuer Notes
Subscription Agreement prior to or contemporaneously with the
issue, subscription and payment for the Seventh Issuer Notes
hereunder;
(l) MATERIAL ADVERSE EVENT
There not having been between the date of this Agreement and the
Closing Date any change or any development or event reasonably
likely to involve a prospective change which would, in the
judgment of the Lead Managers, be materially adverse to the
financial or trading condition of the Seventh Issuer, Funding, the
Mortgages Trustee or ANPLC from that set forth in the Prospectus,
or rendering untrue and incorrect any of the representations and
warranties contained in CLAUSES 5, 6 and 7 as though the said
representations and warranties had been given on the Closing Date
with reference to the facts and circumstances prevailing at that
date nor the failure of the Seventh Issuer, Funding, the Mortgages
Trustee or ANPLC to perform each and every covenant and obligation
to be performed by it pursuant to the Legal Agreements, the Loans
and the Related Security on or prior to the Closing Date;
(m) SOLVENCY CERTIFICATES
(i) The Seventh Issuer having furnished or caused to be
furnished to the Underwriters at the Closing Date a solvency
certificate, dated the Closing Date, of a duly authorised
director of the Seventh Issuer in the agreed form;
(ii) Funding having furnished or caused to be furnished to the
Seventh Issuer and the Security Trustee a solvency
certificate, dated the Closing Date, of a duly authorised
director of Funding in the agreed form; and
(iii) ANPLC having furnished or caused to be furnished to Funding
and the Security Trustee a solvency certificate, dated the
Closing Date, of a duly authorised officer of ANPLC in the
agreed form;
(n) MORTGAGE SALE AGREEMENT
All of the steps required by CLAUSE 4 of the Mortgage Sale
Agreement for the purposes of the purchase of a New Portfolio (as
defined therein) by the Mortgages
35
Trustee from ANPLC on the Closing Date and related rights to be
acquired from ANPLC pursuant thereto having been taken; and
(o) CERTIFICATE OF NOTE TRUSTEE
The Note Trustee having furnished to the Underwriters a certificate
stating that that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-
1) under the Trust Indenture Act of the Note Trustee did not or
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading.
Prior to the Closing Date, there shall be furnished to the Lead Managers
such further information, certificates and documents as the Lead Managers
may reasonably request.
If any of the conditions specified in this CLAUSE 9 have not been
fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be reasonably satisfactory in all
material respects in form and substance to the Lead Managers, this
Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Lead
Managers. Notice of such cancellation shall be given to the Seventh
Issuer in writing or by telephone or facsimile confirmed in writing.
The Lead Managers, on behalf of the Underwriters, may, at their
discretion, waive compliance with the whole or any part of this CLAUSE 9.
10. CLOSING
10.1 ISSUE OF SEVENTH ISSUER NOTES
Not later than 4:00 p.m. (London time) on the Closing Date, the Seventh
Issuer will issue and deliver (a) to the Underwriters, or to their
order, a Global Seventh Issuer Note for each of the Series 1 Class A
Seventh Issuer Notes, the Series 2 Class A Seventh Issuer Notes
and the Series 3 Class A Seventh Issuer Notes, and (b) to the
Class B/M Underwriters, or to their order, a Global Seventh Issuer Note
for each of the Series 1 Class B Seventh Issuer Notes, the Series 1 Class
M Seventh Issuer Notes, the Series 2 Class B Seventh Issuer Notes and the
Series 2 Class M Seventh Issuer Notes.
10.2 PAYMENT
Against such delivery Xxxxxxx Xxxxx Barney Inc. on behalf of the
Underwriters will pay to the Seventh Issuer the gross subscription moneys
for the Seventh Issuer Notes (being the Issue Price). Such payment shall
be made by Xxxxxxx Xxxxx Xxxxxx Inc. in respect of the Dollar Seventh
Issuer Notes in Dollars in immediately available funds to the account of
the Seventh Issuer, Citibank, N.A., New York, ABA. [000000000], SWIFT
CODE [XXXXXX00] account of Citibank, N.A., London, sort code [18-50-04],
IBAN No. [{circle}] reference for account [0010132551] Xxxxxx Financing
(No. 7) PLC.
