EXHIBIT 1.1
EXHIBIT
ARRAN FUNDING LIMITED
$7,500,000,000
ARRAN FUNDING MEDIUM TERM NOTE PROGRAMME
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DEALER AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Interpretation..........................................................2
2. Issuing Notes...........................................................8
3. Conditions Precedent....................................................9
4. Undertakings And Indemnity By The Dealers..............................15
5. Undertakings By The Issuer, The Loan Note Issuer And The Receivables
Trustee................................................................16
6. Undertakings By The Issuer.............................................17
7. Representations And Warranties By The Issuer, The Transferors, The Loan
Note Issuer And The Receivables Trustee................................21
8. Obligations ...........................................................34
9. Non-Petition And Limited Recourse......................................35
10. Covenant Of The Issuer, The Transferors, The Loan Note Issuer And The
Receivables Trustee....................................................36
11. Indemnity By The Issuer, The Transferors, Loan Note Issuer And The
Receivables Trustee....................................................36
12. Selling Restrictions...................................................39
13. Authority To Distribute Documents......................................40
14. Status Of The Arranger.................................................40
15. Fees And Expenses......................................................40
16. Notices................................................................42
17. Changes In Dealers.....................................................43
18. Increase In Authorised Amount..........................................44
19. Assignment..................................................,..........44
20. Currency Indemnity.....................................................45
21. Law And Jurisdiction...................................................46
22. Counterparts.................................................,.........47
23. Rights OF Third Parties................................................47
SCHEDULE 1 SELLING RESTRICTIONS..............................................48
SCHEDULE 2 INITIAL CONDITIONS PRECEDENT......................................50
SCHEDULE 3 PRO FORMA SUBSCRIPTION AGREEMENT..................................52
SCHEDULE 4 NOTICE AND CONTACT DETAILS........................................65
SCHEDULE 5 FORM OF DEALER ACCESSION LETTER...................................67
SCHEDULE 6 FORM OF NOTICE OF INCREASE OF AUTHORISED AMOUNT...................69
THIS AGREEMENT is made on 10 November, 2005 as amended and restated on [o] 2006
BETWEEN
(1) ARRAN FUNDING LIMITED, a private limited liability company incorporated
in Jersey, Channel Islands with company number 88474, having its
registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(the "ISSUER");
(2) THE ROYAL BANK OF SCOTLAND PLC, a public limited liability company
incorporated in Scotland with company number 90312, having its
registered office at ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇
("RBS");
(3) NATIONAL WESTMINSTER BANK PLC, a public limited liability company
incorporated in England and Wales with company number 929027, having its
registered office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("NATWEST", a
"TRANSFEROR" and together with RBS, the "TRANSFERORS");
(4) RBS CARDS SECURITISATION FUNDING LIMITED, a private limited liability
company incorporated in Jersey, Channel Islands with company number
76199, having its registered office at Royal Bank House, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("LOAN NOTE ISSUER");
(5) SOUTH GYLE RECEIVABLES TRUSTEE LIMITED a private limited company
incorporated in Jersey, Channel Islands with company number 76197,
having its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "RECEIVABLES TRUSTEE");
(6) GREENWICH CAPITAL MARKETS, INC., a company incorporated in Delaware with
company number ▇▇-▇▇▇▇▇▇▇ acting through its office at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("GCM"), as
US distributor for RBS ("US DISTRIBUTOR" and "CO-LEAD DEALER"); and
(7) THE ROYAL BANK OF SCOTLAND PLC, acting through its Global
Banking & Markets business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (as the
arranger, the "ARRANGER" and "CO-LEAD DEALER" and together with GCM,
the "CO-LEAD DEALERS").
WHEREAS
(A) The Issuer has established the Arran Funding medium term note programme
(the "PROGRAMME") for the issuance of notes from time to time (the
"NOTES"), in connection with which the Issuer has entered into the
Agency Agreement and the Issuer has executed and delivered the
Trust Deed (and in connection with each Series issued will execute and
deliver a supplement to the Trust Deed, as applicable) referred to
below.
(B) Notes may be issued on the basis that they may be admitted to listing,
trading and/or quotation by one or more listing authorities, stock
exchanges and/or quotation systems.
(C) In connection with the Programme, the Issuer has prepared a prospectus
dated [o] 2006 (the "DUAL USE PROSPECTUS" as defined below).
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(D) In circumstances requiring the publication of a prospectus under Article
3 of the Prospectus Directive, ("ARTICLE 3 ISSUANCE") the Dual Use
Prospectus constitutes a Base Prospectus (defined below) for the
purposes of Article 5.4 of the Prospectus Directive. The Issuer will
then in accordance with this Agreement, apply for the relevant Series of
Notes to be issued under the Programme to be admitted to listing on the
Official List of the Financial Services Authority (in its capacity as
competent authority for the purposes of Part VI of the FSMA, the "UK
LISTING AUTHORITY"). The Issuer will also apply for the relevant Series
of Notes to be admitted to trading on the Gilt Edged and Fixed Interest
Market of the London Stock Exchange plc (the "LONDON STOCK EXCHANGE").
(E) For the purpose of the sale and marketing of Notes in circumstances
which would require registration under the Securities Act ("SEC
REGISTERED NOTE ISSUANCE"), the Issuer, the Loan Note Issuer and the
Receivables Trustee have filed with the US Securities and Exchange
Commission (the "SEC") a post-effective amendment number [o] to the
Registration Statement on Form S-3 (File No. 333 - 128502) in respect
of the Notes, which includes the Dual Use Prospectus.
(F) It is intended that Notes issued under the Programme may, in accordance
with all applicable legislation and regulation, be marketed and sold
either (A) in the case of an Article 3 Issuance, (1) pursuant to the
Base Prospectus (as defined below) describing the Programme and
associated Final Terms (as defined below) describing the terms of the
particular Series or (2) pursuant to the Final Terms (as defined below)
containing all information relevant to the particular Series or (B) in
relation to a SEC Registered Note Issuance, pursuant to the US
Prospectus (as defined below) describing the Programme and associated US
Prospectus Supplement (as defined below) describing the terms of the
particular Series.
(G) For the avoidance of doubt, subject to all applicable legislation and
regulation, the Base Prospectus and US Prospectus may, if required, be
in identical form, and the Final Terms and US Prospectus Supplement
may, if required, also be in identical form.
(H) The parties wish to record the arrangements agreed between them in
relation to the issue by the Issuer and the subscription by Dealers from
time to time of Notes issued under the Programme.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
All terms and expressions which have defined meanings in the Base
Prospectus shall have the same meanings in this Agreement except where
the context requires otherwise or unless otherwise stated. In addition,
in this Agreement the following expressions have the following meanings:
this "AGREEMENT" includes any amendment or supplement hereto (including
any confirmation or agreement given or executed pursuant to Clause
17.1.2 (New Dealer) or Clause 17.1.3 (Dealer for a day) whereby an
institution becomes a Dealer hereunder but
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excluding any Relevant Agreement) and the expressions "herein" and
"hereto" shall be construed accordingly;
"AUTHORISED AMOUNT" means, at any time, the amount of $7,500,000,000 (or
its equivalent in other currencies) subject to any increase as may have
been authorised pursuant to Clause 18 (Increase in Authorised Amount);
"BLOOMBERG SUBMISSION" means information disseminated on Bloomberg to
prospective investors relating to (i) information of the type identified
in Rule 134 of the Securities Act, (ii) information included in any
Preliminary Final Terms, (iii) the status of allocation and subscription
information of the Notes, expected pricing parameters, the coupon, yield
and weighted average lives of the Notes and (iv) information
constituting final terms of the Notes within the meaning of Rule
433(d)(5)(ii) under the Securities Act.
"BASE PROSPECTUS" means the prospectus, in the form of the Dual Use
Prospectus dated [o] 2006 which constitutes a base prospectus for the
purposes of Article 5.4 of the Prospectus Directive, as updated from
time to time;
"DEALERS" means the Co-Lead Dealers and any institution(s) appointed as
a Dealer in accordance with Clause 17.1.2 (New Dealer) or Clause 17.1.3
(Dealer for a day), and save as specified herein, and excludes any
institutions(s) whose appointment as a Dealer has been terminated in
accordance with Clause 17.1.1 (Termination) or which has resigned in
accordance with Clause 17.2 (Resignation) PROVIDED THAT where any such
institution has been appointed as Dealer in relation to a particular
Series the expression "Dealer" or "Dealers" shall mean or include such
institution only in relation to such Series.;
"DUAL USE PROSPECTUS" means the document dated [o] 2006 prepared in
connection with the Programme and filed with the SEC as part of the
Registration Statement as amended, and which constitutes a base
prospectus for the purposes of Article 5.4 of the Prospectus Directive,
as revised, supplemented and/or amended from time to time by the Issuer
in accordance with Clause 6.3 (Updating of the Base Prospectus)
including any documents which are from time to time incorporated in the
Base Prospectus by reference except that:
(a) in relation to each Series, only the applicable Final Terms
or, as applicable, US Prospectus Supplement shall be deemed to
be included in the Dual Use Prospectus; and
(b) for the purposes of Clause 7 (Representations and Warranties
by the Issuer, the Transferors, the Loan Note Issuer and the
Receivables Trustee) in respect of the date upon which a
Relevant Agreement is made and the related Issue Date, the
Dual Use Prospectus means the Dual Use Prospectus as at the
date of such Relevant Agreement, but not including any
subsequent revision, supplement or amendment to it or
incorporation of information in it;
"EFFECTIVE DATE" shall mean (i) each date that the Registration
Statement or the most recent post-effective amendment or amendments
thereto, if any, became or become
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effective under the Securities Act; or (ii) each date which, pursuant
to Rule 430B under the Securities Act, is deemed to be a new effective
date of the Registration Statement;
"EVENT OF DEFAULT" means one of those circumstances described in
Condition 10 (Events of Default);
"EXCHANGE ACT" means the US Securities Exchange Act of 1934;
"EXECUTION TIME" means the date and time that this Agreement or any
Relevant Agreement is executed and delivered by the parties hereto or
thereto;
"FINAL DISCHARGE DATE" means, the date on which the Trustee notifies the
Issuer that it is satisfied that all amounts secured pursuant to the
Trust Deed and/or all other moneys and other liabilities due or owning
by the Issuer have been paid or discharged in full;
"FINAL TERMS" means the completed final terms document substantially in
the form set out in the Base Prospectus at the time of the agreement to
issue each Series and which will constitute final terms for the purposes
of Article 5.4 of the Prospectus Directive;
"FSMA" means the Financial Services and Markets ▇▇▇ ▇▇▇▇;
"IFRS" means International Financial Reporting Standards in force as at
the Issue Date of the relevant Series;
"INSOLVENCY EVENT" means, in relation to a relevant entity: (i)
proceedings being initiated against the relevant entity under any
applicable liquidation, winding up, sequestration, insolvency,
bankruptcy, composition, reorganisation or other similar laws; or a
liquidator, provisional liquidator, administrator, administrative
receiver, receiver, receiver or manager, compulsory or interim manager,
nominee, supervisor, trustee, conservator, guardian or other similar
official being appointed in relation to the relevant entity or in
relation to the whole or a substantial part (having an aggregate book
value in excess of (pound)50,000,000) of its assets or a distress,
diligence or execution or other process being levied or enforced upon or
sued out against the whole or a substantial part (having an aggregate
book value in excess of (pound)50,000,000) of its assets and, in any of
the foregoing cases, it shall not be discharged within thirty days;
or (ii) the relevant entity initiating or commencing judicial
proceedings relating to itself under any applicable liquidation, winding
up, sequestration, insolvency, bankruptcy, composition, reorganisation
or other similar laws or making a conveyance, assignment or assignation
for the benefit of, or entering into any composition with, its
creditors generally;
"ISSUE DATE" has, with respect to any Notes issued under the Programme,
the meaning ascribed to such term in the Relevant Agreement
corresponding to such Notes;
"LONDON STOCK EXCHANGE" means the London Stock Exchange plc's Gilt Edged
and Fixed Interest Market or any other body to which its functions have
been transferred;
"LOSS" means any liability, damages, cost reasonably incurred, loss or
expense (including, without limitation, legal fees, costs and expenses
reasonably incurred and any value added tax thereon);
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"MANDATED DEALER" means, in relation to a Relevant Agreement which is
made between the Issuer and more than one Dealer, the institution
specified as such or as the Mandated Dealer in the relevant Final Terms
or in the relevant US Prospectus Supplement and/or in such Relevant
Agreement and if not so specified, RBS; and, in relation to a Relevant
Agreement which is made between the Issuer and a single Dealer, such
Dealer;
"MASTER FRAMEWORK AGREEMENT" means the master framework agreement dated
on or before the date of this Agreement between, inter alios, the Issuer
and the Note Trustee;
"OBLIGATIONS" means all of the obligations of the Issuer, the Loan Note
Issuer and the Receivables Trustee, as applicable, created by or arising
under any Series of Notes and the Relevant Documents;
"PRELIMINARY FINAL TERMS" means the preliminary final terms document
substantially in the form set out in the Base Prospectus which will be
completed at the time of the agreement to issue each Series and which
will constitute final terms for the purposes of Article 5.4 of the
Prospectus Directive;
"PROSPECTUS DIRECTIVE" means Directive 2003/71/EC;
"PROSPECTUS RULES" means:
(a) in the case of Notes which are, or are to be, admitted to the
Official List and admitted to trading on the London Stock
Exchange, the implementation of the Prospectus Directive and
ancillary prospectus rules under the FSMA; and
(b) in the case of Notes which are, or are to be, listed on a
Stock Exchange other than the London Stock Exchange, the legal
provisions and/or the rules and regulations relating to
prospectuses for the time being in force for that Stock
Exchange;
"REGISTRATION STATEMENT" means the post-effective amendment to the
registration statement referred to in recital "(E)" to this Agreement,
including all exhibits thereto and any material incorporated therein by
reference, as amended at the Effective Date;
"REGULATION S" means Regulation S under the Securities Act;
"RELEVANT PARTY" means, in respect of any person, any affiliate of that
person or any officer, director, employee or agent of that person or any
such affiliate or any person by whom any of them is controlled for the
purposes of Section 15 of the Securities Act;
"RELEVANT AGREEMENT" means an agreement in writing between the Issuer
and any Dealer(s) for the issue by the Issuer and the subscription by
such Dealer(s) (or on such other basis as may be agreed between the
Issuer and the relevant Dealer(s) at the relevant time) of any Notes and
shall include, without limitation, any agreement in the form or based on
the form set out in Schedule 3 (Pro Forma Subscription Agreement);
"RELEVANT DEALER(S)" means, in relation to a Relevant Agreement, the
Dealer(s) which is/are party to that Relevant Agreement;
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"RELEVANT DOCUMENTS" means, in relation to a Series, the Agency
Agreement, the Trust Deed and the relevant supplement thereto, the
Security Trust Deed and the relevant supplement thereto, the relevant
Loan Note, the Receivables Trust Deed and Trust Cash Management
Agreement and the relevant supplement thereto, the relevant Final Terms
or US Prospectus Supplement and the relevant Subscription Agreement;
"SECURITIES ACT" means the United States Securities Act of 1933;
"SERIES" means those Notes issued in series in accordance with a
particular set of Final Terms and comprising Classes and Sub-Classes
(if applicable) of Notes pertaining to, among other things, the
currency, interest rate and maturity of the relevant Class or Sub-Class
(if applicable);
"STABILISING MANAGER" means, in relation to any Series, the Dealer
specified as the Stabilising Manager in the relevant Final Terms or the
relevant US Prospectus Supplement relating to such Series; or, if none
is specified, the Mandated Dealer;
"STOCK EXCHANGE" means the London Stock Exchange and/or any other or
future stock exchanges or markets or quotation systems by which any
Notes may from time to time be admitted to listing, trading and/or
quotation, and references in this Agreement to the "RELEVANT STOCK
EXCHANGE" shall, in relation to any Notes, be references to the listing
authorities, stock exchanges or quotation systems by which such Notes
are from time to time, or are intended to be, admitted to listing,
trading and/or quotation as may be specified in the relevant Final
Terms;
"TERMS AND CONDITIONS" means, in relation to any Series, either (i) in
relation to an Article 3 Issuance, the terms and conditions applicable
to such Notes set out in the Base Prospectus as amended or supplemented
by the relevant Final Terms and/or (ii) in relation to a SEC Registered
Note Issuance, the terms and conditions applicable to such Notes set out
in the US Prospectus as amended or supplemented by the relevant US
Prospectus Supplement; and any reference to a numbered "CONDITION" is to
the correspondingly numbered provision thereof;
"TIME OF SALE" has, with respect to any Series sold pursuant to a
Relevant Agreement, the meaning specified in such Relevant Agreement;
"TIME OF SALE INFORMATION" has, with respect to any Series sold pursuant
to a Relevant Agreement, the meaning specified in such Relevant
Agreement;
"TRANSACTION DOCUMENTS" means the Notes, the Trust Deed, the Agency
Agreement, this Agreement, the Master Framework Agreement, any Swap
Agreement, the Expenses Loan Agreement and any other document to which
the Issuer is a party (as each document may be amended, restated or
supplemented from time to time);
"TRANSPARENCY DIRECTIVE" means Directive 2004/109/EC;
"UKLA" means the UK Listing Authority which is the Financial Services
Authority in its capacity as the competent authority for the purposes of
Part VI of the FSMA;
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"US PROSPECTUS" means the prospectus in the form of the Dual Use
Prospectus filed with the SEC as part of the Registration Statement, in
the form most recently revised and filed with the SEC pursuant to Rule
424(b), together with the corresponding US Prospectus Supplement;
"US PROSPECTUS SUPPLEMENT" means (i) any prospectus supplement relating
to the Notes to be filed or filed with the SEC pursuant to Rule 424(b)
under the Securities Act; and (ii) information in any current or
periodic reports filed pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated or deemed incorporated by reference into, or
included in, the prospectus that is part of the Registration Statement
as from time to time amended;
"VAT" means, and shall be construed as a reference to, value added tax
as imposed by VATA and related legislation, and includes any tax of a
similar fiscal nature, whether imposed in the United Kingdom (instead of
or in addition to VAT) or elsewhere; and
"VATA" means the Value Added Tax ▇▇▇ ▇▇▇▇.
