EXHIBIT 1.1
GRACECHURCH CARD FUNDING (NO. 6) PLC
$________ Class A Floating Rate Asset-Backed Notes
$________ Class B Floating Rate Asset-Backed Notes
$________ Class C Floating Rate Asset-Backed Notes
UNDERWRITING AGREEMENT
January ___, 2004
Barclays Capital Inc.
as Representative of the
Underwriters set forth herein
c/o Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1 INTRODUCTORY
Barclays Bank PLC (the "BANK"), a banking institution authorised for the
purposes of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (the "FSMA") of the
United Kingdom, has offered and may, together with its nominated
subsidiaries, make further offers to assign all its present and future
receivables (the "RECEIVABLES") arising under designated consumer credit
and charge card accounts (the "ACCOUNTS") to Gracechurch Receivables
Trustee Limited (the "RECEIVABLES TRUSTEE") pursuant to a receivables
securitisation agreement between the Bank and the Receivables Trustee dated
23 November 1999 and amended and restated on 7 July 2000 (the "RECEIVABLES
SECURITISATION AGREEMENT"). By a deed of assignment of receivables dated 7
July 2000 (the "ASSIGNMENT OF RECEIVABLES") the Bank assigned to the
Receivables Trustee all Receivables that would arise on certain designated
product lines. The Receivables Trustee has declared a trust (the
"RECEIVABLES TRUST") over such Receivables as may be assigned to it
pursuant to a declaration of trust dated 1 November 1999 as amended and
restated pursuant to the declaration of trust and trust cash management
agreement in favour of the Bank and certain other beneficiaries from time
to time dated 23 November 1999 (the "DECLARATION OF TRUST AND TRUST CASH
MANAGEMENT AGREEMENT"). The Bank has agreed to act as servicer in
connection with the Receivables which are comprised in the Receivables
Trust pursuant to the terms of a beneficiaries servicing agreement dated 23
November 1999 (the "BENEFICIARIES SERVICING AGREEMENT"). The Receivables
Trustee has agreed on a limited recourse basis to indemnify the Bank for
any loss suffered by the Bank from a cardholder claim under Section 75 of
the Consumer Credit Act 1974 pursuant to the trust section 75 indemnity
between the Receivables Trustee and the Bank dated 23 November 1999 (the
"TRUST SECTION 75 INDEMNITY").
Barclaycard Funding PLC, a public limited company incorporated in England
and Wales (the "MTN ISSUER") will increase its entitlement as investor
beneficiary of the Receivables Trust pursuant to the execution of
transactions contemplated by the series
04-1 supplement to the Declaration of Trust and Trust Cash Management
Agreement to be dated on or before the Closing Date (the "SERIES 04-1
SUPPLEMENT"). The MTN Issuer's entitlement as investor beneficiary pursuant
to the Series 04-1 Supplement (the "SERIES 04-1 BENEFICIARY INTEREST") will
be divided for purpose of making calculations under the Series 04-1
Supplement into the "CLASS A INVESTOR INTEREST", the "CLASS B INVESTOR
INTEREST" and the "CLASS C INVESTOR INTEREST". The Bank, as excess interest
beneficiary of the Receivables Trust, will transfer the excess interest
attributable to Series 04-1 to the MTN Issuer pursuant to an agreement
between beneficiaries to be dated on or before the Closing Date (the
"AGREEMENT BETWEEN BENEFICIARIES").
The MTN Issuer intends to fund its purchase of a beneficial interest in the
Receivables Trust by issuing a series 04-1 medium term note certificate
(the "SERIES 04-1 MTN CERTIFICATE") to be constituted by, issued subject
to, and have the benefit of, the security trust deed and MTN cash
management agreement between the MTN Issuer, the Bank, the Receivables
Trustee and The Bank of New York, London branch, as trustee (the "MTN
TRUSTEE"), dated 23 November 1999 (the "SECURITY TRUST DEED AND MTN CASH
MANAGEMENT AGREEMENT"), as supplemented by the series 04-1 MTN supplement
between the MTN Issuer, the Receivables Trustee, the MTN Trustee and the
Bank, to be dated on or before the Closing Date (the "SERIES 04-1 MTN
SUPPLEMENT"). The Series 04-1 MTN Certificate will have the benefit of a
fixed and floating charge over the MTN Issuer's beneficial interest in the
Receivables Trust and will be subscribed for by Gracechurch Card Funding
(No. 6) PLC, a public limited company incorporated under the laws of
England and Wales (the "Issuer"). The MTN Issuer will declare an express
purpose trust over any funds received by the MTN Issuer from the Series
04-1 Beneficiary Interest and the excess interest attributable to Series
04-1.
In order to fund its acquisition of the Series 04-1 MTN Certificate, the
Issuer has duly authorised the issuance of the $__________ Class A Floating
Rate Asset Backed Notes (the "CLASS A NOTES"), the $__________ Class B
Floating Rate Asset Backed Notes (the "CLASS B NOTES") and the $__________
Class C Floating Rate Asset Backed Notes (the "CLASS C NOTES", and together
with the Class A Notes and the Class B Notes, the "NOTES") to be
constituted by, issued subject to, and have the benefit of, a note trust
deed between the Issuer and The Bank of New York, London branch as trustee
(the "NOTE TRUSTEE"), to be dated as of on or before the Closing Date (the
"NOTE TRUST DEED"). The Issuer will, in relation to the Notes, enter into a
deed of charge (the "DEED OF CHARGE") and a paying agency and agent bank
agreement (the "PAYING AGENCY AND AGENT BANK AGREEMENT") with the Note
Trustee and the paying agents.
In order to enable the Issuer to make U.S. dollar payments on the Notes
from the sterling payments it receives on the Series 04-1 MTN Certificate,
the Issuer will enter into an interest rate and currency exchange agreement
with the Bank for each class of Notes (collectively, the "SWAP
AGREEMENTS"). The Issuer will also enter into an expenses loan agreement
with the Bank (the "EXPENSES LOAN AGREEMENT") to fund the expenses the
Issuer incurs in connection with the issuance of the Notes.
The Bank, the Receivables Trustee, the MTN Issuer and the Issuer hereby
agree with Barclays Capital Inc. and ________________- (the "UNDERWRITERS")
as follows:
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2 REPRESENTATIONS AND WARRANTIES OF THE ISSUER, THE BANK, THE RECEIVABLES
TRUSTEE AND THE MTN ISSUER
2.1 In order to induce the Underwriters to subscribe and pay for the Notes, the
Issuer represents and warrants to, and agrees with the Underwriters that:
2.1.1 The Issuer is duly incorporated and validly existing under the laws
of England and Wales, and has all requisite corporate power,
authority and legal right to own its property and to conduct its
business as it is presently conducted and described in the
Prospectus, and to execute, deliver and perform its obligations
under this Agreement, the Notes, the Note Trust Deed, the Deed of
Charge, the Paying Agency and Agent Bank Agreement, the Swap
Agreements and the Expenses Loan Agreement and any other agreement
made pursuant hereto or thereto or otherwise in connection with the
Notes entered into by the Issuer on the Closing Date (collectively,
the "ISSUER RELATED TRANSACTION DOCUMENTS") and it has taken all
necessary actions to authorise and approve the same.
2.1.2 The Issuer has not engaged in any activities since its
incorporation (other than those incidental to its registration
under relevant English legislation, as amended, the matters
referred to or contemplated in the Prospectus, the authorisation of
the issue of the Notes and the authorisation of the entry into and
performance of its obligations under the Issuer Related Transaction
Documents and any other documents, certificates or agreements
ancillary or supplemental thereto or contemplated thereby) and has
neither paid any dividends nor made any distributions since its
incorporation and has no subsidiaries.
2.1.3 This Agreement has been duly authorised and validly executed and
delivered by the Issuer.
2.1.4 Each of the Issuer Related Transaction Documents have been duly
authorised and will be executed and delivered by the Issuer on or
before the Closing Date, and when executed and delivered by the
other parties thereto, will constitute a valid and binding
agreement of the Issuer, enforceable against the Issuer in
accordance with its terms.
