EXHIBIT 1.1
GRACECHURCH CARD FUNDING (NO. 11) PLC
$[*] Class A Floating Rate Asset-Backed Notes
$[*] Class B Floating Rate Asset-Backed Notes
$[*] Class C Floating Rate Asset-Backed Notes
UNDERWRITING AGREEMENT
[*] November, 2005
Barclays Capital Inc.
as representative of the
Underwriters set forth herein (the "REPRESENTATIVE")
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
05-4 supplement to the Declaration of Trust and Trust Cash Management
Agreement to be dated on or before the Closing Date (the "SERIES 05-4
SUPPLEMENT"). The MTN Issuer's entitlement as investor beneficiary
pursuant to the Series 05-4 Supplement (the "SERIES 05-4 BENEFICIARY
INTEREST") will be divided for purpose of making calculations under the
Series 05-4 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 05-4 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 05-4 medium term note
certificate (the "SERIES 05-4 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 05-4
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 05-4 MTN SUPPLEMENT"). The Series 05-4 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. 11) 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 05-4 Beneficiary Interest and the excess
interest attributable to Series 05-4.
In order to fund its acquisition of the Series 05-4 MTN Certificate, the
Issuer has duly authorised the issuance of the $[*] Class A Floating
Rate Asset Backed Notes (the "CLASS A NOTES"), the $[*] Class B Floating
Rate Asset Backed Notes (the "CLASS B NOTES") and the $[*] Class C
Floating Rate Asset Backed Notes (the "CLASS C NOTES", and together with
the Class A Notes and the Class B Notes, the "NOTES") to be constituted
by, issued subject to, and have the benefit of, a note trust deed
between the Issuer and The Bank of New York, London branch, as trustee
(the "NOTE TRUSTEE"), to be dated 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 05-4 MTN
Certificate, the Issuer will enter into an interest rate and currency
exchange agreement with the Bank for each class of Notes (collectively,
the "SWAP AGREEMENTS"). The Issuer will also enter into an expenses loan
agreement with the Bank (the "EXPENSES LOAN AGREEMENT") to fund the
expenses the Issuer incurs in connection with the issuance of the Notes.
The Bank, the Receivables Trustee, the MTN Issuer and the Issuer hereby
agree with Barclays Capital Inc., [*] and [*] (the "UNDERWRITERS") as
follows:
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2 REPRESENTATIONS AND WARRANTIES OF THE ISSUER, THE BANK, THE RECEIVABLES
TRUSTEE AND THE MTN ISSUER
2.1 In order to induce the Underwriters to subscribe and pay for the Notes,
the Issuer represents and warrants to, and agrees with the Underwriters
that:
2.1.1 The Issuer is duly incorporated and validly existing under the
laws of England and Wales, and has all requisite corporate
power, authority and legal right to own its property and to
conduct its business as it is presently conducted and described
in the Prospectus, and to execute, deliver and perform its
obligations under this Agreement, the Notes, the Note Trust
Deed, the Deed of Charge, the Paying Agency and Agent Bank
Agreement, the Swap Agreements and the Expenses Loan Agreement
and any other agreement made pursuant hereto or thereto or
otherwise in connection with the Notes entered into by the
Issuer on the Closing Date (collectively, the "ISSUER RELATED
TRANSACTION DOCUMENTS") and it has taken all necessary actions
to authorise and approve the same.
2.1.2 The Issuer has not engaged in any activities since its
incorporation (other than those incidental to its registration
under relevant English legislation, as amended, the matters
referred to or contemplated in the Prospectus, the authorisation
of the issue of the Notes and the authorisation of the entry
into and performance of its obligations under the Issuer Related
Transaction Documents and any other documents, certificates or
agreements ancillary or supplemental thereto or contemplated
thereby) and has neither paid any dividends nor made any
distributions since its incorporation and has no subsidiaries.
2.1.3 This Agreement has been duly authorised and validly executed and
delivered by the Issuer.
2.1.4 Each of the Issuer Related Transaction Documents have been duly
authorised and will be executed and delivered by the Issuer on
or before the Closing Date, and when executed and delivered by
the other parties thereto, will constitute a valid and binding
agreement of the Issuer, enforceable against the Issuer in
accordance with its terms.
2.1.5 The Notes will be issued pursuant to the terms of the Note Trust
Deed duly qualified under the Trust Indenture Act of 1939 (the
"TRUST INDENTURE ACT"), will conform to the description thereof
set forth in the Prospectus, and when executed by the Issuer,
authenticated by The Bank of New York, London branch, as
registrar, and delivered pursuant to this Agreement, will be
validly issued and outstanding and entitled to the benefits of
the Note Trust Deed. The Notes will be in all material respects
in the form contemplated by the Note Trust Deed and will conform
to the description thereof contained in the Prospectus and
Registration Statement.
