EXHIBIT 4.11
C L I F F O R D LIMITED LIABILITY PARTNERSHIP
C H A N C E
BARCLAYCARD FUNDING PLC
as Issuer
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
THE BANK OF NEW YORK
as Trustee
BARCLAYS BANK PLC
as Initial Transferor
and
BARCLAYS BANK PLC
as MTN Cash Manager
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SERIES 02-1 MTN SUPPLEMENT
Dated [___] 2002
To
SECURITY TRUST DEED AND MTN CASH MANAGEMENT AGREEMENT
Dated [___] 2002
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CONTENTS
CLAUSE PAGE
1. Defined Terms.............................................................2
2. General...................................................................2
3. [Categories Of] Noteholders...............................................4
4. Series 02-1 MTN Supplement To Security Trust..............................4
5. Agreement Of The Secured Creditors And Trustee............................9
6. Negative Covenants Of The Issuer..........................................9
7. Governing Law And Jurisdiction...........................................11
8. Notices..................................................................11
9. Severability Of Provisions...............................................12
10. No Waiver; Cumulative Remedies...........................................12
11. Counterparts.............................................................13
THE SCHEDULE Part 1 - Section A: Definitions.................................14
Part 2 - Cash Management Compensation........................................17
Part 3 - Supplements To Clauses 6.1 To 6.3...................................18
12. Establishment And Maintenance Of Ledgers.................................18
13. Application Of Monies Pre-Enforcement....................................19
14. Application Of Monies Post-Enforcement...................................21
EXHIBIT A....................................................................23
EXHIBIT B....................................................................40
THIS SERIES 02-1 MTN SUPPLEMENT, is made on the [___] day of [___] 2002 as a
Deed
BY AND BETWEEN:
(1) BARCLAYCARD FUNDING PLC, a company incorporated in England with registered
number 2530163, having its registered office at 54 Lombard Street London
EC3P 3AH (the "ISSUER");
(2) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey
with registered number 75210, having its registered office at 26 New
Street, St. Helier, Jersey JE2 3RA (the "RECEIVABLES TRUSTEE");
(3) BARCLAYS BANK PLC, a company incorporated in England, acting through its
business unit, Barclaycard, whose principal place of business is at 1234
Pavilion Drive, Northampton, NN4 7SG (the "INITIAL TRANSFEROR");
(4) BARCLAYS BANK PLC, a company incorporated in England having its registered
office at 54 Lombard Street, London EC3P 3AH (the "MTN CASH MANAGER"); and
(5) THE BANK OF NEW YORK, a banking institution incorporated under the laws of
New York and acting thorough its London Branch whose principal place of
business is at One Canada Square, Canary Wharf, London E14, 5AL, in its
capacity as trustee (the "TRUSTEE" which term shall include wherever the
context so admits, such company and all or any other persons or companies
for the time being acting as the Trustee of this Deed for any series).
WHEREAS
(A) The Issuer has established a programme for the issuance of medium term
Notes, pursuant to the terms of the Security Trust Deed and MTN Cash
Management Agreement.
(B) The Issuer now intends to issue a Series of Notes in accordance with
Clauses 2.1 to 2.3 of the Security Trust Deed and MTN Cash Management
Agreement, in the manner and in the amount set out herein.
(C) The Trustee, the Issuer, the MTN Cash Manager and the Transferor intend to
supplement and vary the Security Trust Deed and MTN Cash Management
Agreement in the manner and to the extent set out herein.
(D) It is intended by the parties hereto that, following the completion of the
transactions contemplated by this Series 02-1 MTN Supplement, each
Noteholder will become a Secured Creditor of the Security Trust in respect
of the Secured Property, as supplemented and varied in accordance with the
provisions hereof and that each such Note held by a Noteholder will
constitute or form part of a Series for the purposes of the Security Trust
Deed and MTN Cash Management Agreement; such Series to be referred to as
"SERIES 02-1".
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NOW IT IS HEREBY AGREED as follows:
PART 1
INTERPRETATION
1. DEFINED TERMS
Terms defined in the MTN Master Definitions Schedule dated 23 November
1999 as amended and restated on [___] 2002 between the Trustee, the
Receivables Trustee, the MTN Cash Manager, the Initial Transferor and the
Issuer (as the same may be amended, varied or supplemented from time to
time (the "MTN MASTER DEFINITIONS SCHEDULE")) and in the Schedule
(including, without limitation, the Conditions of the Notes) shall have
the same meanings when used in this Series 02-1 MTN Supplement and the
recitals hereto unless the context requires otherwise PROVIDED, HOWEVER,
that in the event that any term or provision contained in the Schedule
attached hereto shall conflict with or be inconsistent with any provision
contained in the Security Trust Deed and MTN Cash Management Agreement or
the terms of the MTN Master Definition Schedule, the terms and provisions
contained in the Schedule shall prevail with respect to Series 02-1 only.
2. GENERAL
2.1 The headings and the contents pages in this Series 02-1 MTN Supplement
shall not affect its interpretation.
2.2 Words denoting the singular number only shall include the plural number
also and vice versa; words denoting one gender only shall include the
other gender.
2.3 References to Clauses, paragraphs, Exhibits, and Schedules shall, unless
the context requires otherwise, be to clauses, paragraphs, exhibits and
schedules in this Series 02-1 MTN Supplement.