Such payment shall be evidenced by a confirmation by Xxxxxxx Xxxxx Xxxxxx
Inc. that it has so made that payment to the Seventh Issuer.
36
10.3 GROSS SUBSCRIPTION MONEYS
The Seventh Issuer undertakes that on the Closing Date it will apply the
gross subscription moneys for the Seventh Issuer Notes and the gross
subscription moneys for the Reg S Seventh Issuer Notes (net of
underwriting commissions and various out-of-pocket expenses) converted
under the relevant Seventh Issuer Swap Agreement, forthwith in making a
loan to Funding pursuant to the terms of the Seventh Issuer Intercompany
Loan Agreement. Funding undertakes that it will apply the proceeds of
the Seventh Issuer Intercompany Loan to make payment to ANPLC or at
ANPLC's direction of the purchase price of an addition to Funding's
already existing share of the portfolio and related rights pursuant to
the Mortgage Sale Agreement.
11. COMMISSIONS
11.1 In consideration of the obligations undertaken herein by the Underwriters,
the Seventh Issuer agrees to pay to the Lead Managers a selling
commission (the "SELLING COMMISSION")of [{circle}] per cent. of the
aggregate principal amount of the Series 1 Class A Seventh Issuer Notes,
of [{circle}] per cent. of the aggregate principal amount of the Series 1
Class B Seventh Issuer Notes, of [{circle}] per cent. of the aggregate
principal amount of the Series 1 Class M Seventh Issuer Notes, of
[{circle}] per cent. of the aggregate principal amount of the Series 2
Class A Seventh Issuer Notes, of [{circle}] per cent. of the aggregate
principal amount of the Series 2 Class B Seventh Issuer Notes, of
[{circle}] per cent. of the aggregate principal amount of the Series 2
Class M Seventh Issuer Notes and of [{circle}] per cent. of the aggregate
principal amount of the Series 3 Class A Seventh Issuer Notes and a
combined and management and underwriting commission (the "MANAGEMENT AND
UNDERWRITING COMMISSION") of [{circle}] per cent. of the aggregate
principal amount of the Series 1 Class A Seventh Issuer Notes, of
[{circle}] per cent. of the aggregate principal amount of the Series 1
Class B Seventh Issuer Notes, of [{circle}] per cent. of the aggregate
principal amount of the Series 1 Class M Seventh Issuer Notes, of
[{circle}] per cent. of the aggregate principal amount of the Series 2
Class A Seventh Issuer Notes, of [{circle}] per cent. of the aggregate
principal amount of the Series 2 Class B Seventh Issuer Notes, of
[{circle}] per cent. of the aggregate principal amount of the Series 2
Class M Seventh Issuer Notes and of [{circle}] per cent. of the aggregate
principal amount of the Series 3 Class A Seventh Issuer Notes.
11.2 The Seventh Issuer undertakes that on the Closing Date it will pay to
X.X. Xxxxxx Securities Ltd. the aggregate Selling Commission and
aggregate Management and Underwriting Commission calculated in accordance
with CLAUSE 11.1, in sterling, in immediately available funds to [HSBC
Bank plc] (SWIFT code [XXXXXX00]) sort code [40-05-15], account number
[00000000] for account of the Euroclear Bank S.A./N.V. (SWIFT:
[XXXXXXXXXXX]) for further credit to X.X. Xxxxxx Securities Ltd., account
number [95724] reference Xxxxxx Financing (No. 7) PLC.