2.1.6 The Class A Notes will constitute general, direct, secured
(pursuant to the Deed of Charge), unconditional and
unsubordinated obligations of the Issuer which rank and will at
all times rank pari passu, without preference or priority,
amongst themselves.
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2.1.7 The Class B Notes will constitute general, direct, secured
(pursuant to the Deed of Charge), unconditional obligations
which are subordinated only to the Class A Notes and which rank
and will at all times rank pari passu, without preference or
priority, amongst themselves.
2.1.8 The Class C Notes will constitute general, direct, secured
(pursuant to the Deed of Charge), unconditional obligations
which are subordinated only to the Class A Notes and the Class B
Notes and which rank and will at all times rank pari passu,
without preference or priority, amongst themselves.
2.1.9 The Issuer has made arrangements reasonably satisfactory to the
Representative to ensure that the certificates representing the
Notes are delivered to the Bank of New York, London branch as
registrar for authentication in the form required by, and
otherwise in accordance with, the Note Trust Deed and the Paying
Agency and Agent Bank Agreement.
2.1.10 The Issuer has made an application for the Notes to be rated by
Moodys Investors Service Limited ("MOODYS") and Standard &
Poor's Ratings Services, a division of The McGraw Hill
Companies, Inc. ("S&P" and, together with Moodys, the "RATING
AGENCIES") and, in connection with such application, the Issuer
agrees to furnish from time to time any and all documents,
instruments, information, and undertakings that may be necessary
in accordance with the Rating Agencies' normal requirements in
respect of the Notes.
2.1.11 The Issuer is not in violation of any Requirements of Law or in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease
or other instrument to which it is a party or by which it is
bound or to which any of its property is subject, which
violations or defaults separately or in the aggregate would have
a material adverse effect on the Issuer. For the purposes of
this Agreement, "REQUIREMENTS OF LAW" means, with respect to any
person, its Memorandum and Articles of Association and any law,
treaty, rule or regulation or determination of a governmental
authority.
2.1.12 Neither the issuance of and subscription for the Notes, nor the
execution and delivery by the Issuer of this Agreement, the
Notes or the Issuer Related Transaction Documents, nor the
incurrence by the Issuer of the obligations herein and therein
set forth, nor the consummation of the transactions contemplated
hereunder or thereunder, nor the fulfilment of the terms hereof
or thereof does or will (1) violate any Requirement of Law
presently in effect, applicable to it or its properties or by
which it or its properties are or may be bound or affected, (2)
conflict with, or result in a breach of, or constitute a default
under, any indenture, contract, agreement, deed, lease, mortgage
or instrument to which it is a party or by which it or its
properties are bound, or (3) result in the creation or
imposition of any Encumbrance upon any of its property or
assets, except for those Encumbrances created under the Note
Trust Deed and the Deed of Charge. For purposes of this
Agreement, "ENCUMBRANCE" means any mortgage, charge (whether
fixed or floating), pledge, lien, hypothecation, assignment
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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
05-4 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 05-4 MTN Certificate and the whole of its
undertaking and all of its property, assets and rights, present
and future granted in accordance with the terms of the Deed of
Charge.
2.1.17 A registration statement on Form F-1 (No. 333-[*]), including a
form of prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Notes and the
offering thereof in accordance with the provisions of the
Securities Act of 1933, as amended (the "ACT"), and the rules
and regulations of the Securities and Exchange Commission (the
"COMMISSION") thereunder, has been filed with, and has been
declared effective by, the Commission. If any post-effective
amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared
effective by the Commission. For purpose of this Agreement,
"EFFECTIVE TIME" means the date and time as of which such
registration statement, or the most recent post-effective
amendment thereto,
5
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 87A(2) of the FSMA and will comply with the United
Kingdom Listing Authority Prospectus Rules made under Part VI of
the FSMA (the "PROSPECTUS RULES").
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 hereby and thereby and it has not
taken any corporate action, nor have any other steps been taken
or legal proceedings been started or, to the best of its
knowledge and belief, having made all reasonable enquiries,
threatened against it, for its winding-up, dissolution,
arrangement, reconstruction or reorganisation or for the
appointment of a liquidator, receiver, manager, administrator,
administrative receiver or similar officer of it or of any of
its assets or revenues.
6
2.1.21 There are no litigation, arbitration or governmental
proceedings, actual, or, to the best of its knowledge, pending
or threatened, at the date hereof against or affecting the
Issuer or any of its assets or revenues which are or might be
material, individually or in aggregate, in the context of the
issue and the offering of the Notes.