2.1.5 The Notes will be issued pursuant to the terms of the Note Trust
Deed duly qualified under the Trust Indenture Act of 1939 (the
"TRUST INDENTURE ACT"), will conform to the description thereof set
forth in the Prospectus, and when executed by the Issuer,
authenticated by The Bank of New York, London branch, as registrar,
and delivered pursuant to this Agreement, will be validly issued
and outstanding and entitled to the benefits of the Note Trust
Deed. The Notes will be in all material respects in the form
contemplated by the Note Trust Deed and will conform to the
description thereof contained in the Prospectus and Registration
Statement.
2.1.6 The Class A Notes will constitute general, direct, secured
(pursuant to the Deed of Charge), unconditional and unsubordinated
obligations of the Issuer which rank and will at all times rank
pari passu, without preference or priority, amongst themselves.
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2.1.7 The Class B Notes will constitute general, direct, secured
(pursuant to the Deed of Charge), unconditional obligations which
are subordinated only to the Class A Notes and which rank and will
at all times rank pari passu, without preference or priority,
amongst themselves.
2.1.8 The Class C Notes will constitute general, direct, secured
(pursuant to the Deed of Charge), unconditional obligations which
are subordinated only to the Class A Notes and the Class B Notes
and which rank and will at all times rank pari passu, without
preference or priority, amongst themselves.
2.1.9 The Issuer has made arrangements reasonably satisfactory to the
Representative to ensure that the certificates representing the
Notes are delivered to the Bank of New York, London branch as
registrar for authentication in the form required by, and otherwise
in accordance with, the Note Trust Deed and the Paying Agency and
Agent Bank Agreement.
2.1.10 The Issuer has made an application for the Notes to be rated by the
▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Ratings
Services (the "RATING AGENCIES") and, in connection with such
application, the Issuer agrees to furnish from time to time any and
all documents, instruments, information, and undertakings that may
be necessary in accordance with the Rating Agencies' normal
requirements in respect of the Notes.
2.1.11 The Issuer is not in violation of any Requirements of Law or in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or
other instrument to which it is a party or by which it is bound or
to which any of its property is subject, which violations or
defaults separately or in the aggregate would have a material
adverse effect on the Issuer. For the purposes of this Agreement,
"REQUIREMENTS OF LAW" means, with respect to any person, its
Memorandum and Articles of Association and any law, treaty, rule or
regulation or determination of a governmental authority.
2.1.12 Neither the issuance of and subscription for the Notes, nor the
execution and delivery by the Issuer of this Agreement, the Notes
or the Issuer Related Transaction Documents, nor the incurrence by
the Issuer of the obligations herein and therein set forth, nor the
consummation of the transactions contemplated hereunder or
thereunder, nor the fulfilment of the terms hereof or thereof does
or will (1) violate any Requirement of Law presently in effect,
applicable to it or its properties or by which it or its properties
are or may be bound or affected, (2) conflict with, or result in a
breach of, or constitute a default under, any indenture, contract,
agreement, deed, lease, mortgage or instrument to which it is a
party or by which it or its properties are bound, or (3) result in
the creation or imposition of any Encumbrance upon any of its
property or assets, except for those Encumbrances created under the
Note Trust Deed and the Deed of Charge. For purposes of this
Agreement, "ENCUMBRANCE" means any mortgage, charge (whether fixed
or floating), pledge, lien, hypothecation, assignment by way of
security, trust arrangement for the purpose of providing security
4
or other security interest of any kind securing any obligation of
any person or any other arrangement having the effect of conferring
rights of retention or set-off or other disposal rights over an
asset (including without limitation title transfer and/or retention
arrangements having a similar effect) and includes any agreement to
create any of the foregoing but does not include liens arising in
the ordinary course of trading by operation of law and not by way
of contract.
2.1.13 All consents, approvals, authorisations, orders, filings,
registrations or qualifications of or with any court or any other
governmental agency, board, commission, authority, official or body
required in connection with the execution and delivery by the
Issuer of this Agreement, the Notes and the other Issuer Related
Transaction Documents, or to the consummation of the transactions
contemplated hereunder and thereunder, or to the fulfilment of the
terms hereof and thereof have been or will have been obtained on or
before the Closing Date and are, and will on the Closing Date be,
in full force and effect.
2.1.14 All actions required to be taken by the Issuer as a condition to
the offer and issuance of the Notes as described herein and the
consummation of the transactions described in the Prospectus and
Registration Statement have been or, prior to the Closing Date,
will be taken.
2.1.15 The representations and warranties made by the Issuer in the Issuer
Related Transaction Documents or made in any Officer's Certificate
of the Issuer delivered pursuant to the Issuer Related Transaction
Documents will be true and correct at the time made and on and as
of the Closing Date as if set forth herein.
2.1.16 The Issuer agrees it has not and will not create or permit to
subsist in favour of any person any Encumbrance over the Series
04-1 MTN Certificate or the whole of its undertaking and all of its
property, assets and rights, present and future, except as provided
in the Deed of Charge, and agrees to take all action required by
the Deed of Charge in order to maintain the security interest in
the Series 04-1 MTN Certificate and the whole of its undertaking
and all of its property, assets and rights, present and future
granted in accordance with the terms of the Deed of Charge.
2.1.17 A registration statement on Form F-1 (No. 333-_______), including a
form of prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Notes and the offering
thereof in accordance with the provisions of the Securities Act of
1933, as amended (the "ACT"), and the rules and regulations of the
Securities and Exchange Commission (the "COMMISSION") thereunder,
has been filed with, and has been declared effective by, the
Commission. If any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution
and delivery of this Agreement, the most recent such amendment has
been declared effective by the Commission. For purpose of this
Agreement, "EFFECTIVE TIME" means the date and time as of which
such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the
Commission, and "EFFECTIVE DATE"
5
means the date of the Effective Time. Such registration statement,
as amended at the Effective Time, including all material
incorporated by reference therein and including all information (if
any) deemed to be part of such registration statement at the
Effective Time pursuant to Rule 430A under the Act, is referred to
in this Agreement as the "REGISTRATION STATEMENT", and the form of
prospectus relating to the Notes, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("RULE
424(B)") or (if no such filing is required) as included in the
Registration Statement, including all material incorporated by
reference in such prospectus under the Act, is referred to in this
Agreement as the "PROSPECTUS". The conditions to the use of a
registration statement on Form F-1 under the Securities Act as set
forth in the General Instructions to Form F-1 have been satisfied
with respect to the Issuer, the MTN Issuer and the Receivables
Trustee.
2.1.18 No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Issuer, threatened by
the Commission, and on the Effective Date the Registration
Statement and the Prospectus conformed in all respects to the
requirements of the Act and the rules and regulations of the
Commission under the Act (the "RULES AND REGULATIONS"), and did not
include 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, and on the date of this
Agreement, the Registration Statement and the Prospectus conform,
and at the time of filing of the Prospectus pursuant to Rule 424(b)
such documents will conform, in all respects to the requirements of
the Act and the Rules and Regulations, and on the Closing Date the
Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents will include on the date
of this Agreement and on the Closing Date 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.
2.1.19 The Prospectus contains all such information as is required by
Section 80 of the FSMA and will comply with the listing rules made
under Part VI of the FSMA.
2.1.20 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 of the execution by it of the Issuer
Related Transaction Documents, 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.
6
2.1.21 There are no litigation, arbitration or governmental 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 which are or might be material, individually or
in aggregate, in the context of the issue and the offering of the
Notes.
2.1.22 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 that is material in the context of the issue and offering of
the Notes or its ability to perform its obligations under the
Issuer Related Transaction Documents, in each case to which it is
expressed to be a party.
2.1.23 No event has occurred or circumstances 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) would become an
Event of Default (as defined in Condition 9 of the terms and
conditions of the Notes).
2.1.24 Under the laws of England and Wales 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
England and Wales or that any stamp, registration or similar tax be
paid on or in relation to this Agreement.
2.1.25 All payments of principal of 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 the United Kingdom or
any political sub-division or taxing authority in or of the United
Kingdom, unless the withholding or deduction of such tax,
assessment or other governmental charge is required by law of the
United Kingdom.