2.4 Save where the contrary is indicated, any reference in this Series 02-1
MTN Supplement to:
(a) this Series 02-1 MTN Supplement or any other agreement or document
shall be construed as a reference to this Series 02-1 MTN
Supplement, or as the case may be, such other agreement or document
as the same may have been, or may from time to time be, amended,
varied, novated or supplemented;
(b) an enactment is a reference to it as already amended and includes a
reference to any repealed enactment which it may re-enact, with or
without amendment, and to any re-enactment and/or amendment of it;
and
(c) a time of day (including opening and closing of business) shall be
construed as a reference to London time.
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2.5 Costs, charges, expenses or remuneration shall be deemed to include
references to VAT except where the context otherwise requires.
2.6 References to the parties hereto shall be construed so as to include its
and any subsequent successors and permitted assigns in accordance with
their respective interests.
2.7 The Schedule forms part of this Supplement and the Security Trust Deed and
MTN Cash Management Agreement and each of them shall be construed
accordingly.
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PART 2
EFFECT OF SERIES 02-1 SUPPLEMENT
3. [CATEGORIES OF] NOTEHOLDERS
3.1 Upon (i) the making of the advance and the payment referred to in Clause
3.2 and (ii) the issue of a duly executed and authenticated Series 02-1
Temporary Global Note the Noteholder shall be treated for all purposes
under the Security Trust Deed and MTN Cash Management Agreement, as
supplemented by this Series 02-1 MTN Supplement, as a Noteholder in
respect of Series 02-1 and a Secured Creditor of the Security Trust over
the Secured Property on the Issue Date in accordance with Clauses 4.1 to
4.3 of the Security Trust Deed and MTN Cash Management Agreement, and as
such shall be beneficially entitled to a security interest in such Secured
Property to the extent of the Principal Amount together with interest and
any other amounts in respect of the Notes.
3.2 In order for the issue and due authentication and delivery of each Note
referred to in Clause 3.1 to be effected, the Noteholder shall make an
advance in an amount of (pound)[___] made to the Issuer by depositing such
amount in the Series 02-1 MTN Issuer Account for value on the Closing
Date. From time to time, on each Interest Payment Date, the Noteholder
shall pay to the Issuer the Deferred Subscription Price Amount, to the
extent that such amount is available.
3.3 The Temporary Global Note representing the Notes shall be substantially in
the form of Part 1 of Exhibit A-1, to the Schedule. The Permanent Global
Note representing each Note shall be substantially in the form of Part 2
of Exhibit A-1 to the Schedule.
4. SERIES 02-1 MTN SUPPLEMENT TO SECURITY TRUST
4.1 The Security Trust Deed and MTN Cash Management Agreement shall be
supplemented and varied in the manner and to the extent set out below and
shall from such time on the Issue Date be read and construed for all
purposes as supplemented and varied as set out in the Schedule and the
Security Trust in respect of Series 02-1 shall be constituted accordingly:
(a) Clause 1 of the Security Trust Deed and MTN Cash Management
Agreement shall be supplemented and varied with respect to Series
02-1 by the addition of the definitions as contained in Section A of
Part 1 of the Schedule. In the event that any term or provision
contained therein shall conflict with or be inconsistent with any
provision contained in the Security Trust Deed and MTN Cash
Management Agreement, the terms and provisions of this Supplement
shall govern. All clause or sub-clause references in the Schedule
shall be to the relevant clause or sub-clauses of the Security Trust
Deed and MTN Cash Management Agreement, except as otherwise provided
in the Schedule. All capitalised terms used in the Schedule which
are not otherwise defined therein
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are defined in the MTN Master Definitions Schedule. Each capitalised
term defined in the Schedule shall relate only to Series 02-1 and no
other Series;
(b) the Conditions of the Notes set out in Schedule 4 of the Security
Trust Deed and MTN Cash Management Agreement shall be supplemented
with respect to Series 02-1 by the additional provisions set out in
Section B of Part 1 of the Schedule;
(c) for the purposes of Clause 10.6 of the Security Trust Deed and MTN
Cash Management Agreement, the MTN Cash Manager Fee payable by the
Issuer to the MTN Cash Manager shall be paid in the amount and the
manner set out in Part 2 of the Schedule; and
(d) Clauses 6.1 to 6.3 of the Security Trust Deed and MTN Cash
Management Agreement shall be supplemented by the additional
provisions set out in Part 3 of the Schedule. Clauses 6.4 to 6.6
shall be read in their entirety as set out in Part 3 of the Schedule
and shall be applicable only to the Notes constituting Series 02-1.
4.2 As continuing first fixed security for the payment or discharge of the
Secured Obligations save to the extent that they constitute Jersey Assets
and subject always to Clause 4.11 below, the Issuer with full title
guarantee hereby conveys, assigns and transfers by way of first fixed
security to and in favour of the Trustee for itself and on trust for the
Secured Creditors in respect of Series 02-1:
(a) its beneficial interest (and all rights and interests arising in
respect thereof) in respect of Trust Series 02-1 under the
Receivables Trust as an Investor Beneficiary thereof to the extent
specified in the Series 02-1 Trust Supplement and in the Declaration
of Trust and Trust Cash Management Agreement;
(b) all its right, title, interest and benefit present and future in and
to any agreement relating to Series 02-1 (other than the Declaration
of Trust and Trust Cash Management Agreement as supplemented by the
Series 02-1 Trust Supplement to the extent secured under (a) above)
or document relating to Series 02-1 which the Issuer is or may at
any time be, expressed to have the benefit of or to have any rights
under or to have any other interest in unless otherwise charged or
secured by way of fixed security under this Clause 4.2, (INCLUDING,
without limitation, all supplements and accretions thereto, all
rights to receive payment of any amounts which may become payable
thereunder and all payments received by the Issuer thereunder and
all items expressed to be held on trust for the Issuer thereunder or
comprised therein, all rights to serve notices or give consents and
directions or make demands thereunder or take such steps as are
required to cause payments to become due and payable thereunder and
all rights of actions in respect of any breach thereof and all
rights to receive damages or obtain other relief in respect
thereof);
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(c) all its right, title, interest and benefit present and future in and
to all sums of money which may now or hereafter from time to time be
credited to the Series 02-1 Distribution Account or any other MTN
Issuer Account established by the Issuer in respect of Series 02-1
or in respect of any amounts representing or derived from Trust
Series 02-1 Trust Property or received from Barclays Bank PLC
pursuant to the Agreement Between Beneficiaries to any bank or other
accounts in which the Issuer may at any time have or acquire any
right, title, interest or benefit together with all interest
accruing from time to time thereon and the debts represented thereby
and all its right, title, interest and benefit present and future
therein;
(d) all of the Issuer's rights in and to the Permitted Investments in
respect of Trust Series 02-1 and any payment due in respect thereof
and the debts represented thereby; and
(e) all of the Issuer's right, title, interest and benefit in respect of
amounts credited to the Trustee Bank Accounts in respect of Trust
Series 02-1.
