Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
DATED [ ], 2006
GRANITE MASTER ISSUER PLC
And
NORTHERN ROCK PLC
And
GRANITE FINANCE FUNDING 2 LIMITED
And
GRANITE FINANCE TRUSTEES LIMITED
And
[
]
And
[
]
And
[
]
And
[
]
And
[
]
relating to GRANITE MASTER ISSUER PLC
U.S.$[ ]
Series [ ] Class [ ] Notes due [ ]
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CONTENTS
Clause
Page
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1.
Agreement to Issue and
Subscribe.......................................................................4
2.
Stabilization..........................................................................................6
3.
Agreements by the
Underwriters.........................................................................7
4.
Listing...............................................................................................10
5.
Representations and Warranties of the
Issuer..........................................................11
6.
Representations and Warranties of Funding 2 and the Mortgages
Trustee.................................16
7.
Representations and Warranties of
NRPLC...............................................................21
8.
Covenants of the Issuer, Funding 2, the Mortgages Trustee and
NRPLC...................................24
9.
Conditions
Precedent..................................................................................29
10.
Expenses..............................................................................................33
11.
Indemnification.......................................................................................34
12.
Termination...........................................................................................39
13. Survival of
Representations and
Obligations...........................................................40
14.
Notices...............................................................................................40
15.
Time..................................................................................................42
16. Non Petition
and Limited
Recourse.....................................................................42
17. Governing
Law and
Jurisdiction........................................................................42
18.
Counterparts..........................................................................................43
19. Authority of
the Lead
Underwriters....................................................................43
20.
Successors............................................................................................43
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THIS UNDERWRITING AGREEMENT is made as of [
]
BETWEEN:
(1) GRANITE
MASTER ISSUER PLC, a public limited company incorporated
under the laws of England and Wales, whose registered office is
at
Fifth Floor, 100 Wood Street, London EC2V 7EX (the "Issuer");
(2) NORTHERN
ROCK PLC, a public limited company incorporated under the
laws of England and Wales, whose registered office is at
Northern
Rock House, Gosforth, Newcastle upon Tyne NE3 4PL ("NRPLC");
(3) GRANITE
FINANCE FUNDING 2 LIMITED, a private limited company
incorporated under the laws of England and Wales, whose
registered
office is at Fifth Floor, 100 Wood Street, London EC2V 7EX
("Funding
2");
(4) GRANITE
FINANCE TRUSTEES LIMITED, a private limited company
incorporated under the laws of Jersey, Channel Islands, whose
registered office is at 22 Grenville Street, St. Helier, Jersey
JE4
8PX, Channel Islands (the "Mortgages Trustee");
(5) [
], [
] and [
]
(the "Lead Underwriters"); and
(6) [
]
and [ ](together with the
Lead Underwriters, the
"Underwriters" and each an "Underwriter").
WHEREAS:
(A) The Issuer
proposes to cause to be issued and to sell to the
Underwriters the mortgage-backed notes of the series and class
specified on Schedule 1 hereto and described in Section 1.3
hereof
(the "Dollar Notes" as set forth on the cover page of the
Prospectus
Supplement).
(B) The Dollar
Notes will be denominated in U.S. dollars and in minimum
denominations of $[100,000] and integral multiples of $[1,000]
in
excess thereof. The Dollar Notes will be issued on the date and
at
the time specified in the Prospectus Supplement, which date and
time
may be changed by agreement between Issuer and the Lead
Underwriters
on behalf of the Underwriters (such date and time of delivery of
and
payment for such Dollar Notes being hereinafter referred to as
the
"Closing Date"). The issue of the Dollar Notes is referred to in
this
Agreement as the "Issue".
(C)
Simultaneously with the Issue, the Issuer intends to issue
other
classes and series of notes (the "Reg S Notes", and together with
the
Dollar Notes, the "Notes") specified in the subscription
agreement
dated as of the date hereof (the "Subscription Agreement") among
the
Issuer, NRPLC, Funding 2, the Mortgages Trustee and the
respective
managers named therein (the "Managers"). Such Managers have agreed
to
subscribe and pay for the Reg S Notes upon the terms and subject
to
the conditions contained in the Subscription Agreement and the
programme agreement dated as of the date hereof among the
Issuer,
NRPLC, Funding 2, the Mortgages Trustee and the respective
managers
named therein (the "Programme Agreement").
The Notes will be constituted by, issued subject to and have
the
benefit of a trust deed (the "Issuer Trust Deed") to be entered
into
on or before the Closing Date between the Issuer and The Bank of
New
York, London Branch as trustee for the Noteholders (the "Note
Trustee").
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(D) The Notes
(together with the Issuer's obligations to its other
creditors) will be secured by the benefit of security interests
created under a deed of charge and assignment by way of security
(the
"Issuer Deed of Charge") to be entered into on or before the
Closing
Date by the Issuer, the Note Trustee, the Security Trustee,
Citibank,
N.A. (in its separate capacities as the Principal Paying Agent,
the
US Paying Agent, the Registrar, the Transfer Agent and the
Agent
Bank, NRPLC in its separate capacities as the Issuer Cash
Manager
Provider, the Issuer GIC Provider, the Issuer Account Bank and
the
Start-up Loan Provider, and Law Debenture Corporate Services
Limited
in its capacity as the Issuer Corporate Services Provider.
