Bank of New York and Barclays Bank PLC - s. 46(4) of the OBCA
IN THE MATTER OF
THE BUSINESS CORPORATIONS ACT,
R.S.O. 1990, c. B.16 (THE "OBCA")
AND
IN THE MATTER OF
THE BANK OF NEW YORK AND
BARCLAYS BANK PLC
ORDER
(Subsection 46(4) of the OBCA)
UPON the application of The Bank of New York (the "Applicant") to the Ontario Securities Commission (the "Commission") for an order pursuant to subsection 46(4) of the OBCA exempting a Trust Indenture (the "Indenture") dated September 16, 2004 between Barclays Bank PLC (the "Issuer") and the Applicant from the requirements of Part V of the OBCA;
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON it being represented by the Applicant to the Commission that
1. the Applicant is a banking corporation organized under the laws of New York and is neither resident nor authorized to do business in Ontario. The Applicant is the sole trustee under the Indenture;
AND UPON it being represented by the Issuer to the Commission that:
1. the Issuer is a public limited company registered in England and Wales and is not a reporting issuer in the Jurisdictions;
2. the Issuer currently offers medium term notes (the "Notes") in the United States under an existing medium term note program (the "Program");
3. the following are the key documents relating to the Program:
(a) a shelf registration statement (the "Registration Statement") on Form F-3 that includes a prospectus dated September 21, 2005 (the "US Prospectus") filed with the United States Securities and Exchange Commission pursuant to the United States Securities Act of 1933, as amended, covering debt securities, preference shares and American depositary shares for up to an aggregate amount initial offering price of $12,870,714,000 or the equivalent thereof in other currencies and a prospectus supplement to the US Prospectus dated September 22, 2005 (the "US Supplement"); and
(b) the Indenture.
A pricing supplement under the US Prospectus and the US Supplement is prepared with respect to each offering in the United States;
4. in connection with the distribution of Notes under the Program in Canada, the Issuer applied through the Mutual Reliance Application System for relief from the reporting issuer requirements set out in paragraph 2.3(1)(b) of National Instrument 44-101 and was granted relief in Ontario and certain other jurisdictions in an MRRS Decision Document dated July 21, 2006;
5. the Issuer has filed a preliminary base shelf prospectus dated July 26, 2006 with the Commission and each of the other provincial securities regulators in Canada in accordance with National Instrument 44-101 and the shelf procedures set forth in National Instrument 44-102 in order to qualify the distribution of Notes under the Program in Canada;
6. it is proposed that certain series of Notes will be offered by prospectus in Canada and will be distributed by the Issuer through certain fully registered Canadian dealers (collectively, the "Dealers"), pursuant to the terms of one or more agreements to be entered between each Dealer and the Issuer from time to time;
7. the Issuer may offer Notes for sale from time to time (a) in the United States, under the US Prospectus and US Supplement and one or more related pricing supplements and/or one or more free writing prospectuses; and/or (b) in Canada, under the final base shelf prospectus (the "Canadian Base Shelf Prospectus") and one or more related pricing supplements (each, a "Pricing Supplement") following the Issuer's receipt of a Mutual Reliance Review System decision document for the Canadian Base Shelf Prospectus. Specific classes of Notes may be offered concurrently in Canada and the United States, or in only one of those countries. Appropriate pricing supplements describing Notes which may be offered in Canada will be filed with the SEC under the US Prospectus and US Supplement;
8. it is not currently anticipated that the Notes issued in Canada will be listed on any stock exchange in Canada, but listing may occur in the future;
9. as the Issuer intends to file the Canadian Base Shelf Prospectus with the Commission, Part V of the OBCA will apply to the Indenture by virtue of subsection 46(2) of the OBCA;
10. pursuant to subsection 46(2) of the OBCA, Part V of the OBCA is applicable to a trust indenture if, in respect of any debt obligations outstanding or to be issued thereunder, a prospectus has been filed under the Securities Act (Ontario);
11. the Indenture is subject to the United States Trust Indenture Act of 1939 (the "Trust Indenture Act"), and the Issuer has been advised by counsel that provisions of the Trust Indenture Act regulate a trustee under a trust indenture governing debt securities publicly offered in the United States in a manner consistent with Part V of the OBCA;
12. the Indenture is governed by the laws of the State of New York and provides that there shall always be a trustee thereunder in accordance with the requirements of sections 310(a)(1), 310(a)(2) and 310(b) of the Trust Indenture Act and it is otherwise consistent with the requirements of the Trust Indenture Act;
13. since provisions of the Trust Indenture Act regulate a trustee under a trust indenture governing debt securities publicly offered in the United States in a manner consistent with Part V of the OBCA, holders of Notes in Ontario will not, subject to paragraph 14, derive any additional material benefit from having the Indenture subject to Part V of the OBCA;
14. the Applicant has undertaken to file with the Commission a submission to the non-exclusive jurisdiction of the courts and administrative tribunals of Ontario and appointment of an agent for service of process in Canada; and
15. the Issuer will advise the Applicant that each Pricing Supplement under which the Notes will be offered in Canada will disclose the existence of this Order and state that the Applicant, and its officers and directors, are located outside Ontario, the assets of the Applicant are outside of Ontario and as a result it may be difficult for a noteholder to enforce rights against the Applicant, or its assets, in Ontario and that the noteholder may have to enforce rights against the Applicant in the United States.
AND UPON the Commission being of the opinion that to do so would not be prejudicial to the public interest;
IT IS ORDERED pursuant to subsection 46(4) of the OBCA that the Indenture is exempt from Part V of the OBCA, provided that:
(a) the Indenture is governed by and subject to the Trust Indenture Act; and
(b) the Applicant, or any trustee that replaces the Applicant under the terms of the Indenture, has filed with the Commission a submission to the non-exclusive jurisdiction of the courts and administrative tribunals of Ontario and appointment of an agent for service of process in Canada.
"Suresh Thakrar"
"Harold P. Hands"
August 18, 2006