4.3 The Issuer by way of first fixed security for payment and discharge of the
Secured Obligations, as beneficial owner thereof and subject always to
Clause 4.11, hereby assigns to the Trustee the Jersey Collateral in order
to create a security interest therein pursuant to Article 2(6) of the
Jersey Security Interests Law as a continuing security for discharge of
the Secured Obligations. The Issuer covenants to join the Trustee in
giving a notice of assignment forthwith upon demand to each party from
whom the Issuer is entitled to claim the Jersey Collateral and to procure
the acknowledgement of such parties thereto, such notice and
acknowledgement to be substantially in the form set out in Exhibit B to
the Schedule.
4.4 For the purposes of Article 3 of the Jersey Security Interests Law and for
the avoidance of doubt, it is hereby agreed as follows:
(a) the debtor in respect of the creation of the Jersey Security
Interest is the Issuer;
(b) the secured parties in respect of the creation of the Jersey
Security Interest are the Trustee and the Secured Creditors,
provided however that all rights in connection therewith are to be
exercised on their behalf by the Trustee in accordance with the
terms of this Supplement, the Security Trust Deed and MTN Cash
Management Agreement and the Jersey Security Interests Law;
(c) the collateral in respect of which the Jersey Security Interest is
created comprises the Jersey Collateral;
(d) the events of default in respect of the Jersey Security Interest are
the events set out in Condition 9 of the Notes under the heading
"Events of Default"; and
(e) the obligations in respect of which the Jersey Security Interest is
created comprise the Secured Obligations.
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4.5 Following irrevocable discharge in full of the Secured Obligations of
which the Trustee has notice, the Trustee shall reassign to the Issuer the
Jersey Collateral.
4.6 The Issuer hereby gives notice to the Receivables Trustee and the Cash
Manager (as Operating Bank) of the assignment by way of security made by
the Issuer to the Trustee (for itself, and on trust for the Noteholders)
under Clause 4.2, which notice each of the Receivables Trustee and the
Cash Manager acknowledges by execution of this Series 02-1 MTN Supplement.
4.7 Notwithstanding the charges and securities created by or pursuant to this
Series 02-1 MTN Supplement, the Trustee agrees that, until the occurrence
of a Series 02-1 Enforcement Event, payments becoming due to the Issuer by
the Receivables Trustee as provided by the Declaration of Trust and Trust
Cash Management Agreement and the Series 02-1 Trust Supplement, together
with all other monies payable to the Issuer pursuant to any other
documents or arrangements to which it is a party, may (in any case) be
made to the Issuer in accordance with the provisions of the Declaration of
Trust and Trust Cash Management Agreement and the Series 02-1 Trust
Supplement or (as the case may be) the documents or arrangements
concerned, and the Issuer may exercise its rights, powers and discretions
and perform its obligations in relation to the Secured Property and under
the Series 02-1 Documents in accordance with the provisions of the Series
02-1 Documents or (as the case may be) such other documents or
arrangements.
4.8 Notwithstanding the Security created by or pursuant to this Supplement,
prior to a Series 02-1 Enforcement Event, amounts standing to the credit
of the Series 02-1 Distribution Account from time to time may be withdrawn
therefrom by the Issuer but only in accordance with the applicable
provisions of the Series 02-1.
4.9 From and including the time when a Series 02-1 Enforcement Event has
occurred and the Notes have become due in accordance with the Conditions,
(a) the security created pursuant to this Supplement shall become
enforceable and the Trustee may enforce any rights it may have in respect
of the Secured Property, and (b) no amount may be withdrawn from the
Series 02-1 Distribution Account by the Issuer or on its behalf without
the prior written consent of the Trustee.
4.10 The Trustee shall hold and apply all moneys received by it under the
Security Trust Deed and MTN Cash Management Agreement and this Series 02-1
MTN Supplement in connection with the realisation or enforcement of the
Secured Property in respect of Series 02-1 in accordance with the
priorities set out in Part 3 of the Schedule hereto.
4.11 Upon proof being given to the satisfaction of the Trustee as to the
irrevocable and unconditional payment or discharge of the Secured
Obligations in respect of Series 02-1, the Trustee will at the request and
cost of the Issuer release, discharge or reassign the Secured Property to
the Issuer or any other person entitled thereto of whom the Trustee has
notice.