1.2 CLAUSES AND SCHEDULES
Any reference in this Agreement to a Clause, a sub-clause or a Schedule
is, unless otherwise stated, to a clause or sub-clause hereof or a
schedule hereto.
1.3 LEGISLATION
Any reference in this Agreement to any legislation (whether primary
legislation or regulations or other subsidiary legislation made pursuant
to primary legislation) shall be construed as a reference to such
legislation as the same may have been, or may from time to time be,
amended or re-enacted. All references in this Agreement to a Directive
include any relevant implementing measure of each Member State of the
European Economic Area which has implemented such Directive and all
references to the "Prospectus Directive" shall include Commission
Regulation (EC) No.809/2004.
1.4 OTHER AGREEMENTS
Subject to Clause 6.4 (Incorporation, supplements and amendments) and
save as set out in the exception to the definition of "BASE PROSPECTUS"
above, all references in this Agreement to an agreement, instrument or
other document shall be construed as a reference to that agreement,
instrument or other document as the same may be amended, supplemented,
replaced or novated from time to time.
1.5 HEADINGS
Headings and sub-headings are for ease of reference only and shall not
affect the construction of this Agreement.
2. ISSUING NOTES
2.1 BASIS OF AGREEMENTS TO ISSUE; UNCOMMITTED FACILITY
The Issuer and the Dealers agree that any Notes which may from time to
time be agreed between the Issuer and any Dealer(s) to be issued by the
Issuer and subscribed for by such Dealer(s) shall be issued and
subscribed for on the basis of, and in reliance upon, the
representations, warranties, undertakings and indemnities made or given
or provided or to be made or given pursuant to the terms of this
Agreement. Unless otherwise
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agreed, neither the Issuer nor any Dealer(s) is, are or shall be under
any obligation to issue or subscribe for, as the case may be, any Notes.
2.2 PROCEDURES
Subject as provided below in Clause 3.1 (Conditions precedent to first
issue of Notes) and Clause 3.2 (Conditions precedent to any issue of
Notes) the Issuer may from time to time agree with the Relevant
Dealer(s) to insure and the Relevant Dealer(s) for any Series
may agree, on the terms of the applicable Relevant Agreement, to
subscribe for a Series of Notes:
2.2.1 Preparation of Base Prospectus and/or Final Terms or US Prospectus
and/or US Prospectus Supplement: the Issuer will prepare either:
(a) in relation to an Article 3 Issuance, a Base Prospectus and/or
Final Terms in relation to the relevant Notes; or
(b) in relation to an SEC Registered Note Issuance, a US Prospectus
and/or US Prospectus Supplement in relation to the relevant Notes;
both of which for the avoidance of doubt may be in the same form.;
2.2.2 Issue of Notes: the Issuer shall on the agreed Issue Date of the
relevant Notes procure the issue of such Notes in the relevant form
(subject to amendment and completion) and shall procure the registration
of the holders thereof;
2.2.3 Payment of net proceeds: the Relevant Dealer(s) shall for value on the
agreed Issue Date of the relevant Notes procure the payment to the
Issuer or to its order of the net proceeds of the issue of the Notes
(namely, the agreed issue price thereof less any agreed commissions,
concessions or other agreed deductibles due to be paid by the Issuer to,
or to the order of, the Relevant Dealer(s));
2.2.4 Single Dealer Drawdown: where a single Dealer has agreed with the Issuer
to subscribe for a particular Series pursuant to this Clause 2 (Issuing
Notes), if requested by the Relevant Dealer in relation to such Series,
the Issuer and the Relevant Dealer shall enter into a subscription
agreement based on the form set out in Schedule 3 (Pro Forma
Subscription Agreement) or such other form as may be agreed between the
Issuer and the Relevant Dealer;
2.2.5 Syndicated Drawdown: where more than one Dealer has agreed with the
Issuer to subscribe for a particular Series pursuant to this Clause 2
(Issuing Notes), unless otherwise agreed between the Issuer and the
Relevant Dealers:
(a) the obligations of the Relevant Dealers to subscribe for the
Notes shall be several according to the respective percentage
specified in the Relevant Agreement; and
(b) in relation to such Series, the Issuer and the Relevant
Dealers shall enter into a subscription agreement in the form or
based on the form set out in Schedule 3 (Pro Forma Subscription
Agreement) or such other form as may be agreed between the Issuer
and the Relevant Dealers.
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3. CONDITIONS PRECEDENT
3.1 CONDITIONS PRECEDENT TO FIRST ISSUE OF NOTES
Before any Notes may be issued under the Programme, each Dealer must
have received and found satisfactory all of the documents and
confirmations described in Schedule 2 (Initial Conditions Precedent).
The obligations of the Dealers under Clause 2.2.3 (Payment of Net
Proceeds) are conditional upon each Dealer having received and found
satisfactory all of the documents and confirmations described in
Schedule 2 (Initial Conditions Precedent).
3.2 CONDITIONS PRECEDENT TO ANY ISSUE OF NOTES
In respect of any issue of Notes under the Programme, the obligations of
the Relevant Dealer(s) under Clause 2.2.3 (Payment of Net Proceeds) are
conditional upon:
3.2.1 Execution and delivery of Final Terms (or US Prospectus
Supplement) and Notes: the relevant Final Terms (or, as the case
may be, US Prospectus Supplement) and the relevant Notes having
been executed and delivered by the Issuer in accordance with the
terms of this Agreement, the Relevant Agreement, the Trust Deed
Supplement and the Agency Agreement in the respective forms
agreed between the Issuer and the Relevant Dealer(s);
3.2.2 Effective Registration Statement: the Registration Statement, or
any post-effective amendment thereto, having become effective
before the Execution Time of the Relevant Agreement, or, if it
hasn't and the Relevant Dealers so agree in writing, its
becoming effective no later than (i) 6:00 p.m. (New York City
time) on the date of determination of the public offering price
of the relevant Notes, if such determination occurred at or
before 3:00 p.m. (New York City time) on such date, or (ii)
12:00 noon on the business day following the date on which the
public offering price was determined, if such determination
occurred after 3:00 p.m. (New York City time) on such date;
3.2.3 No stop order: no stop order suspending the effectiveness of the
Registration Statement having been issued, and no proceedings
for that or similar purpose having been instituted or threatened
by the SEC or by any authority administering any state
securities laws;
3.2.4 Filings: if pursuant to Rule 430B or Rule 424(b) under the
Securities Act such filing is required in respect of the Notes
to be issued on the Issue Date, a US Prospectus, or US
Prospectus Supplement, as applicable, having been filed in
compliance with the provisions of such Rule;
3.2.5 No material adverse change: since the date of the Relevant
Agreement, there having been no adverse change, or any
development reasonably likely to involve an adverse change in
the sole opinion of the Arranger, in the condition (financial or
other) or general affairs of the Issuer, the Transferors, the
Receivables Trustee and the Loan Note Issuer that is material in
the context of the issue of the relevant Notes;
3.2.6 Accuracy of representations and warranties: the representations
and warranties by the Issuer, the Transferors, the Receivables
Trustee and the Loan Note Issuer
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contained herein or in any Relevant Agreement being true and
accurate on the date of the Relevant Agreement and on each date
on which they are deemed to be repeated with reference in each
case to the facts and circumstances then subsisting;
3.2.7 No breach: the Issuer, the Transferors, the Receivables Trustee
and the Loan Note Issuer not being in breach of this Agreement,
the Relevant Agreement or any Relevant Document relevant to a
proposed issue of Notes;
3.2.8 Force majeure: there having been, since the date of the Relevant
Agreement and in the reasonable opinion of the Mandated Dealer,
after such consultation with the Issuer as may be reasonably
practicable in the circumstances, no such change in national or
international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in its
view, be likely to prejudice materially the success of the
offering and distribution of the Notes or dealings in the Notes
in the secondary market;
3.2.9 No adverse change of rating: on or prior to the Issue Date for
the issue of Notes contemplated by the Relevant Agreement, the
delivery to the Mandated Dealer (or, if only one Relevant
Dealer, the delivery to the Relevant Dealer) of confirmation
from each of the Rating Agencies, in the form acceptable to the
Mandated Dealer (or, if only one Relevant Dealer, in the form
acceptable to the Relevant Dealer) that upon issue the Notes
contemplated by the Relevant Agreement are expected to be rated
in accordance with the anticipated ratings set out in the Final
Terms or US Prospectus Supplement as applicable;
3.2.10 Listing: in respect of any issue of Notes which are to be
admitted to listing, trading and/or quotation by any Stock
Exchange, the Mandated Dealer having received confirmation that
the relevant Notes have been admitted to listing, trading and/or
quotation by the relevant Stock Exchange;
3.2.11 Certificate: if there is more than one Relevant Dealer, a
certificate dated as at the relevant Issue Date signed by a
director or other equivalent senior officer of:
(a) the Issuer to the effect that:
(i) each of the Base Prospectus, Final Terms and US
Prospectus, as applicable, contains all material
information relating to the assets and
liabilities, financial position, profits and
losses of the Issuer and the Issuer is not aware
of anything which would require the Base
Prospectus or the US Prospectus to be
supplemented or updated;
(ii) the representations and warranties made by the
Issuer pursuant to Clause 7 (Representations and
Warranties by the Issuer, the Transferors, the
Loan Note Issuer and the Receivables Trustee)
are true and correct;
(iii) the Issuer is in compliance with its
undertakings under Clause 5 (Undertakings by the
Issuer, the Loan Note Trustee, and the
Receivables Trustee) and 6 (Undertakings by the
Issuer); and
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(iv) the certified copies of the constitutive
documents of the Issuer submitted under Clause
3.1 (Conditions precedent to first issue of
Notes) on the first issue or any subsequent
issue of Notes, as applicable, under the
Programme are accurate and up-to-date (and, to
the extent any such constitutive documents have
changed since the first issue or any subsequent
issue, as applicable, they have been updated);
(b) each of the Transferors to the effect that:
(i) the information relating to each of the
Transferors contained in the Base Prospectus,
the Final Terms and the US Prospectus is
complete and accurate and does not omit any
material information in relation to the
Transferors in the context of the issue of the
Notes which would require the Base Prospectus or
the US Prospectus to be supplemented or updated;
(ii) the representations and warranties made by such
Transferor pursuant to Clause 7 (Representations
and Warranties by the Issuer, the Transferors,
the Loan Note Issuer and the Receivables
Trustee) are true and correct; and
(iii) the certified copies of the constitutive
documents of such Transferor submitted under
Clause 3.1 (Conditions Precedent to First Issue
of Notes) on the first issue or any subsequent
issue of Notes, as applicable, under the
Programme are accurate and up-to-date (and, to
the extent any such constitutive documents have
changed since the first issue or any subsequent
issue, as applicable, they have been updated);
(c) the Receivables Trustee to the effect that:
(i) the information relating to the Receivables
Trustee contained in the Base Prospectus, the
Final Terms and the US Prospectus is complete
and accurate and does not omit any material
information in relation to the Receivables
Trustee in the context of the issue of the Notes
which would require the Base Prospectus or the
US Prospectus to be supplemented or updated;
(ii) the representations and warranties made by the
Receivables Trustee pursuant to Clause 7
(Representations and Warranties by the Issuer,
the Transferors, the Loan Note Issuer and the
Receivables Trustee) are true and correct; and
(iii) the certified copies of the constitutive
documents of the Receivables Trustee submitted
under Clause 3.1 (Conditions Precedent to First
Issue of Notes) on the first issue or any
subsequent issue of Notes, as applicable, under
the Programme are accurate and up-to-date (and,
to the extent any such constitutive documents
have changed since
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the first issue or any subsequent issue, as
applicable, they have been updated);
(d) the Loan Note Issuer to the effect that:
(i) the information relating to the Loan Note Issuer
contained in the Base Prospectus, the Final
Terms and the US Prospectus is complete and
accurate and does not omit any material
information in relation to the Loan Note Issuer
in the context of the issue of the Notes which
would require the Base Prospectus or the US
Prospectus to be supplemented or updated;
(ii) the representations and warranties made by the
Loan Note Issuer pursuant to Clause 7
(Representations and Warranties by the Issuer,
the Transferors, the Loan Note Issuer and the
Receivables Trustee) are true and correct; and
(iii) the certified copies of the constitutive
documents of the Loan Note Issuer submitted
under Clause 3.1 (Conditions Precedent to First
Issue of Notes) on the first issue or any
subsequent issue of Notes, as applicable, under
the Programme are accurate and up-to-date
(and, to the extent any such constitutive
documents have changed since the first issue or
any subsequent issue, as applicable, they have
been updated);
3.2.12 Calculations or determinations: any calculations or
determinations which are required by the Terms and Conditions of
the relevant Notes to be made prior to the date of issue of such
Notes having been duly made;
3.2.13 Legal opinions and comfort letters, etc.: the Mandated Dealer
having received such legal opinions and comfort letters as may
be required to be delivered pursuant to Clauses 6.9 (Legal
Opinions) and 6.10 (Auditors' Comfort Letters) and such other
opinions, documents, certificates, agreements or information
specified in the Relevant Agreement as being conditions
precedent to the subscription of the particular Series of Notes
(in each case in a form satisfactory to the Mandated Dealer);
3.2.14 US Tax Treatment Opinion: the Mandated Dealer having received
the delivery of a US legal opinion regarding the tax treatment
of each Series of Notes to be issued;
3.2.15 Authorised Amount: the Issuer not issuing Notes under the
Programme which will cause the outstanding amount of Notes to
exceed the Authorised Amount, as amended from time to time;
3.2.16 UKLA listing issues: in the case of an Article 3 Issuance of
Notes:
(a) the Specified Denominations being (euro)50,000 or more,
or its equivalent in another currency;
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(b) the Base Prospectus having been approved as a base
prospectus by the UKLA or any other listing authority,
filed with the UKLA or any other listing authority and
having been published in accordance with the Prospectus
Directive; and
(c) either (A) there being no significant new factor,
material mistake or inaccuracy relating to the
information included in the Base Prospectus which is
capable of affecting the assessment of the Notes which
are intended to be listed or (B) if there is such a
significant new factor, material mistake or inaccuracy,
a supplement to the Base Prospectus having been
published in accordance with the Prospectus Directive;
3.2.17 Inaccuracy or mistakes in other circumstances: in the case of a
SEC Registered Note Issuance, (A) there being no significant new
factor, material mistake or inaccuracy relating to the
information included in the US Prospectus which is capable of
affecting the assessment of the Notes which are intended to be
listed or (B) if there is such a significant new factor,
material mistake or inaccuracy, a supplement to the US
Prospectus or an amendment to the Registration Statement having
been filed in accordance with the relevant legislation; and
3.2.18 Execution of Supplements: the relevant supplement to each of the
Security Trust Deed and the Receivables Trust Deed and Trust
Cash Management Agreement corresponding to the relevant issue of
the Series of the Notes having been executed in accordance with
the terms of the Security Trust Deed and the Receivables Trust
Deed and Trust Cash Management Agreement.
3.3 WAIVER OF CONDITIONS PRECEDENT
The Mandated Dealer may, in its absolute discretion, waive any of the
conditions contemplated in Clause 3.1 (Conditions Precedent to First
Issue of Notes) and Clause 3.2 (Conditions Precedent to Any Issue of
Notes) by notice in writing to the Issuer, subject to the following
provisions:
3.3.1 Authorised Amount: it may not waive the condition contained in
Clause 3.2.14 (Authorised Amount);
3.3.2 Relevant Agreement: any such waiver shall apply to such
conditions only as they relate to the Notes the subject of the
Relevant Agreement;
3.3.3 Other Dealers: where there is more than one Dealer party to the
Relevant Agreement, any such waiver shall be given on behalf of
and shall be binding on the other Dealer(s) party to the
Relevant Agreement in question; and
3.3.4 Specific waiver: any condition so waived shall be deemed to have
been satisfied as regards all the Relevant Dealers alone and
only for the purposes specified in such waiver.
3.4 TERMINATION OF RELEVANT AGREEMENT
If any of the conditions contemplated in Clause 3.1 (Conditions
Precedent to First Issue of Notes) and Clause 3.2 (Conditions Precedent
to Any Issue of Notes) are not satisfied or, as the case may be, waived
by the Mandated Dealer on or before the Issue Date of
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any relevant Series, the Mandated Dealer shall, subject as mentioned
below, be entitled to terminate the Relevant Agreement and, in that
event, the parties to such Relevant Agreement shall be released and
discharged from their respective obligations thereunder (except for any
rights or liabilities which may have arisen pursuant to Clause 4
(Undertaking and Indemnity by the Dealers), Clause 5 (Undertakings by
the Issuer, the Loan Note Issuer and the Receivables Trustee), Clause 6
(Undertakings by the Issuer), Clause 7 (Representations and Warranties
by the Issuer, the Transferors, the Loan Note Issuer and the Receivables
Trustee), Clause 8 (Obligations as the Corporate Obligations), Clause 9
(Non-Petition and Limited Recourse), Clause 10 (Covenant of the Issuer,
the Transferors, the Loan Note Issuer and the Receivables Trustee) and
Clause 11 (Indemnity of the Issuer, the Transferors, the Loan Note
Issuer and the Receivables Trustee) of this Agreement or any liability
of the Issuer (under the terms of the Relevant Agreement) incurred prior
to or in connection with such termination).
3.5 STABILISING
In connection with the issue of any Series of Notes, the Dealer or
Dealers (if any) named as the Stabilising Manager(s) in the relevant
Final Terms (or persons acting on behalf of any Stabilising Manager(s))
may over-allot Notes (PROVIDED THAT, in the case of any Series of Notes
to be admitted to trading on the regulated market of the London Stock
Exchange, the aggregate principal amount of Notes allotted does not
exceed 105 per cent. of the aggregate principal amount of the relevant
Series) or effect transactions with a view to supporting the market
price of the Notes of the relevant Series at a level higher than that
which might otherwise prevail. Any stabilisation action may begin at any
time after the date on which adequate public disclosure of the final
terms of the offer of the relevant Series is made and, if begun, may be
ended at any time, but it must end no later than the earlier of 30 days
after the issue date of the relevant Series and 60 days after the date
of the allotment of the relevant Series. Such stabilising shall be
conducted in accordance with all applicable laws and rules. Any loss or
profit sustained as a consequence of any such over-allotment or
stabilising shall, as against the Issuer, be for the account of the
Stabilising Manager.