12. EXPENSES
12.1 GENERAL EXPENSES
The Seventh Issuer covenants to pay or cause to be paid the following
(together with (i) in respect of taxable supplies made to the Seventh
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 Seventh
Issuer, any amount in respect of Irrecoverable VAT or similar tax payable
in respect thereof against production of a
37
valid tax invoice): (a) the fees, disbursements and expenses of the
Seventh Issuer's legal advisers and accountants and all other expenses of
the Seventh Issuer in connection with the issue (including, without
limitation, any filing fees payable to the Commission in connection with
the registration of the Seventh Issuer Notes under the Securities Act and
any fees payable in connection with the qualification of the Seventh
Issuer Notes for offering and sale pursuant to any NASD regulatory
provisions or under any applicable United States state securities, Blue
Sky or similar laws) and listing of the Seventh Issuer Notes (including,
without limitation, any advertisements required in connection therewith),
the preparation and delivery of each class of the Seventh Issuer Notes in
global form and (if required) definitive form, the costs of the initial
delivery and distribution of the Seventh Issuer Notes (including, without
limitation, transportation, packaging and insurance) and the initial fees
and expenses of The Depository Trust Company, Euroclear and Clearstream,
Luxembourg in relation to the Seventh Issuer Notes (excluding any such
fees and expenses arising as a result of any transfer of the Seventh
Issuer Notes), the preparation and printing of the Prospectus (in proof,
preliminary and final form) and any amendments and supplements thereto
and the mailing and delivery of copies of this Agreement to the
Underwriters; (b) the cost of printing or reproducing the Legal
Agreements and any other documents prepared in connection with the
offering, issue and initial delivery of the Seventh Issuer Notes; (c) the
fees and expenses of the Note Trustee, the Security Trustee and the
Seventh Issuer Security Trustee (including fees and expenses of legal
advisers to the Note Trustee, the Security Trustee and the Seventh Issuer
Security Trustee), the Principal Paying Agent, the US Paying Agent, the
Registrar, the Transfer Agent and the Agent Bank in connection with the
preparation and execution of the Legal Agreements and any other relevant
documents and the issue of the Seventh Issuer Notes and compliance with
the Conditions of the Seventh Issuer Notes; (d) the fees and expenses
incurred or payable in connection with obtaining a rating for the Seventh
Issuer Notes from Fitch Ratings, Xxxxx'x and Standard & Poor's and annual
fees in connection with such rating or any other rating from such
institution for the Seventh Issuer Notes; (e) the fees and expenses
payable in connection with obtaining and maintaining the admission to
trading of the Seventh Issuer Notes on the Stock Exchange; (f)
out-of-pocket expenses (excluding legal expenses) incurred by the Lead
Managers on behalf of the Underwriters in connection with the
transactions contemplated hereby; (g) any roadshow expenses incurred by
the Lead Managers on behalf of the Underwriters; and (h) any amount in
respect of the fees and disbursements of the Underwriters' legal advisers
in relation thereto.
12.2 REIMBURSEMENT
The Seventh Issuer will reimburse the Lead Managers for all amounts in
connection with the issue of the Seventh Issuer Notes which it has agreed
to pay pursuant to CLAUSE 12.1.
For the avoidance of doubt, references to costs and expenses in this
Agreement shall be deemed to include, in addition, references to any
Irrecoverable VAT payable in respect of such costs and expenses.
13. INDEMNIFICATION
13.1 SEVENTH ISSUER, FUNDING, MORTGAGES TRUSTEE AND ANPLC INDEMNITY
Each of the Seventh Issuer, Funding, the Mortgages Trustee and ANPLC
agrees to indemnify and hold harmless each Underwriter (including, for
the purposes of this CLAUSE 13.1, the directors, officers, employees and
agents of each Underwriter) and each person who controls any Underwriter
within the meaning of either the Securities Act or the Exchange Act
against
38
any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject, including without
limitation any such losses, claims, damages or liabilities arising under
the Securities Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement for the
registration of the Seventh Issuer Notes as originally filed or in any
amendment thereto, or in any Registration Statement, any preliminary
prospectus or the Prospectus, or in any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other
reasonable expenses incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Seventh Issuer, Funding, the Mortgages Trustee and
ANPLC will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission (A) made in the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Seventh Issuer, Funding, the Mortgages Trustee and ANPLC by or on behalf
of any Underwriter through the Lead Managers specifically for inclusion
therein or (B) contained in that part of the Registration Statement
constituting the Statement of Eligibility and Qualification under the
Trust Indenture Act (Form T-1) of the Note Trustee; and provided further,
that as to any preliminary prospectus or as to the Prospectus, this
indemnity agreement shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) on account of any loss, claim,
damage, liability or action arising from the sale of Notes to any person
by that Underwriter if that Underwriter failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented (for the
purposes of this CLAUSE 13, the "FINAL PROSPECTUS"), to that person
within the time required by the Securities Act, and the untrue statement
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such preliminary prospectus or
Prospectus was corrected in the Final Prospectus, unless such failure
resulted from non-compliance by the Seventh Issuer, Funding, the
Mortgages Trustee or ANPLC with CLAUSE 8.1(C) hereof. For purposes of the
final proviso to the immediately preceding sentence, the term Final
Prospectus shall not be deemed to include the documents incorporated
therein by reference, and no Underwriter shall be obligated to send or
give any supplement or amendment to any document incorporated by
reference in the Prospectus or in any Final Prospectus to any person
other than a person to whom such Underwriter has delivered such
incorporated documents in response to a written or oral request therefor.