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4.12 Section 103 of the LPA shall not apply in relation to any of the Security
created by this Clause 4. The statutory powers of sale and of appointing a
receiver which are conferred upon the Trustee as varied and extended by
this Deed and all other powers shall in favour of any purchaser be deemed
to arise and be exercisable immediately after the execution of this Deed
but shall only be exercised upon and following the giving of an
Enforcement Notice and in the case of the Jersey Security Interest,
subject to the provisions of Articles 6(5) and 8(3) of the Jersey Security
Interests Law, the Trustee shall have an immediate power of sale over the
Jersey Collateral, without having to apply to the Royal Court of Jersey
for authority to exercise the same.
4.13 The power of sale in respect of the Jersey Security Interest shall be
exercisable by the Trustee in such manner as the Trustee may in its
absolute discretion deem appropriate and with all powers of a beneficial
owner. Without limitation the Trustee may, without liability and subject
to the Trustee having been indemnified in full to its satisfaction, sell
or dispose of the whole or part of the Jersey Collateral at such times and
in such manner and generally on such terms and conditions and for such
consideration as the Trustee may think fit. Any such sale or disposal may
be for cash, debentures or other obligations, shares, stocks, securities
or other valuable consideration and may be payable immediately or by
instalment spread over such a period as the Trustee may think fit. The
Trustee shall have right of recourse to any monies forming part of the
Jersey Collateral and may, without liability and subject to the Trustee
having been indemnified in full to its satisfaction, apply such monies in
the payment or discharge of the Secured Obligations as if such moneys were
proceeds of sale.
4.14 For the avoidance of doubt, the power of attorney granted by the Issuer
under Clause 7.13.2 is granted in respect of the Security created by this
Clause 4, inter alia, pursuant to Article 5 of the Powers of Attorney
(Jersey) Law 1995 for the purposes of facilitating the Trustee's powers
hereunder and under the Jersey Security Interests Law in respect of the
Jersey Security Interest.
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PART 3
AGREEMENTS
5. AGREEMENT OF THE SECURED CREDITORS AND TRUSTEE
ADDITIONAL SUPPLEMENTS
Each Secured Creditor consents and confirms as a Secured Creditor of the
Security Trust that, subject to Clause 5.6.2 of the Security Trust Deed
and MTN Cash Management Agreement, the Security Trust Deed and MTN Cash
Management Agreement may be supplemented and varied from time to time in
accordance with the terms of this Series 02-1 MTN Supplement or additional
MTN Supplements.
6. NEGATIVE COVENANTS OF THE ISSUER
6.1 The Issuer shall not, save to the extent permitted by the Security Trust
Deed and MTN Cash Management Agreement or any Supplement or with the prior
written consent of the Transferor and each Rating Agency then rating any
outstanding Associated Debt of any Series:
6.1.1 dispose of any Secured Property or create or permit to subsist any
Encumbrance including, without limitation, anything analogous to any
of the foregoing under the laws of any jurisdiction upon the whole
or any part of its present or future undertaking, assets or revenues
(including, without limitation, uncalled capital and any Secured
Property) other than the interest referred to in Clauses 6.1 to 6.3
of the Security Trust Deed and MTN Cash Management Agreement, as
amended by this Series 02-1 MTN Supplement;
6.1.2 carry on any business other than as contemplated herein relating to
the purchase of beneficial interests in the Securitised Portfolio to
be held on trust by the Receivables Trustee and the issue of the
Notes of any Series and in respect of that business shall not engage
in any activity or do anything whatsoever except:
(a) preserve and/or exercise and/or enforce any of its rights and
perform and observe its obligations under the Notes
appertaining thereto, the Security Trust Deed and MTN Cash
Management Agreement, the MTN Master Definitions Schedule, the
Declaration of Trust and Trust Cash Management Agreement, the
Trust Master Definitions Schedule, the Beneficiaries Servicing
Agreement, the MTN Issuer Bank Agreement and this Series 02-1
MTN Supplement and any mandate regarding any MTN Issuer
Account (together, the "SERIES 02-1 DOCUMENTS");
(b) use, invest or dispose of any of its property or assets in the
manner provided in or contemplated by the Series 02-1
Documents;
(c) perform any act incidental to or necessary in connection with
(a) or (b) above;
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6.1.3 have or form, or cause to be formed, any subsidiary, subsidiary
undertakings or undertakings of any other nature or have any
employees or premises or have an interest in a bank account other
than the MTN Issuer Accounts;
6.1.4 create, incur or suffer to exist any indebtedness (other than
indebtedness permitted to be incurred under the terms of its
articles of association and pursuant to or as contemplated in any of
the Series 02-1 Documents) or give any guarantee in respect of any
obligation of any Person;
6.1.5 repurchase any shares or declare or pay any dividend or other
distribution to its shareholders or issue or allot shares to any
Person other than Barclays Bank PLC or the Share Trustee, except to
the extent required by law;
6.1.6 consolidate with or merge with or into any person or liquidate or
dissolve on a voluntary basis;
6.1.7 waive, modify or amend, or consent to any waiver, modification or
amendment of, any of the provisions of the Series 02-1 Relevant
Documents, without the prior written consent of the Initial
Transferor and the Trustee;
6.1.8 offer to surrender to any company any amounts which are available
for surrender by way of group relief; and
6.1.9 take any steps in its capacity as Investor Beneficiary of the
Receivables Trust either on its own or in conjunction with any other
Beneficiary of the Receivables Trust to terminate the Receivables
Trust.
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PART 4
MISCELLANEOUS
7. GOVERNING LAW AND JURISDICTION
7.1 GOVERNING LAW
This Series 02-1 MTN Supplement and all matters arising from or connected
with it shall be governed by, and construed in accordance with, the laws
of England, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws, except to the
extent the provisions of this Series 02-1 MTN Supplement relate to the
creation and enforcement of the Jersey Security Interest, to which extent
this Deed shall be governed by and construed in accordance with Jersey
law.