4. UNDERTAKINGS AND INDEMNITY BY THE DEALERS
4.1 Each of the Dealers, severally:
4.1.1 acknowledges, undertakes, warrants and represents to the Issuer
in the terms set out in Schedule 1 (Selling Restrictions); and
4.1.2 undertakes to the Issuer, each of the Transferors, the Loan Note
Issuer and the Receivables Trustee and each other Dealer,
respectively, that it will not make any representation or
provide any information regarding the Issuer, either of the
Transferors, the Loan Note Issuer, the Receivables Trustee or
the Notes, SAVE FOR information which is contained in the Base
Prospectus, any Preliminary Final Terms, any Final Terms, the US
Prospectus and any US Prospectus Supplement (or in any further
supplement or amendment thereto published after the date hereof)
and oral statements consistent therewith or other written
information provided by the Issuer, each of the Transferors, the
Loan Note Issuer or the Receivables Trustee to the Dealers in
the context of a
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proposed issue of a Series of Notes (including, without
limitation, a road show which meets the requirements of Rule
433(d)(8)(i) under the Securities Act and any Bloomberg
Submission in respect of such Series), or which is in the public
domain, which it would be reasonable for the Dealers to
distribute, or as approved for such purpose by the Issuer, each
of the Transferors, the Loan Note Issuer and the Receivables
Trustee, respectively, or which is a matter of public knowledge.
4.2 Each Dealer severally shall indemnify and hold harmless the Issuer, the
Transferors, the Loan Note Issuer, the Receivables Trustee and each
other Dealer and their respective directors, employees and affiliates
from and against any and all losses, liabilities, costs, claims, damages
or expenses which any of them may incur as a result of any inaccuracy of
any representation or warranty or any breach of any undertaking or
agreement by such Dealer in this Agreement. This indemnity will be in
addition to any liability which any Dealer may otherwise have.
5. UNDERTAKINGS BY THE ISSUER, THE LOAN NOTE ISSUER AND THE RECEIVABLES
TRUSTEE
Each of the Issuer, the Loan Note Issuer and the Receivables Trustee
undertakes to the Dealers as follows:
5.1 Rule 424(b) filings: each time that, pursuant to Rule 424(b) under the
Securities Act, a filing is required in respect to Notes to be issued
under the Programme, it will file, or cause to be filed, with the SEC,
within the time period prescribed by Rule 424(b) and otherwise in
compliance with such Rule, a US Prospectus or US Prospectus Supplement,
as applicable, and will promptly advise, and provide evidence
satisfactory to the Mandated Dealer, of such filing;
5.2 Certain SEC notices: it will promptly advise the Mandated Dealers of (i)
any proposal to amend or supplement the Registration Statement or the US
Prospectus (including, without limitation, information which is part of
the US Prospectus by virtue of Rule 312 of Regulation S-T) and it will
not effect such amendment or supplement without the consent of the
Mandated Dealers (which consent will not be unreasonably withheld or
delayed); (ii) any request by the SEC for any amendment or supplement to
the Registration Statement or the US Prospectus or for any additional
information; (iii) the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threat of any proceeding for such purpose; and (iv) the existence of any
proceedings for the purpose of suspending the qualification of the Notes
for sale in any jurisdiction (it being understood that each of the
Issuer, the Loan Note Issuer and the Receivables Trustee will use its
best efforts to prevent the issuance of any such stop order, or the
suspension of such qualification of the Notes for sale or to cause the
lifting as soon as possible of any such stop order or suspension of
qualification);
5.3 Certain SEC filings: at any time while the Relevant Dealers have not
completed the distribution of any Series issued under the Programme, it
will not file, or cause to be filed, with the SEC any amendment to the
Registration Statement, supplement to the US Prospectus, US
Prospectus Supplement or "issuer free writing prospectus" (as such term
is defined in Rule 433(h) under the Securities Act) unless a copy has
been furnished
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to the Relevant Dealers prior to such filing and the Relevant Dealers
have not objected to it;
5.4 Amendments to US Prospectus: (i) if, at any time when a prospectus
relating to the Notes of any Series is required to be delivered pursuant
to the provisions of the Securities Act and Rules of the SEC thereunder,
any event occurs of which it is aware as a result of which the US
Prospectus, in its current form at the time, would include any untrue
statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading or (ii) if it is necessary
to supplement the US Prospectus, in its current form at such time, to
comply with the Securities Act, the Exchange Act, or the Rules of the
SEC thereunder, it will (subject to the provisions of 5.2 and 5.3 above)
prepare and file, or cause to be prepared and filed, with the SEC an
amendment or supplement which will correct such statement or omission or
an amendment or supplement which will effect such compliance; PROVIDED
THAT any such filing will not operate as a waiver by the Dealers of any
remedies to which they may be entitled hereunder;
5.5 SEC Earnings statement: as soon as practicable, but not later than
sixteen months after the original effective date of the Registration
Statement, it will make generally available to Noteholders an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 of the SEC thereunder;
5.6 SEC Copies of filings: it will furnish, or cause to be furnished to the
Dealers, copies of the Registration Statement (one of which will be
manually signed), the US Prospectus and the US Prospectus Supplement, in
each case as soon as available and in such quantities as the Dealers may
request; and
5.7 Qualification of the Notes: it will take such actions as the Dealers may
reasonably request to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as the Issuer, the Dealers and the
Transferors may agree, and it will comply with such laws so as to permit
the continuance of sales in such jurisdictions for as long as may be
necessary to complete the distribution of the Notes; PROVIDED THAT, in
connection therewith, none of the Issuer, the Loan Note Issuer or the
Receivables Trustee will be required to qualify as a foreign corporation
or dealer in securities or to file a general consent to service of
process in any jurisdiction.
6. UNDERTAKINGS BY THE ISSUER
6.1 Non-satisfaction of conditions precedent: If, at any time after
entering into a Relevant Agreement under Clause 2 (Issuing Notes) and
before the issue of the relevant Notes, the Issuer becomes aware that
any of the conditions specified in Clause 3.2 (Conditions Precedent to
Any Issue of Notes) will not be satisfied in relation to that issue, the
Issuer shall forthwith notify the Relevant Dealer(s) to this effect
giving full details thereof.
6.2 Other information: Without prejudice to the generality of the
foregoing, the Issuer shall from time to time promptly furnish to each
Dealer such information relating to the Issuer as such Dealer may
reasonably request.
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6.3 Updating of the Dual Use Prospectus: The Issuer shall update or amend
the Dual Use Prospectus (following consultation with the Arranger which
will consult with the Dealers) by the publication of a supplement
thereto or a new Dual Use Prospectus thereto in a form approved by the
Dealers:
6.3.1 Annual update: at any time when, pursuant to applicable laws and
regulations, such update or amendment becomes necessary in the
reasonable opinion of counsel to the Dealers and, in any event,
no later than each anniversary of the date of the Base
Prospectus;
6.3.2 Material change: in the event of a significant new factor,
material mistake or inaccuracy relating to the information not
included in the Base Prospectus, Final Terms or US Prospectus or
US Prospectus Supplement, as applicable, which is capable of
affecting the assessment by investors of the Notes to be issued
under the Programme or the issue of any Notes;
6.3.3 Amendment: if the terms of the Programme are amended in a manner
which would make the Base Prospectus or US Prospectus inaccurate
or materially misleading; and
6.3.4 Change in law or regulation: in the event of a change in any
laws or regulations of, or applicable in, the United Kingdom or
the United States which would result in the Base Prospectus or
the US Prospectus, respectively, containing an untrue statement
of a material fact or omitting to state a material fact, except
to the extent that such change can be made in the Final Terms
or, as applicable, the US Prospectus Supplement;
6.4 Incorporation, supplements and amendments: The Base Prospectus or US
Prospectus shall, to the extent specified therein, incorporate by
reference the most recently published audited financial statements and
any audited financial statements of the Issuer published subsequently
thereto. Upon any new financial statements being incorporated in the
Base Prospectus or US Prospectus as aforesaid or upon the publication of
a revision, supplement or amendment to the Base Prospectus or US
Prospectus, the Issuer shall promptly supply to each Dealer and the
Paying Agent such number of copies of such financial statements,
revision, supplement or amendment as each Dealer or the Paying Agent (as
the case may be) may reasonably request. Until a Dealer receives such
financial statements, revision, supplement or amendment, the expression
"Base Prospectus" or "US Prospectus" shall, in relation to such Dealer,
mean as applicable, the Base Prospectus or US Prospectus prior to the
receipt by such Dealer of such financial statements or the publication
of such revision, supplement or amendment.
6.5 Listing: If it is agreed between the Issuer and the Arranger to apply
for any issue of Notes to be admitted to listing, trading and/or
quotation by one or more Stock Exchanges, then the Issuer undertakes to
use its reasonable endeavours to obtain and maintain the admission to
listing, trading and/or quotation of such Notes by the relevant Stock
Exchange until none of the Notes is outstanding; PROVIDED, HOWEVER,
THAT:
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6.5.1 if it is impracticable or unduly burdensome to maintain such
admission to listing, trading and/or quotation, the Issuer shall
use all reasonable endeavours to obtain and maintain as
aforesaid an admission to listing, trading and/or quotation for
the Notes by such other listing authorities, stock exchanges
and/or quotation systems which is a recognised stock exchange
for the purposes of Section 349 of the Income and Corporation
Taxes Act 1988 as it may (with the approval of the Mandated
Dealer) decide. For the avoidance of doubt, where the Issuer has
obtained the admission of Notes to trading on a regulated market
in the European Economic Area, the undertaking extends to
maintaining that admission or, if this is not possible, to
obtaining admission to trading of the relevant Notes on another
European Economic Area regulated market; or
6.5.2 (without limiting the generality of Clause 6.5.1) if, as a
result of the adoption of the Transparency Directive or any
legislation implementing the Transparency Directive, the Issuer
could be required to publish financial information either more
regularly than it otherwise would be required to or according to
accounting principles which are materially different from the
accounting principles which it would otherwise use to prepare
its published financial information, the Issuer may, as an
alternative, procure the admission to listing, trading and/or
quotation for the Notes by such other Stock Exchange outside the
European Union as it may (with the approval of the Dealers, with
such approval not to be unreasonably withheld) decide and, in
either case, the Issuer shall:
(a) use all reasonable endeavours to maintain any such
alternative admission; and
(b) be responsible for any fees incurred in connection with
seeking and maintaining any such alternative admission.
6.6 Amendment of Programme Documents: The Issuer undertakes that it will
not, except with the consent of the Arranger, terminate the Agency
Agreement, the Trust Deed (and the relevant supplement to the Trust
Deed, as applicable) or effect or permit to become effective any
amendment to any such agreement or deed which, in the case of an
amendment, would adversely affect the interests of any holder of Notes
issued before the date of such amendment.
6.7 Change of Paying Agents: The Issuer undertakes that it will not, except
with the consent of the Note Trustee, appoint a different Paying
Agent(s) under the Agency Agreement and that it will promptly notify
each of the Dealers of any change in the Paying Agent(s) under the
Agency Agreement with respect to Notes that are already issued.
6.8 Authorised representative: The Issuer will notify the Dealers promptly
in writing if any of the persons named in the list referred to in
paragraph 3 of Schedule 2 (Initial Conditions Precedent) ceases to be
authorised to take action on behalf of the Issuer or if any additional
person becomes so authorised together, in the case of an additional
authorised person, with evidence satisfactory to the Dealers that such
person has been so authorised.
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6.9 Legal opinions: The Issuer will, in each of the circumstances described
in Clause 6.9.1 (Annual Update) to Clause 6.9.4 (By Agreement) below,
use its best endeavours to procure the delivery to the Dealers (or the
Relevant Dealer(s), as the case may be) of legal opinions (either from
legal counsel which originally provided such legal opinions or from such
legal counsel as may be approved by the Dealers or, as the case may be,
the Mandated Dealer in respect of the Relevant Agreement in question)
addressed to the Dealers (or the Relevant Dealer(s), as the case may be)
the Issuer, the Note Trustee, the Receivables Trustee, the Loan Note
Issuer and the Transferors in such form and with such content as the
Dealers (excluding any Dealer appointed pursuant to 17.1.3 (Dealer for a
day)) may reasonably require. In the case of Clause 6.9.1 (Annual
Update) and Clause 6.9.2 (Material Change) below, such opinion or
opinions shall be supplied at the expense of the Issuer and, in the case
of Clause 6.9.3 (Syndicated Issues) and Clause 6.9.4 (By Agreement)
below, the expense for the supply of such opinion or opinions shall be
as agreed between the Issuer and the Relevant Dealer(s). Such opinion or
opinions shall be delivered:
6.9.1 Annual update: before the first issue of Notes occurring after
each anniversary of the date of this Agreement;
6.9.2 Material change: if reasonably requested by any Dealer
(excluding any Dealer appointed pursuant to 17.1.3 (Dealer for a
day)) in relation to a material change or proposed material
change to the Base Prospectus or US Prospectus, this Agreement,
the Agency Agreement or the Trust Deed (or the relevant
supplement to the Trust Deed, as applicable) or any change or
proposed change in applicable law or regulation, at such date as
may be specified by such Dealer;
6.9.3 Syndicated issues: at the time of issue of a Series which is
syndicated amongst a group of institutions, if so requested by
the Relevant Dealer(s); and
6.9.4 By agreement: on such other occasions as a Dealer and the Issuer
may agree.
6.10 Auditors' comfort letters: The Issuer will, in each of the
circumstances described in Clause 6.10.1 (Annual Update), Clause 6.10.2
(Material Change), Clause 6.10.3 (Syndicated Issues), and Clause
6.10.4 (By Agreement) below, procure the delivery to the Dealers (or
the Relevant Dealer(s), as the case may be) of a comfort letter or
comfort letters from independent auditors addressed to the Relevant
Dealer(s), the Issuer and the Transferors, substantially in the form
provided at or around the date hereof, with such modifications as the
Dealers (excluding any Dealer appointed pursuant to 17.1.3 (Dealer for a
day)) may reasonably request; PROVIDED, HOWEVER, THAT no such letter or
letters will be delivered in connection with the publication or issue of
the audited annual financial statements of the Issuer. In the case of
Clause 6.10.1 (Annual Update) and Clause 6.10.2 (Material Change) below,
such letter or letters shall be provided at the expense of the Issuer
and, in the case of Clause 6.10.3 (Syndicated Issues) and Clause 6.10.4
(By Agreement) below, the expense for the delivery of such letter or
letters shall be as agreed between the Issuer and the Relevant
Dealer(s). Such letter or letters shall be delivered:
6.10.1 Annual update: before the first issue of Notes occurring after
each anniversary of the date of this Agreement;
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6.10.2 Material change: at any time that the Base Prospectus or US
Prospectus shall be amended or updated (except by means of
information incorporated by reference) where such amendment or
updating concerns or contains financial information relating to
the Issuer;
6.10.3 Syndicated issues: at the time of issue of any Series which is
syndicated amongst a group of institutions, if so requested by
the Mandated Dealer, as the case may be; and
6.10.4 By agreement: on such other occasions as a Dealer and the Issuer
may agree.
6.11 Information on Noteholders' meetings: The Issuer will, at the same time
as it is despatched, furnish the Dealers with a copy of every notice of
a meeting of the holders of any one or more Series and which is
despatched at the instigation of the Issuer and will notify the Dealers
immediately upon its becoming aware that a meeting of the holders of any
one or more Series has been convened by holders of such Notes.
6.12 No deposit-taking: In respect of any Series of Notes having a maturity
of less than one year, the Issuer will issue such Notes only if the
following conditions apply (or the Notes can otherwise be issued without
contravention of section 19 of the FSMA):
6.12.1 Selling restrictions: each Relevant Dealer represents, warrants
and agrees in the terms set out in sub-clause 2.1 of Schedule 1
(Selling Restrictions); and
6.12.2 Minimum denomination: the redemption value of each such Note is
not less than (pound)100,000 (or an amount of equivalent value
denominated wholly or partly in a currency other than sterling),
and no part of any Note may be transferred unless the redemption
value of that part is not less than (pound)100,000 (or such an
equivalent amount).
