EXHIBIT 1.1
GRACECHURCH CARD FUNDING (NO. 2) PLC
$900,000,000 Class A Floating Rate Asset-Backed Notes
$50,000,000 Class B Floating Rate Asset-Backed Notes
$50,000,000 Class C Floating Rate Asset-Backed Notes
UNDERWRITING AGREEMENT
Barclays Capital Inc.
as Representative of the
Underwriters set forth herein
c/o Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Ladies and Gentlemen:
1. Introductory. Barclays Bank PLC, a banking institution authorized for
the purposes of the Financial Services and Markets Act 2000 of the United
Kingdom (the "Bank"), 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 (the
"Receivables Securitisation Agreement"), as supplemented by a deed of assignment
of receivables dated 7 July 2000 (the "Assignment of Receivables"). 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 favor 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 an investory
beneficiary of the Receivables Trust pursuant to the execution of transactions
contemplated by the series 02-1 supplement to the Declaration of Trust and Trust
Cash Management Agreement to be dated on or before the
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Closing Date (the "Series 02-1 Supplement"). The MTN Issuer's entitlement as an
investory beneficiary pursuant to the Series 02-1 Supplement (the "Series 02-1
Beneficiary Interest") will be divided for purpose of making calculations under
the Series 02-1 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 02-1 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 02-1 medium term note certificate (the
"Series 02-1 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 02-1 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
02-1 MTN Supplement"). The Series 02-1 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. 2)
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 02-1 Beneficiary Interest and
the excess interest attributable to Series 02-1.
In order to fund its acquisition of the Series 02-1 MTN Certificate, the
Issuer has duly authorised the issuance of the $900,000,000 Class A Floating
Rate Asset Backed Notes (the "Class A Notes"), the $50,000,000 Class B Floating
Rate Asset Backed Notes (the "Class B Notes") and the $50,000,000 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 02-1 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 Bank
will also enter into an expenses loan agreement with the Bank (the "Expenses
Loan Agreement") to fund the expenses it 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., J.P. Morgan Securities Inc., Lehman Brothers
Inc. and Salomon Smith Barney Inc. (the "Underwriters") as follows:
2. Representations and Warranties of the Issuer, the Bank, the
Receivables Trustee and the MTN Issuer.
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(a) The Issuer represents and warrants to, and agrees with, the
Underwriters that:
(i) 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
(collectively, the "Issuer Related Transaction Documents") and it
has taken all necessary actions to authorize and approve the same.
(ii) 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 authorization
of the issue of the Notes and the authorization 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.
(iii) This Agreement has been duly authorized and validly
executed and delivered by the Issuer.
(iv) Each of the Issuer Related Transaction Documents 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.
(v) 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.
(vi) 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.
(vii) 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.
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(viii) 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.
(ix) 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.
(x) The Issuer has made an application for the Notes to be
rated by the Moody's 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.
(xi) The Issuer is not in violation of its Memorandum and
Articles of Association or any law, treaty, rule or regulation or
determination of a governmental authority (collectively,
"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.
(xii) Neither the issuance and sale of 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 fulfillment 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 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.
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(xiii) All consents, approvals, authorizations, 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
fulfillment of the terms hereof and thereof have been or will have
been obtained on or before the Closing Date.
(xiv) All actions required to be taken by the Issuer as a
condition to the offer and sale 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.
(xv) 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.
(xvi) The Issuer agrees it has not and will not create or
permit to subsist in favor of any person any Encumbrance over the
Series 02-1 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 02-1 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.
(xvii) A registration statement on Form F-1 (No.
333-100102), 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" 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,
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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.
(xviii) 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.
(xix) The Prospectus contains all such information as is
required by Section 74 of the Financial Services and Markets Act
2000 (the "FSMA") and will comply with the listing rules made
under Part VI of the FSMA.
(xx) It is able to pay its debts as they fall due within
the meaning of Section 123 of the Insolvency Act 1986 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 reorganization 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.
(xxi) 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.
(xxii) Since the date of its incorporation, there has been
no adverse change, or any development likely to involve an adverse
change, in the condition
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(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.
(xxiii) 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).
(xxiv) 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.
(xxv) 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.
(xxvi) Any taxes, fees and other governmental charges 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.
(xxvii) 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").
(b) The Bank represents and warrants to, and agrees with, the
Underwriters that:
(i) 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 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 02-1
Supplement, the Agreement Between Beneficiaries, the Security
Trust Deed and MTN Cash Management Agreement, the Security Trust
Deed and MTN Cash Management Agreement, the Series 02-1 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 to which
the Bank is a party (collectively, the "Bank Related Transaction
Documents"), and it has taken all necessary action to approve and
authorize the same.