7.2 JURISDICTION
(a) Each of the parties hereto irrevocably agrees for the benefit of
each other party that the courts of England shall have exclusive
jurisdiction to hear and determine any suit, action or proceeding,
and to settle any disputes, which may arise out of or in connection
with this Series 02-1 MTN Supplement, and, for such purposes,
irrevocably submits to the exclusive jurisdiction of such courts.
(b) Each party hereto irrevocably waives any objection which it might
now or hereafter have to the courts of England referred to above
being nominated as the forum to hear and determine any suit, action
or proceeding, and to settle any disputes, which may arise out of or
in connection with this Series 02-1 MTN Supplement and agrees not to
claim that any such court is not a convenient or appropriate forum.
(c) Each party hereto (if it is not incorporated in England) irrevocably
appoints the person specified against its name on the execution
pages hereto to accept service of any process on its behalf and
further undertakes to the other parties hereto that it will at all
times during the continuance of this Series 02-1 MTN Supplement
maintain the appointment of some person in England as its agent for
the service of process and irrevocably agrees that service of any
writ, notice or other document for the purposes of any suit, action
or proceeding in the courts of England shall be duly served upon it
if delivered or sent by registered post to the address of such
appointee (or to such other address in England as that party may
notify to the other parties hereto).
8. NOTICES
8.1 Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in writing and may be made by telefax or letter.
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8.2 Any communication, notice or document to be made or delivered by any one
person to another pursuant to this Series 02-1 MTN Supplement shall
(unless that other person has by fifteen days' written notice to the other
parties hereto specified another address) be made or delivered to that
other person at the address identified below and shall be deemed to have
been made or delivered when despatched and confirmation of transmission
received by the sending machine (in the case of any communication made by
telefax) or (in the case of any communication made by letter) when left at
that address or (as the case may be) ten days after being deposited in the
post postage prepaid in an envelope addressed to it at that address
PROVIDED, HOWEVER, that each telefax or telex communication made by one
party hereto to another shall be made to that person at the telefax number
notified to such party by that other person from time to time:
8.2.1 in the case of the Initial Transferor, the MTN Cash Manager (in
whatever capacity) and the Issuer to the addresses specified in the
Security Trust Deed and MTN Cash Management Agreement;
8.2.2 in the case of the Trustee, the Bank of New York, One Canada Square,
London E14 5AL, fax no.: 020 7839 6259 Attention: Corporate Trust
Administration;
8.2.3 in the case of the Receivables Trustee, 26 New Street, St. Helier,
Jersey JE2 3RA, fax no.: +44 1534 814 815 Attention: Richard Gerwat;
and
8.2.4 in the case of the Rating Agencies for Associated Debt:
(a) in the case of Standard & Poor's to Standard & Poor's Ratings
Group, a division of the McGraw-Hill Companies Inc., 18
Finsbury Circus, London UK EC2M 7BP, fax no.: +44 171 826 3598
Attention: Structured Finance Department; and
(b) in the case of Moody's to Moody's Investors Service Inc., 2
Minster Court, Mincing Lane, London, UK EC3R 7XB, fax no.: +
44 171 772 5400 Attention: Structured Finance.
9. SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of
this Series 02-1 MTN Supplement shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or
terms of this Series 02-1 MTN Supplement and shall in no way affect the
validity or enforceability of the other provisions of this Series 02-1 MTN
Supplement or of the rights of the Secured Creditors hereunder.
10. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of any of
the parties hereto, any right, remedy, power or privilege hereunder, shall
operate as a waiver
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thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative
and not exhaustive of any rights, remedies, powers and privileges provided
by law.
11. COUNTERPARTS
This Series 02-1 MTN Supplement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
but all of such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF the Issuer, the Trustee, the MTN Cash Manager and the Initial
Transferor have caused this Series 02-1 MTN Supplement to be duly executed and
delivered by their duly authorised representatives as a deed on the day and year
first above written.
