EXHIBIT 10.8
▇▇▇▇▇▇▇▇ CHANCE
CONFORMED COPY
DATED 8 APRIL 2003
STRUCTURED FINANCE MANAGEMENT LIMITED
as the Parent
and
BARCLAYCARD FUNDING PLC
as the MTN Issuer
and
BARCLAYS BANK PLC
as the Originator
and
STRUCTURED FINANCE MANAGEMENT LIMITED
as Corporate Officers Provider
and
THE BANK OF NEW YORK, LONDON BRANCH
as Note Trustee
---------------------------------------------------------------------------
MTN ISSUER CORPORATE OFFICERS AGREEMENT
---------------------------------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..........................................1
2. Nomination Of Directors And Company Secretary...........................1
3. Provision Of Services And Additional Services...........................3
4. Confidentiality.........................................................3
5. Indemnity...............................................................4
6. Engagement Of Third Parties.............................................5
7. Remuneration, Costs And Expenses........................................5
8. Termination.............................................................5
9. Non-Petition............................................................6
10. Non-Assignment..........................................................6
11. Invalidity..............................................................6
12. Non-Exclusive Appointment...............................................6
13. Exclusion Of Third Party Rights.........................................7
14. Notices.................................................................7
15. Counterpart Execution...................................................8
16. Governing Law...........................................................8
THIS AGREEMENT is made on March 2003
BETWEEN
(1) STRUCTURED FINANCE MANAGEMENT LIMITED (registered number 3853947) whose
registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(the "PARENT");
(2) BARCLAYCARD FUNDING PLC (registered number 2530163) whose registered
office is at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "MTN ISSUER");
(3) BARCLAYS BANK PLC (registered number 1026167) whose registered office is
at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "ORIGINATOR");
(4) STRUCTURED FINANCE MANAGEMENT LIMITED, (registered number 3853947) whose
registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(the "CORPORATE OFFICERS PROVIDER");
(5) THE BANK OF NEW YORK, LONDON BRANCH of One Canada Square, London E14 5AL
(the "NOTE TRUSTEE").
WHEREAS
The Corporate Officers Provider has agreed with the other parties hereto to
provide the services set out in Clauses 2 to 4 below, on the terms and
conditions of this Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement each reference to a party shall be deemed to include
its successors and permitted assigns. For this purpose "successor" means
in relation to a party an assignee or successor in title of such party or
any person who, under the laws of its jurisdiction of incorporation or
domicile has assumed the rights and/or obligations of such party or to
whom under such laws the same have been transferred.
1.2 References herein to the "Articles of Association" are to the Memorandum
and Articles of Association of the relevant company as amended from time
to time.
1.3 References herein to the "Companies Act" are to the Companies ▇▇▇ ▇▇▇▇
and any other legislation supplemental to it.
2. NOMINATION OF DIRECTORS AND COMPANY SECRETARY
2.1 For so long as this Agreement remains in force:
2.1.1 the Originator will be entitled to, and shall, nominate three
people willing to serve in the capacity of director of the MTN
Issuer and the Originator shall have nominated Barcosec Limited,
Barometers Limited and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as its first
nominees in such capacities (together with ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇' nominated alternate);
1
2.1.2 the Corporate Officers Provider will be entitled to, and shall,
nominate two persons willing to serve in the capacity of director
of the MTN Issuer (and shall have nominated SFM Directors Limited
(registered number 3920254) and SFM Directors (No. 2) Limited,
(registered number 4017430) as its first nominees in such
capacity). Nothing herein shall prevent the Corporate Officers
Provider from nominating itself as a corporate director of the MTN
Issuer; and
2.1.3 the Originator will be entitled to, and shall, nominate one person
willing to serve in the capacity of company secretary of the MTN
Issuer and has nominated Barcosec Limited as its first nominee in
such capacity.
2.2 In relation to any person nominated or deemed to be nominated under (a)
above, whichever of the Originator or the Corporate Officers Provider
nominated that person, is referred to below as that person's "appointor".
2.3 Each appointor hereby confirms to the other that, if a person nominated
or deemed to be nominated by it should resign or retire or for any other
reason cease to act as a director or company secretary of the MTN Issuer,
it will promptly:
2.3.1 procure that such director or company secretary (as the case may
be) shall acknowledge in writing that he has no claim of any
nature whatsoever against the MTN Issuer;
2.3.2 nominate another person willing to act in the relevant capacity;
and
2.3.3 procure the consent of that other person to act in that capacity.