7. REPRESENTATIONS AND WARRANTIES BY THE ISSUER, THE TRANSFERORS, THE LOAN
NOTE ISSUER AND THE RECEIVABLES TRUSTEE
7.1 In order to induce the Dealers to subscribe and pay for the Notes, the
Issuer represents and warrants to each Dealer and the US Distributor
that:
7.1.1 it is duly incorporated and validly existing under the laws of
Jersey with full corporate power, authority and legal right to
conduct its business as described in the Dual Use Prospectus and
each Final Terms or US Prospectus Supplement, as the case may be
and has full power and capacity to create and issue the Notes,
to execute and deliver the Transaction Documents and the
Relevant Documents to which it is expressed to be a party and to
undertake and perform the obligations expressed to be assumed by
it herein and therein, it has taken all necessary action to
approve and to authorise the same, and it is not an "ineligible
issuer" (as such term is defined in Rule 405 under the
Securities Act, without giving effect to clause (2) of such
definition);
7.1.2 it has not engaged in any activities since its incorporation
(other than those incidental to its incorporation under relevant
Jersey legislation, the matters referred to or contemplated in
the Dual Use Prospectus and each Final Terms or
- 20 -
US Prospectus Supplement, the authorisation of the issue of the
Notes, the Transaction Documents and the Relevant Documents to
which it is expressed to be a party and any other documents,
certificates or agreements ancillary or supplemental thereto or
contemplated thereby and matters incidental thereto) and has
neither paid any dividends nor made any distributions since its
incorporation and has no subsidiaries, and no employees;
7.1.3 the creation and issue of the Notes, the execution and delivery
of the Transaction Documents and the Relevant Documents to which
it is expressed to be a party and the undertaking and
performance by the Issuer of the obligations expressed to be
assumed by it herein and therein do not conflict with, and will
not result in a breach or infringement of the terms or
provisions of, or constitute a default, under the laws of Jersey
currently in force or the Memorandum and Articles of Association
of the Issuer and do not infringe the terms of, or constitute a
default under, any trust deed, agreement or other instrument or
obligation to which the Issuer is a party or by which the Issuer
or any part of its properties, undertakings, assets or revenues
is bound. The Issuer has no encumbrance over any of its assets
other than as contemplated under the Transaction Documents;
7.1.4 this Agreement constitutes, and upon due execution and delivery
on behalf of the Issuer of the Transaction Documents and the
Relevant Documents to which it is expressed to be a party, the
Notes will constitute, legal and valid obligations binding on it
and enforceable against it in accordance with their terms,
except:
(a) as such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium, reorganisation or
other similar laws affecting the enforcement of the
rights of creditors generally;
(b) as such enforceability may be limited by the effect of
general principles of equity;
(c) that obligations relating to stamp duties may be void by
virtue of Section 117 of the Stamp ▇▇▇ ▇▇▇▇; and
(d) for such other exemptions and qualifications as are
contained in the legal opinions referred to in Clause
3.2.10 (Legal opinions and comfort letters, etc);
7.1.5 it is able to pay its debts as they fall due and will not become
unable to do so in consequence of the execution by it of the
Transaction Documents and the Relevant Documents to which it is
expressed to be a party and the performance by it of the
transactions envisaged hereby and thereby and it has not taken
any corporate action, nor have any other steps been taken or
legal proceedings been started or, to the best of its knowledge
and belief, having made all reasonable enquiries, threatened
against it, for its winding-up, dissolution, arrangement,
reconstruction or reorganisation or for the appointment of a
liquidator, receiver,
- 21 -
manager, administrator, administrative receiver or similar
officer of it or of any of its assets or revenues or for the
declaration of its assets "en desastre";
7.1.6 the Notes will constitute general, direct, secured (pursuant to
the Trust Deed and any relevant Trust Deed Supplement),
unconditional and unsubordinated obligations of the Issuer which
rank, amongst themselves, in the manner set out in the Base
Prospectus as updated by the most recent Final Terms or US
Prospectus as updated by the most recent US Prospectus
Supplement, prepared by the Issuer;
7.1.7 the Base Prospectus and each set of Final Terms, comply with the
listing rules made under Part VI of FSMA (the "LISTING RULES");
7.1.8 a registration statement on Form S-3 (No. 333-128502), including
a prospectus and such amendments thereto made on or prior to the
date hereof, relating to delayed offerings and sales of the
Notes pursuant to Rule 415 under the Securities Act, has been
filed with the SEC and all amendments to such registration
statement heretofore filed have been, and any such amendments
that may hereafter be filed will be, delivered to the Dealers.
As filed, the registration statement is, and any prospectus or
prospectus supplement to be filed pursuant to Rule 424(b) under
the Securities Act will, except to the extent that the Dealers
may agree in writing to a modification, be substantially in the
form furnished to the Dealers prior to the Execution Time or, to
the extent not completed at the Execution Time, will contain
only such specific additional information and other changes
(beyond those contained in the latest US Prospectus which has
been previously furnished to the Dealers) as the Dealers have
been advised, prior to the Execution Time, will be included or
made therein;
7.1.9 on each Effective Date, and on the date of this Agreement and
any Relevant Agreement, the Registration Statement did or will,
and when first filed and on each Issue Date the US Prospectus
did or will, include all information required to be included
therein by, and otherwise comply in all material respects with
the requirements of, the Securities Act and the rules and
regulations of the SEC thereunder;
7.1.10 on each Effective Date, 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 to make the statements therein not misleading,
PROVIDED, that no representation is hereby made with respect to
information contained in, or omitted from, the Registration
Statement in reliance upon and in conformity with information
furnished in writing by any Dealer (in such capacity)
specifically for use in connection with the preparation of the
Registration Statement (or any amendment thereof or supplement
thereto);
7.1.11 on each Effective Date the US Prospectus (if not filed pursuant
to Rule 424(b) did not or will not, and on the date of filing
- 22 -
and on each Issue Date the US Prospectus (if filed pursuant to
Rule 424(b)) will not, and at the Time of Sale and at the Issue
Date the Time of Sale Information did not and 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 light of the circumstances under which they were made, not
misleading, PROVIDED, that no representation is hereby made with
respect to information contained in, or omitted from, the US
Prospectus or the Time of Sale Information (as applicable) in
reliance upon and in conformity with information furnished in
writing by any Dealer (in such capacity) specifically for use in
connection with the preparation of the US Prospectus (or any
amendment or supplement thereto) or the Time of Sale Information
(as applicable);
7.1.12 as of the Issue Date, the representations and warranties of the
Issuer in the Transaction Documents to which it is a party are
true and correct;
7.1.13 no consent, approval, authorisation or order of, or filing with,
any court or governmental agency or body is required to be
obtained or made by the Issuer for the consummation of the
transactions contemplated by this Agreement, except to the
extent required to be obtained or made under state securities
law and such as have been obtained and made under the Securities
Act or otherwise and except for:
(a) the consent required pursuant to the Control of
Borrowing (Jersey) Order 1958 (as amended) in respect of
the issue of the Notes which shall be obtained prior to
the Effective Date; and
(b) the filing of the completed Dual Use Prospectus after
the date hereof with the Registrar of Companies in
Jersey pursuant to the Companies (General Provisions)
(Jersey) Order 2002 and the issue pursuant thereto of
his consent to the circulation of the final and
completed Dual Use Prospectus;
7.1.14 save as set out in Clause 7.1.13 above, all approvals,
authorisations, consents and licences required by the Issuer for
or in connection with the creation and issue of the Notes, the
execution and delivery of the Transaction Documents and the
Relevant Documents to which it is expressed to be a party, the
performance by the Issuer of the obligations expressed to be
undertaken by it in this Agreement and the distribution of the
Base Prospectus and each Final Terms (or US Prospectus and US
Prospectus Supplement, as the case may be) in accordance with
the provisions set out in Schedule 1 (Selling Restrictions) have
been obtained and are, and will on the Issue Date be, in full
force and effect;
7.1.15 all payments of principal and interest on the Notes (including
interest accruing after a payment default) by the Issuer can be
made without withholding or deduction for, or on account of, any
present tax, assessment or other governmental charge of whatever
nature imposed or levied by or on behalf of Jersey, the United
Kingdom, the United States or any political sub-division or
taxing authority in or of any such jurisdiction (each a
"RELEVANT
- 23 -
JURISDICTION"), unless the withholding or deduction of such tax,
assessment or other governmental charge is required by law of
the Relevant Jurisdiction;
7.1.16 the Base Prospectus as supplemented by each Final Terms contain
all such information as is required by Section 80 of FSMA;
7.1.17 there are no litigation or arbitration proceedings, actual or,
to the best of its knowledge, pending or threatened, at the date
hereof against or affecting the Issuer or any of its assets or
revenues;
7.1.18 since the date of its incorporation, there has been no adverse
change, or any development likely to involve an adverse change,
in the condition (financial or otherwise) or general affairs of
the Issuer;
7.1.19 no event has occurred or circumstance arisen which is continuing
and which is or (with the passage of time, the giving of notice
or the making of any determination of materiality) might become
an Event of Default;
7.1.20 under the laws of the United Kingdom and Jersey in force as at
the date of making this representation, it is not necessary that
this Agreement be filed, recorded or enrolled with any court or
other authority in the United Kingdom or Jersey or that any
stamp, registration or similar tax be paid on or in relation to
this Agreement or in relation to the issue of the Notes;
7.1.21 to its knowledge, it has its "centre of main interests", as that
term is used in Article 3(i) of the EU Regulation on Insolvency
Proceedings No. 1346/2000, in Jersey;
7.1.22 it has no branch office in any jurisdiction other than Jersey,
no subsidiaries and no employees; and
7.1.23 its management, the places of residence of the majority of its
directors, the place at which meetings of its board of directors
are held and the place from which its interests are administered
are all situated in Jersey.
7.2 In order to induce the Dealers to subscribe for the Notes, each
Transferor (in such capacity) severally represents and warrants to each
Dealer and the US Distributor that:
7.2.1 it is duly incorporated and validly existing under the laws of
England and Wales or Scotland (as applicable) with full
corporate power, authority and legal right to conduct its credit
card business as presently conducted and has full power and
capacity to execute and deliver this Agreement and the Relevant
Documents to which it is expressed to be a party and to
undertake and perform the obligations expressed to be assumed by
it herein and therein, it has taken all necessary action to
approve and to authorise the same and it is not an "ineligible
issuer" (as such term is defined in Rule 405 under the
Securities Act, without giving effect to clause (2) of such
definition);
7.2.2 it is able to pay its debts as they fall due within the meaning
of Section 123 of the Insolvency ▇▇▇ ▇▇▇▇ and will not become
unable to do so in consequence
- 24 -
of the execution by it of this Agreement and the Relevant
Documents to which it is expressed to be a party and the
performance by it of the transactions envisaged hereby and
thereby and it has not taken any corporate action, nor have any
other steps been taken or legal proceedings been started or, to
the best of its knowledge and belief, having made all reasonable
enquiries, threatened against it, for its winding-up,
dissolution, arrangement, reconstruction or reorganisation or
for the appointment of a liquidator, receiver manager,
administrator, administrative receiver, or similar officer of it
or of any of its assets or revenues;
7.2.3 this Agreement and the Relevant Documents to which it is
expressed to be a party constitute, and will, upon due execution
and delivery by or on its behalf, constitute, legal and valid
obligations binding on it and enforceable against it in
accordance with their terms, except:
(a) as such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium, reorganisation or
other similar laws affecting the enforcement of the
rights of creditors generally;
(b) as such enforceability may be limited by the effect of
general principles of equity;
(c) that obligations relating to stamp duties may be void by
virtue of Section 117 of the Stamp ▇▇▇ ▇▇▇▇; and
(d) for such other exceptions and qualifications as are
contained in the legal opinions referred to in Clause
3.2.10 (Legal opinions and comfort letters, etc.);
7.2.4 the execution and delivery of this Agreement and the Relevant
Documents to which it is expressed, in its capacity as
Transferor, to be a party and each assignment or declaration of
trust to be entered into by it in respect of the Receivables and
the undertaking and performance by it of the obligations
expressed to be assumed by it herein and therein do not and will
not conflict with, result in a breach or infringement of the
terms or provisions of, or constitute a default under, its own
applicable laws of England and Wales or Scotland, as applicable,
or its Memorandum and Articles of Association and do not and
will not infringe the terms of, or constitute a default under,
any trust deed, agreement or other instrument or obligation to
which it is a party or by which it or any part of its
properties, undertakings, assets or revenues is bound, where
such conflict, breach, infringement or default might have a
material adverse effect in the context of its ability to perform
its obligations as a Transferor under this Agreement or any
Relevant Document to which it is expressed to be a party;
7.2.5 there are no litigation or arbitration proceedings, actual or,
to the best of its knowledge, pending or threatened at the date
hereof against or affecting it or any of its assets or revenues
which do or will if adversely concluded, individually or in
aggregate, materially and adversely affect it in the context of
- 25 -
its ability as Transferor to perform its obligations under this
Agreement or any Relevant Document to which it is expressed to
be a party or any assignment or declaration of trust to be
entered into by it in respect of the Receivables or in the
context of the issue and offering of the Notes;
7.2.6 all approvals, authorisations, consents, orders or other actions
of any person or of any governmental or regulatory body or
official required in connection with the performance of its
credit card business and the execution and delivery of this
Agreement and each Relevant Document to which it is expressed to
be a party in the manner contemplated therein, the performance
of the transactions contemplated by this Agreement and each
Relevant Document to which it is expressed to be a party and the
fulfilment of the terms thereof have been obtained and remain,
and will remain on the Issue Date, in force in all material
respects. Any applicable licence under the Consumer Credit Act
1974 has been obtained and since such time has remained in force
in all material respects and registration in accordance with the
provisions of the Data Protection Act 1998 (as amended from time
to time) has been complied with and remains in force in all
material respects;
7.2.7 a registration statement on Form S-3 (No. 333-128502), including
a prospectus and such amendments thereto made on or prior to the
date hereof, relating to delayed offerings and sales of the
Notes pursuant to Rule 415 under the Securities Act, has been
filed with the SEC and all amendments to such registration
statement heretofore filed have been, and any such amendments
that may hereafter be filed will be delivered to the Dealers. As
filed, the registration statement is, and any prospectus or
prospectus supplement to be filed pursuant to Rule 424(b) under
the Securities Act will, except to the extent that the Dealers
may agree in writing to a modification, be substantially in the
form furnished to the Dealers prior to the Execution Time or, to
the extent not completed at the Execution Time, will contain
only such specific additional information and other changes
(beyond those contained in the latest US Prospectus which has
been previously furnished to the Dealers) as the Dealers have
been advised, prior to the Execution Time, will be included or
made therein;
7.2.8 on each Effective Date, and on the date of this Agreement and
any Relevant Agreement, the Registration Statement did or will,
and when first filed and on each Issue Date the US Prospectus
did or will, include all information required to be included
therein by, and otherwise comply in all material respects with
the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder;
7.2.9 on each Effective Date, 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 to make the statements therein not misleading,
PROVIDED that no representation is hereby made with respect to
information contained in, or
- 26 -
omitted from, the Registration Statement in reliance upon and in
conformity with information furnished in writing by any Dealer
(in such capacity) specifically for use in connection with the
preparation of the Registration Statement (or any amendment or
supplement thereto);
7.2.10 on each Effective Date, the US Prospectus (if not filed pursuant
to Rule 424(b) did not or will not, and on the date of filing
and on each Issue Date, the US Prospectus (if filed pursuant to
Rule 424(b)) will not, and at the Time of Sale and at the Issue
Date, the Time of Sale Information did not and 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 light of the circumstances under which they were made, not
misleading, provided, that no representation is hereby made with
respect to information contained in, or omitted from, the US
Prospectus or the Time of Sale Information (as applicable) in
reliance upon and in conformity with information furnished in
writing by any Dealer (in such capacity) specifically for use in
connection with the preparation of the US Prospectus (or any
amendment or supplement thereto) or the Time of Sale Information
(as applicable);
7.2.11 as of the Issue Date, the representations and warranties of the
Transferor in each Transaction Document to which it is, in its
capacity as Transferor, a party are true and correct in all
material respects; and
7.2.12 since the date of the financial statements of The Royal Bank of
Scotland Group plc set forth in the Annual Report for the year
ended 31 December 2004, a copy of which has been furnished to
RBS as a Mandated Dealer (for itself and on behalf of the other
Dealers), there has been no adverse change in the financial
position of such Transferor which could materially and adversely
affect its ability to perform its obligations under the Relevant
Documents to which it is, in its capacity as Transferor, a
party.
7.3 In order to induce the Dealers to subscribe for the Notes, the Loan Note
Issuer represents and warrants to each Dealer and the US Distributor
that:
7.3.1 it is duly incorporated and validly existing under the laws of
Jersey with full corporate power, authority and legal right to
conduct its business as described in the Base Prospectus and
each Final Terms (or US Prospectus and US Prospectus Supplement,
as the case may be) and has full power and capacity to execute
and deliver this Agreement and the Relevant Documents to which
it is expressed to be a party and to undertake and perform the
obligations expressed to be assumed by it herein and therein, it
has taken all necessary action to approve and to authorise the
same and it is not an "ineligible issuer" (as such term is
defined in Rule 405 under the Securities Act, without giving
effect to clause (2) of such definition);
7.3.2 it has not engaged in any activities since its incorporation
(other than those incidental to its incorporation under relevant
Jersey legislation, the matters referred to or contemplated in
the Base Prospectus and each Final Terms (or US Prospectus and
US Prospectus Supplement, as the case may be), this Agreement
- 27 -
and the Relevant Documents to which it is expressed to be a
party and any other documents, certificates or agreements
ancillary or supplemental thereto or contemplated thereby and
matters incidental thereto and in connection with previously
issued series of loan notes of the Loan Note Issuer) and has
neither paid any dividends nor made any distributions since its
incorporation and has no subsidiaries;
7.3.3 it is able to pay its debts as they fall due and will not become
unable to do so in consequence of the execution by it of this
Agreement and the Relevant Documents to which it is expressed to
be a party and the performance by it of the transactions
envisaged hereby and thereby and it has not taken any corporate
action, nor have any other steps been taken or legal proceedings
been started or, to the best of its knowledge and belief, having
made all reasonable enquiries, threatened against it, for its
winding-up, dissolution, arrangement, reconstruction or
reorganisation or for the appointment of a liquidator, receiver,
manager, administrator, administrative receiver or similar
officer of it or of any of its assets or revenues or for the
declaration of its assets "en desastre";
7.3.4 this Agreement constitutes and the Relevant Documents to which
it is expressed to be a party, upon due execution and delivery
on behalf of the Loan Note Issuer, will constitute, legal and
valid obligations binding on it and enforceable against it in
accordance with their terms, except:
(a) as such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium, reorganisation or
other similar laws affecting the enforcement of the
rights of creditors generally;
(b) as such enforceability may be limited by the effect of
general principles of equity;
(c) that obligations relating to stamp duties may be void by
virtue of Section 117 of the Stamp ▇▇▇ ▇▇▇▇; and
(d) for such other exceptions and qualifications as are
contained in the legal opinions referred to in Clause
3.2.10 (Legal opinions and comfort letters, etc.);
7.3.5 the execution and delivery of this Agreement and the Relevant
Documents to which it is expressed to be a party and the
undertaking and performance by the Loan Note Issuer of the
obligations expressed to be assumed by it herein and therein do
not and will not conflict with, result in a breach or
infringement of the terms or provisions of, or constitute a
default under, the laws of Jersey or the Memorandum and Articles
of Association of the Loan Note Issuer and do not and will not
infringe the terms of, or constitute a default under, any trust
deed, agreement or other instrument or obligation to which the
Loan Note Issuer is a party or by which the Loan Note Issuer or
any part of its properties, undertakings, assets or revenues is
bound;
- 28 -
7.3.6 there are no litigation or arbitration proceedings, actual or,
to the best of its knowledge, pending or threatened at the date
hereof against or affecting the Loan Note Issuer or any of its
assets or revenues;
7.3.7 a registration statement on Form S-3 (No. 333-128502), including
a prospectus and such amendments thereto made on or prior to the
date hereof, relating to delayed offerings and sales of the
Notes pursuant to Rule 415 under the Securities Act, has been
filed with the SEC and all amendments to such registration
statement heretofore filed have been, and any such amendments
that may hereafter be filed will be, delivered to the Dealers.