2.1.26 Any taxes, fees and other governmental charges payable by the
Issuer in connection with the execution, delivery and performance
of this Agreement, the other Issuer Related Transaction Documents
and the Notes shall have been paid or will be paid by or on behalf
of the Issuer at or prior to the Closing Date to the extent then
due.
2.1.27 The Issuer is not, and as a result of the issue of the Notes or the
receipt or application of the proceeds thereof will not be,
required to register under the Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT").
2.2 In order to induce the Underwriters to subscribe and pay for the Notes, the
Bank represents and warrants to, and agrees with, the Underwriters that:
2.2.1 The Bank is duly incorporated and validly existing under the laws
of England and Wales, and has all requisite corporate power,
authority and legal right to conduct its credit card business as
such business is presently conducted as described in the
Prospectus, and to execute, deliver and perform its obligations
under this Agreement, the Receivables
7
Securitisation Agreement, the Assignment of Receivables, the
Declaration of Trust and Trust Cash Management Agreement, the
Beneficiaries Servicing Agreement, the Trust Section 75 Indemnity,
the Series 04-1 Supplement, the Agreement Between Beneficiaries,
the Security Trust Deed and MTN Cash Management Agreement, the
Series 04-1 MTN Supplement, the Swap Agreements and the Expenses
Loan Agreement and any other agreement made pursuant hereto or
thereto or otherwise in connection with the issuance of the Notes
entered into by the Bank on the Closing Date (collectively, the
"BANK RELATED TRANSACTION DOCUMENTS"), and it has taken all
necessary action to approve and authorise the same.
2.2.2 This Agreement has been duly authorised and validly executed and
delivered by the Bank.
2.2.3 Each of the Bank Related Transaction Documents either has been
executed and delivered or will be executed and delivered by the
Bank on or before the Closing Date, and either currently
constitutes or, when executed and delivered by the other parties
thereto, will constitute a valid and binding agreement of the Bank,
enforceable against the Bank in accordance with its terms.
2.2.4 The obligations of the Bank under this Agreement and the other Bank
Related Transaction Documents, upon (1) due execution and delivery
on behalf of the Bank and (2) such aforementioned agreements
becoming effective in accordance with their terms, will constitute,
general, direct, unsecured, unconditional and unsubordinated
obligations of the Bank which rank and will at all times rank pari
passu, without preference or priority, amongst themselves.
2.2.5 The execution and delivery of this Agreement and the other Bank
Related Transaction Documents and the undertaking and performance
by the Bank 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, any Requirements of Law 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 Bank
is a party or by which the Bank or any part of its properties,
undertakings, assets or revenues is bound, where such conflict,
breach, infringement of default would have a material adverse
effect in the context of its ability to perform its obligations
under this Agreement and the other Bank Related Transaction
Documents.
2.2.6 All approvals, authorisations, consents, orders or other actions of
any persons 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, the
other Bank Related Transaction Documents and/or the assignment of
Receivables in the manner contemplated therein, the performance of
the transactions contemplated by this Agreement, the other Bank
Related Transaction Documents and the fulfilment of the terms
thereof have been obtained and remain, and will remain on the
Closing Date, in force in all material respects. Any
8
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 has been complied with and remains in
force in all material respects.
2.2.7 There are no litigation, arbitration or governmental proceedings,
actual or, to the best of its knowledge, pending or threatened, at
the date hereof against or affecting its assets or revenues which
are or would be material, individually or in aggregate, in the
context of its ability to perform its obligations under this
Agreement and the other Bank Related Transaction Documents, in each
case to which it is expressed to be a party and each assignment to
be entered into by it in respect of the Receivables or in the
context of the issue and offering of the Notes.
2.2.8 Since the date of its financial statements set forth in the Annual
Report and Accounts for the financial year ended 31 December [2002]
(a copy of which has been furnished to the Representative) there
has been no adverse change in the financial position of the Bank
which is or could reasonably be considered to be material in the
context of the issue and offering of the Notes.
2.2.9 Since the date as of which information is given in the Registration
Statement or the Prospectus and except as otherwise stated in the
Registration Statement or the Prospectus, there has been no
material adverse change or any development reasonably likely to
result in a material adverse change in the condition (financial or
otherwise) general affairs, business, prospects, management,
shareholders' equity or results of operations of the Bank which is
or might reasonably be considered to be material in the context of
the issue and offering of the Notes.
2.2.10 The representations and warranties made by the Bank in the Bank
Related Transaction Documents or made in any Officer's Certificate
of the Bank delivered pursuant to the Bank Related Transaction
Documents will be true and correct at the time made and on and as
of the Closing Date as if set forth herein.
2.2.11 No stop order suspending the effectiveness of the Registration
Statement has been issued and, to the Bank's knowledge, no
proceeding for that purpose has been instituted or, to the
knowledge of the Bank, threatened by the Commission, and on the
Effective Date the information in the Registration Statement and
the Prospectus about the Bank and its business and the Receivables
did not include 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, and on the date of
this Agreement and on the Closing Date the information in the
Registration Statement and the Prospectus about the Bank and its
business and the Receivables will not include 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.
9
2.2.12 The Prospectus contains all such information in relation to the
Bank, its business and the Receivables which are the subject of the
transaction as is required by Section 80 of the FSMA.
2.2.13 The Bank 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 of the execution by it of the
Bank Related Transaction Documents, 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.
2.2.14 The Bank agrees that it has not and will not create or permit to
subsist in favour of any person any Encumbrance over the
Receivables or the Accounts except as provided in the Bank Related
Transaction Documents.
2.2.15 The Bank is resident for tax purposes in the United Kingdom and is
a bank as defined for the purpose of Section 349(3)(a) of the
Income and Corporation Taxes Act 1988 and will be within the charge
to United Kingdom corporation tax as respects all amounts regarded
as interest for United Kingdom tax purposes received by it under
these transactions.
2.2.16 Any taxes, fees and other governmental charges payable by the Bank
in connection with the execution, delivery and performance of this
Agreement and the other Bank Related Transaction Documents shall
have been paid or will be paid by or on behalf of the Bank at or
prior to the Closing Date to the extent then due and only to the
extent that such amounts fall to be paid by or on behalf of the
Bank.
2.3 In order to induce the Underwriters to subscribe and pay for the Notes, the
Receivables Trustee represents and warrants to, and agrees with, the
Underwriters that:
2.3.1 The Receivables Trustee is duly incorporated and validly existing
under the laws of Jersey, and has all requisite corporate power,
authority and legal right to own its property and to conduct its
business as it is presently conducted and described in the
Prospectus, and to execute, deliver and perform its obligations
under this Agreement, the Receivables Securitisation Agreement, the
Declaration of Trust and Trust Cash Management Agreement, the
Assignment of Receivables, the Trust Section 75 Indemnity, the
Series 04-1 Supplement, the Agreement Between Beneficiaries, the
Security Trust Deed and MTN Cash Management Agreement, the Series
04-1 MTN Supplement and any other agreement made pursuant hereto or
thereto or otherwise in connection with the issuance of the Notes
entered into by the Receivables Trustee on the Closing Date
(collectively, the "RECEIVABLES TRUSTEE RELATED TRANSACTION
10
DOCUMENTS"), and it has taken all necessary action to approve and
authorise the same.
2.3.2 It has not engaged in any activities since its incorporation (other
than those incidental to its registration under relevant Jersey
legislation, as amended, the matters referred to or contemplated in
the Prospectus, including the transactions entered into in
connection with Series 04-1, the authorisation of the entry into
and performance of its obligations under this Agreement and the
other Receivables Trustee Related Transaction Documents, 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.
2.3.3 This Agreement has been duly authorised and validly executed and
delivered by the Receivables Trustee.
2.3.4 Each of the Receivables Trustee Related Transaction Documents
either has been executed and delivered or will be executed and
delivered by the Receivables Trustee on or before the Closing Date,
and either currently constitutes or, when executed and delivered by
the other parties thereto, will constitute a valid and binding
agreement of the Receivables Trustee, enforceable against the
Receivables Trustee in accordance with its terms, but as the same
may be limited by laws relating to insolvency, bankruptcy and laws
relating to creditors' rights generally.