The Seventh Issuer, Funding, the Mortgages Trustee and ANPLC further
agree to reimburse each Underwriter and each such controlling person for
any legal and other expenses reasonably incurred by such Underwriter or
controlling person in investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action, as such
expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which the Seventh Issuer, Funding, the Mortgages Trustee
and ANPLC may otherwise have to any Underwriter or any controlling person
of any Underwriter.
No Underwriter or controlling person of any Underwriter shall have any
duty or obligation, whether as fiduciary for any Underwriter, controlling
person or otherwise, to recover any such payment or to account to any
other person for any amounts paid to it under this CLAUSE 13.1.
39
13.2 UNDERWRITERS' INDEMNITY
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Seventh Issuer and ANPLC, each of their directors and each
of their officers who signs the Registration Statement, and each person
who controls the Seventh Issuer or ANPLC within the meaning of either the
Securities Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Seventh Issuer to each Underwriter, but only with
reference to written information relating to such Underwriter furnished
to the Seventh Issuer or ANPLC by or on behalf of such Underwriter
through the Lead Managers specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be
in addition to any liability which any Underwriter may otherwise have. It
is acknowledged that the statements set forth under the heading
"Underwriting" that specify (i) the list of Underwriters and their
respective participation in the sale of the Seventh Issuer Notes, (ii)
the sentences related to concessions and reallowances and (iii) the
paragraph related to short sales, stabilisation, short covering
transactions and penalty bids in any preliminary prospectus and the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any preliminary
prospectus, the Prospectus or the Registration Statement.
13.3 PROCEEDINGS
Promptly after receipt by an indemnified party under this CLAUSE 13 of
notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this CLAUSE 13, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under CLAUSE 13.1 or 13.2 above
unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of
substantial rights and defences and (ii) will not in any event relieve
the indemnifying party from any obligation to any indemnified party other
than the indemnification obligation provided in CLAUSE 13.1 or 13.2
above. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein, and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defence thereof with counsel
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defence of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this CLAUSE 13 for any legal or
other expenses subsequently incurred by the indemnified party in
connection with the defence thereof other than reasonable costs of
investigation; provided that each Underwriter, the Underwriters as a
group, or the Seventh Issuer, Funding, the Mortgages Trustee and ANPLC,
as the case may be, shall have the right to employ separate counsel to
represent such Underwriter and its controlling persons, the Underwriters
and their respective controlling persons or the Seventh Issuer, Funding,
the Mortgages Trustee and ANPLC and their respective controlling persons,
as the case may be, who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by such indemnified
parties under this CLAUSE 13 if, in the reasonable judgement of any
Underwriter, the Underwriters acting together, or the Seventh Issuer,
Funding, the Mortgages Trustee and ANPLC, as the case may be, it is
advisable for such indemnified parties to be represented by separate
counsel, and in that event the fees and expenses of such separate counsel
(and local counsel) shall be paid by the indemnifying party. Upon
receipt of notice from the indemnifying party to such indemnified party
of its election so to assume the defence of such action and approval by
the indemnified party of counsel selected by the indemnifying party,
40
the indemnifying party will not be liable to such indemnified party under
this CLAUSE 13 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defence thereof unless (i)
the indemnified party shall have employed separate counsel in connection
with the assertion of legal defences in accordance with the proviso to
the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
such separate counsel (and local counsel) representing the indemnified
parties under CLAUSE 13.1 or 13.2 hereof), (ii) the indemnifying party
shall not be liable for the expenses of more than one such separate
counsel (and local counsel) representing the employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorised the employment of counsel for
the indemnified party at the expense of the indemnifying party; and
except that, if CLAUSE (I) or (III) is applicable, such liability shall
be only in respect of the counsel referred to in such CLAUSE (I) or
(III). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, such consent not to