As filed, the registration statement is, and any prospectus or
prospectus supplement to be filed pursuant to Rule 424(b) under
the Securities Act will, except to the extent that the Dealers
may agree in writing to a modification, be substantially in the
form furnished to the Dealers prior to the Execution Time or, to
the extent not completed at the Execution Time, contain only
such specific additional information and other changes (beyond
those contained in the latest US Prospectus which has been
previously furnished to the Dealers) as the Dealers have been
advised, prior to the Execution Time, will be included or made
therein;
7.3.8 on each Effective Date, and on the date of this Agreement and
any Relevant Agreement, the Registration Statement did or will,
and when first filed and on each Issue Date the US Prospectus
did or will, include all information required to be included
therein by, and otherwise comply in all material respects with
the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder;
7.3.9 on each Effective Date, 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 to make the statements therein not misleading,
PROVIDED that no representation is hereby made with respect to
information contained in, or omitted from, the Registration
Statement in reliance upon and in conformity with information
furnished in writing by any Dealer (in such capacity)
specifically for use in connection with the preparation of the
Registration Statement (or any amendment or supplement thereto);
7.3.10 on each Effective Date, the US Prospectus (if not filed pursuant
to Rule 424(b) did not or will not, and on the date of filing
and on each Issue Date, the US Prospectus (if filed pursuant to
Rule 424(b)) will not and, at the Time of Sale and at the Issue
Date, the Time of Sale Information did not and 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 light of the circumstances under which they were made, not
misleading, PROVIDED, that no representation is hereby made with
respect to information contained in, or omitted from, the US
Prospectus or the Time of Sale Information (as applicable) in
reliance upon and in conformity with information
- 29 -
furnished in writing by any Dealer (in such capacity)
specifically for use in connection with the preparation of the
US Prospectus (or any amendment or supplement thereto) or the
Time of Sale Information (as applicable);
7.3.11 no consent, approval, authorisation or order of, or filing with,
any court or governmental agency or body is required to be
obtained or made by the Loan Note Issuer for the consummation of
the transactions contemplated by this Agreement, except such as
have been obtained and made under the Securities Act or under
state securities laws or otherwise;
7.3.12 all approvals, authorisations, consents, orders or other actions
of any person or of any governmental or regulatory body or
official required in connection with the execution and delivery
of this Agreement and each Relevant Document to which it is
expressed to be a party, the performance of the transactions
contemplated by this Agreement and each Relevant Document to
which it is expressed to be a party and the fulfilment of the
terms thereof have been obtained and remain, and will remain on
the Issue Date, in force in all material respects.
7.4 In order to induce the Dealers to subscribe for the Notes, the
Receivables Trustee represents and warrants to each Dealer and the US
Distributor that:
7.4.1 it is duly incorporated and validly existing under the laws of
Jersey with full corporate power, authority and legal right to
conduct its business as described in the Base Prospectus and
each Final Terms (or US Prospectus and each US Prospectus
Supplement, as the case may be) and has full power and capacity
to execute and deliver this Agreement and the Relevant Documents
to which it is expressed to be a party and to undertake and
perform the obligations expressed to be assumed by it herein and
therein, and the Receivables Trustee has taken all necessary
action to approve and to authorise the same and it is not an
"ineligible issuer" (as such term is defined in Rule 405 under
the Securities Act, without giving effect to clause (2) of such
definition);
7.4.2 it has not engaged in any activities since its incorporation
other than those incidental to its incorporation under relevant
Jersey legislation, the matters referred to or contemplated in
the Base Prospectus and each Final Terms (or US Prospectus and
US Prospectus Supplement, as the case may be), this Agreement
and the Relevant Documents to which it is expressed to be a
party and any other documents, certificates or agreements
ancillary or supplemental thereto or contemplated thereby and
matters incidental thereto and in connection with the
establishment of the receivables trust created pursuant to the
Receivables Trust Deed and Trust Cash Management Agreement and
in connection with previously issued series of loan notes of the
Loan Note Issuer, and has neither paid any dividends nor made
any distributions to its shareholders since its incorporation
and has no subsidiaries or employees;
7.4.3 the execution and delivery of this Agreement and the Relevant
Documents to which it is expressed to be a party and the
undertaking and performance by the Receivables Trustee of the
obligations expressed to be assumed by it herein and
- 30 -
therein do not and will not conflict with, result in a breach or
infringement of the terms or provisions of, or constitute a
default under, the laws of Jersey or the Memorandum and Articles
of Association of the Receivables Trustee and do not and will
not infringe the terms of, or constitute a default under, any
trust deed, agreement or other instrument or obligation to which
the Receivables Trustee is a party or by which the Receivables
Trustee or any part of its properties, undertakings, assets or
revenues is bound;
7.4.4 this Agreement constitutes and the Relevant Documents to which
it is expressed to be a party, and the Investor Certificate upon
due execution and delivery on behalf of the Receivables Trustee,
will constitute, legal and valid obligations binding on it and
enforceable against it in accordance with their terms, except:
(a) as such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium, reorganisation or
other similar laws affecting the enforcement of the
rights of creditors generally;
(b) as such enforceability may be limited by the effect of
general principles of equity;
(c) that obligations relating to stamp duties may be void by
virtue of Section 117 of the Stamp ▇▇▇ ▇▇▇▇; and
(d) for such other exceptions and qualifications as are
contained in the legal opinions referred to in Clause
3.2.10 (Legal opinions and comfort letters, etc.);
7.4.5 it is able to pay its debts as they fall due and will not become
unable to do so in consequence of the execution by it of this
Agreement and the Relevant Documents to which it is expressed to
be a party and the performance by it of the transactions
envisaged hereby and thereby and it has not taken any corporate
action, nor have any other steps been taken or legal proceedings
been started or, to the best of the Receivables Trustee's
knowledge, threatened against it, for its winding-up,
dissolution arrangement, reconstruction or reorganisation or for
the appointment of a liquidator, receiver, administrator,
administrative receiver, manager or similar officer of it or of
any of its assets or revenues or for the declaration of its
assets "en desastre";
7.4.6 all approvals, authorisations, consents and licences required by
the Receivables Trustee for or in connection with the execution
and delivery of this Agreement and the Relevant Documents to
which it is expressed to be a party, the performance by the
Receivables Trustee of the obligations expressed to be
undertaken by it herein and therein have been obtained and are,
and will on the Issue Date be, in full force and effect;
7.4.7 a registration statement on Form S-3 (No. 333-128502), including
a prospectus and such amendments thereto made on or prior to the
date hereof, relating to delayed offerings and sales of the
Notes pursuant to Rule 415 under the Securities Act, has been
filed with the SEC and all amendments to such
- 31 -
registration statement heretofore filed have been, and any such
amendments that may hereafter be filed will be, delivered to the
Dealers. As filed, the registration statement is, and any
prospectus or prospectus supplement to be filed pursuant to Rule
424(b) under the Securities Act will, except to the extent that
the Dealers may agree in writing to a modification, be
substantially in the form furnished to the Dealers prior to the
Execution Time or, to the extent not completed at the Execution
Time, will contain only such specific additional information and
other changes (beyond those contained in the latest US
Prospectus which has been previously furnished to the Dealers)
as the Dealers have been advised, prior to the Execution Time,
will be included or made therein;
7.4.8 on each Effective Date, and on the date of this Agreement and
any Relevant Agreement, the Registration Statement did or will,
and when first filed and on each Issue Date the US Prospectus
did or will, include all information required to be included
therein by, and otherwise comply in all material respects with
the requirements of, the Securities Act and the rules and
regulations of the Commission thereunder;
7.4.9 on each Effective Date, 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 to make the statements therein not misleading,
PROVIDED that no representation is hereby made with respect to
information contained in, or omitted from, the Registration
Statement in reliance upon and in conformity with information
furnished in writing by any Dealer (in such capacity)
specifically for use in connection with the preparation of the
Registration Statement (or any amendment or supplement thereto);
7.4.10 on each Effective Date, the US Prospectus (if not filed pursuant
to Rule 424(b) did not or will not, and on the date of filing
and on each Issue Date, the US Prospectus (if filed pursuant to
Rule 424(b)) will not and, at the Time of Sale and at the Issue
Date, the Time of Sale Information did not and 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 light of the circumstances under which they were made, not
misleading, PROVIDED, that no representation is hereby made with
respect to information contained in, or omitted from, the US
Prospectus or the Time of Sale Information (as applicable) in
reliance upon and in conformity with information furnished in
writing by any Dealer (in such capacity) specifically for use in
connection with the preparation of the US Prospectus (or any
amendment or supplement thereto) or the Time of Sale Information
(as applicable);
7.4.11 save as set out in Clause 6.4.6 above, no consent, approval,
authorisation or order of, or filing with, any court or
government agency or body is requested to be obtained or made by
the Receivables Trustee for the consummation of the transactions
contemplated by this Agreement, except such as have been
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obtained and made under the Securities Act or under state
securities laws or otherwise;
7.4.12 there are no litigation or arbitration proceedings, actual or,
to the best of its knowledge, pending or threatened, at the date
hereof against or affecting the Receivables Trustee or any of
its assets or revenues; and
7.4.13 since the date of its incorporation, there has been no adverse
change, or any development reasonably likely to involve an
adverse change, in the condition (financial or otherwise) or
general affairs of the Receivables Trustee.
7.5 The representations and warranties in Clauses 7.1 to 7.4 which refer to
the US Prospectus and each US Prospectus Supplement or the Registration
Statement, in Clauses 7.1, 7.2, 7.3 and 7.4 which refer to the Base
Prospectus and each Final Terms, and in 7.1.1, 7.2.1, 7.3.1. and 7.4.1
regarding the representing party's not being an "ineligible issuer"
shall be deemed to be repeated (with reference to the facts and
circumstances then subsisting) at the Execution Time of each Relevant
Agreement, on each Issue Date and on each date falling on or before the
Issue Date on which the Dual Use Prospectus is amended or supplemented.
8. OBLIGATIONS
8.1 NO RECOURSE AGAINST SHAREHOLDERS AND OTHERS
No Dealers shall have any recourse against nor shall any personal
liability attach to any shareholder, officer, employee, agent or
director of the Issuer, any Transferor, the Loan Note Issuer or the
Receivables Trustee in his capacity as such by any Proceedings or
otherwise, by virtue of any statute or otherwise and any and all
personal liability for breaches by the Issuer, each Transferor, the Loan
Note Issuer or the Receivables Trustee of any such obligations,
covenants, or agreements, either at law or by statute or constitution,
of every shareholder, officer, agent or director is hereby expressly
waived by the Issuer, each Transferor, the Loan Note Issuer or the
Receivables Trustee and each of the Dealers as a condition of and
consideration for the execution of this Agreement, PROVIDED THAT no such
waiver of personal liability of any shareholder, officer, agent or
director of the Issuer, each Transferor, the Loan Note Issuer or the
Receivables Trustee as referred to above shall apply where any liability
or claim under this Agreement arises by reason of the fraud or wilful
misconduct of the relevant shareholder, officer, agent or director of
the Issuer, each Transferor, the Loan Note Issuer or the Receivables
Trustee.
8.2 NO LIABILITY FOR OBLIGATIONS OF ISSUER, ANY TRANSFEROR, THE LOAN NOTE
ISSUER AND THE RECEIVABLES TRUSTEE
No Dealers shall have any liability for the Obligations of the Issuer,
any Transferor, the Loan Note Issuer or the Receivables Trustee and
nothing in this Agreement shall constitute the giving of a guarantee or
indemnity or the assumption of a similar obligation by any of the
Dealers in respect of the performance by the Issuer, any Transferor, the
Loan Note Issuer or the Receivables Trustee of their Obligations under
this Agreement.
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9. NON-PETITION AND LIMITED RECOURSE
9.1 Each of the Dealers hereby agrees with the Issuer, each Transferor, the
Loan Note Issuer and the Receivables Trustee that:
9.1.1 it shall not (and no person acting on its behalf shall) until
two years after the Final Discharge Date initiate or join any
person in initiating an Insolvency Event in relation to the
Issuer, the Loan Note Issuer or the Receivables Trustee other
than the appointment of a receiver or an administrator by the
Trustee pursuant to the Trust Deed;
9.1.2 it shall not have the right to take or join any person in taking
steps against the Issuer, the Loan Note Issuer or the
Receivables Trustee for the purpose of obtaining payment of any
amount due from the Issuer, the Loan Note Issuer or the
Receivables Trustee; and
9.1.3 it shall not be entitled to take or join in the taking of any
corporate action, legal proceedings or other procedure or steps
which would result in Condition 4 not being complied with.
9.2 Each of the Dealers acknowledges that, notwithstanding any other
provision hereof, all payments and all obligations of the Issuer
hereunder in relation to any Series shall be equal to the lesser of the
nominal amount of such obligations and the actual amount received or
recovered by or for the account of the Issuer in respect of the Security
relating to such Series. Each Dealer shall look solely to such sums for
payments to be made by the Issuer hereunder in respect of such Series,
the obligation of the Issuer to make payments in respect of the Notes of
such Series being limited to such sums and no Dealer will have any
further recourse to the Issuer in respect thereof. In the event that the
amount due and payable by the Issuer hereunder in relation to any Series
exceeds the sums so received or recovered in relation to such Series,
the right of any Dealer or any person to claim payment of any amount
exceeding such sums shall be extinguished.
10. COVENANT OF THE ISSUER, THE TRANSFERORS, THE LOAN NOTE ISSUER AND THE
RECEIVABLES TRUSTEE
10.1 The Issuer covenants and undertakes to the Dealers that it has prepared
the Dual-Use Prospectus for use in connection with the issue of the
Notes and agrees with the Dealers that it will deliver to the Co-Lead
Dealers on behalf of the Dealers, without charge, no later than two (2)
business days after the date hereof and thereafter from time to time as
requested such number of copies of the Dual Use Prospectus as RBS as a
Co-Lead Dealer (for itself and on behalf of the Dealers) may reasonably
request, and it will make available to each Dealer upon request, (copies
of it in preliminary or proof form having already been distributed to
it) an electronic copy and up to two copies of the Dual Use Prospectus,
and the Issuer hereby consents to the use, in accordance with applicable
laws and this Agreement, of the Dual Use Prospectus (including
electronic forms thereof, and of any amendments or supplements thereto)
by each of the Dealers;
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10.2 Each of the Issuer, the Transferors, Loan Note Issuer and the
Receivables Trustee severally covenants and undertakes to the Dealers,
without prejudice to the rights of the Dealers under Clause 3.2
(Conditions Precedent to any Issue of Notes) and Clause 3.3 (Waiver of
Conditions Precedent), that each will notify the Dealers promptly of any
material change affecting the Issuer's, the Transferors', Loan Note
Issuer's or the Receivables Trustee's respective representations,
warranties, agreements and indemnities herein at any time prior to
payment being made to the Issuer on each Issue Date and, at the
Issuer's, the Transferors', Loan Note Issuer's or the Receivables
Trustee's expense, as applicable, will take such steps in relation to
the transactions contemplated hereby as may reasonably be requested by
Dealers to remedy and/or publicise the same.
11. INDEMNITY BY THE ISSUER, THE TRANSFERORS, THE LOAN NOTE ISSUER AND THE
RECEIVABLES TRUSTEE
11.1 The Issuer undertakes with the Dealers that it will indemnify and hold
harmless each Dealer and their respective directors, employees and
affiliates and each Relevant Party in relation to a Dealer from and
against any Loss which it may incur in relation to or in connection
with any breach or alleged breach by the Issuer of any of its
representations and warranties hereunder or any failure by the Issuer to
perform any of its undertakings and agreements made in this Agreement,
PROVIDED THAT the Issuer shall not be liable to the Dealers for any such
Loss arising from any statements in the Base Prospectus or any Final
Terms (or US Prospectus or any US Prospectus Supplement or Time of Sale
Information, as the case may be) made in reliance on and in conformity
with information furnished in writing by any Dealer in such capacity to
the Issuer, the Receivables Trustee or the Transferors expressly for use
in the Base Prospectus or any Final Terms (or US Prospectus or any US
Prospectus Supplement or Time of Sale Information, as the case may be)
(such information as specifically identified in the relevant
Subscription Agreement) and will pay to the relevant Dealer on demand an
amount equal to such Loss which it or any Relevant Party may reasonably
pay or incur in connection with investigating, disputing or defending
any such action or claim as such costs, charges and expenses are
incurred. This indemnity will be in addition to any liability which the
Issuer may otherwise have.
11.2 Each Transferor undertakes with the Dealers that it will indemnify and
hold harmless each Dealer and their respective directors, employees and
affiliates and each Relevant Party in relation to a Dealer from and
against any Loss which any of them may incur, in relation to or in
connection with any breach or alleged breach by any Transferor of any of
its representations and warranties hereunder or any failure by any
Transferor to perform any of its undertakings and agreements made in
this Agreement, PROVIDED THAT any Transferor shall not be liable to any
Dealers for any such Loss arising from any statements in the Base
Prospectus or any Final Terms (or US Prospectus or any US Prospectus
Supplement or Time of Sale Information, as the case may be) made in
reliance on and in conformity with information furnished in writing by
any Dealer to any Transferor, the Receivables Trustee or the Issuer
expressly for use in the Base Prospectus or any Final Terms (or US
Prospectus or any US Prospectus Supplement or Time of Sale Information,
as the case may be) (such information as specifically identified in the
relevant Subscription Agreement) and will pay to the relevant Dealer on
demand an amount equal to such Loss
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which it or any Relevant Party may reasonably pay or incur in connection
with investigating, disputing or defending any such action or claim as
such costs, charges and expenses are incurred. This indemnity will be in
addition to any liability which each Transferor may otherwise have.