(E) Payments
of principal of, and interest on, the Dollar Notes will be
made by the Issuer to the US Paying Agent and by the US Paying
Agent
to Noteholders on behalf of the Issuer under a paying agent and
agent
bank agreement to be entered into on or before the Closing Date
(the
"Issuer Paying Agent and Agent Bank Agreement") among the Issuer,
the
Note Trustee, the Agent Bank, the paying agents named therein,
the
Transfer Agent and the Registrar.
(F) Each class
of the Dollar Notes will be in fully registered permanent
global form. The Registrar will maintain a register in respect of
the
Dollar Notes in accordance with the Issuer Paying Agent and
Agent
Bank Agreement. The global note certificates representing the
Dollar
Notes (the "Dollar Global Note Certificates") will be deposited
on
behalf of the beneficial owners of the Dollar Notes with
Citibank
N.A. in New York, as custodian for, and registered in the name
of
Cede & Co. as nominee of, The Depository Trust Company
("DTC").
(G) The Issuer
will use an amount in Sterling equal to the gross proceeds
of the Issue as well as an amount in Sterling equal to the
gross
proceeds of the Reg S Notes issue to make advances (each a loan
tranche) to Funding 2 pursuant to the terms of the global
intercompany loan agreement to be entered into on or before the
Closing Date among the Issuer, Funding 2, the Agent Bank and The
Bank
of New York, London Branch in its capacity as security trustee
(the
"Security Trustee") (the "Global Intercompany Loan Agreement"
and
each loan tranche made thereunder, a "Loan Tranche"). Reference
to
the Global Intercompany Loan Agreement shall include reference to
a
loan confirmation in respect of the Global Intercompany Loan
Agreement to be entered into on or about the Closing Date and
made
among Funding 2, the Issuer, the Security Trustee and the Agent
Bank
(the "Intercompany Loan Confirmation"), as amended, restated,
novated, verified or supplemented from time to time and shall
include
any additional and/or replacement intercompany loan terms and
conditions entered into from time to time in accordance with
the
Legal Agreements (the "Intercompany Loan Terms and
Conditions").
(H) Funding 2
will pay the proceeds of each Loan Tranche to the Mortgages
Trustee (or to its order) in consideration for the acquisition
of
part of the beneficial share of the mortgage trust portfolio of
first
residential mortgage loans (the "Mortgage Loans") and an interest
in
the related insurances and their related security (together,
the
"Related Security").
(I) On March
26, 2001, NRPLC assigned the initial portfolio of Mortgage
Loans and their Related Security to the Mortgages Trustee and
may
assign further Mortgage Loans on subsequent assignment dates
pursuant
to a
mortgage sale agreement dated 26th March, 2001 among NRPLC, the
Mortgages Trustee, Funding 2 and the Security Trustee (the
"Mortgage
Sale Agreement"). Each of the Mortgages Trustee and Funding 2
will
appoint NRPLC as administrator to service the Mortgage Loans
and
their Related Security pursuant to an Administration Agreement
dated
26th March, 2001 (the "Administration Agreement").
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(J) The
Mortgages Trustee holds the Mortgage Loans and their Related
Security on a bare trust in undivided shares for the benefit of
Funding, Funding 2 and NRPLC pursuant to the mortgages trust
deed
dated 26th March, 2001 entered into by NRPLC, Funding, Funding 2
and
the Mortgages Trustee (the "Mortgages Trust Deed"). The
Mortgages
Trustee also entered into a guaranteed investment contract dated
on
or about May 26, 2004 in respect of its principal bank account
(the
"Mortgages Trustee Guaranteed Investment Contract") between the
Mortgages Trustee and NRPLC (in such capacity, the "Mortgages
Trustee
GIC Provider").
(K) Funding
2's obligations to the Issuer under the Global Intercompany
Loan Agreement and to Funding 2's other creditors will be secured
by
the benefit of security interests created by a deed of charge
and
assignment to be dated on or before the Closing Date, which
will
include any deed of accession to be entered into in connection
therewith or supplement thereto (the "Funding 2 Deed of Charge"),
by
and among Funding 2, the Issuer, the Mortgages Trustee, the
Security
Trustee, NRPLC in its separate capacities as Cash Manager,
Account
Bank and Funding 2 GIC Provider.
(L) In
connection with Funding 2's purchase of a beneficial interest in
a
mortgage portfolio and the issue of certain notes by the
Issuer,
Funding 2, in addition to the documents described above, will
enter
into on or before the Closing Date (1) a cash management
agreement
with the Cash Manager, the Mortgages Trustee and the Security
Trustee
(the "Cash Management Agreement"); (2) a bank account agreement
with
the Account Banks, the Mortgages Trustee, Funding 2, the
Security
Trustee and the Cash Manager (the "Bank Account Agreement"); (3)
a
guaranteed investment contract with, inter alios, NRPLC (the
"Funding
2 Guaranteed Investment Contract"); (4) a corporate services
provider
agreement (the "Funding 2 Corporate Services Agreement") with
Mourant
& Co. Capital (SPV) Limited as corporate services provider to
Funding
2; (5) a start-up loan agreement with the Start-up Loan Provider
and
the Security Trustee (the "Start-Up Loan Agreement"); and (6) an
ISDA
Master Agreement including the Schedule thereto and
confirmations
thereunder in the respect of the Funding 2 (mortgage rates)
basis
rate swap and Funding 2 (LIBOR rate) basis rate swap with Funding
2,
the Basis
Rate Swap Provider and the Note Trustee (the "Basis Rate
Swap Agreements") .