2.4 Each appointor shall procure that each of the persons respectively
nominated or deemed to be nominated by it from time to time as provided
above accepts the relevant appointment and acts in the relevant capacity
without fee or remuneration from the MTN Issuer, save that nothing in
this Agreement shall prejudice any right to remuneration on the part of
the Corporate Officers Provider under Clause 7 hereof.
2.5 The Parent undertakes and agrees that it shall, to the extent permitted
thereunder, exercise its rights as a shareholder of the MTN Issuer and
all rights and powers vested in it under the Articles of Association of
the MTN Issuer so as to procure that the board of directors of the MTN
Issuer comprises at all times three nominees of the Originator (provided
that the Originator shall have nominated such persons to such office) and
two nominees of the Corporate Officers Provider as provided under
paragraph 2.1 above.
2.6 2.6.1 The obligations of the MTN Issuer and the Corporate Officers
Provider under this Agreement are solely the corporate obligations
of the MTN Issuer and the Corporate Officers Provider.
2.6.2 No recourse shall be had in respect of any obligation or claim
arising out of or based upon this Agreement against any employee,
officer or director of the Corporate Officers Provider or the MTN
Issuer, save where the claim, demand, liability, cost or expense
in connection therewith arises from the negligence, wilful default
or breach of duty of such employee, officer or director of the
Corporate Officers Provider or the MTN Issuer.
2
2.7 The Corporate Officers Provider hereby acknowledges that it is solely
responsible for and undertakes that it shall, and shall procure that each
director nominated by it hereunder, will pay to the appropriate
authorities all income tax, National Insurance contributions and any
other taxes, liabilities, assessments or claims howsoever arising from or
made in connection with the performance by the Corporate Officers
Provider of its obligations under this Agreement and the performance by
any director or company secretary nominated by the Corporate Officers
Provider of his/her obligations as contemplated in this Agreement and/or
in respect of the termination of this Agreement.
2.8 The Corporate Officers Provider and the Originator shall procure that at
all times a majority (by number) of the directors nominated by them under
(a) above, for the MTN Issuer will be resident in the UK (and not in any
other jurisdiction) for the purposes of UK income tax.
3. PROVISION OF SERVICES AND ADDITIONAL SERVICES
The services (the "SERVICES") provided by the Corporate Officers Provider
to the MTN Issuer shall comprise:
3.1.1 a full review of the documentation for the issuance of any medium
term notes or note certificates by the MTN Issuer and attendance
by its nominated directors at all meetings in relation to the
closing of any such transaction; and
3.1.2 preparation for and the attendance at two company meetings of the
MTN Issuer by its nominated directors (a directors' meeting and an
Annual General Meeting) on up to two days in any calendar year;
and
3.1.3 preparation for and attendance at meetings of the MTN Issuer by
its nominated directors and such other services, both
supplementary to, and other than, those set out above, which the
MTN Issuer or the Note Trustee may, from time to time, request the
Corporate Officers Provider to carry out ("ADDITIONAL SERVICES").
4. CONFIDENTIALITY
The Corporate Officers Provider shall not, and hereby undertakes to
procure that:
4.1.1 each person nominated or deemed to be nominated by the Corporate
Officers Provider as a director or company secretary of the MTN
Issuer (an "OFFICER"); and,
4.1.2 any agent appointed by it pursuant to this Agreement
shall not (regardless of whether or not such person shall still be in
office), at any time disclose to any person, firm or company whatsoever,
and shall treat as confidential, any information relating to the
business, finances or other matters of the Originator or the MTN Issuer
which such person may have obtained as a result of (in the case of the
Corporate Officers Provider) its role under this Agreement or as (aa) an
Officer or as employer of, or principal to, any Officer or (in the case
of any Officer) such Officer's position as an Officer, or (bb) an agent
of the Corporate Officers Provider, or otherwise have become possessed
of, and the Corporate Officers Provider shall use its best
3
endeavours to prevent any such disclosure provided however that the
provisions of this Clause 4 shall not apply:
(a) to the disclosure of any information already known to the
recipient, otherwise than in breach of this Clause 4;
(b) to the disclosure of any information which is or becomes
public knowledge otherwise than in breach of this Clause 4;
(c) to any extent that disclosure is required pursuant to any
law or order of any court or pursuant to any direction,
request or requirement (whether or not having the force of
law) of any central bank or any governmental or other
regulatory or taxation authority (including, without
limitation, any official bank examiners or regulators or
the London Stock Exchange);
(d) to the disclosure of any information to professional
advisers to, or agents of the Corporate Officers Provider
or the Originator, who receive the same under a duty of
confidentiality; and
(e) to the disclosure of any information with the consent of
all the parties hereto or to the Note Trustee,
and the Corporate Officers Provider hereby agrees to indemnify and hold
harmless the Originator and the MTN Issuer for all losses, damages,
expenses, costs, claims and charges arising from or caused by any
disclosure of information by any of the Corporate Officers Provider, any
Officer nominated or deemed to be nominated by it or any agent appointed
by it which disclosure is made contrary to the provisions of this Clause
4.