2.3.5 The obligations of the Receivables Trustee under this Agreement and
the other Receivables Trustee Related Transaction Documents, upon
due execution and delivery on behalf of the Receivables Trustee,
constitute general, direct, unsecured, unconditional and
unsubordinated obligations of the Receivables Trustee which rank
and will at all times rank pari passu, without preference or
priority, amongst themselves.
2.3.6 The Receivables Trustee is not in violation of any Requirement of
Law or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement note,
lease or other instrument to which it is a party or by which it is
bound or to which any of its property is subject, which violations
or defaults separately or in the aggregate would have a material
adverse effect on the Receivables Trustee.
2.3.7 Neither the execution and delivery by the Receivables Trustee of
this Agreement or the other Receivables Trustee Related Transaction
Documents, nor the incurrence by the Receivables Trustee of the
obligations herein and therein set forth, nor the consummation of
the transactions contemplated hereunder or thereunder, nor the
fulfilment of the terms hereof or thereof does or will (1) violate
any Requirement of Law presently in effect, applicable to it or its
properties or by which it or its properties are or may be bound or
affected, (2) conflict with, or result in a breach of, or
constitute a default under, any indenture, contract, agreement,
deed, lease, mortgage or instrument to which it is a party or by
which it or
11
its properties are bound, or (3) result in the creation or
imposition of any Encumbrance upon any of its property or assets,
except for those Encumbrances created under the Receivables Trustee
Related Transaction Documents.
2.3.8 All consents, approvals, authorisations, orders, filings,
registrations or qualifications of or with any court or any other
governmental agency, board, commission, authority, official or body
required in connection with the execution and delivery by the
Receivables Trustee of this Agreement or the other Receivables
Trustee Related Transaction Documents, or to the consummation of
the transactions contemplated hereunder and thereunder, or to the
fulfilment of the terms hereof and thereof have been or will have
been obtained on or before the Closing Date.
2.3.9 There are no litigation, arbitration or governmental 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 which are or might be material,
individually or in aggregate, in the context of its ability to
perform its obligations under this Agreement and the other
Receivables Trustee Related Transaction Documents.
2.3.10 All actions required to be taken by the Receivables Trustee as a
condition to the consummation of the transactions described in the
Prospectus and the Registration Statement have been or, prior to
the Closing Date, will be taken.
2.3.11 The representations and warranties made by the Receivables Trustee
in the Receivables Trustee Related Transaction Documents, or made
in any Officer's Certificate of the Receivables Trustee delivered
pursuant to the Receivables Trustee Related Transaction Documents
will be true and correct at the time made and on and as of the
Closing Date as if set forth herein.
2.3.12 On the Effective Date the information in the Prospectus and the
Registration Statement relating to the Receivables Trustee did not
include 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, and the information in
the Prospectus and the Registration Statement relating to the
Receivables Trustee will not include on the date of this Agreement
and on the Closing Date any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
2.3.13 Subject to the terms of the Receivables Trustee Related Transaction
Documents and the transaction documents entered into in connection
with Series 04-1, the Receivables Trustee 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 or the other Receivables
Trustee Related Transaction Documents, 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
12
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.
2.3.14 the Receivables Trustee agrees that it has not and will not create
or permit to subsist in favour of any person any Encumbrance over
the Receivables except as provided in the Receivables Trustee
Related Transaction Documents.
2.3.15 The Receivables Trust is not, and as a result of the execution and
delivery of the Series 04-1 Supplement will not be, required to
register under the Investment Company Act.
2.4 In order to induce the Underwriters to subscribe and pay for the Notes, the
MTN Issuer represents and warrants to, and agrees with, the Underwriters
that:
2.4.1 The MTN Issuer is duly incorporated and validly existing under the
laws of England and Wales, and has all requisite corporate power,
authority and legal right to own its property and to conduct its
business as it is presently conducted and described in the
Prospectus, and to execute, deliver and perform its obligations
under this Agreement, the Series 04-1 MTN Certificate, the Series
04-1 Supplement, the Agreement Between Beneficiaries, the Security
Trust Deed and MTN Cash Management Agreement, the Series 04-1 MTN
Supplement, the Beneficiaries Servicing Agreement and any other
agreement made pursuant hereto or thereto or otherwise in
connection with the issuance of the Series 04-1 MTN Certificate
entered into by the MTN Issuer on the Closing Date (collectively,
the "MTN ISSUER RELATED TRANSACTION DOCUMENTS"), and it has taken
all necessary action to approve and authorise the same.
2.4.2 This Agreement has been duly authorised and validly executed and
delivered by the MTN Issuer.
2.4.3 Each of the MTN Issuer Related Transaction Documents has been duly
authorised and either has been executed and delivered or will be
executed and delivered by the MTN Issuer on or before the Closing
Date, and either currently constitutes or, when executed and
delivered by the other parties thereto, will constitute a valid and
binding agreement of the MTN Issuer, enforceable against the MTN
Issuer in accordance with its terms.
2.4.4 The MTN Issuer is not in violation of any Requirement of Law or in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or
other instrument to which it is a party or by which it is bound or
to which any of its property is subject, which violations or
defaults separately or in the aggregate would have a material
adverse effect on the MTN Issuer.
13
2.4.5 Neither the issuance of and subscription for the Series 04-1 MTN
Certificate, nor the execution and delivery by the MTN Issuer of
this Agreement, or the Series 04-1 MTN Certificate or the other MTN
Issuer Related Transaction Documents, nor the incurrence by the MTN
Issuer of the obligations herein and therein set forth, nor the
consummation of the transactions contemplated hereunder or
thereunder, nor the fulfilment of the terms hereof or thereof does
or will (1) violate any Requirement of Law presently in effect,
applicable to it or its properties or by which it or its properties
are or may be bound or affected, (2) conflict with, or result in a
breach of, or constitute a default under, any indenture, contract,
agreement, deed, lease, mortgage or instrument to which it is a
party or by which it or its properties are bound, or (3) result in
the creation or imposition of any Encumbrance upon any of its
property or assets, except for those Encumbrances created under the
Security Trust Deed and MTN Cash Management Agreement and the
Series 04-1 MTN Supplement.
2.4.6 The obligations of the MTN Issuer under this Agreement and the
other MTN Issuer Related Transaction Documents and all the
necessary documents for the issue of the Series 04-1 MTN
Certificate constitute, and, upon due execution and delivery on
behalf of the MTN Issuer, will constitute, general, direct,
unsecured, unconditional, unsubordinated and (save in respect of
the Series 04-1 MTN Certificate) unsecured obligations of the MTN
Issuer which rank and will at all times rank pari passu, without
preference or priority, amongst themselves.
2.4.7 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 the other MTN Issuer Related Transaction Documents
all the necessary documents for the issue and offering of the
Series 04-1 MTN Certificate in the manner contemplated therein, the
performance of the transactions contemplated by this Agreement, the
other MTN Issuer Related Transaction Documents and all the
necessary documents for the issue and offering of the Series 04-1
MTN Certificate and the fulfilment of the terms thereof have been
obtained and remain, and will remain on the Closing Date, in force
in all material respects.
2.4.8 Since the date of its financial statements that are set forth in
the Prospectus there has been no adverse change in the financial
position of the MTN Issuer which is or could be material in the
context of the issue and offering of the Series 04-1 MTN
Certificate and the Notes.
2.4.9 There are no litigation, arbitration or governmental proceedings,
actual or, to the best of its knowledge, pending or threatened, at
the date hereof against or affecting the MTN Issuer or any of its
assets or revenues which are or might be material, individually or
in aggregate, in the context of its ability to perform its
obligations under this Agreement or the other MTN Issuer Related
Transaction Documents, in each case to which it is expressed to be
a party or in the context of the issue and offering of the Series
04-1 MTN Certificate and the Notes.
14
2.4.10 All actions required to be taken by the MTN Issuer as a condition
to the issuance of the Series 04-1 MTN Certificate as described
herein or the consummation of any of the transactions described in
the Prospectus and Registration Statement have been or, prior to
the Closing Date, will be taken.
2.4.11 The representations and warranties made by the MTN Issuer in the
MTN Issuer Related Transaction Documents or made in any Officer's
Certificate of the MTN Issuer delivered pursuant to the MTN Issuer
Related Transaction Documents will be true and correct at the time
made and on and as of the Closing Date as if set forth herein.