(M) In
connection with the Issue, the Issuer will also execute and
deliver, on or before the Closing Date, (1) the Global Notes
relating
to
each class of the Notes; (2) the Issuer Corporate Services
Agreement with respect to the Issuer; (3) a cash management
agreement
between the Issuer, the Issuer Cash Manager and the Note Trustee
(the
"Issuer Cash Management Agreement"); (4) a bank account
agreement
between the Issuer, the Note Trustee, the Issuer Cash Manager and
the
Issuer Account Bank (the "Issuer Bank Account Agreement"); (5)
a
post-enforcement call option agreement (the "Post-Enforcement
Call
Option Agreement") between the Issuer, the Note Trustee, the
Registrar, the Transfer Agent and GPCH Limited; (6) the Start-Up
Loan
Agreement; (7) an ISDA Master Agreement, including the Schedule
thereto and confirmations thereunder in respect of
Dollar/Sterling
currency swaps between the Issuer, the Dollar Currency Swap
Provider
and the Note Trustee (the "Dollar Currency Swap Agreements"); and
(8)
an ISDA Master Agreement, including the Schedule thereto and
confirmations thereunder in respect of Euro/Sterling currency
swaps
between the Issuer, the Euro Currency Swap Provider and the
Note
Trustee (the "Euro Currency Swap Agreements" and the together
with
the Dollar Currency Swap Agreements, the "Currency Swap
Agreements").
(N) As
required, the Issuer, Funding 2, the Mortgages Trustee and/or
NRPLC will enter into any other relevant documents to be signed
and
delivered on or before the Closing Date (such
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documents, together with the Mortgage Sale Agreement, the
Mortgages
Trust Deed, the Mortgages Trustee Corporate Services Agreement,
the
Administration Agreement, the Mortgages Trustee Guaranteed
Investment
Contract, the Global Intercompany Loan Agreement, the
Post-Enforcement Call Option Agreement, the Funding 2
Guaranteed
Investment Contract, the Cash Management Agreement, the Bank
Account
Agreement, the Collection Bank Agreement, the Start-up Loan
Agreement
with respect to the Issuer, the Funding 2 Deed of Charge, the
Basis
Rate Swap Agreements, the Issuer Deed of Charge, the Issuer
Trust
Deed, the Issuer Cash Management Agreement, the Issuer Paying
Agent
and Agent Bank Agreement, the Issuer Bank Account Agreement,
the
Issuer Corporate Services Agreement, the Currency Swap
Agreements,
the Funding 2 Corporate Services Agreement, this Agreement, the
Programme Agreement and the Subscription Agreement, each as they
have
been or may be amended, restated, varied or supplemented from time
to
time are collectively referred to herein as the "Legal
Agreements").
IT IS AGREED as follows:
1.
AGREEMENT TO ISSUE AND SUBSCRIBE
1.1
Definitions and
Interpretation
(a) Capitalized
terms used herein and not otherwise defined herein
or pursuant hereto shall have the meanings given to them in the
Prospectus (as defined below) unless the context otherwise
requires.
(b) In this
Agreement:
(i) words denoting the
singular number only shall include the
plural number also and vice versa;
(ii) words denoting one gender only shall include the other
genders;
(iii) words denoting persons only shall include firms and
corporations and vice versa;
(iv) references to any statutory provision shall be deemed also
to refer to any statutory modification or re-enactment
thereof or any statutory instrument, order or regulation
made thereunder or under any such re-enactment;
(v) references to any
agreement or other document (including
any of the Legal Agreements) shall be deemed also to refer
to such agreement or document as amended, varied,
supplemented, restated or novated from time to time;
(vi) clause, paragraph and schedule headings are for ease of
reference only;
(vii) reference to a statute shall be construed as a reference
to such statute as the same may have been, or may from
time to time be, amended or re-enacted to the extent such
amendment or re-enactment is substantially to the same
effect as such statute on the date hereof;
(viii) reference to a time of day, unless otherwise specified,
shall be construed as a reference to London time; and
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(ix) references to any person shall include references to his
successors, transferees and assigns and any person
deriving title under or through him.
1.2
Offering
Each of the Issuer, Funding 2 and the Mortgages Trustee
understands
that the Underwriters intend (i) to make a public offering of
their
respective portions of the Dollar Notes as soon after the
parties
hereto have executed and delivered this Agreement as in the
judgment
of the Lead Underwriters is advisable and (ii) initially to offer
the
Dollar Notes upon the terms set forth in the Prospectus, and in
compliance with all applicable laws and regulations.
1.3 Purchase
and Sale
Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Agreement, the
Issuer agrees to sell the Dollar Notes on the Closing Date to
the
Underwriters as hereinafter provided, and each Underwriter agrees
to
purchase, severally and not jointly, the Dollar Notes from the
Issuer
the respective principal amount of the Dollar Notes set forth
opposite such Underwriter's name in Schedule 1 hereto at a
price
equal to the aggregate of [ ] per cent. of the aggregate
principal
amount of the Series [ ] Class [ ] Notes (the "Issue Price").
1.4
Commissions
In consideration of the obligations undertaken herein by the
Underwriters, the Issuer agrees to pay to the Underwriters a
selling
commission (the "Selling Commission") of [ ] per cent. of the
aggregate principal amount of the Series [ ] Class [ ] Notes, and
a
combined management and underwriting commission (the "Management
and
Underwriting Commission") of [ ] per cent. of the aggregate
principal
amount of the Series [ ] Class [ ] Notes.