2.1.22 Since the date of its incorporation, there has been no adverse
change, or any development likely to involve an adverse change,
in the condition (financial or otherwise) or general affairs of
the Issuer that is material in the context of the issue and
offering of the Notes or its ability to perform its obligations
under the Issuer Related Transaction Documents, in each case to
which it is expressed to be a party.
2.1.23 No event has occurred or circumstances arisen which is
continuing and which is or (with the passage of time, the giving
of notice or the making of any determination of materiality)
would become an Event of Default (as defined in Condition 9 of
the terms and conditions of the Notes).
2.1.24 Under the laws of England and Wales in force as at the date of
making this representation, it is not necessary that this
Agreement be filed, recorded or enrolled with any court or other
authority in England and Wales or that any stamp, registration
or similar tax be paid on or in relation to this Agreement.
2.1.25 All payments of principal of and interest on the Notes
(including interest accruing after a payment default) by the
Issuer can be made without withholding or deduction for, or on
account of, any present tax, assessment or other governmental
charge of whatever nature imposed or levied by or on behalf of
the United Kingdom or any political sub-division or taxing
authority in or of the United Kingdom, unless the withholding or
deduction of such tax, assessment or other governmental charge
is required by law of the United Kingdom.
2.1.26 Any taxes, fees and other governmental charges payable by the
Issuer in connection with the execution, delivery and
performance of this Agreement, the other Issuer Related
Transaction Documents and the Notes shall have been paid or will
be paid by or on behalf of the Issuer at or prior to the Closing
Date to the extent then due.
2.1.27 The Issuer is not, and as a result of the issue of the Notes or
the receipt or application of the proceeds thereof will not be,
required to register under the Investment Company Act of 1940,
as amended (the "INVESTMENT COMPANY ACT").
2.2 In order to induce the Underwriters to subscribe and pay for the Notes,
the Bank represents and warrants to, and agrees with, the Underwriters
that:
2.2.1 The Bank is duly incorporated and validly existing under the
laws of England and Wales, and has all requisite corporate
power, authority and legal right to conduct its credit card
business as such business is presently conducted as described in
the Prospectus, and to execute, deliver and perform its
obligations under this Agreement, the Receivables
7
Securitisation Agreement, the Assignment of Receivables, the
Declaration of Trust and Trust Cash Management Agreement, the
Beneficiaries Servicing Agreement, the Trust Section 75
Indemnity, the Series 05-4 Supplement, the Agreement Between
Beneficiaries, the Security Trust Deed and MTN Cash Management
Agreement, the Series 05-4 MTN Supplement, the Swap Agreements
and the Expenses Loan Agreement and any other agreement made
pursuant hereto or thereto or otherwise in connection with the
issuance of the Notes entered into by the Bank on the Closing
Date (collectively, the "BANK RELATED TRANSACTION DOCUMENTS"),
and it has taken all necessary action to approve and authorise
the same.
2.2.2 This Agreement has been duly authorised and validly executed and
delivered by the Bank.
2.2.3 Each of the Bank Related Transaction Documents either has been
executed and delivered or will be executed and delivered by the
Bank on or before the Closing Date, and either currently
constitutes or, when executed and delivered by the other parties
thereto, will constitute a valid and binding agreement of the
Bank, enforceable against the Bank in accordance with its terms.
2.2.4 The obligations of the Bank under this Agreement and the other
Bank Related Transaction Documents, upon (1) due execution and
delivery on behalf of the Bank and (2) such aforementioned
agreements becoming effective in accordance with their terms,
will constitute, general, direct, unsecured, unconditional and
unsubordinated obligations of the Bank which rank and will at
all times rank pari passu, without preference or priority,
amongst themselves.
2.2.5 The execution and delivery of this Agreement and the other Bank
Related Transaction Documents and the undertaking and
performance by the Bank of the obligations expressed to be
assumed by it herein and therein do not and will not conflict
with, result in a breach or infringement of the terms or
provisions of, or constitute a default under, any Requirements
of Law and do not and will not infringe the terms of, or
constitute a default under, any trust deed, agreement or other
instrument or obligation to which the Bank is a party or by
which the Bank or any part of its properties, undertakings,
assets or revenues is bound, where such conflict, breach,
infringement of default would have a material adverse effect in
the context of its ability to perform its obligations under this
Agreement and the other Bank Related Transaction Documents.
2.2.6 All approvals, authorisations, consents, orders or other actions
of any persons or of any governmental or regulatory body or
official required in connection with the performance of its
credit card business and the execution and delivery of this
Agreement, the other Bank Related Transaction Documents and/or
the assignment of Receivables in the manner contemplated
therein, the performance of the transactions contemplated by
this Agreement, the other Bank Related Transaction Documents and
the fulfilment of the terms thereof have been obtained and
remain, and will remain on the Closing Date, in force in all
material respects. Any
8
applicable licence under the Consumer Credit Act 1974 has been
obtained and since such time has remained in force in all
material respects and registration in accordance with the
provisions of the Data Protection Act 1998 has been complied
with and remains in force in all material respects.