(ii) This Agreement has been duly authorized and validly
executed and delivered by the Bank.
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(iii) 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.
(iv) 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.
(v) 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.
(vi) All approvals, authorizations, 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 fulfillment
of the terms thereof have been obtained and remain, and will
remain on the Closing Date, in force in all material respects. Any
applicable licence under the Consumer Credit Act 1974 has been
obtained and since such time has remained in force in all material
respects and registration in accordance with the provisions of the
Data Protection Act 1984 has been complied with and remains in
force in all material respects.
(vii) 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.
(viii) Since the date of its financial statements set forth
in the Annual Report and Accounts for the half year ended 30 June
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 be material in the context of the issue and
offering of the Notes.
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(ix) 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.
(x) 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 Transaction
Documents will be true and correct at the time made and on and as
of the Closing Date as if set forth herein.
(xi) 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 Bank,
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.
(xii) The Prospectus contains all such information as is
required by Section 74 of the Financial Services and Markets Act
2000 (the "FSMA") and will comply with the listing rules made
under Part VI of the FSMA.
(xiii) The Bank is able to pay its debts as they fall due
within the meaning of Section 123 of the Insolvency Act 1986 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
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reorganization 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.
(xiv) The Bank agrees that it has not and will not create
or permit to subsist in favor of any person any Encumbrance over
the Receivables or the Accounts except as provided in the Bank
Related Transaction Documents.
(xv) 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.
(xvi) Any taxes, fees and other governmental charges 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.
(c) The Receivables Trustee represents and warrants to, and agrees
with, the Underwriters that:
(i) 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 02-1 Supplement, the Agreement Between
Beneficiaries, the Security Trust Deed and MTN Cash Management
Agreement, the Series 02-1 MTN Supplement and any other agreement
made pursuant hereto or thereto or otherwise in connection with
the issuance of the Notes to which the Receivables Trustee is a
party (collectively, the "Receivables Trustee Related Transaction
Documents"), and it has taken all necessary action to approve and
authorize the same.
(ii) 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, the authorization
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.
(iii) This Agreement has been duly authorized and validly
executed and delivered by the Receivables Trustee.
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(iv) 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.
(v) 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.
(vi) 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.
(vii) 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 fulfillment 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 Receivables Trustee Related
Transaction Documents.
(viii) All consents, approvals, authorizations, 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 fulfillment of the terms hereof and thereof
have been or will have been obtained on or before the Closing
Date.
(ix) 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.
-11-
(x) 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.
(xi) 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.
(xii) 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.
(xiii) The Receivables Trustee is able to pay its debts as
they fall due within the meaning of Section 123 of the Insolvency
Act 1986 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 knowledge and
belief, having made all reasonable enquiries, threatened against
it, for its winding-up, dissolution, arrangement, reconstruction
or reorganization 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.
(xiv) The Receivables Trustee agrees that it has not and
will not create or permit to subsist in favor of any person any
Encumbrance over the Receivables except as provided in the
Receivables Trustee Related Transaction Documents.
(xv) The Receivables Trust is not, and as a result of the
execution and delivery of the Series 02-1 Supplement will not be,
required to register under the Investment Company Act.
(d) The MTN Issuer represents and warrants to, and agrees with,
the Underwriters that:
(i) 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 02-1 MTN
Certificate, the Series 02-1 Supplement, the Agreement Between
Beneficiaries, the Security Trust Deed and MTN Cash Management
Agreement, the Series 02-1 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 02-1 MTN Certificate to which the MTN Issuer is a party
(collectively, the
-12-
"MTN Issuer Related Transaction Documents"), and it has taken all
necessary action to approve and authorize the same.
(ii) This Agreement has been duly authorized and validly
executed and delivered by the MTN Issuer.
(iii) Each of the MTN Issuer Related Transaction Documents
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.
(iv) 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.
(v) Neither the issuance and sale of the Series 02-1 MTN
Certificate, nor the execution and delivery by the MTN Issuer of
this Agreement, or the Series 02-1 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 fulfillment 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 02-1 MTN Supplement.
(vi) 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 02-1 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 02-1 MTN Certificate) unsecured obligations of the MTN
Issuer which rank and will at all times rank pari passu, without
preference or priority, amongst themselves.
(vii) All approvals, authorizations, 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 02-1 MTN Certificate in the manner
contemplated therein, the performance of the transactions
contemplated by this Agreement, the other MTN Issuer Related
Transaction
-13-
Documents and all the necessary documents for the issue and
offering of the Series 02-1 MTN Certificate and the fulfillment of
the terms thereof have been obtained and remain, and will remain
on the Closing Date, in force in all material respects.
(viii) 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
02-1 MTN Certificate and the Notes.