be unreasonably withheld or delayed, but if settled with such consent or
if there be a final judgement for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by this CLAUSE 13, the
indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such
indemnifying party of such request and (ii) such indemnifying party shall
not have either reimbursed the indemnified party in accordance with such
request or objected to such request in writing prior to the date of such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or
could have been a party and in respect of which indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
13.4 CONTRIBUTION
In the event that the indemnity provided in CLAUSE 13.1 or 13.2 is
unavailable to or insufficient to hold harmless an indemnified party for
any reason, the Seventh Issuer, ANPLC and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively, "LOSSES")
to which the Seventh Issuer, ANPLC and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Seventh Issuer, ANPLC and the
Underwriters from the offering of the Seventh Issuer Notes. If the
allocation provided by the immediately preceding sentence is unavailable
for any reason, the Seventh Issuer, ANPLC and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Seventh Issuer,
ANPLC and the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Seventh Issuer and ANPLC shall
be deemed to be equal to the Issue Price (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the
total Selling Commission and the Management and Underwriting Commission,
in each case as set forth in CLAUSE 11.1. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or
41
alleged omission to state a material fact relates to information provided
by the Seventh Issuer or ANPLC on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The Seventh Issuer, ANPLC and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the foregoing, in no case shall an Underwriter (except as
may be provided in any agreement among underwriters relating to the
offering of the Seventh Issuer Notes) be responsible for any amount in
excess of the Selling Commission or Management and Underwriting
Commission applicable to the Seventh Issuer Notes purchased by such
Underwriter hereunder. Notwithstanding the provisions of this CLAUSE
13.4, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this CLAUSE 13, each person who
controls an Underwriter within the meaning of either the Securities Act
or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Seventh Issuer or ANPLC
within the meaning of either the Securities Act or the Exchange Act, each
officer of the Seventh Issuer who shall have signed the Registration
Statement and each director of the Seventh Issuer or ANPLC shall have the
same rights to contribution as the Seventh Issuer or ANPLC, as the case
may be, subject in each case to the applicable terms and conditions of
this CLAUSE 13.4.
14. TERMINATION
14.1 LEAD MANAGERS' ABILITY TO TERMINATE
Notwithstanding any other provision of this Agreement, the Lead Managers
on behalf of the Underwriters may, by notice to the Seventh Issuer given
at any time prior to payment of the gross subscription moneys for the
Seventh Issuer Notes to the Seventh Issuer, terminate this Agreement in
any of the following circumstances:
(a) if there shall have come to the notice of the Underwriters any
breach of, or any event rendering untrue or incorrect in any
material respect, any of the warranties and representations
contained in CLAUSE 5 or 6 or 7 (or any deemed repetition thereof)
or failure to perform any of the Seventh Issuer's or ANPLC's
covenants or agreements in this Agreement; or
(b) if any condition specified in CLAUSE 9 has not been satisfied or
waived by the Lead Managers on behalf of the Underwriters; or
(c) if, in the opinion of the Lead Managers, circumstances shall be
such as: (i) to prevent or to a material extent restrict payment
for the Seventh Issuer Notes in the manner contemplated in this
Agreement or (ii) to a material extent prevent or restrict
settlement of transactions in the Seventh Issuer Notes in the
market or otherwise; or
(d) if, in the opinion of the Lead Managers, (i) there shall have been
any change in national or international political, legal, tax or
regulatory conditions or (ii) there shall have occurred any
outbreak or escalation of hostilities or any change in financial
markets or any calamity or emergency, either within or outside the
United States, in each case that in the judgment of the Lead
Managers is material and adverse and
42
makes it impracticable or inadvisable to market the Seventh Issuer
Notes on the terms and in the manner contemplated by this
Agreement and the Prospectus; or
(e) upon termination of the Reg S Seventh Issuer Notes Subscription
Agreement; or
(f) trading generally shall have been suspended or materially limited
on or by any of the New York Stock Exchange or the over-the-
counter market or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the
United States or with respect to Clearstream or Euroclear systems
in Europe; or
(g) a general moratorium on commercial banking activities shall have
been declared by U.S. federal or New York State authorities.