5. INDEMNITY
The MTN Issuer shall, on written demand of the Corporate Officers
Provider, indemnify and hold harmless the Corporate Officers Provider and
any Officer provided by the Corporate Officers Provider and any of the
directors, officers, employees and agents of the Corporate Officers
Provider at the time of such demand, against any liabilities, actions,
proceedings, claims or demands whatsoever which it or any of them may
incur or be subject to in direct consequence of this Agreement or as a
direct result of the performance of the functions and obligations
provided for under this Agreement except as a result of:
5.1.1 a breach by the Corporate Officers Provider of this Agreement or
5.1.2 the negligence, wilful default, dishonesty or fraud of the
Corporate Officers Provider, any Officer which is provided by the
Corporate Officers Provider or any of the directors, officers,
employees or agents of the Corporate Officers Provider, as the
case may be.
This indemnity shall expressly inure to the benefit of any director,
officer, employee or agent existing or future of the Corporate Officers
Provider. The termination of this Agreement shall not affect the rights
and obligations of the parties arising under this Clause 5 prior to such
termination.
4
6. ENGAGEMENT OF THIRD PARTIES
The Corporate Officers Provider may appoint agents to perform any of the
duties to be performed by the Corporate Officers Provider; provided,
however, that the Corporate Officers Provider shall remain liable for the
performance of any duties by any agent as if such duty had been performed
directly by the Corporate Officers Provider.
The Corporate Officers Provider shall not be liable for any loss to the
MTN Issuer arising from the negligence, fraud or wilful misconduct of any
delegate appointed pursuant to this Clause 6 in the event that the MTN
Issuer has given its written consent to such appointment, except to the
extent such loss is caused by the negligence, wilful default, dishonesty
or fraud of the Corporate Officers Provider.
7. REMUNERATION, COSTS AND EXPENSES
The Corporate Officers Provider shall be entitled to payment by the MTN
Issuer of an amount to be agreed between the MTN Issuer and the Corporate
Officers Provider (together with Value Added Tax, if any, thereon). Such
amount shall consist of (i) remuneration for the services provided under
this Agreement (including Additional Services, if appropriate) to the MTN
Issuer and (ii) reimbursement or prepayment of the operational costs and
expenses of the MTN Issuer, both payable, subject to the terms and
conditions of a fee letter of even date hereof.
Each of the MTN Issuer and the Note Trustee agrees that the Corporate
Officers Provider is not required to advance, expend or use its own funds
or otherwise incur any liability on its own account in the provision of
the Services or the Additional Services.
Subject to the timely receipt of funds from the MTN Issuer, the Corporate
Officers Provider undertakes, if requested, to pay in a timely manner, on
behalf of the MTN Issuer, all operational costs (together with any Value
Added Tax thereon) incurred by the MTN Issuer in relation to this
Agreement.
Such operational costs shall include legal and auditor's fees, telex,
stationery, facsimile and telephone costs and other fees or expenses
payable to administer the MTN Issuer and to maintain the MTN Issuer in
existence and duly registered.
Any reference to any fee, cost, loss, disbursement, commission, damages,
expense, charge or liability incurred by any party and in respect of
which such party is to be reimbursed (or indemnified) by any other person
under the terms of this Agreement shall, save where the context otherwise
requires, include a reference to such part of such cost or expense as
represents any Value Added Tax save to the extent that such party is
entitled to obtain credit or repayment in respect of such Value Added Tax
from HM Customs and Excise or any other tax authority.