The Issuer undertakes and covenants that on the Closing Date it
will
pay to the Lead Underwriters on behalf of the Underwriters the
aggregate Selling Commission and aggregate Management and
Underwriting Commission calculated in accordance with this
Clause
1.4.
1.5 Delivery
and Payment
No later than 3:00 p.m. (London time) on the Closing Date, the
Issuer
will (a) cause the Global Note Certificate for each of the Series [
]
Class [ ] Notes to be registered in the name of Cede & Co. as
nominee
for DTC for credit on the Closing Date to the account of the
Lead
Underwriters with DTC or to such other account with DTC as the
Lead
Underwriters may direct; and (b) deliver the Global Note
Certificate
for each of the Series [ ] Class [ ] Notes duly executed on behalf
of
the Issuer and authenticated in accordance with the Paying Agent
and
Agent Bank Agreement, to Citibank N.A., as custodian for DTC.
Against delivery of the Dollar Notes (i) the Underwriters will pay
to
the Lead Underwriters the gross underwriting proceeds for the
Dollar
Notes and (ii) the Lead Underwriters will pay to the Issuer or to
a
third party, as directed by the Issuer, the gross underwriting
proceeds for the Dollar Notes. Payment for the Dollar Notes shall
be
made by the Lead Underwriters in Dollars in immediately
available
funds to the account of the Issuer, account number [ ], sort code
[
], or such other accounts as the Issuer may direct, and shall
be
evidenced by a confirmation from the Lead Underwriters that they
have
so made that payment to the Issuer.
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1.6 The Legal
Agreements
To the extent that each of the Issuer, Funding 2, the Mortgages
Trustee and NRPLC is a signatory to the Legal Agreements, each
will
on or before the Closing Date, have entered into or enter into
each
of the Legal Agreements to which it is a party, substantially in
the
form of the draft reviewed by Allen & Overy LLP and Sidley
Austin
Brown & Wood (any draft of any document so reviewed being
called an
"agreed form"), with such amendments as the Lead Underwriters,
on
behalf of the Underwriters, may agree with the Issuer and, if it is
a
signatory, Funding 2, the Mortgages Trustee and/or NRPLC.
1.7 The
Notes
The Dollar Notes will be issued on the Closing Date in
accordance
with the terms of the Issuer Trust Deed and will be in, or
substantially in, the form set out therein.
1.8
Prospectus
The Issuer confirms that it has prepared the Prospectus (as
more
fully described in Clause 5(a)) for use in connection with the
issue
of the Dollar Notes and hereby authorizes the Underwriters to
distribute copies of the Prospectus in connection with the
offering
and sale of the Dollar Notes.
1.9 Authority
to Offer
The Issuer confirms that it has authorized the Lead Underwriters
to
offer the Dollar Notes on its behalf to the Underwriters for
subscription at the Issue Price subject to signature of this
Agreement. Subject to Clause 3.2(a), the Issuer acknowledges
and
agrees that the Underwriters may offer and sell Dollar Notes to
or
through any affiliate of an Underwriter and that any such
affiliate
may offer and sell Dollar Notes purchased by it to or through
any
Underwriter.
2.
STABILIZATION
2.1
Stabilization
The Underwriters or their affiliates may, to the extent permitted
by
applicable laws and regulations, engage in over-allotment
transactions, stabilizing transactions, syndicate covering
transactions and penalty bids and otherwise effect transactions
in
the open market or otherwise in connection with the distribution
of
the Dollar Notes with a view to stabilizing or maintaining the
respective market prices of the Dollar Notes at levels other
than
those which might otherwise prevail in the open market. Such
stabilizing, if commenced, may be discontinued at any time. In
doing
so the Underwriters or their affiliates shall act as principal and
in
no circumstances shall the Issuer be obliged to issue more than
(i)
$[ ] in aggregate principal amount of the Series [ ] Class [ ]
Notes.
2.2
Stabilization Profits and Losses
As between the Issuer and the Underwriters any loss resulting
from
stabilization transactions entered into by the Underwriters or
their
affiliates pursuant to Clause 2.1 shall be borne, and any
profit
arising therefrom shall be retained, by the Underwriters.
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3.
AGREEMENTS BY THE UNDERWRITERS
3.1 Default of
Underwriters
(a) If any
Underwriter shall default on its obligation to purchase
Dollar Notes which it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange to
purchase, or for another party or other parties reasonably
satisfactory to NRPLC to purchase, such Dollar Notes on the
terms contained herein. If within thirty-six hours after such
default by any Underwriter, the non-defaulting Underwriters do
not arrange for the purchase of such Dollar Notes, then NRPLC
shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties
satisfactory to the non-defaulting Underwriters to purchase
such Dollar Notes on such terms. In the event that, within the
respective prescribed periods, the Lead Underwriters on behalf
of the non-defaulting Underwriters notify NRPLC that the
non-defaulting Underwriters have so arranged for the purchase
of such Dollar Notes, or NRPLC notifies the non-defaulting
Underwriters that it has so arranged for the purchase of such
Dollar Notes, the non-defaulting Underwriters or NRPLC shall
have the right to postpone the Closing Date for a period of
time agreed by the Lead Underwriters and NRPLC acting
reasonably, in order to effect whatever changes may thereby be
made necessary in any documents or arrangements relating to the
offering and sale of the Dollar Notes. Any substitute purchaser
of Notes
pursuant to this paragraph shall be deemed to be an
Underwriter, for purposes of this Agreement, in connection with
the offering and sale of the Dollar Notes.