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THE SCHEDULE
PART 1 - SECTION A: DEFINITIONS
"ASSOCIATED DEBT" means, collectively, the Class A Associated Debt, the Class B
Associated Debt and the Class C Associated Debt;
"ASSOCIATED SWAP AGREEMENT" means the currency and interest rate swap agreement
dated [___] 2002 entered into between the Series 02-1 Associated Issuer and the
Associated Swap Counterparty in respect of the Associated Debt;
"ASSOCIATED SWAP COUNTERPARTY" means Barclays Bank PLC;
"AUTHORISED DENOMINATION" means (pound)[___];
"CLASS A" shall mean for calculation purposes, the portion of the Notes related
to the Class A Associated Debt;
"CLASS A ASSOCIATED DEBT" means the $[___] Class A Asset Backed Floating Rate
Note due [___] constituted by the Trust Deed dated [___] 2002 between the Series
02-1 Associated Issuer and The Bank of New York;
"CLASS A INVESTOR INTEREST" shall have the meaning given to it in the Series
02-1 Trust Supplement;
"CLASS B" shall mean for calculation purposes, the portion of the Notes related
to the Class B Associated Debt;
"CLASS B ASSOCIATED DEBT" means the $[___] Class B Asset Backed Floating Rate
Note due [___] 2002 constituted by the Trust Deed dated [___] 2002 between the
Series 02-1 Associated Issuer and The Bank of New York;
"CLASS B INVESTOR INTEREST" shall have the meaning given to it in the Series
02-1 Trust Supplement;
"CLASS C" shall mean for calculation purposes, the portion of the Notes related
to the Class C Associated Debt;
"CLASS C ASSOCIATED DEBT" means the $[___] Class C Asset Backed Floating Rate
Note due [___] constituted by the Trust Deed dated [___] 2002 between the Series
02-1 Issuer and The Bank of New York;
"CLASS C INVESTOR INTEREST" shall have the meaning given to it in the Series
02-1 Trust Supplement;
"DISTRIBUTION DATE" means the 15th day of each month commencing on [___] or, if
such day is not a Business Day, the next following Business Day;
"FINAL REDEMPTION DATE" means the Interest Payment Date falling in [___];
"INTEREST DETERMINATION DATE" means the first day of each Interest Period
-14-
"INTEREST PAYMENT DATE" means each Distribution Date;
"INTEREST PERIOD" means each successive period of three months commencing from
2002. The first Interest Period shall be the period from and including the Issue
Date to but excluding 15 [___] 2002;
"INTEREST RATE" means LIBOR;
"INVESTOR INTEREST" shall have the meaning given to it in the Series 02-1 Trust
Supplement;
"JERSEY ASSETS" means in relation to the Issuer all or any of its undertaking,
property, assets, rights and revenues whatsoever, present and future, situated
in Jersey (including, without limitation, the Jersey Collateral);
"JERSEY COLLATERAL" means in relation to the Issuer, to the extent they
constitute Jersey Assets, all its right, title, interest and benefit present and
future in, to and under the Declaration of Trust and Trust Cash Management
Agreement and the Series 02-1 Trust Supplement, including without limitation all
rights to receive payment of any amount which may become payable to the Issuer
thereunder or payments received by the Issuer thereunder or rights to serve
notices and/or to take such steps as are required to cause payments to be become
due and payable thereunder and all rights of action in respect of any breach
thereof and all rights to receive damages or obtain other relief in respect
thereof;
"JERSEY SECURITY INTEREST" means the security created pursuant to clause 4.3 of
this Supplement in accordance with the requirements of the Jersey Security
Interests Law;
"JERSEY SECURITY INTERESTS LAW" means the Security Interests (Jersey) Law, 1983;
"MARGIN" means [___] per cent. per annum;
"PAGE" means Moneyline Telerate;
"PRIMARY SOURCE" means the Page;
"RELEVANT CURRENCY" means Sterling;
"SCHEDULED REDEMPTION DATE" means in respect of the Notes, the Interest Payment
Date falling in [___];
"SECURED PROPERTY" means all that property of the Issuer held as security
(whether fixed, floating or as a Jersey Security Interest) under this Supplement
or the Security Trust Deed and MTN Cash Management Agreement;
"SERIES 02-1 ASSOCIATED ISSUER" means Gracechurch Card Funding (No. 2) PLC as
issuer of the Associated Debt and its successors and assigns as holder of the
Notes in respect of Series 02-1;
"SERIES 02-1 DISTRIBUTION ACCOUNT" means the account in the name of the Issuer
at Barclays Bank PLC, 54 Lombard Street, London EC3P 3AH (account number [___] /
sort code 20-19-90);
-15-
"SERIES TERMINATION DATE" means in respect of Series 02-1 the earlier to occur
of (a) the Distribution Date on which the Investor Interest in respect of Series
02-1 is reduced to zero; or (b) the Final Redemption Date; and
"SERIES 02-1 TRUST SUPPLEMENT" means the Series 02-1 Supplement to the
Declaration of Trust and Trust Cash Management Agreement dated [___] 2002
between the Initial Transferor, the Issuer and the Receivables Trustee.
SECTION B SUPPLEMENTS TO THE CONDITIONS
The Conditions set out in Schedule 4 to the Security Trust Deed and MTN Cash
Management Agreement shall be supplemented as follows:
1. For the purposes of Condition 5.2, all dates referred to in the Conditions
shall be subject to adjustment in accordance with the Following Business
Day Convention.
2. For the purposes of Condition 5.8, (a) the "Controlled Accumulation
Period" shall commence at the close of business on [___] or such later
date as is determined in accordance with Clause 5.11(e) of the Series 02-1
Trust Supplement and (b) the Day Count Fraction shall be Actual / 365.
3. Condition 9.1 shall be supplemented by the addition of the following
sub-paragraph 9.1.10:
"9.1.10 Associated Swap Agreement: the early termination, without
replacement, of any Associated Swap Agreement".
4. Condition 5.1.1 shall be supplemented by the addition of the following
wording to be inserted in line 4 after the words "Margin (if any)":
"together with any amounts of Further Interest (if any)".
-16-
PART 2
CASH MANAGEMENT COMPENSATION
The Cash Manager's compensation for providing cash management services in
respect of Series 02-1 shall be met in full out of the Cash Manager's standard
banking charges levied against the Issuer from time to time in its capacity as
an Operating Bank under the terms of the MTN Issuer Bank Agreement dated 23
November 1999 made between the Issuer and the Cash Manager.
-17-
PART 3
SUPPLEMENTS TO CLAUSES 6.1 TO 6.3 OF THE SECURITY TRUST DEED
AND CASH MANAGEMENT AGREEMENT
12. ESTABLISHMENT AND MAINTENANCE OF LEDGERS
12.1 The Cash Manager shall open and maintain in the books of the Issuer
certain ledgers (each a "Ledger") in respect of Series 02-1 to be known
respectively as the "Class A Coupon Ledger", the "Class B Coupon Ledger",
the "Class C Coupon Ledger", the "Additional Funds Ledger", the "Class A
Principal Ledger", the "Class B Principal Ledger" and the "Class C
Principal Ledger" which together shall reflect the amount of monies from
time to time held by Issuer in the Series 02-1 Distribution Account.