2.4.12 The MTN Issuer has not engaged in any activities since its
incorporation (other than those incidental to its registration
under relevant English legislation, as amended, the matters
referred to or contemplated in the Prospectus, the issuance of the
series 99-1 medium term note, the issuance of the Series 02-1 MTN
Certificate, the issuance of the Series 03-1 MTN Certificate, the
authorisation of the issue of the Series 03-2 MTN Certificate, the
authorisation of the issue of the Series 03-3 MTN Certificate, the
authorisation of the issue of the Series 04-1 MTN Certificate and
the authorisation of the entry into and performance of its
obligations under the Transaction Documents and any other
documents, certificates or agreements ancillary or supplemental
thereto or contemplated thereby) and has neither paid any dividends
nor made any distributions since its incorporation and has no
subsidiaries.
2.4.13 The MTN Issuer agrees it has not and will not create or permit to
subsist in favour of any person any Encumbrance over the Series
04-1 Beneficiary Interest except as provided in the Security Trust
Deed and MTN Cash Management Agreement and the Series 04-1 MTN
Supplement, and agrees to take all action required by the Security
Trust Deed and MTN Cash Management Agreement and the Series 04-1
MTN Supplement to maintain the security interest in the Series 04-1
Beneficiary Interest in accordance with the Security Trust Deed and
MTN Cash Management Agreement and the Series 04-1 MTN Supplement.
2.4.14 On the Effective Date the information in the Prospectus and the
Registration Statement relating to the MTN Issuer or the Series
04-1 MTN Certificate did not include any untrue statement of a
material fact required to be stated therein or omit to state any
material fact necessary to make the statements therein not
misleading, and the information in the Prospectus and the
Registration Statement relating to the MTN Issuer or the Series
04-1 MTN Certificate will not include on the date of this Agreement
and on the Closing Date any untrue statement of a material fact
required to be stated therein or omit to state any material fact
necessary to make the statements therein not misleading.
2.4.15 The MTN Issuer 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 of the execution by it of
this Agreement and the other MTN Issuer Related Transaction
Documents and the performance by it of
15
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.
2.4.16 The MTN Issuer is resident for tax purposes in the United Kingdom
and will be within the charge to United Kingdom corporation tax as
respects all amounts regarded as interest for United Kingdom tax
purposes received by it under this transaction.
2.4.17 Any taxes, fees and other governmental charges payable by the MTN
Issuer in connection with the execution, delivery and performance
of this Agreement and the other MTN Issuer Related Transaction
Documents, and all the necessary documents for the issue of the
Series 04-1 MTN Certificate shall have been paid or will be paid by
or on behalf of the MTN Issuer at or prior to the Closing Date to
the extent then due.
2.4.18 The MTN Issuer is not, and as a result of the issue of the Series
04-1 MTN Certificate or the receipt or application of the proceeds
thereof will not be, required to register under the Investment
Company Act.
3 SUBSCRIPTION, ISSUANCE, PAYMENT AND DELIVERY OF THE NOTES
3.1 On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the
Issuer agrees to issue to the Underwriters, and the Underwriters agree to
subscribe from the Issuer, (1) $________ aggregate principal amount of
Class A Notes at an issue price of ____% of the principal amount thereof,
(2) $________ aggregate principal amount of Class B Notes at an issue price
of ____% of the principal amount thereof and (3) $________ aggregate
principal amount of Class C Notes at an issue price of ____% of the
principal amount thereof, each Underwriter to severally subscribe for the
class of Notes and the amounts shown on Schedule A hereto.
3.2 The Issuer will deliver the Notes to you against payment of the issue price
in immediately available funds, drawn to the order of the Issuer, at the
offices of ▇▇▇▇▇▇▇▇ Chance LLP, in London at 3:00 P.M., London time, on
January ___, 2004, or at such other time not later than seven full business
days thereafter as you and the Issuer determine, such time being herein
referred to as the "CLOSING DATE". Each of the Notes so to be delivered
shall be represented by one or more definitive certificates registered in
the name of Cede & Co., as nominee for The Depository Trust Company. The
Issuer shall make such definitive certificates representing the Notes
available for inspection by the Underwriters at the office at which the
Notes are to be delivered no later than five hours before the close of
business in London on the business day prior to the Closing Date.
16
4 OFFERING BY UNDERWRITERS
It is understood that after the Effective Date, the Underwriters propose to
offer the Notes for sale to the public (which may include selected dealers)
as set forth in the Prospectus.
5 CERTAIN AGREEMENTS OF THE ISSUER, THE BANK THE MTN ISSUER AND THE
RECEIVABLES TRUSTEE
5.1 The Issuer agrees with the Underwriters:
5.1.1 that it has prepared the Prospectus in a form approved by the
Representative on behalf of the Underwriters and that it will file
the final Prospectus with the Commission within the time periods
specified by the Rule 424(b) and Rule 430A under the Securities Act
and that it will make no further amendment or supplement to the
Registration Statement or Prospectus, whether before or after the
time the Registration Statement becomes effective, without
furnishing to the Underwriters a copy of the proposed amendment or
supplement and shall make no such amendment or supplement which
shall be disapproved by the Representative (acting on behalf of the
Underwriters) promptly after reasonable notice thereof;
5.1.2 to deliver on the date of this Agreement to the Registrar of
Companies for registration in accordance with Section 83 of FSMA,
two copies of the Prospectus;
5.1.3 that it has prepared the Prospectus for use in connection with the
issue of the Notes and agrees with the Underwriters that it will
deliver to the Underwriters, without charge, no later than 2
business days after the date hereof and thereafter from time to
time as requested such number of copies of the Prospectus as it may
reasonably request, and it will furnish to it on the date hereof
(copies of it in preliminary or proof form having already been
distributed to it) one copy of the Prospectus signed by a duly
authorised officer or attorney of the Issuer and the Issuer
consents to the use in accordance with applicable laws, of the
Prospectus (and of any amendments or supplements thereto) by each
of the Underwriters.