(b) If, after
giving effect to any arrangements for the purchase of
Dollar Notes of a defaulting Underwriter by the non-defaulting
Underwriters, as provided in Clause 3.1(a) above, the aggregate
principal amount of the Dollar Notes which remains unpurchased
does not exceed ten per cent. of the aggregate principal amount
of the Dollar Notes, NRPLC shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
the Dollar Notes which such Underwriter agreed to purchase
hereunder and, in addition to require each non-defaulting
Underwriter to purchase its pro rata share (based on the
principal amount of the Dollar Notes which such Underwriter
agreed to purchase hereunder) of the principal amount of the
Dollar Notes of such defaulting Underwriter for which such
arrangements have not been made; but nothing herein shall
relieve a
defaulting Underwriter from liability for its
default.
(c) If, after
giving effect to any arrangements for the purchase of
the principal amount of the Dollar Notes of a defaulting
Underwriter by the non-defaulting Underwriters as provided in
Clause 3.1(a) above, the aggregate principal amount of the
Dollar Notes which remains unpurchased exceeds ten per cent. of
the aggregate principal amount of the Dollar Notes, or if NRPLC
shall not exercise the right described in Clause 3.1(b) above
to require non-defaulting Underwriters to purchase the Dollar
Notes of a defaulting Underwriter, then this Agreement shall
thereupon terminate, without liability on the part of the
non-defaulting Underwriters; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
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3.2
Selling
Each Underwriter severally (and not jointly) agrees as follows:
(a) United
States
It is understood that several Underwriters propose to offer
the Dollar Notes for sale to the public in the United States
as set forth in the Prospectus. The Underwriters will offer
and sell the Dollar Notes in the United States only through
their U.S. registered broker dealers.
(b) United
Kingdom
Each Underwriter represents and agrees that:
(1) in
relation to Dollar Notes which have a maturity
of one year or more and which are to be admitted to
the Official List, it has not offered or sold, and
will not offer or sell, any Dollar Notes to persons
in the United Kingdom prior to admission of such
Dollar Notes to listing in accordance with Part VI
of the Financial Services and Markets Act 2000, as
amended (the "FSMA") except to persons whose
ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as
principal or agent) for 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) in
relation to Dollar Notes which have a maturity
of one year or more and which are not to be
admitted to the Official List, it has not offered
or sold and, prior to the expiry of a period of six
months from the issue date of such Dollar Notes,
will not offer or sell any such notes to persons in
the United Kingdom 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 business 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 the Securities Regulations 1995;
(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 activity (within the meaning
of Section 21 of the FSMA) received by it in
connection with the issue or sale of any Dollar
Notes in circumstances in which Section 21(1) of
the FSMA does not apply to the Issuer; and
(4) it has
complied and will comply with all applicable
provisions of the FSMA with respect to anything
done by it in relation to the Dollar Notes in, from
or otherwise involving the United Kingdom.
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[(c)
Italy
Each Underwriter represents and agrees that the offering of
the Dollar Notes has not been cleared by CONSOB (the Italian
Securities Exchange Commission) pursuant to Italian
securities legislation and, accordingly, the Dollar Notes
have not been and will not be offered, sold or delivered by
it, and the copies of the Prospectus or any other document
relating to the Dollar Notes have not been and will not be
distributed in the Republic of Italy, except:
(i) to
professional investors (operatori qualificati),
as defined in Article 31, second paragraph, of
CONSOB Regulation No. 11522 of 1st July, 1998, as
amended; or
(ii)
in circumstances which are exempted from the rules
on solicitation of investments pursuant to Article
100 of Legislative Decree No. 58 of 24th February,
1998 (the "Financial Services Act") and Article 33,
first paragraph of CONSOB Regulation No. 11971 of
14th May, 1999, as amended.
In addition, each Underwriter represents and agrees that any
offer, sale or delivery of the Dollar Notes or distribution
of copies of the Prospectus or any other document relating
to the Dollar Notes made by it in the Republic of Italy
under (i) or (ii) above has been and will be:
(A) made by an
investment firm, bank or financial
intermediary permitted to conduct such activities
in the Republic of Italy in accordance with the
Financial Services Act and Legislative Decree No.
385 of 1st September, 1993 (the "Banking Act");
(B) in
compliance with Article 129 of the Banking Act
and the implementing guidelines of the Bank of
Italy, as amended from time to time, pursuant to
which the issue or the offer of securities in the
Republic of Italy may need to be preceded and
followed
by an appropriate notice to be filed with
the Bank of Italy depending, inter alia, on the
aggregate value of the securities issued or offered
in the Republic of Italy and their characteristics;
and
(C) in
accordance with any other applicable laws and
regulations.]
[Dollar Notes are not offered in Italy. Consider shortening
the selling restriction, i.e. straight prohibition]
(d) Spain
Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not offer
or sell any Dollar Notes in Spain by means of a public offer
as defined and construed by Spanish law unless such public
offer is made in compliance with the requirements of Law
24/1988 of 28th July (as amended by Law 37/1998, of 16th
November), on the Spanish Securities Market and the Royal
Decree 291/1992, of 27th March (as amended by Royal Decree
2590/1998, of 7th December and Royal Decree 705/2002, of
19th July), on issues and public offers for the sale of
securities.
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<PAGE>
10
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(e)
Ireland
Each Underwriter represents and agrees that it has not and
will not, directly or indirectly, offer or sell in Ireland
any Dollar Notes other than to persons whose ordinary
business it is to buy or sell shares or debentures whether
as principal or agent.
