EXHIBIT 10.3
CLIFFORD
CHANCE
DATED [o] 2008
BARCLAYS BANK PLC
AS INDEMNITY PROVIDER
IN FAVOUR OF
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
AS ISSUER
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INDEMNITY AGREEMENT
RELATING TO THE NOTE TRUST DEED
DATED [o] 2008
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THIS INDEMNITY is made by way of deed on [o] 2008 by:
(1) BARCLAYS BANK PLC, a company incorporated in England and Wales
(registered number 1026167) having its registered office at 1 Churchill
Place, London E14 5HP (the "INDEMNITY PROVIDER");
in favour of:
(2) GRACECHURCH CARD PROGRAMME FUNDING LIMITED, a company incorporated in
England and Wales (registered number 5555762) having its registered
office at 1 Churchill Place, London E14 5HP (the "ISSUER").
WHEREAS:
(A) The Issuer has established a programme (the "PROGRAMME") through which
Notes may be issued pursuant to a note trust deed dated on or about the
Closing Date between the Issuer and the Bank of New York, London Branch
(the "NOTE TRUST DEED"), as supplemented by series supplements to the
note trust deed dated each Issue Date between the Issuer and the Note
Trustee (the "NOTE TRUST DEED SUPPLEMENTS").
(B) The Indemnity Provider wishes to facilitate any issuances of Notes by
the Issuer that may take place from time to time pursuant to the
Programme, so as to ensure that the Receivables Trustee is placed in
funds to purchase Receivables that are originated by the Indemnity
Provider in the course of its trade, thereby increasing the
profit-earning capacity of the Indemnity Provider by freeing up
regulatory capital and refinancing the receivables at more favourable
rates.
(C) In order for securitisations to take place from time to time pursuant to
the Programme, it will be necessary for the Issuer to find an external
source of funding to meet its initial expenses of issuance.
(D) To these ends, the Indemnity Provider is willing to meet by way of
indemnity certain expenses which may from time to time be incurred by
the Issuer in connection with specific issuances of Notes, all on the
terms and subject to the conditions contained herein.
(E) It is intended by the parties to this Deed that this document will take
effect as a deed despite the fact that a party may only execute this
Deed under hand.
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 TERMS DEFINED
In this Deed:
"CLASS A NOTES" means the notes in registered form in the currency and
denomination amount set forth in the relevant Prospectus
Supplement/Final Terms comprising the Class A Notes and any Sub-Class
thereof of the Issuer constituted by the relevant Note Trust Deed
Supplement, to be represented by a Global Note Certificate, Global Note
Certificates, Individual Note Certificate or Individual Note
Certificates;
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"CLASS B NOTES" means the notes in registered form in the currency and
denomination amount set forth in the relevant Prospectus
Supplement/Final Terms comprising the Class B Notes and any Sub-Class
thereof of the Issuer constituted by the relevant Note Trust Deed
Supplement, to be represented by a Global Note Certificate, Global Note
Certificates, Individual Note Certificate or Individual Note
Certificates;
"CLASS C NOTES" means the notes in registered form in the currency and
denomination amount set forth in the relevant Prospectus
Supplement/Final Terms comprising the Class C Notes and any Sub-Class
thereof of the Issuer constituted by the relevant Note Trust Deed
Supplement, to be represented by a Global Note Certificate, Global Note
Certificates, Individual Note Certificate or Individual Note
Certificates;
"CLASS D NOTES" means the notes in registered form in the currency and
denomination amount set forth in the relevant Prospectus
Supplement/Final Terms comprising the Class D Notes and any Sub-Class
thereof of the Issuer constituted by the relevant Note Trust Deed
Supplement, to be represented by a Global Note Certificate, Global Note
Certificates, Individual Note Certificate or Individual Note
Certificates;
"CLOSING DATE" means the date of this Deed or such other date as shall
be agreed between all relevant parties for the execution of the issue of
the Note Trust Deed.
"ISSUE DATE" means, in relation to the Notes of any Series, the date of
issue of such Notes pursuant to the relevant Prospectus Supplement/Final
Terms and the relevant Note Trust Deed Supplement;
"INDEMNIFIED EXPENSES" means those expenses that:
(a) are incurred by the Issuer from time to time in connection with
any particular issuance of Notes;
(b) fall into one or more of the following categories:
(i) underwriting fees (payable to Barclays Bank plc and
other investment banks for underwriting and
syndication);
(ii) legal fees (payable for the preparation of documents and
opinions required for issuance);
(iii) accounting and audit fees (payable to auditors for audit
and advisory services in connection with the related
prospectus supplement/final terms for Notes and the
offering of Notes);
(iv) listing fees (payable to the relevant listing
authorities for initial listing and registration of the
Notes); and
(v) printing fees (payable to printers for the related
prospectus supplement/final terms and other public
notices); and
(c) are met in order to enable the Issuer to participate as such in
the securitisation of which the relevant issuance of Notes forms
part,
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but excluding (for the avoidance of doubt) any expenses incurred solely
or primarily for the purposes of the Programme (as distinct from the
purposes of any particular issuance of Notes).