5.1.4 that it will advise the Representative, on behalf of the
Underwriters, promptly, and will confirm such advice in writing,
(1) when the Registration Statement shall become effective, (2)
when any amendment to the Registration Statement shall become
effective, (3) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the
Prospectus or for any additional information, (4) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation or threatening of any
proceeding for that purpose, and (5) of the receipt by the Issuer
of any notification with respect to any suspension of the
qualification of the Notes for offer and sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose; and to use its best efforts to prevent the issuance of any
such stop order or notification and, if issued, to obtain as soon
as possible the withdrawal thereof;
17
5.1.5 that it will promptly from time to time to take such action as the
Representative may reasonably request to qualify the Notes for
offering and sale under the securities or "Blue Sky" laws of such
jurisdictions as the Representative, on behalf of the Underwriters,
may request and to comply with such laws so as to permit the
continuance of sale and dealings in such jurisdictions for as long
as may be necessary to complete the distribution of the Notes and
to pay all fees and expenses (including legal fees and
disbursements of the Representative (acting on behalf of the
Underwriters)) reasonably incurred in connection with such
qualification and in connection with the determination of the
eligibility of the Notes for investment under the laws of such
jurisdictions as the Representative, on behalf of the Underwriters,
may designate; provided, however, that in connection therewith the
Issuer shall not be obligated to qualify to do business in any
jurisdiction in which it is not currently so qualified; and
provided further that the Issuer shall not be required to file a
general consent to service of process in any jurisdiction;
5.1.6 that on or before December 31 of the year following the year in
which the Closing Date occurs, the Issuer will make generally
available to the Representative and the holders of the Notes as
soon as practicable an earnings statement covering a period of at
least twelve months beginning with the first fiscal quarter of the
Issuer occurring after the Effective Date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 of the Commission promulgated
thereunder;
5.1.7 that so long as any of the Notes are outstanding, the Issuer will
furnish to the Representative on behalf of the Underwriters copies
of all reports or other communications (financial or other)
furnished to holders of the Notes and copies of any reports and
financial statement furnished to or filed with the Commission or
any national securities exchange;
5.1.8 that from the date of this Agreement until the retirement of the
Notes, the Issuer will furnish to the Representative on behalf of
the Underwriters copies of each certificate and any statements of
compliance delivered to the Note Trustee pursuant to clause 10(g)
of the Note Trust Deed, and the annual independent certified public
accountant's reports furnished to the Note Trustee pursuant to
clause 10(c) of the Note Trust Deed, by first-class mail as soon as
practicable after such statements and reports are furnished to the
Note Trustee;
5.1.9 that, without prejudice to the rights of the Underwriters under
Section 2 and Section 6 of this Agreement, if after the Prospectus
has been published but before the commencement of dealings in the
Notes following their admission to The London Stock Exchange plc
(the "LONDON STOCK EXCHANGE"):
(a) there is a significant change affecting any matter contained
in the Prospectus the inclusion of which was required by the
listing rules made under Section 80 of the FSMA (the "LISTING
RULES") or by the London Stock Exchange; or
18
(b) a significant new matter raises the inclusion of information
in respect of which would have been so required if it had
arisen when the Prospectus was prepared,
the Issuer undertakes to notify the London Stock Exchange and the
Representative, on behalf of the Underwriters, as soon as
reasonably practicable and shall, in accordance with the Listing
Rules, submit to the London Stock Exchange for its approval and, if
approved, publish, a supplement to the Prospectus containing
information on the change or new matter and furnish to the
Underwriters without charge as many copies thereof as the
Representative may reasonably request;
as used herein, the word significant shall be construed in
accordance with the FSMA;
5.1.10 that, without prejudice to the rights of the Underwriters under
this Agreement and without prejudice to its obligations under 5.1.9
above, it will notify the Representative, on behalf of the
Underwriters, promptly of any material change affecting any of the
Issuer's representations, warranties, agreements, undertakings and
indemnities herein at any time prior to payment being made to the
Issuer on the Closing Date and, at the Issuer's expense, will take
such steps in relation to the transactions contemplated hereby as
may reasonably be requested by the Representative on behalf of the
Underwriters to remedy the same;
5.1.11 that it will cause the Notes to be registered in a timely manner
pursuant to the Securities and Exchange Act of 1934, as amended
(the "EXCHANGE ACT");
5.1.12 if, at any time when a prospectus relating to the Notes is required
to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Issuer will promptly prepare
and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will
effect such compliance. Neither your consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section
6;
5.1.13 that it will furnish you with copies of the Registration Statement
(one of which will be signed and will include all exhibits) and all
amendments and supplements to such documents, in each case as soon
as available and in such quantities as you reasonably request;
5.1.14 so long as any Notes are outstanding, the Issuer will furnish to
you, by first-class mail as soon as practicable (1) all documents
concerning the Notes distributed by the Issuer to holders of the
Notes, or filed with the Commission pursuant to the Exchange Act,
(2) any order of the
19
Commission under the Act or the Exchange Act applicable to the
Issuer or pursuant to a "no-action" letter obtained from the staff
of the Commission by the Issuer and (3) from time to time, such
other information concerning the Issuer as you may reasonably
request;
5.1.15 whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated for any reason, except
a default by you hereunder, the Issuer will pay all expenses
incident to the performance of their obligations under this
Agreement and will reimburse the Underwriters for any expenses
incurred by them in connection with qualification of the Notes for
sale and determination of the eligibility of the Notes for
investment under the laws of such jurisdictions as you designate
and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Notes,
and for expenses incurred in distributing the Prospectus (including
any amendments and supplements thereto); and
5.1.16 to the extent, if any, that any of the ratings provided with
respect to the Notes by Rating Agencies are conditional upon the
furnishing of documents or the taking of any other actions by the
Issuer, the Issuer shall furnish such documents and take any such
other actions.
5.2 The Bank agrees with the Underwriters:
5.2.1 to the extent, if any, that any of the ratings provided with
respect to the Notes by the Rating Agencies are conditional upon
the furnishing of documents or the taking of any other actions by
the Bank, the Bank shall furnish such documents and take any such
other actions as are within the Bank's control;
5.2.2 without prejudice to the rights of the Underwriters in this
Agreement, it will notify the Representative, on behalf of the
Underwriters, promptly of any material change affecting the Bank's
representations, warranties, agreements and indemnities herein any
time prior to payment being made to the Issuer on the Closing Date
and, at the Bank's expense, will take such steps in relation to the
transactions contemplated hereby as may reasonably be requested by
the Representative, on behalf of the Underwriters, to remedy the
same; and
5.2.3 for a period of 30 days from the date hereof it will not, without
the prior written consent of the Underwriters, directly or
indirectly, offer, sell or contract to sell, or announce the
offering of, in a public or private transaction, any other series
of debt securities directly or indirectly dependent on payments on
the Receivables.
5.3 The MTN Issuer agrees with the Underwriters that, without prejudice to the
rights of the Underwriters hereunder, it will notify the Representative, on
behalf of the Underwriters, promptly of any material change affecting the
MTN Issuer's representations, warranties, agreements and indemnities herein
at any time prior to payment being made to the Issuer on the Closing Date
and the MTN Issuer will take
20
such steps in relation to the transactions contemplated hereby as may
reasonably be requested by the Representative, on behalf of the
Underwriters, to remedy the same.
5.4 The Receivables Trustee agrees with the Underwriters that, without
prejudice to the rights of the Underwriters hereunder, it will notify the
Representative, on behalf of the Underwriters, promptly of any material
change affecting any of the Receivable Trustee's representations,
warranties, agreements and indemnities herein at any time prior to payment
being made to the Issuer on the Closing Date and the Receivables Trustee
will take such steps in relation to the transactions contemplated hereby as
may reasonably be requested by the Representative, on behalf of the
Underwriters, to remedy the same.
6 CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS
The obligation of the Underwriters to subscribe and pay for the Notes will
be subject to the accuracy of the representations and warranties on the
part of each of the Issuer, the Bank, the Receivables Trustee and the MTN
Issuer herein, to the accuracy of the statements of officers of each of the
Issuer, the Bank, the Receivables Trustee and the MTN Issuer made pursuant
to the provisions hereof, to the performance by each of the Issuer, the
Bank, the Receivables Trustee and the MTN Issuer of its obligations
hereunder and to the following additional conditions precedent:
6.1 On or prior to the date of this Agreement and on or prior to the Closing
Date, you shall have received letters, dated the date of this Agreement and
the Closing Date, respectively, of PricewaterhouseCoopers LLP, all
addressed to the Underwriters confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder, substantially in the form heretofore
agreed to and otherwise in form and in substance satisfactory to you and
your counsel.
6.2 The Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5.1.1 of this Agreement; and, prior
to the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Issuer, the
Bank or you, shall be contemplated by the Commission.
6.3 Subsequent to the execution and delivery of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the
Issuer, the MTN Issuer, the Receivables Trustee or the Bank which, in your
judgment, materially impairs the investment quality of the Notes; (ii) any
downgrading in the rating of any debt securities of or guaranteed by the
Bank or any debt securities the payments of which are dependent on payments
on the Receivables by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any such debt securities (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating), (iii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange or the London Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading
21
of any securities of Barclays PLC or Barclays Bank PLC on any exchange or
in the over-the-counter market; (iv) any banking moratorium declared by
English, United States Federal or New York authorities; (v) any material
disruption in commercial banking securities settlement or clearance
services; or (vi) any outbreak or escalation of major hostilities in which
the United States or Great Britain is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in your judgment, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the issuance of and subscription
for and payment for the Notes.
6.4 You shall have received legal opinions dated the Closing Date:
6.4.1 addressed to the Underwriters from Weil, Gotshal & ▇▇▇▇▇▇;
6.4.2 addressed to the Underwriters, the Note Trustee, the Issuer, the
Receivables Trustee, the MTN Issuer and the Bank, from ▇▇▇▇▇▇▇▇
Chance LLP;
6.4.3 addressed to the Underwriters, the Note Trustee, the Issuer, the
Receivables Trustee, the MTN Issuer and the Bank, from ▇▇▇▇▇▇
▇▇▇▇▇▇▇;
6.4.4 addressed to the Underwriters, the Note Trustee, the Issuer, the
Receivables Trustee, the MTN Issuer and the Bank, from ▇▇▇▇▇▇
▇▇▇▇▇▇ & Spens; and
6.4.5 addressed to the Underwriters, the Note Trustee, the Issuer, the
Receivables Trustee, the MTN Issuer and the Bank, from ▇▇▇▇▇▇ & Co;
such legal opinions being in substantially the agreed form.