(f) The
Netherlands
Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not,
directly or indirectly, offer and sell any Dollar Notes in
the Netherlands.
(g) Other
For each jurisdiction outside the United States and the
United Kingdom (a "Relevant Jurisdiction"), each Underwriter
acknowledges that no representation is made by the Issuer or
any Underwriter that any action has been or will be taken in
any Relevant Jurisdiction by the Issuer or any Underwriter
that would permit a public offering of the Dollar Notes
(other than as described above), or possession or
distribution of the Prospectus or any other offering
material, in any country or Relevant Jurisdiction where
action for that purpose is required. Each Underwriter will
comply with all applicable securities laws and regulations
in any Relevant Jurisdiction in which it purchases, offers,
sells or delivers Dollar Notes or has in its possession or
distributes the Prospectus or any other offering material,
in all cases at its own expense. Each Underwriter represents
that it has not and will not directly or indirectly offer,
sell or deliver any offered notes or publish any prospectus,
form of application, offering circular, advertisement or
other offering material except under circumstances that
will, to the best of its knowledge and belief, result in
compliance with any applicable laws and regulations, and all
offers, sales and deliveries of offered notes by it will be
made on the same terms and will obtain any consent, approval
or permission required by it for the purchase, offer, sale
or delivery by it of Dollar Notes under the laws and
regulations in force in any Relevant Jurisdictions to which
it is subject or in which it makes such purchases, offers,
sales or deliveries and the Issuer shall have no
responsibility for them.
4.
LISTING
4.1
Application for Listing
The Issuer confirms that it has authorized the Lead Underwriters
to
make or cause to be made at the Issuer's expense applications on
the
Issuer's behalf for the Notes to be listed on the Official List
of
the UK Listing Authority and for the Notes to be admitted to
trading
by the London Stock Exchange plc (the "Stock Exchange").
4.2 Supply of
Information
The Issuer agrees to supply to the Lead Underwriters for delivery
to
the UK Listing Authority and the Stock Exchange copies of the
Prospectus and such other documents, information and undertakings
as
may be required for the purpose of obtaining such listing.
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<PAGE>
11
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4.3
Maintenance of Listing
The Issuer agrees to use its reasonable endeavors to maintain a
listing of the Dollar Notes on the Official List of the UK
Listing
Authority and the admission of the Notes to trading by the
Stock
Exchange for as long as any of the Dollar Notes are outstanding
and
to pay all fees and supply all further documents, information
and
undertakings and publish all advertisements or other material as
may
be necessary for such purpose. However, if such listing becomes
impossible, the Issuer will obtain, and will thereafter use its
best
endeavors to maintain, a quotation for, or listing of, the
Dollar
Notes on or by such other stock exchange, competent listing
authority
and/or quotation system as is commonly used for the quotation
or
listing of debt securities as it may, with the approval of the
Lead
Underwriters (such approval not to be unreasonably withheld or
delayed), decide.
5.
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
The Issuer represents and warrants to, and agrees with, Funding
2,
the Mortgages Trustee, the Underwriters and each of them that:
(a) The
Registration Statement
The Issuer (together with Funding 2 and the Mortgages
Trustee) has prepared and filed with the United States
Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (File No. 333-119671),
including a prospectus, and such registration statement has
become effective under the Securities Act of 1933, as
amended (the "Securities Act"). As of the Closing Date, no
stop order suspending the effectiveness of such registration
statement has been issued and no proceedings for that
purpose have been initiated or to the Issuer's knowledge
threatened by the Commission. The prospectus in the form in
which it will be used in connection with the offering of the
Dollar Notes is proposed to be supplemented by a prospectus
supplement relating to the Dollar Notes and, as so
supplemented, to be filed with the Commission pursuant to
Rule 424 under the Act. (Such registration statement, as
amended at the time it became effective (the "Effective
Date"), or if a post-effective amendment is filed with
respect thereto, as amended by such post-effective amendment
at the time of its effectiveness, is hereinafter referred to
as the "Registration Statement"; such prospectus supplement,
as first filed with the Commission, is hereinafter referred
to as the "Prospectus Supplement"; and such prospectus, in
the form in which it was first be filed with the Commission
in connection with the offering of the Dollar Notes, as
supplemented by the Prospectus Supplement, is hereinafter
referred to as the "Prospectus"). Any reference herein to
the Registration Statement, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, as of the Effective
Date of the Registration Statement or the date of such
preliminary prospectus or the Prospectus, as the case may
be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the filing of any
document under the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") after the
Effective Date of the Registration Statement or the issue
date of any preliminary prospectus or the date on which the
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<PAGE>
12
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Prospectus is filed pursuant to Rule 424(b) under the Act,
as the case may be, that deemed to be incorporated therein
by reference.
(b)
No Material Misstatements or Omissions
(I) The Registration Statement and the Prospectus (as
amended or supplemented if the Issuer shall have furnished
any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with
the requirements of the Securities Act and the Trust
Indenture Act and do not and will not, as of the Effective
Date as to the Registration Statement and as of the date of
the Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
the Prospectus (as amended or supplemented) as of the
Closing Date will not include any untrue statement of a
material fact and will not omit to state a material fact
necessary in order to make the statements made therein, in
the
light of the circumstances under which they were made,
not misleading; provided, however, that the Issuer makes no
representations, warranties or agreements as to: (i) that
part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) of the
Note Trustee under the Trust Indenture Act, and (ii)
statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with
information furnished in writing to the Issuer by or on
behalf of any Underwriter specifically for use therein,
which information is described in Clause 11.2.