14.2 CONSEQUENCES OF TERMINATION
Upon such notice being given this Agreement shall terminate and be of no
further effect and no party hereto shall be under any liability to any
other in respect of this Agreement except that (i) the Seventh Issuer
shall remain liable under CLAUSE 12 for the payment of the costs and
expenses already incurred or incurred in consequence of such termination,
(ii) the indemnity agreement and contribution provisions set forth in
CLAUSE 13 shall survive and (iii) the obligations of the Seventh Issuer
and ANPLC that would have continued in accordance with CLAUSE 15 had the
arrangements for the underwriting and issue of the Seventh Issuer Notes
been completed shall so continue.
15. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
15.1 The representations, warranties, agreements, undertakings and indemnities
in this Agreement will continue in full force and effect notwithstanding
completion of the arrangements for the subscription and issue of the
Seventh Issuer Notes or any investigation made by or on behalf of any
Underwriter or any controlling person or any of its representatives,
directors, officers, agents or employees or any of them.
15.2 Save for their respective responsibilities to comply with CLAUSES 5(F),
5(T), 6(E), 6(Q) and 7(D), neither the Seventh Issuer, Funding, the
Mortgages Trustee nor ANPLC shall have any responsibility in respect of
the legality of the Underwriters or other persons offering and selling
the Seventh Issuer Notes in any jurisdiction or in respect of the Seventh
Issuer Notes qualifying for sale in any jurisdiction.
16. NOTICES
16.1 All communications pursuant to this Agreement will be in writing and will
be delivered at or sent by facsimile transmission to the following
addresses:
(a) if to the Seventh Issuer,
Abbey Xxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Regent's Place
London NW1 3AN
43
(b) if to ANPLC,
c/o Abbey House (AAM 126)
000 Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxxxx XX0 0XX
Attention: Securitisation Team, Retail Customer Risk and
Decisioning
Facsimile: x00 00 0000 0000
Attention: Company Secretary
Facsimile: x00 00 0000 0000
(c) if to the Underwriters,
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: ABS Syndicate Desk
Facsimile: 1 212 834 6081
With a copy to:
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [{circle}]
Facsimile: [{circle}]
Credit Suisse First Boston LLC
[{circle}]
Attention: [{circle}]
Facsimile: [{circle}]
Deutsche Bank Securities Inc.
[{circle}]
Attention: [{circle}]
Facsimile: [{circle}]
Xxxxxx Brothers Inc.
[{circle}]
Attention: [{circle}]
Facsimile: [{circle}]
and
44
Xxxxxx Xxxxxxx & Co. Incorporated
[{circle}]
Attention: [{circle}]
Facsimile: [{circle}]
16.2 Any communication so sent by letter shall take effect at the time of
actual delivery, and any communication so sent by facsimile transmission
shall take effect upon acknowledgement of receipt by the recipient. Any
communication to be delivered to any party under this Agreement which is
to be sent by facsimile transmission will be written legal evidence.
17. TIME
Time shall be of the essence of this Agreement.
18. GOVERNING LAW AND JURISDICTION
18.1 GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
the laws of the State of New York.