12.2 The Cash Manager shall record all monies received or payments made by it
on behalf of the Issuer in respect of Series 02-1 in the manner set out in
this Agreement. If at any time the Cash Manager is in any doubt as to
which Ledger a particular amount should be credited or debited, it shall
consult with the Trustee thereon.
12.3 The Cash Manager shall ensure that:
(a) the Class A Coupon Ledger will be credited on each Distribution Date
with the aggregate of (i) the Issuer Costs Amounts, (ii) the Class A
Monthly Distribution Amount and (iii) all other amounts (other than
principal) distributed to the Issuer by the Receivables Trustee on
such date in respect of the Class A Investor Interest;
(b) the Class B Coupon Ledger will be credited on each Distribution Date
with the aggregate of (i) the Class B Monthly Distribution Amount
and (ii) all other amounts of (other than principal) distributed to
the Issuer by the Receivables Trustee on such date in respect of the
Class B Investor Interest;
(c) the Class C Coupon Ledger will be credited on each Distribution Date
with the aggregate of (i) Class C Monthly Distribution Amount and
(ii) all other amounts (other than principal) distributed to the
Issuer by the Receivables Trustee on such date in respect of the
Class C Investor Interest;
(d) the Additional Funds Ledger will be credited with aggregate amount
of Excess Spread distributed to the Issuer by the Receivables
Trustee on such date for application in and towards payment of any
interest and principal falling due for payment on such date under
any Series 02-1 Stamp Duty Facility Agreement;
(e) the Class A Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables Trustee to
the Issuer on such date in reduction of the Class A Investor
Interest;
-18-
(f) (if applicable) the Class A Principal Ledger will be credited on
each Distribution Date falling during the Rapid Amortisation Period
or the Regulated Amortisation Period with the amount paid by the
Receivables Trustee to the Issuer on such date in reduction of the
Class A Investor Interest;
(g) the Class B Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables Trustee to
the Issuer on such date in reduction of the Class B Investor
Interest;
(h) (if applicable) the Class B Principal Ledger will be credited on
each Distribution Date falling during the Rapid Amortisation Period
or the Regulated Amortisation Period with the amount paid by the
Receivables Trustee to the Issuer on such date in reduction of the
Class B Investor Interest;
(i) the Class C Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables Trustee on
the Scheduled Redemption Date with the amount paid by the
Receivables Trustee to the Issuer on such date in reduction of the
Class C Investor Interest; and
(j) (if applicable) the Class C Principal Ledger will be credited on
each Distribution Date falling during the Rapid Amortisation Period
with the amount paid by the Receivables Trustee to the Issuer on
such date in reduction of the Class C Investor Interest.
12.4 The amounts credited to the Class A Coupon Ledger, the Class B Coupon
Ledger, the Class C Coupon Ledger and the Additional Funds Ledger on each
Distribution Date shall constitute respectively, "Class A Available
Funds", "Class B Available Funds", "Class C Available Funds" and
"Additional Available Funds".
13. APPLICATION OF MONIES PRE-ENFORCEMENT
13.1 On each Interest Payment Date:
(a) Class A Available Funds on such date will be applied in making the
following payments, in the amounts calculated by the Cash Manager to
be required, in the following order of priority (in each case if and
to the extent that payments of a higher priority have been made in
full):
(i) first, to pay when due the Issuer Cost Amounts;
(ii) second, to pay all amounts of interest (including Further
Interest (if any)) payable in respect of Class A;
(iii) third, to pay all amounts of Deferred Interest (if any)
payable in respect of Class A;
(iv) fourth, to pay all amounts of Additional Interest (if any)
payable in respect of Class A;
-19-
(v) fifth, pro rata, to pay to the Class A Servicing Fee and the
Class A Trust Cash Management Fee due in respect of the
preceding Monthly Period to the extent not paid directly to
the Servicer and the Trust Cash Manager out of amounts
allocated to the Issuer by the Receivables Trustee on the
preceding Transfer Date;
(vi) sixth, to pay all amounts of Excess Entitlement Consideration
(if any); and
(vii) seventh, in payment to the Issuer for distribution by way of
dividend to the shareholders of the Issuer on such Interest
Payment Date or on any subsequent date on which a dividend
payment is declared and due by the Issuer.
(b) Class B Available Funds on such date will be applied in making the
following payments, in the amounts calculated by the Cash Manager to
be required, in the following order of priority (in each case if and
to the extent that payments and provisions of a higher priority have
been paid in full):
(i) first, to pay all amounts of interest interest (including
Further Interest (if any)) payable in respect of Class B;
(ii) second, to pay all amounts of Deferred Interest (if any)
payable in respect of Class B;
(iii) third, to pay all amounts of Additional Interest (if any)
payable in respect of Class B;
(iv) fourth, pro rata, to pay the Class B Servicing Fee and the
Class B Trust Cash Management Fee due in respect of the
preceding Monthly Period to the extent not paid directly to
the Servicer and the Trust Cash Manager out of amounts
allocated to the Issuer by the Receivables Trustee on the
preceding Transfer Date;
(v) fifth, to pay all amounts of Excess Entitlement Consideration
(if any); and
(vi) sixth, in payment to the Issuer for distribution by way of
dividend to the shareholders of the Issuer on such Interest
Payment Date or on any subsequent date on which a dividend
payment is declared and due by the Issuer;
(c) Class C Available Funds on such date will be applied in making the
following payments, in the amounts calculated by the Cash Manager to
be required, in the following order of priority (in each case if and
to the extent that payments and provisions of a higher priority have
been paid in full);
(i) first, to pay all amounts of interest interest (including
Further Interest (if any)) payable in respect of the Class C;
-20-
(ii) second, to pay all amounts of Deferred Interest (if any)
payable in respect of the Class C;
(iii) third to pay all amounts of Additional Interest (if any)
payable in respect of the Class C;
(iv) fourth, pro rata, to pay the Class C Servicing Fee and the
Class C Trust Cash Management Fee due in respect of the
preceding Monthly Period to the extent not paid directly to
the Servicer and the Trust Cash Manager out of amounts
allocated to the Issuer by the Receivables Trustee on the
preceding Transfer Date;
(v) fifth, to pay all amounts of Excess Entitlement Consideration
(if any); and
(vi) sixth, in payment to the Issuer for distribution by way of
dividend to the shareholders of the Issuer on such Interest
Payment Date or on any subsequent date on which a dividend
payment is declared and due by the Issuer;
(d) Additional Available Funds on such date will be applied in and
towards repayment of any principal due for repayment thereunder on
such date.