(II) the documents incorporated by reference in the
Prospectus, as of the Effective Date or when filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents
contained an untrue
statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and any further
documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an 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;
(c)
Incorporation, Capacity and Authorization
The Issuer is a public limited company duly incorporated and
validly existing under the laws of England and Wales, with
full power and capacity to conduct its business as described
in the Prospectus, has full power and capacity to create and
issue the Dollar Notes, to execute this Agreement and the
other Legal Agreements to which it is a party and to
undertake and perform the obligations expressed to be
assumed by it herein and therein; and has taken all
necessary action to approve and authorize the same; and the
Issuer is lawfully qualified to do business in England and
Wales. The Issuer has not taken any corporate action nor (to
the best of its knowledge and belief) have any other steps
been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution or reorganization
or for the appointment of a
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<PAGE>
13
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receiver, administrator, administrative receiver or similar
officer of it or of any or all of its assets or revenues;
(d) Validity
of Legal Agreements
This Agreement has been duly authorized, executed and
delivered by the Issuer and constitutes, and the other Legal
Agreements to which the Issuer is a party have been duly
authorized by the Issuer and on the Closing Date will
constitute, a legal, valid and binding obligation of the
Issuer, enforceable against the Issuer in accordance with
their respective terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar
laws affecting the enforcement of creditors rights generally
and to general equitable principles;
(e) Validity
of Notes
The creation, sale and issue of the Dollar Notes have been
duly authorized by the Current Issuer and, when executed and
authenticated in accordance with the Issuer Trust Deed and
the Issuer Paying Agent and Agent Bank Agreement, the Dollar
Notes will constitute valid and legally binding obligations
of the Issuer and, upon effectiveness of the Registration
Statement, the Issuer Trust Deed will have been duly
qualified under the Trust Indenture Act;
(f)
Consents
All consents, approvals, authorizations and other orders of
all United States and United Kingdom regulatory authorities
required for the creation, issue and offering of the Dollar
Notes or in connection with the execution and performance of
the
transactions contemplated by the Legal Agreements or the
compliance by the Issuer with the terms of the Dollar Notes
and the Legal Agreements as the case may be, except for (i)
such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable United
States state securities, Blue Sky or similar laws in
connection with the purchase and distribution of the Notes
by the Underwriters and (ii) those which will on the Closing
Date be, in full force and effect;
(g)
Compliance
The authorization of the Notes and the granting of security
interests in relation thereto under the Issuer Deed of
Charge, the offering and issue of the Dollar Notes on the
terms and conditions of this Agreement, the Issuer Trust
Deed and the Prospectus, the execution and delivery of the
Legal Agreements to which it is a party and the
implementation of the transactions contemplated by such
Legal Agreements and compliance with the terms of the Legal
Agreements to which it is a party do not, and will not, (i)
conflict with, or result in a breach of, any of the terms or
provisions of, or constitute a default under, the Memorandum
and Articles of Association of the Issuer or any agreement
or instrument to which the Issuer is a party or by which its
properties is bound; (ii) infringe any applicable law, rule,
regulation, judgment, order or decree of any government,
governmental body or court, having jurisdiction over the
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;
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<PAGE>
14
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(h)
Accountants
[PricewaterhouseCoopers LLP] are independent public
accountants with respect to the Issuer within the meaning of
the Securities Act;
(i)
Taxation
Save as described in the legal opinions referred to in
Clause 9.1(d) of this Agreement, no stamp or other similar
duty is assessable or payable in the United Kingdom, and no
withholding or deduction for any taxes, duties, assessments
or governmental charges of whatever nature is imposed or
made for or on account of any income, registration, transfer
or turnover taxes, customs or other duties or taxes of any
kind in connection with the authorization, execution or
delivery of the Legal
Agreements or with the authorization,
issue, sale or delivery of the Dollar Notes and (except as
disclosed in the Prospectus) the performance of the
Issuer's, Funding 2's and/or, as the case may be, the
Mortgages Trustee's obligations under the Legal Agreements
and the Notes. This warranty does not apply to any United
Kingdom corporation tax which may be levied, collected,
withheld or assessed in connection with the authorization,
execution or delivery of the Legal Agreements or with the
authorization, issue, sale or delivery of the Notes;
(j) Breach of
other agreements
The 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
Dollar Notes already been issued, would (whether or not with
the giving of notice and/or the passage of time and/or the
fulfillment of any other requirement) constitute an Event of
Default as set out in the Conditions of the Notes;
(l) No
Subsidiaries
The Issuer has no subsidiaries or subsidiary undertakings
within the meanings of Sections 258 and 736 of the Companies
Act 1985;
(m) Granite
Finance Holdings Limited
The Previous Issuers, the Issuer, Funding, Funding 2, the
Mortgages Trustee and GPCH Limited are the only subsidiaries
or subsidiary undertakings of Granite Finance Holdings
Limited within the meanings of Sections 258 and 736 of the
Companies Act 1985;
(n) No
Activities
The Issuer has not engaged in any activities since its
incorporation other than (i) those incidental to any
registration or re-registration as a public limited company
under the Companies Acts 1985 and 1989 and various changes
to its directors, secretary, registered office, Memorandum
and Articles of Association; (ii) the authorization and
execution of the Legal Agreements to which it is a party;
(iii) the activities referred to
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<PAGE>
15
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or contemplated in the Legal Agreements to which it is a
party and (iv) the authorization and issue by it of the
Notes. The Issuer has not (other than as set out in the
