EXHIBIT 1.1
GRACECHURCH CARD FUNDING (NO. 7) PLC
$[675,000,000] Class A Floating Rate Asset-Backed Notes
$[37,500,000] Class B Floating Rate Asset-Backed Notes
$[37,500,000] Class C Floating Rate Asset-Backed Notes
UNDERWRITING AGREEMENT
November __, 2004
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 (the "BANK"), a banking institution authorised for
the purposes of the Financial Services and Markets Act 2000 (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
04-2 supplement to the Declaration of Trust and Trust Cash Management
Agreement to be dated on or before the Closing Date (the "SERIES 04-2
SUPPLEMENT"). The MTN Issuer's entitlement as investor beneficiary
pursuant to the Series 04-2 Supplement (the "SERIES 04-2 BENEFICIARY
INTEREST") will be divided for purpose of making calculations under the
Series 04-2 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 04-2 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 04-2 medium term note
certificate (the "SERIES 04-2 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 04-2
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 04-2 MTN SUPPLEMENT"). The Series 04-2 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. 7) 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 04-2 Beneficiary Interest
and the excess interest attributable to Series 04-2.
In order to fund its acquisition of the Series 04-2 MTN Certificate,
the Issuer has duly authorised the issuance of the $[675,000,000] Class
A Floating Rate Asset Backed Notes (the "CLASS A NOTES"), the
$[37,500,000] Class B Floating Rate Asset Backed Notes (the "CLASS B
NOTES") and the $[37,500,000] 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 04-2 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
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Issuer which rank and will at all times rank pari passu,
without preference or priority, amongst themselves.
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 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.
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
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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.
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
04-2 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 04-2 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. 333-120127),
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
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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, 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 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
6
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.
2.1.21 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
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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
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 04-2 Supplement, the Agreement Between
Beneficiaries, the Security Trust Deed and MTN Cash Management
Agreement, the Series 04-2 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
8
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 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][2003] (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.
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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.
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 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 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:
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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 04-2 Supplement, the
Agreement Between Beneficiaries, the Security Trust Deed and
MTN Cash Management Agreement, the Series 04-2 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
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 04-2, 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
11
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 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
12
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 04-2, 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 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 04-2 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 04-2 MTN
Certificate, the Series 04-2 Supplement, the Agreement Between
Beneficiaries, the Security Trust Deed and MTN Cash Management
Agreement, the Series 04-2 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 04-2 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.
13
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.
2.4.5 Neither the issuance of and subscription for the Series 04-2
MTN Certificate, nor the execution and delivery by the MTN
Issuer of this Agreement, or the Series 04-2 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 04-2 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 04-2 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 04-2 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 04-2 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 04-2 MTN Certificate and the
fulfilment of the
14
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
04-2 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 04-2 MTN Certificate and the
Notes.
2.4.10 All actions required to be taken by the MTN Issuer as a
condition to the issuance of the Series 04-2 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 issuance of the Series 03-2 MTN Certificate,
the issuance of the Series 03-3 MTN Certificate, the issuance
of the Series 04-1 MTN Certificate, the authorisation of the
issue of the Series 04-2 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 04-2 Beneficiary Interest except as provided in the
Security Trust Deed and MTN Cash Management Agreement and the
Series 04-2 MTN Supplement, and agrees to take all action
required by the Security Trust Deed and MTN Cash Management
Agreement and the Series 04-2 MTN Supplement to maintain the
security interest in the Series 04-2 Beneficiary
15
Interest in accordance with the Security Trust Deed and MTN
Cash Management Agreement and the Series 04-2 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
04-2 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
04-2 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 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 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 04-2 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 04-2 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) $[675,000,000] aggregate
principal amount of Class A Notes at an issue price of XX.XXX% of the
principal amount thereof, (2) $[37,500,000] aggregate principal
16
amount of Class B Notes at an issue price of XX.XXX% of the principal
amount thereof and (3) $[37,500,000] aggregate principal amount of
Class C Notes at an issue price of XX.XXX% 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 Clifford Chance LLP, in London at 3:00 P.M., London
time, on November ___, 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.
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
17
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;
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
19
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
(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;
19
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 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:
20
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
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:
21
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 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 & Manges;
6.4.2 addressed to the Underwriters, the Note Trustee, the Issuer,
the Receivables Trustee, the MTN Issuer and the Bank, from
Clifford Chance LLP;
6.4.3 addressed to the Underwriters, the Note Trustee, the Issuer,
the Receivables Trustee, the MTN Issuer and the Bank, from
Bedell Cristin;
22
6.4.4 addressed to the Underwriters, the Note Trustee, the Issuer,
the Receivables Trustee, the MTN Issuer and the Bank, from
Maclay Murray & Spens; and
6.4.5 addressed to the Underwriters, the Note Trustee, the Issuer,
the Receivables Trustee, the MTN Issuer and the Bank, from
Tughan & 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 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 04-2 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
23
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 04-2 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 04-2 MTN Certificate.
6.17 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 than "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.
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
24
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 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,
25
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 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
26
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-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
27
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., 200 Park Avenue, New York, New York 10166,
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-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.
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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, 111
Eighth Avenue, 13th Floor, New York, New York 10011, 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 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
29
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]
30
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. 7) 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:
31
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. $[37,500,000]
Class C Notes
-------------
Underwriters Principal Amount of
Class C Notes
Barclays Capital Inc. $[37,500,000]
32