2.2.7 There are no litigation, arbitration or governmental
proceedings, actual or, to the best of its knowledge, pending or
threatened, at the date hereof against or affecting its assets
or revenues which are or would be material, individually or in
aggregate, in the context of its ability to perform its
obligations under this Agreement and the other Bank Related
Transaction Documents, in each case to which it is expressed to
be a party and each assignment to be entered into by it in
respect of the Receivables or in the context of the issue and
offering of the Notes.
2.2.8 Since the date of its financial statements set forth in the
Annual Report and Accounts for the financial year ended 31
December 2004 (a copy of which has been furnished to the
Representative) there has been no adverse change in the
financial position of the Bank which is or could reasonably be
considered to be material in the context of the issue and
offering of the Notes.
2.2.9 Since the date as of which information is given in the
Registration Statement or the Prospectus and except as otherwise
stated in the Registration Statement or the Prospectus, there
has been no material adverse change or any development
reasonably likely to result in a material adverse change in the
condition (financial or otherwise), general affairs, business,
prospects, management, shareholders' equity or results of
operations of the Bank which is or might reasonably be
considered to be material in the context of the issue and
offering of the Notes.
2.2.10 The representations and warranties made by the Bank in the Bank
Related Transaction Documents or made in any Officer's
Certificate of the Bank delivered pursuant to the Bank Related
Transaction Documents will be true and correct at the time made
and on and as of the Closing Date as if set forth herein.
2.2.11 No stop order suspending the effectiveness of the Registration
Statement has been issued and, to the Bank's knowledge, no
proceeding for that purpose has been instituted or, to the
knowledge of the Bank, threatened by the Commission, and on the
Effective Date the information in the Registration Statement and
the Prospectus about the Bank and its business and the
Receivables did not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and on the date of this Agreement and on the Closing
Date the information in the Registration Statement and the
Prospectus about the Bank and its business and the Receivables
will not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
9
2.2.12 The Prospectus contains all such information in relation to the
Bank, its business and the Receivables which are the subject of
the transaction as is required by Section 87A(2) of the FSMA and
the Prospectus Rules.
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:
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 05-4 Supplement, the
Agreement Between Beneficiaries, the Security Trust Deed and MTN
Cash Management Agreement, the Series 05-4 MTN Supplement and
any other agreement made pursuant hereto or thereto or otherwise
in connection with the issuance of the Notes entered into by the
Receivables Trustee on the Closing Date (collectively, the
"RECEIVABLES TRUSTEE RELATED TRANSACTION
10
DOCUMENTS"), and it has taken all necessary action to approve
and authorise the same.
2.3.2 It has not engaged in any activities since its incorporation
(other than those incidental to its registration under relevant
Jersey legislation, as amended, the matters referred to or
contemplated in the Prospectus, including the transactions
entered into in connection with Series 05-4, the authorisation
of the entry into and performance of its obligations under this
Agreement and the other Receivables Trustee Related Transaction
Documents, any other documents, certificates or agreements
ancillary or supplemental thereto or contemplated thereby and
matters incidental thereto) and has neither paid any dividends
nor made any distributions since its incorporation and has no
subsidiaries.
2.3.3 This Agreement has been duly authorised and validly executed and
delivered by the Receivables Trustee.
2.3.4 Each of the Receivables Trustee Related Transaction Documents
either has been executed and delivered or will be executed and
delivered by the Receivables Trustee on or before the Closing
Date, and either currently constitutes or, when executed and
delivered by the other parties thereto, will constitute a valid
and binding agreement of the Receivables Trustee, enforceable
against the Receivables Trustee in accordance with its terms,
but as the same may be limited by laws relating to insolvency,
bankruptcy and laws relating to creditors' rights generally.
2.3.5 The obligations of the Receivables Trustee under this Agreement
and the other Receivables Trustee Related Transaction Documents,
upon due execution and delivery on behalf of the Receivables
Trustee, constitute general, direct, unsecured, unconditional
and unsubordinated obligations of the Receivables Trustee which
rank and will at all times rank pari passu, without preference
or priority, amongst themselves.
2.3.6 The Receivables Trustee is not in violation of any Requirement
of Law or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement
note, lease or other instrument to which it is a party or by
which it is bound or to which any of its property is subject,
which violations or defaults separately or in the aggregate
would have a material adverse effect on the Receivables Trustee.