"ISSUING ENTITY MASTER FRAMEWORK AGREEMENT" means the issuing entity
master framework agreement entered into on [o] 2008 by, inter alios, the
Issuer and Barclays Bank PLC.
"MEDIUM TERM NOTE CERTIFICATE" means each medium term note to be issued
by the MTN Issuer on or about each Issue Date.
"MTN ISSUER" means Barclaycard Funding PLC a public limited company
incorporated in England and Wales whose registered office is at 1
Churchill Place, London E14 5HP.
"NOTE TRUSTEE" means the Bank of New York, a New York banking
corporation acting through its London branch at 48th Floor One Canada
Square, London E14 5AL.
"NOTES" means the Class A Notes, the Class B Notes, the Class C Notes
and the Class D Notes (if any).
1.2 DEFINITIONS
Unless otherwise defined in this Deed or the context requires otherwise,
words and expressions used in this Deed have the meanings and
constructions ascribed to them in Schedule 1 (Master Definitions
Schedule) to the Issuing Entity Master Framework Agreement dated on or
about the date hereof, between, among others, the Issuer and the Note
Trustee.
1.3 INCORPORATION OF COMMON TERMS
Except as provided below, the Common Terms apply to this Deed, where
applicable, and shall be binding on the parties to this Deed as if set
out in full in this Deed.
1.4 LIMITED RECOURSE AND NON-PETITION
Paragraphs 8 (Non-Petition and Limited Recourse) and 10 (Obligations as
Corporate Obligations) of the Common Terms apply to this Deed and shall
be deemed set out in full herein.
1.5 CONFLICT WITH COMMON TERMS
If there is any conflict between the provisions of the Common Terms and
the provisions of this Deed, the provisions of this Deed shall prevail,
save where any provision of this Deed relates to VAT, in which case the
provisions of the Common Terms shall prevail.
1.6 THIRD PARTY RIGHTS
A person who is not a party to this Deed has no rights under the
Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the
benefit of any term of this Deed.
2. INDEMNITY
The Indemnity Provider irrevocably and unconditionally agrees to
indemnify the Issuer against the Indemnified Expenses.
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3. RIGHTS OF THE ISSUER
3.1 DELEGATION BY THE ISSUER
(a) The Issuer may, at any time, delegate by power of attorney or
otherwise to any person all or any of the rights, powers and
discretions vested in it under this Deed upon such terms and for
such periods of time as it may think fit and it may determine
any such delegation at any time. References in this Deed to the
Issuer will, where the context so admits, include references to
any delegates so appointed.
(b) The Issuer will not be liable to the Indemnity Provider for any
loss or damage arising from any act, default, omission or
misconduct of any such delegate.
4. REPRESENTATIONS OF THE ISSUER AND INDEMNITY PROVIDER
Each party hereto represents and warrants to the other parties, in each
case with respect to itself only, that it has the capacity and authority
to enter into this Deed and that this Deed constitutes its legal, valid
and binding obligation enforceable in accordance with its terms.
5. FURTHER ASSURANCE
The Indemnity Provider agrees that it shall promptly, at the direction
of the Issuer (acting reasonably), execute and deliver at its own
expense any document (executed as a deed or under hand as the Issuer may
direct in writing) and do any act or thing in order to confirm or
establish the validity and enforceability of the guarantee and indemnity
intended to be created by this Deed.
6. TRANSFERS
The Indemnity Provider may not assign or otherwise transfer its rights
and obligations under this Deed.
7. GOVERNING LAW
This Deed and all matters arising from or connected with it shall be
governed by English law in accordance with paragraph 25 (Governing law)
of the Common Terms. Paragraph 26 (Jurisdiction) of the Common Terms
applies to this Deed as if set out in full in this Deed.
8. COUNTERPARTS
This Deed may be executed in any number of counterparts, each of which
is an original and all of which together evidence the same Deed.
THIS DEED has been executed as a deed by the parties listed in the execution
page at the end of this Deed and has been entered into on the date stated at the
beginning of this Deed.
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EXECUTION PAGE
INDEMNITY PROVIDER
EXECUTED AND DELIVERED )
AS A DEED ON BEHALF OF )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
in the presence of: )
ISSUER
Executed as a deed by )
GRACECHURCH CARD )
PROGRAMME FUNDING )
LIMITED )
acting by a duly authorised signatory )
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