18.2 JURISDICTION
Each of the parties hereto irrevocably agrees that, except as otherwise
set forth in this CLAUSE 18.2, any state or federal court sitting in the
City of New York shall have exclusive jurisdiction to hear and determine
any suit, action or proceeding and to settle any dispute arising out of
or based upon this Agreement and, for such purposes, irrevocably submits
to the jurisdiction of such courts. Each of the Seventh Issuer, Funding,
the Mortgages Trustee and ANPLC hereby appoints CT Corporation System at
000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or, if otherwise, its principal
place of business in the City of New York from time to time, as its agent
for service of process, and agrees that service of any process, summons,
notice or document by hand delivery or registered mail upon such agent
shall be effective service of process for any suit, action or proceeding
brought in any such court. Each of the Seventh Issuer, Funding, the
Mortgages Trustee and ANPLC irrevocably and unconditionally waives any
objection to the laying of venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or
proceeding has been brought in an inconvenient forum. Each of the
Seventh Issuer, Funding, the Mortgages Trustee and ANPLC agrees that a
final judgement in any such suit, action or proceeding brought in any
such court shall be conclusive and binding upon each of the Seventh
Issuer, Funding, the Mortgages Trustee and ANPLC and may be enforced in
any other court to whose jurisdiction each of the Seventh Issuer,
Funding, the Mortgages Trustee and ANPLC is or may in the future be
subject, by suit upon judgement. Each of the Seventh Issuer, Funding,
the Mortgages Trustee and ANPLC further agrees that nothing herein shall
affect the Underwriters' right to effect service of process in any other
manner permitted by law or to bring a suit, action or proceeding
(including a proceeding for enforcement of a judgement) in any other
court or jurisdiction in accordance with applicable law.
45
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original.
20. AUTHORITY OF THE LEAD MANAGERS
Any action by the Underwriters hereunder may be taken by the Lead
Managers on behalf of the Underwriters, and any such action taken by the
Lead Managers shall be binding upon the Underwriters.
IN WITNESS WHEREOF this Agreement has been entered on the date stated at the
beginning.
46
XXXXXX FINANCING (NO. 7) PLC
By: XXXXXX XXXXXXXXX
ABBEY NATIONAL PLC
By: XXXX XXXX
XXXXXX FUNDING LIMITED
By: XXXXXX XXXXXXXXX
XXXXXX TRUSTEES LIMITED
By: XXXXXX XXXXXXXXX
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Underwriters listed on
the schedule hereto.
By: XXXXXXX XXXXXXX
XXXXXXX XXXXX XXXXXX INC.
For itself and on behalf of the
several Underwriters listed on
the schedule hereto.
By: {circle}
47
SCHEDULE
UNDERWRITERS PRINCIPAL AMOUNT OF SERIES 1 PRINCIPAL AMOUNT OF SERIES 1 PRINCIPAL AMOUNT OF SERIES 1 CLASS
CLASS A SEVENTH ISSUER NOTES CLASS B SEVENTH ISSUER NOTES M SEVENTH ISSUER NOTES
X.X. Xxxxxx US$[351,000,000] US$[11,250,000] US$[19,125,000]
Securities Inc.
Xxxxxxx Xxxxx US$[351,000,000] US$[11,250,000] US$[19,125,000]
Barney Inc.
Credit Suisse US$[12,000,000] US$[0] US$[0]
First Boston
LLC
Deutsche Bank US$[12,000,000] US$[0] US$[0]
Securities
Inc.
Xxxxxx US$[12,000,000] US$[0] US$[0]
Brothers
Inc.
Xxxxxx US$[12,000,000] US$[0] US$[0]
Xxxxxxx & Co.
Incorporated
TOTAL US$[750,000,000] US$[22,500,000] US$[38,250,000]
UNDERWRITERS PRINCIPAL AMOUNT OF SERIES 2 PRINCIPAL AMOUNT OF SERIES 2 PRINCIPAL AMOUNT OF SERIES 2 CLASS
CLASS A SEVENTH ISSUER NOTES CLASS B SEVENTH ISSUER NOTES M SEVENTH ISSUER NOTES
X.X. Xxxxxx US$[585,000,000] US$[18,750,000] US$[31,875,000]
Securities Inc.