2.3.7 Neither the execution and delivery by the Receivables Trustee of
this Agreement or the other Receivables Trustee Related
Transaction Documents, nor the incurrence by the Receivables
Trustee of the obligations herein and therein set forth, nor the
consummation of the transactions contemplated hereunder or
thereunder, nor the fulfilment of the terms hereof or thereof
does or will (1) violate any Requirement of Law presently in
effect, applicable to it or its properties or by which it or its
properties are or may be bound or affected, (2) conflict with,
or result in a breach of, or constitute a default under, any
indenture, contract, agreement, deed, lease, mortgage or
instrument to which it is a party or by which it or
11
its properties are bound, or (3) result in the creation or
imposition of any Encumbrance upon any of its property or
assets, except for those Encumbrances created under the
Receivables Trustee Related Transaction Documents.
2.3.8 All consents, approvals, authorisations, orders, filings,
registrations or qualifications of or with any court or any
other governmental agency, board, commission, authority,
official or body required in connection with the execution and
delivery by the Receivables Trustee of this Agreement or the
other Receivables Trustee Related Transaction Documents, or to
the consummation of the transactions contemplated hereunder and
thereunder, or to the fulfilment of the terms hereof and thereof
have been or will have been obtained on or before the Closing
Date.
2.3.9 There are no litigation, arbitration or governmental
proceedings, actual or, to the best of its knowledge, pending or
threatened, at the date hereof against or affecting the
Receivables Trustee or any of its assets or revenues which are
or might be material, individually or in aggregate, in the
context of its ability to perform its obligations under this
Agreement and the other Receivables Trustee Related Transaction
Documents.
2.3.10 All actions required to be taken by the Receivables Trustee as a
condition to the consummation of the transactions described in
the Prospectus and the Registration Statement have been or,
prior to the Closing Date, will be taken.
2.3.11 The representations and warranties made by the Receivables
Trustee in the Receivables Trustee Related Transaction
Documents, or made in any Officer's Certificate of the
Receivables Trustee delivered pursuant to the Receivables
Trustee Related Transaction Documents will be true and correct
at the time made and on and as of the Closing Date as if set
forth herein.
2.3.12 On the Effective Date the information in the Prospectus and the
Registration Statement relating to the Receivables Trustee did
not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
information in the Prospectus and the Registration Statement
relating to the Receivables Trustee will not include on the date
of this Agreement and on the Closing Date any untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading.
2.3.13 Subject to the terms of the Receivables Trustee Related
Transaction Documents and the transaction documents entered into
in connection with Series 05-4, the Receivables Trustee is able
to pay its debts as they fall due and will not become unable to
do so in consequence of the execution by it of this Agreement or
the other Receivables Trustee Related Transaction Documents, and
the performance by it of the transactions envisaged hereby and
thereby and it has not taken any corporate action, nor have any
other steps been taken or legal proceedings been started or, to
the best of its
12
knowledge and belief, having made all reasonable enquiries,
threatened against it, for its winding-up, dissolution,
arrangement, reconstruction or reorganisation or for the
appointment of a liquidator, receiver, manager, administrator,
administrative receiver, or similar officer of it or of any of
its assets or revenues.
2.3.14 The Receivables Trustee agrees that it has not and will not
create or permit to subsist in favour of any person any
Encumbrance over the Receivables except as provided in the
Receivables Trustee Related Transaction Documents.
2.3.15 The Receivables Trustee is not, and as a result of the execution
and delivery of the Series 05-4 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 05-4 MTN
Certificate, the Series 05-4 Supplement, the Agreement Between
Beneficiaries, the Security Trust Deed and MTN Cash Management
Agreement, the Series 05-4 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 05-4 MTN Certificate entered into by the MTN Issuer on
the Closing Date (collectively, the "MTN ISSUER RELATED
TRANSACTION DOCUMENTS"), and it has taken all necessary action
to approve and authorise the same.
2.4.2 This Agreement has been duly authorised and validly executed and
delivered by the MTN Issuer.
2.4.3 Each of the MTN Issuer Related Transaction Documents has been
duly authorised and either has been executed and delivered or
will be executed and delivered by the MTN Issuer on or before
the Closing Date, and either currently constitutes or, when
executed and delivered by the other parties thereto, will
constitute a valid and binding agreement of the MTN Issuer,
enforceable against the MTN Issuer in accordance with its terms.
2.4.4 The MTN Issuer is not in violation of any Requirement of Law or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease
or other instrument to which it is a party or by which it is
bound or to which any of its property is subject, which
violations or defaults separately or in the aggregate would have
a material adverse effect on the MTN Issuer.
13
2.4.5 Neither the issuance of and subscription for the Series 05-4 MTN
Certificate, nor the execution and delivery by the MTN Issuer of
this Agreement, or the Series 05-4 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 05-4
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 05-4 MTN
Certificate constitute, and, upon due execution and delivery on
behalf of the MTN Issuer, will constitute, general, direct,
unconditional, unsubordinated and (save in respect of the Series
05-4 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 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 05-4 MTN
Certificate and the fulfilment of the terms thereof have been
obtained and remain, and will remain on the Closing Date, in
force in all material respects.