11.3 The Loan Note Issuer undertakes with the Dealers that it will indemnify
and hold harmless each Dealer and their respective directors, employees
and affiliates and each Relevant Party in relation to a Dealer from and
against any Loss which any of them may incur or which may be made
against it in relation to or in connection with any breach or alleged
breach by the Loan Note Issuer of any of its representations and
warranties hereunder or any failure by the Loan Note Issuer to perform
any of its undertakings and agreements made in this Agreement, PROVIDED
THAT the Loan Note Issuer shall not be liable to any Dealers for any
such Loss arising from any statements in the Base Prospectus or any
Final Terms (or US Prospectus or any US Prospectus Supplement or Time of
Sale Information, as the case may be) made in reliance on and in
conformity with information furnished in writing by any Dealer to the
Loan Note Issuer, the Receivables Trustee or the Issuer expressly for
use in the Base Prospectus or any Final Terms (or US Prospectus or any
US Prospectus Supplement or Time of Sale Information, as the case may
be) (such information as specifically identified in the relevant
Subscription Agreement) and will pay to the relevant Dealer on demand an
amount equal to such Loss which it or any Relevant Party may reasonably
pay or incur in connection with investigating, disputing or defending
any such action or claim as such costs, charges and expenses are
incurred. This indemnity will be in addition to any liability which the
Loan Note Issuer may otherwise have.
11.4 The Receivables Trustee undertakes with the Dealers that it will
indemnify and hold harmless each Dealer and their respective directors,
employees and affiliates and each Relevant Party in relation to a Dealer
from and against any Loss which any of them may incur or which may be
made against it in relation to or in connection with any breach or
alleged breach by the Receivables Trustee of any of its representations
and warranties hereunder or any failure by the Receivables Trustee to
perform any of its undertakings and agreements made in this Agreement
PROVIDED THAT the Receivables Trustee shall not be liable to any Dealer
for any such Loss arising from any statements in the Base Prospectus or
any Final Terms (or US Prospectus or any US Prospectus Supplement or
Time of Sale Information, as the case may be) made in reliance on and in
conformity with information furnished in writing by any Dealer to the
Issuer, the Receivables Trustee or any Transferors expressly for use in
the Base Prospectus or any Final Terms (or US Prospectus or any US
Prospectus Supplement or Time of Sale Information, as the case may be)
(such information as specifically identified in the relevant
Subscription Agreement) and will pay to the relevant Dealer on demand an
amount equal to such Loss which it or any Relevant Party may reasonably
pay or incur in connection with investigating, disputing or defending
any such action or claim as such costs, charges and expenses are
incurred. This indemnity will be in addition to any liability which the
Receivables Trustee may otherwise have.
11.5 No Dealer shall have any duty or obligation, whether as fiduciary or
trustee, for any Relevant Party or otherwise, to recover any such
payment or to account to any other
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person for any amounts due to it under this Clause 11 (Indemnity by the
Issuer, the Transferors, the Loan Note Issuer and the Receivables
Trustee).
11.6 The Issuer, each Transferor, the Loan Note Issuer, the Receivables
Trustee and each Dealer agree that, in the event that any action is
brought against any of them in relation to any matter under or pursuant
to this Agreement which may give rise to a claim under Clause 4.2, 11.1,
11.2, 11.3 or 11.4, as the case may be, then such person shall, after
any of its officers with responsibility for the transactions
contemplated by this Agreement becomes aware of the same, give notice
within a reasonable time to the person or persons who may be liable to
indemnify such person under any such Clause (but failure to do so shall
not relieve such persons from liability).
11.7 CONDUCT OF CLAIMS
If any claim, demand or action is brought or asserted in respect of
which one or more persons (each, an "INDEMNIFIED PERSON") is entitled to
be indemnified by another person (the "INDEMNIFIER") under Clause 4.2 or
under this Clause 11 (Indemnity by the Issuer, the Transferors, the Loan
Note Issuer and the Receivables Trustee) (each a "CLAIM"), the relevant
Indemnified Person shall promptly notify the Indemnifier (but failure to
do so shall not relieve the Indemnifier from liability) and the
Indemnifier, the Indemnified Person and any Relevant Party agree to
consult in good faith as to the conduct of the defence of the relevant
Claim.
11.8 SETTLEMENT
No Indemnifier shall, without the prior written consent of each
Indemnified Person, settle or compromise, or consent to the entry of
judgment with respect to, any pending or threatened Claim (irrespective
of whether any Indemnified Person is an actual or potential defendant
in, or target of, such Claim) unless such settlement, compromise or
consent includes an unconditional release of such Indemnified Person and
each of its Relevant Parties from all liability arising out of the
matters which are the subject of such Claim. The Indemnifier shall not
be liable to pay any amount under this Clause 11 (Indemnity by the
Issuer, the Transferors, the Loan Note Issuer and the Receivables
Trustee) to any Indemnified Person where the relevant Claim has been
settled or compromised without its prior written consent (which shall
not be unreasonably withheld).
11.9 INTERPRETATION
The terms "AFFILIATE" and "CONTROLLED" as used in this Clause 11
(Indemnity by the Issuer, the Transferors, the Loan Note Issuer and the
Receivables Trustee) have the meanings given to them by the Securities
Act and the regulations thereunder.
12. SELLING RESTRICTIONS
Each of the parties hereto:
12.1 Schedule 1: represents, warrants and undertakes as set out in Schedule 1
(Selling Restrictions);
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12.2 Subsequent changes: agrees that, for these purposes, Schedule 1 (Selling
Restrictions) shall be deemed to be modified to the extent (if at all)
that any of the provisions set out in Schedule 1 (Selling Restrictions)
relating to any specific jurisdiction shall, as a result of change(s)
in, or change(s) in official interpretation of, applicable laws and
regulations after the date hereof, no longer be applicable;
12.3 Final Terms/US Prospectus Supplement: agrees that if:
12.3.1 in the case of any Series of Notes which is the subject of a US
Prospectus Supplement, any of the provisions set out in Schedule
1 (Selling Restrictions) are modified and/or supplemented by
provisions of the relevant US Prospectus Supplement; and
12.3.2 in the case of any other Series of Notes, any of the provisions
set out in Schedule 1 (Selling Restrictions) are modified and/or
supplemented by provisions of the relevant Final Terms;
and notice thereof is given to the relevant Dealers by the Issuer, then,
in respect of the Issuer, the Relevant Dealers and those Notes only,
Schedule 1 (Selling Restrictions) shall be deemed to be further modified
and/or supplemented to the extent described in the relevant Final Terms
or, as the case may be, the US Prospectus Supplement; and
12.4 General: agrees that the provisions of Clause 12.2 (Subsequent Changes)
and Clause 12.3 (Final Terms/US Prospectus Supplement) shall be without
prejudice to the obligations of the Dealers contained in the paragraph
headed "General" in Schedule 1 (Selling Restrictions).
13. AUTHORITY TO DISTRIBUTE DOCUMENTS
The Issuer hereby authorises each of the Dealers on its behalf to
provide or make available to actual and potential purchasers of Notes:
13.1 Documents: copies of the Base Prospectus, the terms of any Final Terms
(or US Prospectus or any US Prospectus Supplement, as the case may be)
or draft of such Final Terms (or US Prospectus or any US Prospectus
Supplement, as the case may be) and any other documents entered into in
relation to the Programme;
13.2 Representations: information and representations consistent with the
Dual Use Prospectus (and each (if any) US Prospectus Supplement or, as
applicable, Final Terms) and any other documents entered into in
relation to the Programme; and
13.3 Other information: such other documents and additional information as
the Issuer shall supply to the Dealers or approve for the Dealers to use
or such other information as is in the public domain.
14. STATUS OF THE ARRANGER
Each of the Dealers agrees that the Arranger has only acted in an
administrative capacity to facilitate the establishment and/or
maintenance of the Programme and has no responsibility to it for (a) the
adequacy, accuracy, completeness or reasonableness of
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any representation, warranty, undertaking, agreement, statement or
information in the Base Prospectus, any Final Terms, any US Prospectus
Supplement, this Agreement or any information provided in connection
with the Programme or (b) the nature and suitability to it of all legal,
tax and accounting matters and all documentation in connection with the
Programme or any Series.
15. FEES AND EXPENSES
15.1 ISSUER COSTS AND EXPENSES
The Issuer is responsible for payment of the proper costs, charges and
expenses:
15.1.1 Professional advisers: of the legal, accountancy and other
professional advisers instructed by the Issuer in connection
with the establishment and maintenance of the Programme, the
preparation of the Dual Use Prospectus, the relevant Final Terms
(and/or US Prospectus Supplement) or the issue and sale of any
Notes or the compliance by the Issuer with its obligations
hereunder or under any Relevant Agreement (including, without
limitation, the provision of legal opinions and comfort letters
as and when required by the terms of this Agreement or any
Relevant Agreement);
15.1.2 Dealer's advisers: of any legal and other professional advisers
instructed by the Dealers or the Arranger in connection with the
establishment and maintenance of the Programme;
15.1.3 Legal Documentation: incurred in connection with the preparation
and delivery of this Agreement, the Agency Agreement, the Trust
Deed (and the relevant supplement to the Trust Deed, as
applicable) and any Relevant Agreement, any documents required
under Schedule 2 (Conditions Precedent) and any other documents
connected with the Programme or any Notes;
15.1.4 Printing: of and incidental to the setting, proofing, printing
and delivery of the Base Prospectus, any Final Terms, the US
Prospectus, any US Prospectus Supplement or any forms thereof
and any Notes, including inspection and authentication;
15.1.5 Agents and Trustee: of the other parties to the Agency Agreement
and the Trust Deed;
15.1.6 Admission to trading: incurred at any time in connection with
the application for any Notes to be admitted to listing, trading
and/or quotation by any listing authorities, stock exchanges
and/or quotation systems and the maintenance of any such
admission(s);
15.1.7 SEC Filing: incurred at any time in connection with the filing
of the Registration Statement, the US Prospectus and each US
Prospectus Supplement with the SEC or any authority
administering any state securities laws;
15.1.8 Advertising and marketing: of any advertising, marketing and
roadshow expenses agreed upon between the Issuer and the
Arranger or the Mandated Dealer; and
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15.1.9 Passporting: incurred in connection with any passporting of the
Base Prospectus into another member state of the European Union.
15.2 TAXES
All payments in respect of the obligations of the Issuer under this
Agreement and each Relevant Agreement shall be made free and clear of,
and without withholding or deduction for, any taxes, duties, assessments
or governmental charges of whatsoever nature imposed, levied, collected,
withheld or assessed by the Issuer's taxing jurisdiction, or any
political subdivision or any authority thereof or therein having power
to tax, unless such withholding or deduction is required by law.
15.3 STAMP DUTIES
The Issuer shall pay all stamp, registration and other similar taxes
(which shall not, for the avoidance of doubt, include VAT) and duties
(including any interest and penalties thereon or in connection
therewith) which may be payable upon or in connection with the
establishment of the Programme, the issue or delivery of Notes and the
entry into, execution and delivery of this Agreement, the Agency
Agreement, the Trust Deed (and the relevant supplement to the Trust
Deed, as applicable), each Relevant Agreement and each Final Terms (or
US Prospectus and each US Prospectus Supplement, as the case may be) and
shall indemnify each Dealer and the Arranger against any claim, demand,
action, liability, damages, cost, loss or expense (including, without
limitation, legal fees) which it may incur or which may be made against
it as a result or arising out of or in relation to any failure to pay or
delay in paying any of the same.
15.4 REIMBURSEMENT OF SUMS IN RESPECT OF VAT
Any reference in this Agreement or any Relevant Agreement to any fee,
cost, loss, disbursement, expense or liability incurred by any party to
such agreement:
15.4.1 in respect of which such first party is to be reimbursed (or
indemnified) by any other party; or
15.4.2 the amount of which is to be taken into account in any
calculation or computation,
shall, save where the context otherwise requires, include a reference to
VAT incurred (including, without limitation, under section 8 of VATA) by
such first party in respect of such fee, cost, loss, disbursement,
expense or liability, save to the extent that such first party is
entitled to obtain credit or repayment in respect of such VAT from HM
Revenue & Customs or any other tax authority.
16. NOTICES
16.1 ADDRESSES FOR NOTICES
All notices and communications hereunder or under any Relevant Agreement
shall be made in writing and in English (by letter or fax) and shall be
sent to the addressee at the address or fax number specified against its
name in Schedule 4 (Notice and Contact Details) (or, in the case of a
Dealer not originally party hereto, specified by notice to the Issuer
and the other Dealers at or about the time of its appointment as a
Dealer) and for the attention of the person or department therein
specified (or as aforesaid) or, in any
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case, to such other address or fax number and for the attention of such
other person or department as the addressee has by prior notice to the
sender specified for the purpose.
16.2 EFFECTIVENESS
Every notice or other communication by letter, email or fax only sent in
accordance with Clause 16.1 (Addresses for notices) shall be effective
upon receipt by the addressee PROVIDED, HOWEVER, THAT any such notice or
other communication by letter, email or fax only which would otherwise
take effect (a) on a day which is not a business day in the place of the
addressee or (b) after 4.00 p.m. on any particular day shall not, in
either case, take effect until 10.00 a.m. on the immediately succeeding
business day in the place of the addressee.
17. CHANGES IN DEALERS
17.1 TERMINATION AND APPOINTMENT
The Issuer may with the prior consent of the Arranger:
17.1.1 Termination: by 30 days' notice in writing to any Dealer (other
than RBS or GCM), terminate this Agreement in relation to such
Dealer (but without prejudice to any rights or obligations
accrued or incurred on or before the effective date of
termination and in particular the validity of any Relevant
Agreement); and/or
17.1.2 New Dealer: nominate any institution as a new Dealer hereunder
in respect of the Programme, in which event, upon the
confirmation by such institution of a letter in the terms or
substantially in the terms set out in Schedule 5 (Form of Dealer
Accession Letter) or on any other terms acceptable to the Issuer
and such institution, such institution shall become a party
hereto with all the authority, rights, powers, duties and
obligations of a Dealer as if originally named as a Dealer
hereunder; and/or
17.1.3 Dealer for a day: nominate any institution as a new Dealer
hereunder only in relation to a particular Series, in which
event, upon the confirmation by such institution of a letter in
the terms or substantially in the terms set out in Schedule 5
(Form of Dealer Accession Letter) or pursuant to an agreement
appointing a "New Dealer" (as defined in the relevant agreement)
in or substantially in the form of Schedule 3 (Pro Forma
Subscription Agreement) or on any other terms acceptable to the
Issuer and such institution, such institution shall become a
party hereto with all the authority, rights, powers, duties and
obligations of a Dealer as if originally named as a Dealer
hereunder PROVIDED THAT:
(a) such authority, rights, powers, duties and obligations
shall extend to the relevant Series only; and
(b) following the issue of the Notes of the relevant Series,
the relevant new Dealer shall have no further authority,
rights, powers, duties or obligations except such as may
have accrued or been incurred prior to, or in connection
with, the issue of the relevant Series.
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17.1.4 The Issuer shall have no right to terminate the appointment of
RBS or GCM as Dealers or as Co-Lead Dealers.
17.2 RESIGNATION
Any Dealer may, by 30 days' written notice to the Issuer, resign as a
Dealer under this Agreement (but without prejudice to any rights or
obligations accrued or incurred on or before the effective date of
resignation and in particular the validity of any Relevant Agreement).
17.3 NOTIFICATION
The Issuer will notify existing Dealers appointed generally in respect
of the Programme and the Paying Agents of any change in the identity of
other Dealers appointed generally in respect of the Programme as soon as
reasonably practicable thereafter.
18. INCREASE IN AUTHORISED AMOUNT
18.1 NOTICE
The Issuer may, from time to time, by giving at least 30 days' notice by
letter in substantially the form set out in Schedule 6 (Form of Notice
of Increase of Authorised Amount) to each of the Dealers, (with a copy
to the Paying Agents), request that the Authorised Amount be increased
and unless notice to the contrary is received by the Issuer no later
than ten days after receipt by the Dealers of the letter referred to
above, each Dealer will be deemed to have given its consent to the
increase in the Authorised Amount.
18.2 EFFECTIVENESS
Notwithstanding the provisions of Clause 18.1 (Notice), no increase
shall be effective unless and until:
18.2.1 Conditions precedent: each of the Dealers shall have received in
form, number and substance satisfactory to each such Dealer,
further and updated copies of the documents and confirmations
described in Schedule 2 (Initial Conditions Precedent) (with
such changes as may be relevant having regard to the
circumstances at the time of the proposed increase) and such
further documents and confirmations as may be requested by the
Dealers including, without limitation, a supplement to the Base
Prospectus, not later than ten days after receipt by the Dealers
of the letter referred to in Clause 17.1 (Notice); and
18.2.2 Compliance: the Issuer shall have complied with all legal and
regulatory requirements necessary for the issuance of, and
performance of obligations under, Notes up to such new
Authorised Amount, and upon such increase taking effect, all
references in this Agreement to the Programme and the Authorised
Amount being in a certain principal amount shall be to the
increased principal amount.
- 42 -
19. ASSIGNMENT
19.1 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure for the benefit of
the Issuer, the Loan Note Issuer, the Receivables Trustee, the
Transferors and the Dealers and their respective successors and
permitted assigns.
19.2 ISSUER, LOAN NOTE ISSUER, RECEIVABLES TRUSTEE, TRANSFERORS
Each of the Issuer, the Loan Note Issuer, the Receivables Trustee and
the Transferors may not assign its rights or transfer its obligations,
other than pursuant to the Trust Deed, under this Agreement or any
Relevant Agreement, in whole or in part, without the prior written
consent of each of the Dealers or, as the case may be, the Relevant
Dealer(s) and any purported assignment or transfer without such consent
shall be void.
19.3 DEALERS
No Dealer may assign any of its rights or delegate or transfer any of
its obligations under this Agreement or any Relevant Agreement, in whole
or in part, without the prior written consent of the Issuer and the
Arranger and any purported assignment or transfer without such consent
shall be void, except for an assignment and transfer of all of a
Dealer's rights and obligations hereunder in whatever form such Dealer
determines may be appropriate to a partnership, corporation, trust or
other organisation in whatever form that may succeed to, or to which the
Dealer transfers, all or substantially all of such Dealer's assets and
business relevant to the performance of such Dealer's obligations under
this Agreement or any Relevant Agreement and that assumes such
obligations by contract, operation of law or otherwise. Upon any such
transfer and assumption of obligations, such Dealer shall be relieved
of, and fully discharged from, all obligations hereunder and any
Relevant Agreement, whether such obligations arose before or after such
transfer and assumption.