Xxxxxxx Xxxxx US$[585,000,000] US$[18,750,000] US$[31,875,000]
Barney Inc.
Credit Suisse US$[20,000,000] US$[0] US$[0]
First Boston
LLC
Deutsche Bank US$[20,000,000] US$[0] US$[0]
Securities
Inc.
Xxxxxx US$[20,000,000] US$[0] US$[0]
Brothers
Inc.
Xxxxxx US$[20,000,000] US$[0] US$[0]
Xxxxxxx & Co.
Incorporated
TOTAL US$[1,250,000,000] US$[37,500,000] US$[63,750,000]
48
UNDERWRITERS PRINCIPAL AMOUNT OF SERIES 3 CLASS A SEVENTH ISSUER NOTES
X.X. Xxxxxx Securities Inc. US$[234,000,000]
Xxxxxxx Xxxxx Xxxxxx Inc. US$[234,000,000]
Credit Suisse First Boston LLC US$[8,000,000]
Deutsche Bank Securities Inc. US$[8,000,000]
Xxxxxx Brothers Inc. US$[8,000,000]
Xxxxxx Xxxxxxx & Co. Incorporated US$[8,000,000]
TOTAL US$[500,000,000]
ICM:572270.13
DRAFT 14.3.03
DATED {circle}, 2003
XXXXXX FINANCING (NO. 7) PLC
and
ABBEY NATIONAL PLC
and
XXXXXX FUNDING LIMITED
and
XXXXXX TRUSTEES LIMITED
and
X.X. XXXXXX SECURITIES INC.
and
XXXXXXX XXXXX BARNEY INC.
and
CREDIT SUISSE FIRST BOSTON LLC
and
DEUTSCHE BANK SECURITIES INC.
and
XXXXXX BROTHERS INC.
and
XXXXXX XXXXXXX & CO. INCORPORATED
________________________________________________________________________________
UNDERWRITING AGREEMENT
RELATING TO XXXXXX FINANCING (NO. 7) PLC
US$[750,000,000] FLOATING RATE SERIES 1 CLASS A SEVENTH ISSUER NOTES DUE APRIL
2004
US$[22,500,000] FLOATING RATE SERIES 1 CLASS B SEVENTH ISSUER NOTES DUE JULY
2040
US$[38,250,000] FLOATING RATE SERIES 1 CLASS M SEVENTH ISSUER NOTES
DUE JULY 2040
US$[1,250,000,000] FLOATING RATE SERIES 2 CLASS A SEVENTH ISSUER NOTES DUE
JANUARY 2008
US$[37,500,00] FLOATING RATE SERIES 2 CLASS B SEVENTH ISSUER NOTES DUE JULY
2040
US$[63,750,000] FLOATING RATE SERIES 2 CLASS M SEVENTH ISSUER NOTES
DUE JULY 2040
US$[500,000,000] FLOATING RATE SERIES 3 CLASS A SEVENTH ISSUER NOTES DUE JULY
2020
________________________________________________________________________________
XXXXX & XXXXX
London
ICM:651738.1
INDEX
CLAUSE PAGE
1. Issue of the Seventh issuer Notes........................................7
2. Stabilisation............................................................7
3. Agreements by the Underwriters...........................................8
4. Listing.................................................................11
5. Representations and Warranties of the Seventh Issuer....................12
6. Representations and Warranties of Funding and the Mortgages Trustee.....17
7. Representations and Warranties of ANPLC.................................22
8. Covenants of the Seventh Issuer, Funding, the Mortgages Trustee
and ANPLC...............................................................24
9. Conditions Precedent....................................................31
10. Closing.................................................................35
11. Commissions.............................................................36
12. Expenses................................................................36
13. Indemnification.........................................................37
14. Termination.............................................................41
15. Survival of Representations and Obligations.............................42
16. Notices.................................................................42
17. Time....................................................................44
18. Governing Law and Jurisdiction..........................................44
19. Counterparts............................................................45
20. Authority of the Lead Managers..........................................45