2.4.8 Since the date of its financial statements that are set forth in
the Prospectus there has been no adverse change in the financial
position of the MTN Issuer which is or could be material in the
context of the issue and offering of the Series 05-4 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 05-4 MTN Certificate and the
Notes.
14
2.4.10 All actions required to be taken by the MTN Issuer as a
condition to the issuance of the Series 05-4 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 MTN Certificate, 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 issuance of the Series 04-2
MTN Certificate, the issuance of the Series 05-1 MTN
Certificate, the issuance of the Series 05-2 MTN Certificate,
the issuance of the Series 05-3 MTN Certificate, the
authorisation of the issue of the Series 05-4 MTN Certificate
and the authorisation of the entry into and performance of its
obligations under the MTN 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.
2.4.13 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 05-4 Beneficiary Interest except as provided in the
Security Trust Deed and MTN Cash Management Agreement and the
Series 05-4 MTN Supplement, and agrees to take all action
required by the Security Trust Deed and MTN Cash Management
Agreement and the Series 05-4 MTN Supplement to maintain the
security interest in the Series 05-4 Beneficiary Interest in
accordance with the Security Trust Deed and MTN Cash Management
Agreement and the Series 05-4 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
05-4 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
05-4 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.
15
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 05-4 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 05-4 MTN Certificate or the receipt or application of the
proceeds thereof will not be, required to register under the
Investment Company Act.
3 SUBSCRIPTION, ISSUANCE, PAYMENT AND DELIVERY OF THE NOTES
3.1 On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the
Issuer agrees to issue to the Underwriters, and the Underwriters agree
to subscribe from the Issuer, (1) $[*] aggregate principal amount of
Class A Notes at an issue price of [*]% of the principal amount thereof,
(2) $[*] aggregate principal amount of Class B Notes at an issue price
of [*]% of the principal amount thereof and (3) $[*] aggregate principal
amount of Class C Notes at an issue price of [*]% of the principal
amount thereof, each Underwriter to severally subscribe for the class of
Notes and the amounts shown on Schedule A hereto.
3.2 The Issuer will deliver the Notes to you against payment of the issue
price in immediately available funds, drawn to the order of the Issuer,
at the offices of Clifford Chance LLP, in London at 3:00 P.M., London
time, on [*] November, 2005, or at such other time not later than seven
full business days thereafter as you and the Issuer determine, such time
being herein referred to as the "CLOSING DATE". Each of the Notes so to
be delivered shall be represented by one or more definitive certificates
registered in the name of Cede & Co., as nominee for The Depository
Trust Company. The Issuer shall make such definitive certificates
representing the Notes available for inspection by the Underwriters at
the office at which the Notes are to be delivered no later than five
hours before the close of business in London on the business day prior
to the Closing Date.
16
4 OFFERING BY UNDERWRITERS
It is understood that after the Effective Date, the Underwriters propose
to offer the Notes for sale to the public (which may include selected
dealers) as set forth in the Prospectus.
5 CERTAIN AGREEMENTS OF THE ISSUER, THE BANK, THE MTN ISSUER AND THE
RECEIVABLES TRUSTEE
5.1 The Issuer agrees with the Underwriters:
5.1.1 that it has prepared the Prospectus in a form approved by the
Representative on behalf of the Underwriters and that it will
file the final Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rule 430A under the 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 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 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.
5.1.3 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;
5.1.4 that it will promptly from time to time take such action as the
Representative may reasonably request to qualify the Notes for
offering and sale under the securities or "Blue Sky" laws of
such jurisdictions as the Representative, on behalf of the
Underwriters, may request and to comply with such laws so as to
permit the continuance of sale and dealings in such
jurisdictions for as long as may be necessary to complete the
distribution of
17
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;
5.1.5 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 Act and Rule 158 of the Commission
promulgated thereunder;
5.1.6 that so long as any of the Notes are outstanding, the Issuer
will furnish to the Representative on behalf of the Underwriters
copies of all reports or other communications (financial or
other) furnished to holders of the Notes and copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
5.1.7 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;
5.1.8 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 Section 87A(2) of the FSMA and the
Prospectus 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
18
practicable and shall, in accordance with the Prospectus 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;
5.1.9 that, without prejudice to the rights of the Underwriters under
this Agreement and without prejudice to its obligations under
5.1.8 above, it will notify the Representative, on behalf of the
Underwriters, promptly of any material change affecting any of
the Issuer's representations, warranties, agreements,
undertakings and indemnities herein at any time prior to payment
being made to the Issuer on the Closing Date and, at the
Issuer's expense, will take such steps in relation to the
transactions contemplated hereby as may reasonably be requested
by the Representative on behalf of the Underwriters to remedy
the same;
5.1.10 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");
5.1.11 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;
5.1.12 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;
5.1.13 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;
19
5.1.14 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
5.1.15 to the extent, if any, that any of the ratings provided with
respect to the Notes by Rating Agencies' are conditional upon
the furnishing of documents or the taking of any other actions
by the Issuer, the Issuer shall furnish such documents and take
any such other actions.