20. CURRENCY INDEMNITY
20.1 NON-CONTRACTUAL CURRENCY
Any amount received or recovered by a Dealer from the Issuer, the
Transferors, the Loan Note Issuer or Receivables Trustee, in a currency
other than that in which the relevant payment is expressed to be due
(the "CONTRACTUAL CURRENCY") as a result of, or of the enforcement of, a
judgment or order of a court of any jurisdiction or otherwise in respect
of any sum due to it in connection with this Agreement, shall only
constitute a discharge to the Dealer to the extent of the amount in the
Contractual Currency which such Dealer is able to purchase with the
amount so received or recovered in that other currency on the date of
that receipt or recovery (or, if it is not practicable to make that
purchase on that date, on the first date on which it is practicable to
do so).
20.2 INDEMNITIES
If any amount referred to in Clause 20.1 (Non-contractual currency)
received or recovered by a Dealer is less than the amount in the
Contractual Currency expressed to be due to such Dealer under this
Agreement, the Issuer, the Transferors, the Loan Note Issuer or
Receivables Trustee, as applicable, shall indemnify such Dealer against
any loss sustained by such Dealer as a result. In any event, the Issuer
shall indemnify such Dealer against any cost of making such purchase
which is reasonably incurred.
- 43 -
20.3 SEPARATE OBLIGATIONS
The indemnities referred to in Clause 20.2 (Indemnities) constitute a
separate and independent obligation from the Issuer's other obligations
of the Issuer, the Transferors, the Loan Note Issuer or Receivables
Trustee, as applicable, shall give rise to a separate and independent
cause of action, shall apply irrespective of any indulgence granted by
any Dealer and shall continue in full force and effect despite any
judgment, order, claim or proof for a liquidated amount in respect of
any sum due in connection with this Agreement or any judgment or order.
Any such loss aforesaid shall be deemed to constitute a loss suffered by
the relevant Dealer and no proof or evidence of any actual loss will be
required by the Issuer, the Transferors, the Loan Note Issuer or
Receivables Trustee, as applicable.
21. LAW AND JURISDICTION
21.1 GOVERNING LAW
This Agreement and all matters arising from or connected with it are
governed by, and shall be construed in accordance with, English law.
21.2 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any dispute
(a "DISPUTE"), arising from or connected with this Agreement (including a
dispute regarding the existence, validity or termination of this
Agreement) or the consequences of its nullity.
21.3 APPROPRIATE FORUM
The parties agree that the courts of England are the most appropriate
and convenient courts to settle any Dispute and, accordingly, that they
will not argue to the contrary.
21.4 RIGHTS OF THE DEALERS TO TAKE PROCEEDINGS OUTSIDE ENGLAND
Clause 21.2 (English courts) is for the benefit of the Dealers only. As
a result, nothing in this Clause 21 (Law and jurisdiction) prevents the
Dealers from taking proceedings relating to a Dispute ("PROCEEDINGS") in
any other courts with jurisdiction. To the extent allowed by law, the
Dealers may take concurrent Proceedings in any number of jurisdictions.
21.5 APPOINTMENT OF PROCESS AGENT
Each of the Issuer, the Loan Note Issuer and the Receivables Trustee
hereby appoint ▇▇▇▇▇▇▇▇ Chance Secretaries Limited, ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, to act as its agent to accept service of
process out of the English courts in relation to all matters arising out
of this Agreement. If the appointment of the person mentioned above
ceases to be effective the Issuer, the Loan Note Issuer or the
Receivables Trustee (as the case may be) shall, on the written demand of
any Co-Lead Dealer, appoint a further person in England to accept
service of process on its behalf and, failing such appointment within 15
days, the Co-Lead Dealers shall be entitled to appoint such a person by
written notice to the Issuer, the Loan Note Issuer or the Receivables
Trustee (as applicable). Nothing in this sub-clause shall affect the
right of the Co-Lead Dealer to serve process in any other manner
permitted by law.
- 44 -
21.6 CONSENT TO ENFORCEMENT ETC.
The Issuer, the Receivables Trustee and the Loan Note Issuer consent
generally in respect of any Proceedings to the giving of any relief or
the issue of any process in connection with such Proceedings including
(without limitation) the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use) of any
order or judgment which is made or given in such Proceedings.
21.7 WAIVER OF IMMUNITY
To the extent that any party to this agreement or any Relevant Agreement
may in any jurisdiction claim for itself or its assets or revenues
immunity from suit, execution, attachment (whether in aid of execution,
before judgment or otherwise) or other legal process and to the extent
that such immunity (whether or not claimed) may be attributed in any
such jurisdiction to it or its respective assets or revenues, such party
agrees not to claim and irrevocably waives such immunity to the full
extent permitted by the laws of such jurisdiction.
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original. Any party may enter into this
Agreement by signing any such counterpart.
23. RIGHTS OF THIRD PARTIES
Without prejudice to the rights of any shareholder, officer, employee,
agent or director to rely on Clauses 8 (Obligations as Corporate
Obligations) and 9 (Non-Petition and Limited Recourse) and Clause 11
(Indemnity by the Issuer, the Transferors, Loan Note Issuer and the
Receivables Trustee) hereof, a person who is not a party to this
Agreement has no right under the Contracts (Rights of Third Parties) ▇▇▇
▇▇▇▇ to enforce any term of this Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
- 45 -
SCHEDULE 1
SELLING RESTRICTIONS
1. GENERAL
1.1 NO ACTION TO PERMIT PUBLIC OFFERING
Each Dealer acknowledges that, other than with respect to the
registration of the Notes with the SEC under the Securities Act and the
admission of the Notes to listing, trading and/or quotation by the
relevant Stock Exchanges, no action has been or will be taken in any
jurisdiction by the Issuer that would permit a public offering of the
Notes, or possession or distribution of any offering material in
relation thereto, in any country or jurisdiction where action for that
purpose is required.
1.2 DEALERS' COMPLIANCE WITH APPLICABLE LAWS
Each Dealer undertakes to the Issuer that it will comply with all
applicable laws and regulations in each country or jurisdiction in which
it purchases, offers, sells or delivers Notes or has in its possession
or distributes such offering material, in all cases at its own expense.
2. UNITED KINGDOM
In relation to each Series of Notes, each Relevant Dealer represents,
warrants and undertakes to the Issuer and each other Relevant Dealer (if
any) that:
2.1 No deposit-taking: in relation to any Notes which have a maturity of
less than one year:
2.1.1 it is a person whose ordinary activities involve it in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of its business and:
2.1.2 it has not offered or sold and will not offer or sell any Notes
other than to persons:
(a) whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as
principal or agent) for the purposes of their
businesses; or
(b) who it is reasonable to expect will acquire, hold,
manage or dispose of investments (as principal or agent)
for the purposes of their businesses,
where the issue of the Notes would otherwise constitute a
contravention of Section 19 of the FSMA by the Issuer;
2.2 Financial promotion: it has only communicated or caused to be
communicated and will only communicate or cause to be communicated an
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 Notes in circumstances in which section 21(1) of
the FSMA does not apply to the Issuer;
- 46 -
2.3 General compliance: it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to any Notes in, from or otherwise involving the United Kingdom.
3. JERSEY
3.1 DEALER'S ACKNOWLEDGEMENTS
Each Relevant Dealer acknowledges and undertakes:
3.1.1 that it will not offer, sell or transfer the Notes to any person
resident for income tax purposes in Jersey other than financial
institutions in the normal course of business;
3.1.2 such other matters as are set out in the relevant Subscription
Agreement for any Series of Notes (as may be relevant); and
3.1.3 that it is subject to the EC Money Laundering Directives.
3.2 DEALER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Relevant Dealer hereby represents and warrants to, and agrees with,
the Issuer that:
3.2.1 it is not a resident of Jersey, Channel Islands for income tax
purposes; and
3.2.2 it is a financially sophisticated investor who is capable of
evaluating the merits and risks of such investment and who has
sufficient resources to be able to bear any losses which may
result from such investment in the Notes.
- 47 -
SCHEDULE 2
INITIAL CONDITIONS PRECEDENT
1. CONSTITUTIVE DOCUMENTS
A certified true copy of the memorandum and articles of association of
the Issuer, each Transferor, the Loan Note Issuer and the Receivables
Trustee.
2. AUTHORISATIONS
Certified true copies of all relevant resolutions and other
authorisations required to be passed or given, and evidence of any other
action required to be taken, on behalf of the Issuer, each Transferor,
the Receivables Trustee and the Loan Note Issuer authorising the
establishment of the Programme, the issue of Notes thereunder, the
execution and delivery of the Notes, this Agreement, the Agency
Agreement, the Trust Deed, any supplement relating thereto and all other
documents relating to the Programme and the performance of the Issuer's
obligations thereunder and the appointment of the persons named in the
lists referred to in paragraph 3 below.
3. INCUMBENCY CERTIFICATES
In respect of the Issuer, each Transferor, the Receivables Trustee and
the Loan Note Issuer a list of the names, titles and specimen signatures
of the persons authorised:
(a) to sign on its behalf the above mentioned documents;
(b) to enter into any Relevant Agreement with any Dealer(s);
(c) to sign on its behalf all notices and other documents to be
delivered pursuant thereto or in connection therewith; and
(d) to take any other action on its behalf in relation to the
Programme.
4. CONSENTS
A certified true copy of any necessary governmental, regulatory, tax,
exchange control or other approvals or consents.
5. DEALER AGREEMENT
The Dealer Agreement, duly executed.
6. AGENCY AGREEMENT
The Agency Agreement, duly executed or a conformed copy thereof.
7. TRUST DEED
The Trust Deed, duly executed or a conformed copy thereof.
8. BASE PROSPECTUS AND US PROSPECTUS
The Base Prospectus and US Prospectus.
- 48 -
9. CONFIRMATION OF ADMISSION TO TRADING
A copy of the confirmation from the UKLA or any other listing authority
that the Base Prospectus has been approved as a base prospectus for the
purposes of the Prospectus Directive, and of the admission of the
Programme to listing on the Official List of the UK Listing Authority or
any other listing authority and confirmation that Notes to be issued
under the Programme will be admitted to trading on the London Stock
Exchange or any other stock exchange subject only to the issue of Notes.
10. LEGAL OPINIONS
Legal opinions from Mourant du Feu & ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Chance LLP, London,
▇▇▇▇▇▇▇▇ Chance US LLP, Linklaters New York, Dundas & ▇▇▇▇▇▇ ▇▇ LLP and
Tughans in substantially the form agreed to on or about the date of this
Agreement.
11. AUDITORS' COMFORT LETTERS
Comfort letters from auditors to the Issuer in respect of the Base
Prospectus.
12. PROCESS AGENT
A certified copy of a letter from process agent agreeing to act as
process agent for the Issuer in relation to the Dealer Agreement, the
Agency Agreement, the Trust Deed (and the relevant supplement to the
Trust Deed, as applicable) and the Notes.
13. LISTING OF THE LOAN NOTES
A copy of the confirmation from the Channel Islands Stock Exchange that
or any other listing authority that the listing particulars with respect
to the Loan Notes has been approved.
14. CONTROL OF BORROWING (JERSEY) ORDER 1958 CONSENT
The consent required pursuant to the Control of Borrowing (Jersey) Order
1958 (as amended) in respect of the issue of the Notes which shall be
obtained prior to the Effective Date.
- 49 -
SCHEDULE 3
PRO FORMA SUBSCRIPTION AGREEMENT
[GRAPHIC OMITTED]
ARRAN FUNDING LIMITED
$[7,500,000,000]
ARRAN FUNDING MEDIUM TERM NOTE PROGRAMME
SERIES [o]-[o] [o] NOTES DUE [MATURITY]
---------------------------------------------------------------------------
SUBSCRIPTION AGREEMENT
---------------------------------------------------------------------------
- 50 -
THIS AGREEMENT is made on [date]
BETWEEN:
(1) ARRAN FUNDING LIMITED, acting through its London branch, a private
limited liability company incorporated in Jersey, Channel Islands with
company number 88474, having its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "ISSUER");
(2) THE ROYAL BANK OF SCOTLAND PLC, a public limited liability company
incorporated in Scotland, company number 90312, having its registered
office at ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ("RBS");
(3) NATIONAL WESTMINSTER BANK PLC, a public limited liability company
incorporated in England and Wales, having its registered office at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("NATWEST", and together with "RBS", the
"TRANSFERORS");
(4) RBS CARDS SECURITISATION FUNDING LIMITED, a private limited liability
company incorporated in Jersey, Channel Islands with company number
76199, having its registered office at Royal Bank House, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("LOAN NOTE ISSUER");
(5) SOUTH GYLE RECEIVABLES TRUSTEE LIMITED a private limited company
incorporated in Jersey, Channel Islands with company number 76197, having
its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
"RECEIVABLES TRUSTEE");
(6) GREENWICH CAPITAL MARKETS, INC., a company incorporated in Delaware with
company number ▇▇-▇▇▇▇▇▇▇ acting through its office at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("GCM"), as
US distributor and a co-lead dealer for RBS ("US DISTRIBUTOR" and
"CO-LEAD DEALER");
(7) THE ROYAL BANK OF SCOTLAND PLC, acting through its Financial Markets &
Global Banking business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (as the
arranger and a co-lead dealer, the "ARRANGER" and "CO-LEAD DEALER" and
together with GCM, the "CO-LEAD DEALER"); and
(8) [DEALER], [DEALER] and [DEALER] (the "DEALERS" which expression shall
include any institution(s) appointed as a Dealer in accordance with
Clause 17.1.2 (New Dealer) or Clause 17.1.3 (Dealer for a day) of the
Dealer Agreement, and save as specified herein, exclude any
institutions(s) whose appointment as a Dealer has been terminated in
accordance with Clause 17.1.1 (Termination) of the Dealer Agreement or
which has resigned in accordance with Clause 17.2 (Resignation) of the
Dealer Agreement PROVIDED THAT where any such institution has been
appointed as Dealer in relation to the Notes (as defined below) the
expression "DEALER" or "DEALERS" shall only mean or include such
institution in relation to the Notes).
- 51 -
WHEREAS:
(A) The Issuer has established the Arran Funding medium term note programme
(the "PROGRAMME") in connection with which they have entered into a
dealer agreement dated 10 November 2005 (the "DEALER AGREEMENT").
(B) Pursuant to the Dealer Agreement, the Issuer is entitled to issue Notes
(as defined in the Dealer Agreement) under the Programme to institutions
who become Dealers in relation to a particular Series of Notes only. Each
of the Dealers is either a Dealer in relation to the Programme or has
agreed to become a Dealer in relation to the Notes (as defined below)
pursuant to the provisions of this Agreement.
(C) The Issuer proposes to issue [description of Notes] Notes due [maturity
date] (the "Notes") and the Dealers wish to subscribe such Notes.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 RELEVANT AGREEMENT
This Agreement is a "Relevant Agreement" as that term is defined in the
Dealer Agreement and each of the Dealers is a Dealer on the terms set out
in the Dealer Agreement, save as expressly modified herein. This
Agreement is supplemental to, and should be read and construed in
conjunction with, the Dealer Agreement. For the avoidance of doubt
Clauses 8 (Obligations as Corporate Obligations) and 9 (Non- Petition
and Limited Recourse) of the Dealer Agreement shall apply to this
Agreement mutatis mutandis and shall be deemed to be incorporated herein.
1.2 THE NOTES
The Notes are issued under the Programme and accordingly are Notes as
defined in and for the purposes of the Dealer Agreement, the Agency
Agreement, the Trust Deed and the relevant supplement to the Trust Deed.
1.3 DEFINED TERMS AND CONSTRUCTION
All terms and expressions which have defined meanings in the Dealer
Agreement shall have the same meanings in this Agreement except where the
context requires otherwise or unless otherwise stated. In the event of
any conflict or inconsistency between the provisions of this Agreement
and the Dealer Agreement, the provisions of this Agreement shall apply.
The provisions of Clauses 1.2 (Clauses and Schedules) to 1.5 (Headings)
of the Dealer Agreement shall apply to this Agreement mutatis mutandis.
"TIME OF SALE" means [ ]:[ ] [a][p].m. ([London][New York] time on [ ].
20[ ].
"TIME OF SALE INFORMATION" means the documents listed in Appendix I
attached hereto.
2. NEW DEALER(S)
2.1 APPOINTMENT
It is agreed that each of [o], [o] and [o] (for the purposes of this
Clause 2, each a "NEW DEALER") shall become a Dealer in accordance with
sub-clause 17.1.3 (Dealer for a Day) of the Dealer Agreement upon the
terms of the Dealer
- 52 -
Agreement with all the authority, rights, powers, duties and obligations
of a Dealer as if originally named as a Dealer under the Dealer Agreement
PROVIDED THAT under sub-clause 17.1.3 thereof and this Clause 2.1:
2.1.1 Notes only: such authority, rights, powers, duties and obligations
shall extend to the Notes only; and
2.1.2 Termination: following the issue of the Notes, each New Dealer
shall have no further authority, rights, powers, duties or
obligations except such as may have accrued or been incurred prior
to, or in connection with, the issue of the Notes.
2.2 CONDITIONS PRECEDENT DOCUMENTS
Each New Dealer confirms that it has received sufficient copies of such
of the conditions precedent documents and confirmations listed in
Schedule 2 (Initial Conditions Precedent) to the Dealer Agreement as it
has requested, that these have been found satisfactory to it and that the
delivery of any of the other documents or confirmations listed in
Schedule 2 (Initial Conditions Precedent) to the Dealer Agreement is not
required.
3. ISSUE OF THE NOTES
3.1 [FINAL TERMS/US PROSPECTUS SUPPLEMENT]
The Issuer confirms that it has approved a set of [Final Terms/US
Prospectus Supplement] (the "[FINAL TERMS/ US PROSPECTUS SUPPLEMENT]")
dated [date] in connection with the issue of the Notes and confirms that
the [Final Terms/US Prospectus Supplement] is an authorised document for
the purposes of Clause 12 (Authority to Distribute Documents) of the
Dealer Agreement.
3.2 UNDERTAKING TO ISSUE
The Issuer undertakes to the Dealers that, subject to and in accordance
with the provisions of this Agreement, the Notes will be issued subject
to Clause 5.2 (Postponed closing) on [date] (the "ISSUE DATE"), in
accordance with this Agreement and the Agency Agreement.