6.5 You shall have received closing certificates dated the Closing Date,
addressed to the Underwriters and signed by a director or other duly
authorised person on behalf of each of the Issuer, the Receivables Trustee,
the MTN Issuer and the Bank, as appropriate, each such certificate being in
substantially the same agreed form.
6.6 You shall have received an incumbency certificate addressed to the
Underwriters and signed by a director of other duly authorised person on
behalf of the Issuer, the Receivables Trustee, the MTN Issuer and the Bank
such certificate being in substantially the agreed form.
6.7 You shall have received confirmation on or before the Closing Date, that
the UK Listing Authority has approved the Prospectus, and the London Stock
Exchange that the Notes have, subject to the execution, authentication and
delivery of the Notes, been admitted to trading.
6.8 You shall have received the Memorandum and Articles of Association of each
of the Issuer, the Bank, the MTN Issuer and the Receivables Trustee.
6.9 You shall have received certified copies of the resolution of the Board of
Directors of the Issuer and any duly authorised committees thereof,
approving and authorizing (a) the execution and delivery of this Agreement
and the other Issuer Related Transaction Documents, (b) the entry into and
performance of the transactions contemplated by
22
this Agreement and the other Issuer Related Transaction Documents, and (c)
the issue of the Notes.
6.10 You shall have received certified copies of the resolution of the Board of
Directors of the Bank together with evidence of appropriate delegated
authority evidencing the approval and authorisation of the execution and
delivery of this Agreement and the other Bank Related Transaction Documents
and the entry into and performance of the transactions contemplated by this
Agreement and the other Bank Related Transaction Documents.
6.11 You shall have received certified copies of the resolutions of the Board of
Directors of the MTN Issuer and any duly authorised committees thereof,
authorizing (a) the execution and delivery of this Agreement and the other
MTN Issuer Related Transaction Documents, (b) the entry into and
performance of the transactions contemplated by this Agreement and the
other MTN Issuer Related Transaction Documents, and (c) the issue of the
Series 04-1 MTN Certificate.
6.12 You shall have received certified copies of the resolutions of the Board of
Directors of the Receivables Trustee approving and authorizing the
execution and delivery of this Agreement and the other Receivables Trustee
Related Transaction Documents and the entry into and the performance of the
transactions contemplated by this Agreement and the other Receivables
Trustee Related Transaction Documents.
6.13 You shall have received a solvency certificate dated the Closing Date,
addressed to the Underwriters and signed by a duly authorised person on
behalf of each of the Bank, the MTN Issuer, the Receivables Trustee and the
Issuer, each such certificate being substantially in the agreed form .
6.14 You shall have received evidence, satisfactory to you and your counsel, of
the execution and delivery on or before the Closing Date by all parties
thereto of the Issuer Related Transaction Documents, the Bank Related
Transaction Documents, the Receivables Trustee Related Transaction
Documents and the MTN Issuer Related Transaction Documents, the same being
substantially the respective agreed forms.
6.15 On or before the Closing Date, receipt by the Representative of
confirmation from the Issuer that it has borrowed from the Bank under the
Expenses Loan Agreement an amount sufficient (when aggregated with the net
proceeds of the issue of the Notes) (i) to subscribe and pay for the Series
04-1 MTN Certificate issued by the MTN Issuer and (ii) to meet any other
payment obligations of the Issuer to the Underwriters, or any of them.
6.16 You shall have received evidence, satisfactory to you and your counsel, of
the MTN Issuer and, where necessary, the Issuer having taken all necessary
steps for the issue of the Series 04-1 MTN Certificate.
6.17 You shall have received evidence satisfactory to you that the Class A Notes
shall be rated "Aaa" by ▇▇▇▇▇'▇ Investors Service, Inc. and "AAA" by
Standard & Poor's Ratings Services, that the Class B Notes shall be rated
no lower than "A1" by ▇▇▇▇▇'▇ Investors Service, Inc. and no lower than "A"
by Standard & Poor's Ratings Services and that the Class C Notes shall be
rated no lower than "Baa1" by Moody's
23
Investors Services, Inc. and no lower than "BBB" by Standard & Poor's
Ratings Services.
6.18 You shall have received evidence, satisfactory to you and your counsel,
that the persons mentioned in Section 15 have agreed to receive process in
the manner specified therein.
The Bank will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7 Indemnification and Contribution
7.1 The Issuer and the Bank will indemnify and hold harmless the Underwriters
against any losses, claims, damages or liabilities, joint or several, to
which the Underwriters may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Underwriters for
any legal or other expenses reasonably incurred by the Underwriters in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Issuer and the Bank will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information relating to the Underwriters and
furnished to the Issuer or the Bank by the Underwriters specifically for
use therein. Each of the Issuer and the Bank acknowledges and agrees that
the information under the heading "Underwriting" relating to selling
concessions and reallowance and relating to transactions by the
Underwriters in conformance with Regulation M constitutes the only
information furnished in writing by the Underwriters for inclusion in the
Registration Statement on the Prospectus.
7.2 The Underwriters agree, severally and not jointly, to indemnify and hold
harmless the Issuer and the Bank against any losses, claims, damages or
liabilities to which the Issuer or the Bank may become subject, under the
Act or otherwise and will reimburse any legal or other expenses reasonably
incurred by the Issuer or the Bank in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information relating to the
Underwriters furnished to the Issuer or the Bank by the Underwriters
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Issuer or
24
the Bank in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
7.3 Promptly after receipt by an indemnified party under this section of notice
of the commencement of any action, such indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party under
Section 7.1 or 7.2 above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under Section 7.1 or 7.2 above. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein and to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defence thereof,
with counsel reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defence thereof, the
indemnifying party will not be liable to such indemnified party under this
section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defence thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (a) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (b) does not include a statement as to or an admission of fault
culpability or a failure to act, by or on behalf of any indemnified party.
7.4 If the indemnification provided for in this section is unavailable or
insufficient to hold harmless an indemnified party under Section 7.1 or 7.2
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in Section 7.1 or 7.2 above (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Issuer or the Bank on the one hand and the Underwriters on the other
from the offering of the Notes, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Issuer or the Bank on
the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Issuer or the Bank on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) of
the Notes received by the Issuer bear to the total underwriting discounts
and commissions received by the Underwriters with respect to the Notes. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Issuer or the Bank or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission with respect to the
Notes. The amount paid by an indemnified party as a
25
result of the losses, claims, damages or liabilities referred to in the
first sentence of this Section 7.4 shall be deemed to include any other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
Section 7.4. Notwithstanding the provisions of this Section 7.4, the
Underwriters shall not be required to contribute any amount in excess of
the amount by which the total price at which the Notes underwritten by the
Underwriters and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriters have otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission with respect to the Notes. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
7.5 The obligations of the Issuer and the Bank under this Section shall be in
addition to any liability which the Issuer or the Bank may otherwise have
and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Underwriters within the meaning of the Act; and the
obligations of the Underwriters under this section shall be in addition to
any liability which the Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Issuer, to each
officer of the Issuer who has signed the Registration Statement and to each
person, if any, who controls the Issuer within the meaning of the Act.
8 SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS
The respective indemnities, agreements, representations, warranties and
other statements of each of the Issuer, the MTN Issuer, the Receivables
Trustee, the Bank or its respective officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of the Underwriters, the Issuer, the MTN
Issuer, the Receivables Trustee, the Bank or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If this Agreement is
terminated or if for any reason other than default by the Underwriters the
subscription for the Notes by the Underwriters is not consummated, the Bank
shall remain responsible for the expenses to be paid or reimbursed by it or
the Issuer pursuant to Section 5 and the respective obligations of the
Issuer, the Bank and the Underwriters pursuant to Section 7 shall remain in
effect. If for any reason the subscription for the Notes by the
Underwriters is not consummated other than solely because of the occurrence
of any event specified in clause (iii), (iv) or (v) of Section 6.3, the
Bank will reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel and reasonable
costs and expenses of printing) reasonably incurred by them in connection
with the offering of the Notes.