5.2 The Bank agrees with the Underwriters:
5.2.1 to the extent, if any, that any of the ratings provided with
respect to the Notes by the Rating Agencies' are conditional
upon the furnishing of documents or the taking of any other
actions by the Bank, the Bank shall furnish such documents and
take any such other actions as are within the Bank's control;
5.2.2 without prejudice to the rights of the Underwriters in this
Agreement, it will notify the Representative, on behalf of the
Underwriters, promptly of any material change affecting the
Bank's representations, warranties, agreements and indemnities
herein any time prior to payment being made to the Issuer on the
Closing Date and, at the Bank's expense, will take such steps in
relation to the transactions contemplated hereby as may
reasonably be requested by the Representative, on behalf of the
Underwriters, to remedy the same; and
5.2.3 for a period of 30 days from the date hereof it will not,
without the prior written consent of the Underwriters, directly
or indirectly, offer, sell or contract to sell, or announce the
offering of, in a public or private transaction, any other
series of debt securities directly or indirectly dependent on
payments on the Receivables.
5.3 The MTN Issuer agrees with the Underwriters that, without prejudice to
the rights of the Underwriters hereunder, it will notify the
Representative, on behalf of the Underwriters, promptly of any material
change affecting the MTN Issuer's representations, warranties,
agreements and indemnities herein at any time prior to payment being
made to the Issuer on the Closing Date and the MTN Issuer will take 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
20
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 officer's of
each of the Issuer, the Bank, the Receivables Trustee and the MTN Issuer
made pursuant to the provisions hereof, to the performance by each of
the Issuer, the Bank, the Receivables Trustee and the MTN Issuer of its
obligations hereunder and to the following additional conditions
precedent:
6.1 On or prior to the date of this Agreement and on or prior to the Closing
Date, you shall have received letters, dated the date of this Agreement
and the Closing Date, respectively, of PricewaterhouseCoopers LLP, all
addressed to the Underwriters confirming that they are independent
public accountant's 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
21
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;
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 or other duly authorised person on
behalf of the Issuer, the Receivables Trustee, the MTN Issuer and the
Bank, each 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 from 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
22
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 05-4 MTN Certificate.
6.12 You shall have received certified copies of the resolutions of the Board
of Directors of the Receivables Trustee approving and authorizing the
execution and delivery of this Agreement and the other Receivables
Trustee Related Transaction Documents and the entry into and the
performance of the transactions contemplated by this Agreement and the
other Receivables Trustee Related Transaction Documents.
6.13 You shall have received a solvency certificate dated the Closing Date,
addressed to the Underwriters and signed by a duly authorised person on
behalf of each of the Bank, the MTN Issuer, the Receivables Trustee and
the Issuer, each such certificate being substantially in the agreed
form.
6.14 You shall have received evidence, satisfactory to you and your counsel,
of the execution and delivery on or before the Closing Date by all
parties thereto of the Issuer Related Transaction Documents, the Bank
Related Transaction Documents, the Receivables Trustee Related
Transaction Documents and the MTN Issuer Related Transaction Documents,
the same being substantially the respective agreed forms.
6.15 On or before the Closing Date, receipt by the Representative of
confirmation from the Issuer that it has borrowed from the Bank under
the Expenses Loan Agreement an amount sufficient (when aggregated with
the net proceeds of the issue of the Notes) (i) to subscribe and pay for
the Series 05-4 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 05-4 MTN Certificate.
6.17 You shall have received evidence satisfactory to you that the Class A
Notes shall be rated "Aaa" by Moodys and "AAA" by S&P, that the Class B
Notes shall be rated no lower than "A1" by Moodys and no lower than "A"
by S&P and that the Class C Notes shall be rated no lower than "Baa1" by
Moodys and no lower than "BBB" by S&P.
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.
23
7 INDEMNIFICATION AND CONTRIBUTION
7.1 The Issuer and the Bank will indemnify and hold harmless the
Underwriters against any losses, claims, damages or liabilities, joint
or several, to which the Underwriters may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse the Underwriters for any legal or other expenses
reasonably incurred by the Underwriters in connection with investigating
or defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Issuer and the Bank
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with
written information relating to the Underwriters and furnished to the
Issuer or the Bank by the Underwriters specifically for use therein.