3.3 UNDERTAKING TO SUBSCRIBE
The Dealers undertake to the Issuer that, subject to and in accordance
with the provisions of this Agreement, they will subscribe and pay for
the Notes on the Issue Date [at [figure] per cent. of the aggregate
principal amount of the Notes (the "ISSUE PRICE")] [plus (if the Issue
Date is postponed in accordance with Clause 5.2 (Postponed closing)) any
accrued interest in respect thereof]. The obligations of the Dealers
under this sub-clause are several.
3.4 [FIXED PRICE RE-OFFERING
Each Dealer represents, warrants and agrees that, prior to being notified
by the Mandated Dealer that the Notes are free to trade, it has not
offered or sold and will not offer or sell (and has procured and will
procure that none of its subsidiaries or affiliates offers or sells) any
Notes at a price less than the offered price set by the Mandated Dealer.]
- 53 -
3.5 [AGREEMENT AMONG DEALERS
The execution of this Agreement on behalf of all parties hereto will
constitute acceptance by each Dealer of the IPMA Agreement Among Dealers
Version 1 subject to any amendment notified to such Dealer in writing at
any time prior to the earlier of the receipt by the Mandated Dealer of
the document appointing such Dealer's authorised signatory and its
execution of this Agreement.]
3.6 LISTING AND TRADING
The Issuer shall use its best endeavours to procure that the Notes are
admitted to listing on the Official List of the UKLA and to trading on
the regulated market of the London Stock Exchange.
3.7 RATINGS
Pursuant to Clause 3.2.9 (No Adverse Change of Rating) of the Dealer
Agreement, the obligations of the Dealers under sub-clause 2.2.3 (Payment
of Net Proceeds) thereof and Clause 3.3 hereof are conditional upon the
delivery to the Mandated Dealer of confirmation from each of the Rating
Agencies that the Series [o] Notes will be rated [o]/[o]/[o] (in respect
of the Class [o] Notes), [o]/[o]/[o] (in respect of the Class [o] Notes)
and [o]/[o]/[o] (in respect of the Class [o] Notes).
3.8 [ADDITIONAL SELLING RESTRICTIONS
The Dealers undertake to the Issuer that they will comply with the
provisions of Appendix 1 (Additional Selling Restrictions).]
4. FEES AND EXPENSES
4.1 In consideration of the agreement by the Dealers (including the
Stabilising Manager and the Mandated Dealer) to subscribe for the Notes
as aforesaid, the Issuer shall, on the Issue Date pay to the Dealers, [by
way of set-off against the Issue Price of the Notes a combined
management, underwriting and selling commission of [o] per cent. (the
"COMBINED MANAGEMENT, UNDERWRITING AND SELLING COMMISSION ) of the
aggregate principal amount of the Notes] / [the underwriting fees with
respect to each of [list all classes of Notes] as more particularly
described in Part A of Appendix II hereto, such fees payable by the
Issuer to the Mandated Dealer on behalf of the Dealers in sterling and to
be subsequently allocated among the Dealers in a manner separately agreed
among them. The payment to the Mandated Dealer of such fees on the Issue
Date shall satisfy the claim of the Dealers against the Issuer for such
fees.]
4.2 In consideration of the agreement by the Dealers (including the
Stabilising Manager and the Mandated Dealer) to subscribe for the Notes
as aforesaid, subject to receipt of proper invoices for the same
addressed to the Issuer, the Issuer shall be obliged to pay on demand all
fees, costs and expenses of the Dealers expressed hereunder to be paid by
the Issuer to the extent that such amounts have been incurred prior to
the Issue Date and all costs, fees and expenses contemplated in Clauses
15.1 and 15.3 of the Dealer Agreement.
4.3 In the event that the closing of the Issue does not take place pursuant
to Clause 5 (Closing and Conditions Precedent) other than due to the
negligence or wilful
- 54 -
misconduct of the Dealers, the Issuer shall be obliged to pay all costs
and expenses of the Dealers expressed hereunder to be paid by the Issuer
on the Issue Date on demand following the date of postponement to the
extent agreed that such amounts have been incurred prior to the Issue
Date (but excluding therefrom, for the avoidance of doubt, the amounts
payable under Clause 4.1).
4.4 All payments in respect of the Issuer's, and the Dealers' obligations
hereunder shall be made free and clear of, and without withholding or
deduction for, any taxes, duties, assessments or governmental charges of
whatsoever nature imposed, levied, collected, withheld or assessed by the
United Kingdom, the Island of Jersey or any political subdivision or any
authority thereof or therein having power to tax, unless such withholding
or deduction is required by law.
4.5 All sums payable by one party to another under or pursuant to this
Agreement shall be deemed to be exclusive of any VAT chargeable on any
supply for which that sum is the consideration for VAT purposes.
4.6 Where, under or pursuant to the terms of this Agreement, any party (the
"SUPPLIER") makes a supply to another person (the "RECIPIENT") for VAT
purposes and VAT is or becomes chargeable on such supply for which the
Supplier is required to account to HM Revenue & Customs or another tax
authority, the Recipient shall pay an additional amount to the Supplier
equal to that VAT, PROVIDED THAT the Recipient has received a valid VAT
invoice from the Supplier in respect of that supply.
5. CLOSING
5.1 CLOSING
Subject to Clause 5.3 (Conditions precedent), the closing of the issue
shall take place on the Issue Date, whereupon:
5.1.1 Registration of Note: the Issuer shall register the Notes, duly
executed on behalf of the Issuer and in accordance with the Trust
Deed and the relevant supplement to the Trust Deed, to a common
depositary designated for the purpose by Euroclear and
Clearstream, Luxembourg or the Depositary Trust Company for credit
on the Issue Date to the accounts of Euroclear and Clearstream,
Luxembourg or The Depository Trust Company, as applicable, with
such common depositary;
5.1.2 Payment of net issue proceeds: against such delivery, the Dealers
shall procure the payment of the net proceeds of the issue of the
Notes [(namely the Issue Price less the fees and expenses that are
to be deducted pursuant to Clause 4 (Fees and Expenses))] to the
Issuer by credit transfer in the currency of the Notes in
immediately available funds to such account as the Issuer has
designated to the Dealer, whereupon the Issuer shall procure the
payment of such proceeds to the Loan Note Issuer; and
5.1.3 Payments of fees, costs and expenses: the Issuer shall pay the
fees, costs and expenses of the Dealers pursuant to Clause 4
hereof.
- 55 -
5.2 POSTPONED CLOSING
The Issuer, each Transferor, the Loan Note Issuer, the Receivables
Trustee and the Dealers may agree to postpone the Issue Date to another
date not later than 14 days after the Issue Date, whereupon all
references herein to the Issue Date shall be construed as being to that
later date.
5.3 CONDITIONS PRECEDENT
The Dealers shall only be under an obligation to subscribe and pay for
the Notes if the conditions precedent set out in Clause 3.1 (Conditions
precedent to first issue of Notes) and Clause 3.2 (Conditions precedent
to any issue of Notes) of the Dealer Agreement have been satisfied or
waived including, without prejudice to the foregoing, the receipt by the
Dealers on the [Issue Date]/[last day preceding the Issue Date on which
banks are open for general business and on which dealings in foreign
currency may be carried on in London (the "PRE-CLOSING DATE")] of the
following:
5.3.1 legal opinions dated the Issue Date:
(a) addressed to the Dealers, the Trustee, the Issuer, each
Transferor, the Loan Note Issuer and the Receivables
Trustee from ▇▇▇▇▇▇▇▇ Chance LLP, London and ▇▇▇▇▇▇▇▇
Chance US LLP and Linklaters; and
(b) addressed to the Dealers, the Trustee, the Issuer, each
Transferor, the Loan Note Issuer and the Receivables
Trustee from (1) Mourant du Feu & Jeune, Jersey counsel,
(2) Dundas & ▇▇▇▇▇▇, Scottish counsel and (3) Tughans,
Northern Irish counsel,
such legal opinions being in substantially a form agreed by the
Mandated Dealer;
5.3.2 closing certificates dated the Issue Date, addressed to the
Dealers and signed by a director or other duly authorised person
on behalf of each of the Issuer, each Transferor, the Loan Note
Issuer and the Receivables Trustee, as appropriate, each such
certificate being in substantially a form agreed by the
Mandated Dealer;
5.3.3 an incumbency certificate addressed to the Dealers and signed by a
director or other duly authorised person on behalf of the Issuer,
such certificate being in substantially a form agreed by the
Mandated Dealer;
5.3.4 a signing comfort letter dated the date of this Agreement in
relation to the Issuer, the Loan Note Issuer and the Receivables
Trustee addressed, inter alios, to the Dealers from Deloitte &
Touche LLP, each such letter being in substantially a form agreed
by the Mandated Dealer; and
5.3.5 a closing comfort letter dated the Issue Date in relation to the
Issuer, the Loan Note Issuer and the Receivables Trustee
addressed, inter alios, to the Dealers from Deloitte & Touche LLP,
each such letter being in substantially a form agreed by the
Mandated Dealer.
- 56 -
5.4 CONDITIONS PRECEDENT WAIVER
The Dealers acknowledge and agree that pursuant to sub-clause 3.3.3 of
the Dealer Agreement, the Mandated Dealer may, in its absolute
discretion, waive any of the conditions precedent in Clause 3.1 and 3.2
of the Dealer Agreement and herein and such waiver shall be given on
behalf of and be binding on the other Dealers.
6. SURVIVAL
The provisions of this Agreement shall continue in full force and effect
notwithstanding the completion of the arrangements set out herein for the
issue of the Notes and regardless of any investigation by any party
hereto.
7. TIME
Any date or period specified herein may be postponed or extended by
mutual agreement among the parties but, as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
8. NOTICES
Any notification hereunder to the Issuer shall be made in accordance with
the provisions of Clause 15 (Notices) of the Dealer Agreement and, in the
case of notification to the Dealers, shall be to the Dealers by telex or
fax or in writing at:
[ ]
Telex: [ ]
Fax: [ ]
Attention: [ ]
9. GOVERNING LAW AND JURISDICTION
This Agreement is governed by, and shall be construed in accordance with,
English law. The provisions of Clause 21 (Law and Jurisdiction) of the
Dealer Agreement shall be deemed to be incorporated by reference into
this Agreement mutatis mutandis.
10. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original. Any party may enter into this
Agreement by signing any such counterpart.
11. RIGHTS OF THIRD PARTIES
Without prejudice to the rights of any shareholder, officer, employee,
agent or director to rely on Clauses 8 (Obligations as Corporate
Obligations) and 9 (Non-Petition and Limited Recourse) of the Dealer
Agreement incorporated herein by virtue of Clause 1.1 of this Agreement,
a person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement.
- 57 -
APPENDIX 1
TIME OF SALE INFORMATION
1. [The prospectus that forms part of post-effective amendment No. [ ] to
the Registration Statement]
2. [The preliminary prospectus supplement filed with the US Securities and
Exchange Commission on [ ]]
3. [The free writing prospectus dated [ ], filed with the US Securities and
Exchange Commission on [ ]
- 58 -
APPENDIX II
FEES
PART A
UNDERWRITING FEES
----------------------------- ------------------------ -------------------------
CLASS A CLASS B CLASS C
----------------------------- ------------------------ -------------------------
[o] [o] [o]
----------------------------- ------------------------ -------------------------
The underwriting fees set out above apply to the principal amount on issue of
each relevant Class, payable in sterling pursuant to a US$/Sterling exchange
rate of $[o]/(pound)[o].
PART B
UNDERWRITING LIABILITY
---------------------------------- -------------- --------------- --------------
CLASS A CLASS B CLASS C
---------------------------------- -------------- --------------- --------------
THE ROYAL BANK OF SCOTLAND PLC [o] [o] [o]
---------------------------------- -------------- --------------- --------------
GREENWICH CAPITAL MARKETS, INC. [o] [o] [o]
---------------------------------- -------------- --------------- --------------
[o] [o] [o] [o]
---------------------------------- -------------- --------------- --------------
[o] [o] [o] [o]
---------------------------------- -------------- --------------- --------------
[o] [o] [o] [o]
---------------------------------- -------------- --------------- --------------
TOTAL [o] [o] [o]
---------------------------------- -------------- --------------- --------------
- 59 -
[APPENDIX III
ADDITIONAL SELLING RESTRICTIONS]
[If relevant]
- 60 -
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
The Issuer
[ISSUER]
By:
The Dealers
[ ]
[ ]
[ ]
By:
- 61 -
SCHEDULE 4
NOTICE AND CONTACT DETAILS
THE ISSUER
ARRAN FUNDING LIMITED
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: MIFA J Corporate 6
THE TRANSFEROR
THE ROYAL BANK OF SCOTLAND PLC
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
THE TRANSFEROR
NATIONAL WESTMINSTER BANK PLC
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
THE LOAN NOTE ISSUER
RBS CARDS SECURITISATION FUNDING LIMITED
Address: Royal Bank House
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Company Secretariat Department (▇▇▇▇ ▇▇▇▇)
- 62 -
THE RECEIVABLES TRUSTEE
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: ▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
Attention: MIFA J Corporate 6
THE US DISTRIBUTOR & Co-Lead Dealer
GREENWICH CAPITAL MARKETS, INC.
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ with a copy to: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ 001 203 422 4072
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
THE CO-LEAD DEALER
THE ROYAL BANK OF SCOTLAND PLC
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Head of ABS Syndicate
- 63 -
SCHEDULE 5
FORM OF DEALER ACCESSION LETTER
[New Dealer]
[Address]
Dear Sirs
ARRAN FUNDING LIMITED
[UK ADDRESS]
[CURRENCY][AMOUNT]
ARRAN FUNDING MEDIUM TERM NOTE PROGRAMME
We refer to our Arran Funding Medium Term Note Programme (the "PROGRAMME") for
the issuance of notes, in connection with which we have entered into a dealer
agreement dated 10 November 2005 (the "DEALER AGREEMENT"). All terms and
expressions which have defined meanings in the Dealer Agreement shall have the
same meanings in this letter except where the context requires otherwise or
unless otherwise stated.
We have pleasure in inviting you to become a Dealer upon the terms of the Dealer
Agreement [but only in respect of [specify Series of Notes (the "NOTES")]], a
copy of which has been supplied to you by us.
We are enclosing such copies of the conditions precedent as set out in Schedule
2 (Initial Conditions Precedent) to the Dealer Agreement as you have requested
together with copies of any updates or supplements thereto as have been
delivered to the existing Dealers. In addition, we enclose letters from ▇▇▇▇▇▇▇▇
Chance and [ ] entitling you to rely on the original letters referred to
therein.
Please return a copy of this letter to us signed by an authorised signatory
whereupon you will become a Dealer for the purposes of the Dealer Agreement with
[,subject as hereinafter provided,] all the authority, rights, powers, duties
and obligations of a Dealer under the Dealer Agreement [except that, following
the issue of the Notes, you shall have no further authority, rights, powers,
duties or obligations except such as may have accrued or been incurred prior to,
or in connection with, the issue of the Notes].
This letter is governed by, and shall be construed in accordance with, English
law. The provisions of Clause 20 (Law and Jurisdiction) of the Dealer Agreement
shall apply to this letter as if set out herein in full.
Yours faithfully
ARRAN FUNDING LIMITED
[UK Address]
By:
CONFIRMATION
We hereby accept our appointment as a Dealer under the Dealer Agreement upon the
terms of this letter [but only in respect of [specify Series of Notes]].
- 64 -
We confirm that we are in receipt of all the documents which we have requested
and have found them to be satisfactory.
For the purposes of the Dealer Agreement our communication details are as set
out below.
[NEW DEALER]
By:
Date:
Address: [ ]
[Telex: [number and answerback]]
Fax: + [number]
Attention: [name or department]
[copies to:
(i) all existing Dealers who have been appointed in respect of the Programme
generally;
(ii) the existing Paying Agents]
- 65 -
SCHEDULE 6
FORM OF NOTICE OF INCREASE OF AUTHORISED AMOUNT
To: [list all current Dealers appointed in
respect of the Programme generally, and each of the Paying Agents]
CC: RBS, as Arranger
Dear Sirs,
ARRAN FUNDING LIMITED [JERSEY ADDRESS]
[CURRENCY][AMOUNT]
ARRAN FUNDING MEDIUM TERM NOTE PROGRAMME
We refer to our Arran Funding Medium Term Note Programme (the "PROGRAMME") for
the issuance of notes, in connection with which we have entered into a dealer
agreement dated 10 November 2005 (the "DEALER AGREEMENT"). All terms and
expressions which have defined meanings in the Dealer Agreement shall have the
same meanings in this letter except where the context requires otherwise or
unless otherwise stated.
Pursuant to Clause 17 (Increase in Authorised Amount) of the Dealer Agreement,
we hereby request that the Authorised Amount of the Programme be increased from
[currency] [amount] to [currency] [amount] with effect from [date] or such later
date upon which the requirements of Clause 17.2 (Effectiveness) of the Dealer
Agreement shall be fulfilled, subject always to the provisions of Clause 17.2
(Effectiveness) of the Dealer Agreement.
Unless we receive notice to the contrary from you no later than ten days after
your receipt of this letter, you will (subject to our compliance with all
matters contemplated in Clause 18.2 (Effectiveness) of the Dealer Agreement) be
deemed to have consented to the increase in the Authorised Amount.
From the date upon which the increase in the Authorised Amount becomes
effective, all references in the Dealer Agreement to the Programme and the
Authorised Amount being in a certain principal amount shall be to the increased
principal amount as specified herein.
- 66 -
This letter is governed by, and shall be construed in accordance with, English
law. The provisions of Clause 20 (Law and Jurisdiction) of the Dealer Agreement
shall apply to this letter as if set out herein in full.
Yours faithfully,
ARRAN FUNDING LIMITED
- 67 -
SIGNATURES
THE ISSUER
ARRAN FUNDING LIMITED
By:
THE LOAN NOTE ISSUER
RBS CARDS SECURITISATION FUNDING LIMITED
By:
THE RECEIVABLES TRUSTEE
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
By:
- 68 -
THE TRANSFERORS
THE ROYAL BANK OF SCOTLAND PLC
By:
NATIONAL WESTMINSTER BANK PLC
By:
- 69 -
THE US DISTRIBUTOR AND CO-LEAD DEALER
GREENWICH CAPITAL MARKETS INC
By:
ARRANGER AND CO-LEAD DEALER
THE ROYAL BANK OF SCOTLAND PLC
By:
- 70 -