(ix) 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 02-1 MTN Certificate and the Notes.
(x) All actions required to be taken by the MTN Issuer as a
condition to the issuance of the Series 02-1 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.
(xi) 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.
(xii) 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 authorization of
the issue of the Series 02-1 MTN Certificate and the authorization
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.
(xiii) The MTN Issuer agrees it has not and will not create
or permit to subsist in favor of any person any Encumbrance over
the Series 02-1 Beneficiary Interest except as provided in the
Security Trust Deed and MTN Cash Management Agreement and the
Series 02-1 MTN Supplement, and agrees to take all action required
by the Security Trust Deed and MTN Cash Management Agreement and
the Series 02-1 MTN Supplement to maintain the security interest
in the Series 02-1 Beneficiary Interest in accordance with the
Security Trust Deed and MTN Cash Management Agreement and the
Series 02-1 MTN Supplement.
-14-
(xiv) On the Effective Date the information in the
Prospectus and the Registration Statement relating to the MTN
Issuer or the Series 02-1 MTN Certificate did not include any
untrue statement of a 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 MTN Issuer or the Series 02-1 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 necessary to make the statements therein not
misleading.
(xv) The MTN Issuer is able to pay its debts as they fall
due within the meaning of Section 123 of the Insolvency Act 1986
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 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 reorganization 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.
(xvi) 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 these
transaction.
(xvii) Any taxes, fees and other governmental charges 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 02-1
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.
(xviii) The MTN Issuer is not, and as result of the issue
of the Series 02-1 MTN Certificate or the receipt or application
of the proceeds thereof will not be, required to register under
the Investment Company Act.
3. Purchase, Sale, Payment and Delivery of the Notes.
(a) 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 sell to the Underwriters, and the
Underwriters agree to purchase from the Issuer, at a purchase price of
[o]% of the principal amount thereof, $1,000,000,000 aggregate principal
amount of the Notes, each Underwriter to severally purchase the amounts
shown on Schedule A hereto.
(b) The Issuer will deliver the Notes to you against payment of
the purchase price in immediately available funds, drawn to the order of
the Issuer, at the offices of Clifford Chance LLP, in London at [o] P.M.,
London time, on [21 October] 2002, 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
-15-
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.
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.
(a) The Issuer agrees with the Underwriters:
(i) that it has prepared the Prospectus in a form approved
by the Representative on behalf of the Underwriters and that it
has filed 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;
(ii) 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;
(iii) 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.
(iv) 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 strop 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
-16-
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;
(v) that it will promptly from time to time 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;
(vi) 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;
(vii) 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;
(viii) 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 annual 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
servicing reports furnished to the Note Trustee pursuant to
[clause 10(g)] of the Note Trust Deed, by first-class mail as soon
as practicable after such statements and reports are furnished to
the Note Trustee;
(ix) 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"):
(I) there is a significant change affecting any
matter contained in the Prospectus the inclusion of which
was required by Section 74 of the FSMA
-17-
or by the listing rules made under Section 74 of the FSMA
(the "Listing Rules") or by the London Stock Exchange; or
(II) 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 may copies thereof as the
Representative may reasonably request;
as used herein, the word significant shall be construed in
accordance with the FSMA;
(x) that, without prejudice to the rights of the
Underwriters under this Agreement and without prejudice to its
obligations under (j) 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;
(xi) 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");
(xii) 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;
(xiii) that it will furnish to 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;
(xiv) 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
-18-
the Exchange Act, (2) any order of the 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;
(xv) 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
(xvi) 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.
(b) The Bank agrees with the Underwriters:
(i) it will cause the Issuer to comply with its obligations
in Section 5(a);
(ii) 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;
(iii) 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
(iv) 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.
(c) 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 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.
(d) The Receivables Trustee agrees with the Underwriters that,
without prejudice to the rights of the Underwriters hereunder, it will
notify the Representative, on behalf
-19-
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 purchase 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:
(a) On or prior to the date of this Agreement, you shall have
received letters, dated the date of this Agreement, of
PricewaterhouseCoopers, 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.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a)(i) 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 the Issuer, the Bank or you, shall be contemplated by
the Commission.
(c) 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 of any securities of Barclays
Bank PLC on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by English, US Federal or New York
authorities; (v) any material disruption in commercial banking or
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 sale of and payment for the Notes.