Each of the Issuer and the Bank acknowledges and agrees that the
information under the heading "Underwriting" relating to selling
concessions and reallowance and relating to transactions by the
Underwriters in conformance with Regulation M constitutes the only
information furnished in writing by the Underwriters for inclusion in
the Registration Statement or 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
24
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defence thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defence thereof, the indemnifying party will
not be liable to such indemnified party under this section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defence thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (a) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (b) does not include a statement as to or an
admission of fault culpability or a failure to act, by or on behalf of
any indemnified party.
7.4 If the indemnification provided for in this section is unavailable or
insufficient to hold harmless an indemnified party under Section 7.1 or
7.2 above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in Section 7.1 or 7.2 above
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer or the Bank on the one hand and the
Underwriters on the other from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Issuer or the Bank on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Issuer or the Bank on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) of the Notes received by
the Issuer bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Notes. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Issuer or the Bank or the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission with
respect to the Notes. The amount paid by an indemnified party as a
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
25
with respect to the Notes. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7.5 The obligations of the Issuer and the Bank under this Section shall be
in addition to any liability which the Issuer or the Bank may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriters within the meaning of the
Act; and the obligations of the Underwriters under this Section shall be
in addition to any liability which the Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each director
of the Issuer, to each officer of the Issuer who has signed the
Registration Statement and to each person, if any, who controls the
Issuer within the meaning of the Act.
8 SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS
The respective indemnities, agreements, representations, warranties and
other statements of each of the Issuer, the MTN Issuer, the Receivables
Trustee, the Bank or its respective officer's 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, officer's 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 liability on the part of
any non-defaulting Underwriter or the Issuer, the MTN Issuer,
26
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 (i) 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 (ii) it has complied and will comply
with all applicable provisions of the FSMA with respect to anything done
by it in relation to any Notes in, from or otherwise involving the
United Kingdom.
14 NO PETITION
Each of the Underwriters hereby agrees that it shall not, until after
the payment of all sums outstanding and owing under the latest maturing
Notes, take any corporate action or other steps or legal proceedings for
the winding-up, dissolution or re-organisation or for the appointment of
a receiver, administrator, administrative receiver, trustee, liquidator,
sequestrator or similar officer of the Issuer, the MTN Issuer or the
Receivables Trustee.
15 CONSENT TO JURISDICTION; APPOINTMENT OF AGENT TO ACCEPT SERVICE OF
PROCESS; WAIVER OF JURY TRIAL
15.1 Each of the Issuer, the 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
27
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 Each of the parties to this Agreement hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
15.3 The obligation of the Issuer, the MTN Issuer, 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, the 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, the 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, the 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, the 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 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,
28
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, the Receivables Trustee 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).
19 ENTIRE AGREEMENT
This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the parties to this Agreement with
respect to the subject matter hereof, other than any agreements among
the Underwriters, including [*].
20 NO FIDUCIARY DUTY
Each of the Issuer, the MTN Issuer, the Bank and the Receivables Trustee
acknowledges and agrees that (i) the purchase and sale of the Notes
pursuant to this Agreement is an arm's-length commercial transaction
between the Issuer, the MTN Issuer, the Bank and the Receivables
Trustee, on the one hand, and the several Underwriters, on the other,
(ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not as
the agent or fiduciary of the Issuer, the MTN Issuer, the Bank or the
Receivables Trustee, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Issuer, the MTN Issuer, the
Bank or the Receivables Trustee with respect to the offering
contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the
Issuer, the MTN Issuer, the Bank or the Receivables Trustee on other
matters) or any other obligation to the Issuer, the MTN Issuer, the Bank
or the Receivables Trustee except the obligations expressly set forth in
this Agreement and (iv) each of the Issuer, the MTN Issuer, the Bank and
the Receivables Trustee has consulted its own legal and financial
advisors to the extent it deemed appropriate. Each of the Issuer, the
MTN Issuer, the Bank and the Receivables Trustee agrees that it will not
claim that the Underwriters, or any of
29
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Issuer, the MTN Issuer, the Bank or the
Receivables Trustee, in connection with such transaction or the process
leading thereto.
[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. 11) PLC
By:
Name: SFM Directors Limited
Title: Director
BARCLAYS BANK PLC
By:
Title: Director
GRACECHURCH RECEIVABLES
TRUSTEE LIMITED
By:
Title: Director
BARCLAYCARD FUNDING PLC
By:
Name: SFM Directors Limited
Title: Director
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
Title: Managing Director
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. $[*]
[*] $[*]
Class C Notes
-------------
Underwriters Principal Amount of
Class C Notes
Barclays Capital Inc. $[*]
[*] $[*]
32