9 DEFAULT OF UNDERWRITER
If any Underwriter defaults in its obligations to subscribe for Notes
hereunder and the aggregate principal amount of the Notes that such
defaulting Underwriter agreed but failed to subscribe for does not exceed
10% of the total principal amount of such Notes, you may make arrangements
satisfactory to the Issuer and the Bank for the subscription for such Notes
by other persons, including the non-defaulting Underwriters, but if no such
arrangements are made by the Closing Date, the non-
26
defaulting Underwriters shall be obligated, in proportion to their
commitments hereunder, to subscribe for the Notes for which such defaulting
Underwriter agreed but failed to subscribe. If any Underwriter so defaults
and the aggregate principal amount of the Notes with respect to which such
default or defaults occur exceeds 10% of the total principal amount of such
Notes and arrangements satisfactory to you and the Issuer and the Bank for
the subscription for such Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Issuer, the MTN
Issuer, the Receivables Trustee or the Bank, except as provided in Sections
5.1.5 and 7.1. Nothing herein will relieve a defaulting Underwriter for its
default.
10 NOTICES
All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to:
Barclays Capital Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Office of the General Counsel.
11 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same Agreement .
12 APPLICABLE LAW
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
13 FINANCIAL SERVICES AND MARKETS ACT
Each Underwriter represents and warrants to, and agrees with, the Issuer
that (x) it has not offered or sold and will not offer or sell any such
Notes to any person in the United Kingdom prior to the admission of the
Notes to listing on the Official List in accordance with Part VI of the
FSMA, and admissions of the Notes to trading on the London Stock Exchange
except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in any offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995 or the FSMA; (y) it has only communicated or caused to be
communicated, and will only communicate or cause to be communicated, any
invitation or inducement to engage in investment activity (within the
meaning of section 21 of the FSMA) received by it in connection with the
issue or sale of any Notes in circumstances in which section 21(1) of the
FSMA does not apply to the Issuer; and (z) 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.
14 NO PETITION
Each of the Underwriters hereby agrees that it shall not, until after the
payment of all sums outstanding and owing under the latest maturing Notes,
take any corporate action or other steps or legal proceedings for the
winding-up, dissolution or re-
27
organisation or for the appointment of a receiver, administrator,
administrative receiver, trustee, liquidator, sequestrator or similar
officer of the Issuer, the MTN Issuer or the Receivables Trustee.
15 CONSENT TO JURISDICTION; APPOINTMENT OF AGENT TO ACCEPT SERVICE OF PROCESS
15.1 Each of the Issuer, MTN Issuer and the Receivables Trustee hereby submits
to the non-exclusive jurisdiction of the United States Federal and state
courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. Each of the Issuer, MTN Issuer and the Receivables
Trustee irrevocably appoints CT Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorised agent in the Borough of
Manhattan in The City of New York upon which process may be served in any
such suit or proceeding, and agrees that service of process upon such
agent, and written notice of said service to it by the person servicing the
same, shall be deemed in every respect effective service of process upon it
in any such suit or proceeding. Each of the Issuer, MTN Issuer and the
Receivables Trustee further agrees to take any and all action as may be
necessary to maintain such designation and appointment of such agent in
full force and effect for so long as the Notes are outstanding.
15.2 The obligation of the Issuer, MTN Issuer and the Bank and the Receivables
Trustee in respect of any sum due to any Underwriter shall, notwithstanding
any judgment in a currency other than United States dollars, not be
discharged until the first business day, following receipt by such
Underwriter of any sum adjudged to be so due in such other currency on
which (and only to the extent that) such Underwriter may in accordance with
normal banking procedures purchase United States dollars with such other
currency; if the United States dollars so purchased are less than the sum
originally due to such Underwriter hereunder, each of the Issuer, the MTN
Issuer, the Bank and the Receivables Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss.
16 FOREIGN TAXES
All payments to be made by the Issuer, MTN Issuer the Bank, the
Underwriters or the Receivables Trustee hereunder shall be made without
withholding or deduction for or on account of any present or future taxes,
duties or governmental charges of whatsoever nature imposed, levied,
collected, withheld or assessed by the United Kingdom or Jersey or any
political subdivision or any authority thereof or therein having power to
tax, unless the Issuer, MTN Issuer, the Bank, the Underwriters or the
Receivables Trustee, as applicable, is compelled by law to deduct or
withhold such taxes duties or charges. In that event, the Issuer, MTN
Issuer the Bank, the Underwriters or the Receivables Trustee, as
applicable, shall pay such additional amount as may be necessary in order
that the net amounts received after such withholding or deduction shall
equal the amounts that would have been received if no withholding or
deduction had been made.
17 JUDGMENT CURRENCY
If any judgment or order in any legal proceeding against any of the Issuer,
MTN Issuer the Bank or the Receivables Trustee is given or made for any
amount due
28
hereunder and such judgment or order is expressed and paid in a currency
(the "JUDGMENT CURRENCY") other than United States dollars and there is any
variation as between (i) the rate of exchange (the "JUDGMENT RATE") at
which the United States dollar amount is converted into Judgment Currency
for the purpose of such judgment or order, and (ii) the rate of exchange
(the "MARKET RATE") at which the person to who such amount is paid (the
"PAYEE") is able to purchase United States dollars with the amount of the
Judgment Currency actually received by the holder, then the difference
expressed in United States dollars, between such amount calculated at the
Judgment Rate and such amount calculated at the Market Rates shall be
indemnified (a) if negative by the Issuer, the MTN Issuer, the Bank or the
Receivables Trustee, as applicable, to the Payee and (b) if positive by the
payee to the Issuer, the MTN Issuer, the Bank or the Receivables Trustee,
as applicable. The foregoing indemnity shall constitute a separate and
independent obligation of the Issuer, the MTN Issuer, the Bank or the
Payee, as the case may be and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "RATE OF
EXCHANGE" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
18 Corporate Obligations
No recourse under any obligation, covenant, or agreement of the Issuer, the
MTN Issuer, the Bank or the Receivables Trustee contained in this Agreement
shall be had against any shareholder, officer, agent or director of the
Issuer, the MTN Issuer, the Bank or the Receivables Trustee as such, by the
enforcement of any assessment or by any proceeding, by virtue of any
statute or otherwise and any and all personal liability for breaches by the
Issuer, the MTN Issuer, the Bank or the Receivables Trustee of any such
obligations, covenants or agreements, either at law or by statute or
constitution, of every such shareholder, officer, agent or director is
hereby expressly waived by the Issuer, the MTN Issuer, the Bank and the
Receivables Trustee and each of the Underwriters 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, the MTN Issuer, the Bank or the Receivables Trustee as
referred to above shall apply where any liability or claim under this
Agreement arises by reason of the fraud, wilful misconduct or gross
negligence of the relevant shareholder, officer, agent or director of the
Issuer, the MTN Issuer, the Bank or the Receivables Trustee (as the case
may be).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
29
If you are in agreement with the foregoing, please sign two counterparts hereof
and return one to the Issuer whereupon this letter and your acceptance shall
become a binding agreement among the Issuer, the MTN Issuer, the Receivables
Trustee, the Bank and the Underwriters.
Very truly yours,
GRACECHURCH CARD FUNDING
(NO. 6) PLC
By:
----------------------------------
Name:
Title:
BARCLAYS BANK PLC
By:
----------------------------------
Name:
Title:
GRACECHURCH RECEIVABLES
TRUSTEE LIMITED
By:
----------------------------------
Name:
Title:
BARCLAYCARD FUNDING PLC
By:
----------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof:
BARCLAYS CAPITAL INC.,
as Representative of the
Underwriters set forth herein
By
-----------------------------------
Name:
Title:
30
SCHEDULE A
Class A Notes
-------------
Underwriters Principal Amount of
Class A Notes
Barclays Capital Inc. $___________
Class B Notes
-------------
Underwriters Principal Amount of
Class B Notes
Barclays Capital Inc. $___________
Class C Notes
-------------
Underwriters Principal Amount of
Class C Notes
Barclays Capital Inc. $___________
31