(d) You shall have received legal opinions dated the Closing Date:
-20-
(i) addressed to the Underwriters, the Note Trustee, the
Issuer, the Receivables Trustee, the MTN Issuer and the Bank from
Weil, Gotshal & Manges;
(ii) addressed to the Underwriters, the Note Trustee, the
Issuer, the Receivables Trustee, the MTN Issuer and the Bank, from
Clifford Chance LLP;
(iii) addressed to the Underwriters, the Note Trustee, the
Issuer, the Receivables Trustee, the MTN Issuer and the Bank, from
Bedell Cristin;
(iv) addressed to the Underwriters from Orrick, Herrington
& Sutcliffe LLP;
(v) addressed to the Underwriters, the Note Trustee, the
Issuer, the Receivables Trustee, the MTN Issuer and Barclays Bank,
from Maclay Murray & Spens; and
(vi) addressed to the Underwriters, the Note Trustee, the
Issuer, the Receivables Trustee, the MTN Issuer and Barclays Bank,
from Tughan & Co;
such legal opinions being in substantially the agreed form.
(e) 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.
(f) 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.
(g) 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.
(h) You shall have received the Memorandum and Articles of
Association of each of the Issuer, the Bank, the MTN Issuer and the
Receivables Trustee.
(i) 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 this
Agreement and the other Issuer Related Transaction Documents, and (C) the
issue of the Notes.
(j) 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
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Related Transaction Documents and the entry into and performance of the
transactions contemplated by this Agreement and the other Bank Related
Transaction Documents.
(k) 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 02-1 MTN Certificate.
(l) 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.
(m) 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.
(n) 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.
(o) On or before the Closing Date, receipt by the Representative
of confirmation from the Issuer that it has borrowed from Barclays Bank
PLC 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 02-1 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.
(p) 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 02-1 MTN Certificate.
(q) You shall have received evidence satisfactory to you that the
Class A Notes shall be rated "Aaa" by Moody's Investors Service, Inc. and
"AAA" by Standard & Poor's Ratings Services, that the Class B Notes shall
be rated no lower that "A1" by Moody's 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 Investors Services,
Inc. and no lower than "BBB" by Standard & Poor's Ratings Services.
(r) You shall have received evidence, satisfactory to you and your
counsel, that the persons mentioned in Section 14 have agreed to receive
process in the manner specified therein.
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The Bank will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification and Contribution.
(a) 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 Issuer
and 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 or the Prospectus.
(b) 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 the Bank
in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
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(c) 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 subsection (a) or (b) 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
subsection (a) or (b) 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 defense
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 defense 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
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) 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
subsection (a) or (b) 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 result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) 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 subsection (d). Notwithstanding the provisions of this subdivision
(d), 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.
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(e) 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 purchase of 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 purchase of 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(c), 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 to the
extent set forth in Section 5(h)) reasonably incurred by them in connection with
the offering of the Notes.
9. Default of Underwriter. If any Underwriter defaults in its obligations
to purchase Notes hereunder and the aggregate principal amount of the Notes that
such defaulting Underwriter agreed but failed to purchase 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 purchase of such Notes by other persons,
including the non-defaulting Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriters shall be obligated, in
proportion to their commitments hereunder, to purchase the Notes that such
defaulting Underwriter agreed but failed to purchase. 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
purchase of 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(a)(v) and 5(b)(i). 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., 200 Park Avenue, New York, New York 10166, Attention:
[Cheryl Grassman].
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
-25-
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-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.
(a) 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, 111 Eighth Avenue, 13th Floor, New York, New York 10011, as
its authorized 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.
(b) 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 baking 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 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 whatsoever unless the Issuer, MTN Issuer the Bank 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 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.
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17. Judgment Currency.
(a) 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 hereunder and such judgment or order is expressed
and paid in a currency (the "Judgement 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, MTN Issuer the Bank or the Receivables Trustee,
as applicable, to the Payee and (b) if positive by the payee to the
Issuer, 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If you are in agreement with the foregoing, please sign two counterparts
hereof and return one to the Representative 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. 2) PLC
By______________________________________
Name:
Title:
BARCLAYS BANK PLC
By______________________________________
Name:
Title:
GRACEHCHURH RECEIVABLES TRUSTEE LIMITED
By______________________________________
Name:
Title:
BARCLAYCARD FUNDING PLC
By______________________________________
Name:
Title:
[Underwriting Agreement Signature Page]
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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:
[Underwriting Agreement Signature Page]
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SCHEDULE A
Class A Notes
-------------
Principal Amount of
Underwriters Class A Notes
------------ -------------------
Barclays Capital Inc. [o]
J.P. Morgan Securities Inc. [o]
Lehman Brothers Inc. [o]
Salomon Smith Barney Inc. [o]
Class B Notes
-------------
Principal Amount of
Underwriters Class B Notes
------------ -------------------
Barclays Capital Inc. $50,000,000
Class C Notes
-------------
Principal Amount of
Underwriters Class C Notes
------------ -------------------
Barclays Capital Inc. $50,000,000
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