8. TERMINATION
This Agreement shall terminate on one of the parties giving notice in
writing to the other parties hereto terminating the appointment as
provided below:
8.1.1 on the winding up or dissolution of the MTN Issuer, on the
completion of all requisite corporate formalities related thereto;
or
5
8.1.2 on a material breach by either:
(a) the Corporate Officers Provider of its duties hereunder
including its material failure to carry out the Services or
the Additional Services on one months' notice by any of the
parties to this Agreement; or
(b) the MTN Issuer of its obligations hereunder if such
material breach has not been remedied within one month
after notice of such breach being given to the MTN Issuer
by the Corporate Officers Provider.
Upon the termination of the Corporate Officers Provider's appointment,
the Corporate Officers Provider shall deliver to the MTN Issuer, or as it
shall direct, all books of account, records, registers, correspondence
and all documents relating to the affairs of or belonging to it and in
possession of or under the control of the Corporate Officers Provider.
The Parent hereby covenants with the Note Trustee that it shall not sell,
charge, exchange, transfer or otherwise deal in the shares which it holds
in the MTN Issuer without the prior written consent of the Note Trustee.
9. NON-PETITION
The Corporate Officers Provider agrees that it shall not be entitled, at
any time, to institute or join any person in instituting against the MTN
Issuer any bankruptcy, winding-up, re-organisation, arrangement,
administration, insolvency, liquidation or other similar or analogous
proceedings under applicable law in connection with the fees and / or any
other amounts payable to the Corporate Officers Provider pursuant to this
Agreement.
10. NON-ASSIGNMENT
The rights and obligations of the parties hereto are personal, and, shall
not be capable of assignment, except with the consent of the Note
Trustee.
11. INVALIDITY
The invalidity or enforceability of any part of this Agreement shall not
prejudice or affect the validity or enforceability of the remainder.
12. NON-EXCLUSIVE APPOINTMENT
The Corporate Officers Provider shall be entitled to provide services of
a like nature to those to be provided by the Corporate Officers Provider
under this Agreement to any other person. The Corporate Officers Provider
shall not be deemed to be affected with notice of or to be under any duty
to disclose to the MTN Issuer any fact or matter which may come to the
notice of the Corporate Officers Provider or any Officer in the course of
the Corporate Officers Provider rendering similar services to other
persons or in the course of business in any other capacity or in any
manner whatsoever otherwise than in the course of carrying out its duties
hereunder.
6
13. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contract (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement but this does not affect any right or remedy of any third party
which is available apart from that Act.
14. NOTICES
Any notice or communication to be given pursuant to this Agreement by any
of the parties hereto shall be given if delivered by hand, sent by
prepaid first class post or fax transmission and shall be deemed to be
given (in the case of delivery by hand) when delivered to the address of
the intended recipient or (in the case of delivery by mail) when it would
be received in the ordinary course of the post or, (in the case of fax
transmission) when a successful transmission report is generated, and
shall be sent to the intended recipient's address or fax number (as
appropriate) set out under its name below, or at such other fax number or
address as may be designated by such party in a written notice to the
other parties.
To the Parent: Structured Finance Management Limited
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: The Directors
To the MTN Issuer: Barclaycard Funding PLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: The Directors
To the Originator: Barclaycard
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax No: (01604) 256822
Attention: The Secretary
cc.: Barclays Bank PLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Senior Director, Capital Planning
To the Corporate
Officers Provider: Structured Finance Management Limited
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: The Directors
7
To the Note Trustee The Bank of New York, ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax No: (▇▇▇) ▇▇▇▇ ▇▇▇▇/6399
Attention: Corporate Trust Administration
15. COUNTERPART EXECUTION
This Agreement may be executed in any number of counterparts and by each
party on a separate counterpart each of which when so executed shall
constitute an original but all such counterparts shall constitute one and
the same instrument.
16. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the date
first above written.
SIGNED by )
)
As duly authorised signatory for and )
on behalf of SFM Directors Limited )
as Director of )
BARCLAYCARD FUNDING PLC )
(as MTN Issuer)
SIGNED by )
)
for and on behalf of ) ▇▇▇▇ ▇▇▇▇▇▇
BARCLAYS BANK PLC )
(as Originator) )
SIGNED by )
)
for and on behalf of )
STRUCTURED FINANCE ) ▇▇▇▇ ▇'▇▇▇▇▇▇
MANAGEMENT LIMITED )
(as Corporate Officers Provider )
and Parent) )
8
SIGNED by )
)
for and on behalf of ) ▇▇▇▇▇▇ ▇▇▇▇▇
THE BANK OF NEW YORK )
LONDON BRANCH )
(as Note Trustee) )
9