Offering Circular relating to the Reg S Notes) prepared any
accounts and has neither paid any dividends nor made any
distributions since the date of its incorporation;
(o) Listing
Rules
Prior to the delivery of the Prospectus to the Registrar of
Companies in England and Wales, the Prospectus has been
approved by or on behalf of the United Kingdom Listing
Authority as listing particulars as required by the listing
rules made pursuant to Part VI of the FSMA and the
Prospectus complies with the listing rules made under
Section 74 of the FSMA;
(p)
Litigation
There are no pending actions, suits or proceedings against
or affecting the 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 Issuer or could adversely affect the ability
of the Issuer to perform its obligations under the Legal
Agreements or the Dollar Notes or which are otherwise
material in the context of the issue or offering of the
Dollar Notes and, to the best of the Issuer's knowledge, no
such actions, suits or proceedings are threatened or
contemplated;
(q) No Prior
Security
Save as set out in any of the Legal Agreements, there exists
no mortgage, lien, pledge or other charge on or over the
assets of the Issuer and, other than the Legal Agreements,
the Issuer has not entered into any indenture or trust deed;
(r) Security
for the Notes
The Notes and the obligations of the Issuer under the Issuer
Trust Deed will be secured in the manner provided in the
Issuer Deed of Charge and with the benefit of the charges,
covenants and other security interests provided for therein
including, without limitation, (i) an assignment by way of
first fixed security of the Issuer's rights and claims in
respect of all security and other rights held on trust by
the Funding 2 Security Trustee pursuant to the Funding 2
Deed of Charge, (ii) an assignment by way of first fixed
security of the Issuer's right, title, interest and benefit
in the Global Intercompany Loan Agreement, the Currency Swap
Agreements, the Funding 2 Deed of Charge, the Issuer Trust
Deed, the Notes, the Issuer Paying Agent and Agent Bank
Agreement, the Issuer Cash Management Agreement, the Issuer
Corporate Services Agreement, the Issuer Bank Account
Agreement, the Post-Enforcement Call Option Agreement, this
Agreement, the Programme Agreement, the Subscription
Agreement and any other agreements to which the Issuer is a
party; (iii) an assignment by way of first fixed charge over
the Issuer Bank Accounts; (iv) a first fixed charge (which
may take effect as a floating charge) over the Issuer's
right, title, interest and benefit to any Authorized
Investments made with moneys standing to the credit of any
of the Issuer Bank Accounts; and (v) a first ranking
floating charge over the whole of the assets and undertaking
of the Issuer which are not otherwise effectively subject to
any fixed charge or assignment by way of security;
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<PAGE>
16
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(s) Investment
Company Act
The Issuer is not an "investment company" as defined in the
U.S. Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the offer and sale of the
Dollar Notes in the United States will not subject the
Issuer to registration under, or result in a violation of,
the Investment Company Act;
(t) United
States Income Tax
The Issuer will not engage in any activities in the United
States (directly or through agents), derive any income from
United States sources as determined under the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), or hold any
property if doing so would cause it to be engaged or deemed
to be engaged in
a trade or business within the United
States as determined under the Code; and
(u) Legal
Agreements
The representations and warranties given by the Issuer in
the Legal Agreements are true and accurate, and the
description of the Legal Agreements as set out in the
Prospectus is true and correct in all material respects.
Unless otherwise indicated, the representations and warranties
set
out in this Clause 5 shall be made on the date of the Prospectus
and,
if different, the date of this Agreement.
6.
REPRESENTATIONS AND WARRANTIES OF FUNDING 2 AND THE MORTGAGES
TRUSTEE
Each of Funding 2 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
Each of Funding 2 and the Mortgages Trustee (together with
the Issuer) has prepared and filed with the Commission the
Registration Statement, including the Prospectus, and such
registration statement has become effective under the
Securities Act. As of the Closing Date, no stop order
suspending the effectiveness of such registration statement
has been issued and no proceedings for that purpose have
been initiated or to Funding 2 or the Mortgages Trustee
knowledge threatened by the Commission. The prospectus in
the form in which it will be used in connection with the
offering of the Dollar Notes is proposed to be supplemented
by a prospectus supplement relating to the Dollar Notes and,
as so supplemented, to be filed with the Commission pursuant
to Rule 424 under the Act.
(b) No
Material Misstatements or Omissions
(I) The Registration Statement and the Prospectus (as
amended or supplemented if the Issuer, the Mortgages Trustee
and Funding 2 shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may
be, in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and do not and
will not, as of the Effective Date as to the Registration
Statement and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state a material
fact
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<PAGE>
17
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required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus (as
amended or supplemented) as of the Closing Date will not
include any untrue statement of a material fact and will not
omit to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, that Funding 2 and the Mortgages Trustee makes no
representations, warranties or agreements as to: (i) that
part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) of the
Note Trustee under the Trust Indenture Act, and (ii)
statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with
information furnished in writing to Funding 2 and the
Mortgages Trustee by or on behalf of any Underwriter
specifically for use therein, which information is described
in Clause
11.2.
(II) the documents incorporated by reference in the
Prospectus, as of the Effective Date or when filed with the
Commission, as the case may be, conformed in all material
respects
to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and any further
documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an 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;
(c)
Incorporation, Capacity and Authorization
(I) Funding 2 is a private limited company duly incorporated
and validly existing under the laws of England and Wales,
with full power and capacity to conduct its business as
described in the Prospectus, has full power and capacity to
exec