13.2 Amounts credited to the Class A Principal Ledger, the Class B Principal
Ledger and the Class C Principal Ledger on the Scheduled Redemption Date
or, if applicable, each Distribution Date falling during the Rapid
Amortisation Period or, as the case may be, the Regulated Amortisation
Period, shall be applied on such dates in and towards redemption of the
Notes;
13.3 All Ledgers shall be reset to zero at the close of business on each
Interest Payment Date.
14. APPLICATION OF MONIES POST-ENFORCEMENT
14.1 Notwithstanding the security rights created by this MTN Supplement but
subject always to the provisions of Article 8(6)(b) of the Jersey Security
Interests Law in respect of the Jersey Security Interest, the Trustee and
each of the Secured Creditors hereby agrees, and the Issuer concurs, that
from the time of the giving of an Enforcement Notice, (a) no amount may be
withdrawn from any of the Series 02-1 Distribution Account except to the
extent that it is applied in accordance with the order of priorities set
out in Paragraph 3.3 or as otherwise permitted by the provisions of this
MTN Supplement or any other Relevant Document that are applicable after
the giving of an Enforcement Notice.
14.2 Notwithstanding the security rights created by this MTN Supplement, but
subject always to the provisions of Article 8(6)(b) of the Jersey Security
Interests Law in respect of the Jersey Security Interest, the Trustee and
each of the Secured Creditors hereby agrees, and the Issuer concurs, that
any monies whatsoever recovered by each
-21-
of them or on their behalf whether by the Trustee or otherwise after the
giving of an Enforcement Notice, shall be paid to the Trustee (and pending
such payment shall be held on trust for the Trustee) for application in
accordance with the order of priorities set out in Paragraph 3.3 (in each
case only if and to the extent that payments of higher priority have been
made in full).
14.3 The order of the priorities referred to in Paragraphs 3.1 and 3.2 is as
follows:
(a) FIRSTLY, in no order of priority inter se but pro rata to the
respective amounts then due, to pay remuneration then due to any
receiver appointed pursuant to this MTN Supplement or the Trustee
and all amounts due in respect of legal fees and other costs,
charges, liabilities, expenses, losses, damages, proceedings, claims
and demands then incurred by the Trustee under and in respect of the
Relevant Documents and in enforcing the security created by or
pursuant to this MTN Supplement or in perfecting title to the
Security, together with interest thereon as provided in any such
document;
(b) SECONDLY, in order of priority inter se, the respective amounts then
due:
(A) FIRST (to the extent not covered by (a) above) in payment or
satisfaction of costs, charges, liabilities, expenses, losses,
damages, proceedings, claims and demands of the Trustee under
the Security Trust Deed and MTN Cash Management Agreement and
this MTN Supplement; and
(B) SECONDLY in or towards payment pari passu and rateably of all
principal, premium (if any) and interest interest (including
Further Interest (if any)) then due and unpaid in respect of
the Notes;
(c) THIRDLY in or towards payment of any sums due from (or required to
be provided for by) the Issuer to meet its liabilities to any
taxation authority (including in respect of corporation tax to the
Inland Revenue);
(d) FOURTHLY in or towards payment of any sums due to third parties
under obligations incurred in the course of the Issuer's business;
(e) FIFTHLY in or towards payment of any dividends due and unpaid to
shareholders of the Issuer; and
(f) SIXTHLY, to pay all amounts of Excess Entitlement Consideration (if
any);
(g) SEVENTHLY in payment of the balance (if any) to the liquidator of
the Issuer,
Without prejudice to the above, if the Trustee holds any monies which represent
principal and interest in respect of any Note which has become void or in
respect of which claims have been prescribed under Condition 10, the Trustee
will hold such monies on the above trusts.
-22-
EXHIBIT A
PART 1
FORM OF TEMPORARY GLOBAL NOTE
TEMPORARY GLOBAL NOTE
ISIN: [___] Common Code: [___]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
TEMPORARY GLOBAL NOTE
REPRESENTING UP TO
(POUND)[___]
FLOATING RATE ASSET BACKED NOTE DUE [___]
This global note is a Temporary Global Note without interest coupons issued in
respect of an issue of an aggregate principal amount of (pound)[___] of Floating
Rate Asset Backed Note due [___] (the "NOTES") by Barclaycard Funding PLC (the
"ISSUER").
The Issuer for value received promises, all in accordance with the terms and
conditions set out in the applicable Series 02-1 Supplement ("TERMS AND
CONDITIONS") and the Principal Trust Deed (as defined below) to pay to the
bearer upon presentation or, as the case may be, surrender hereof in respect of
each Note for the time being from time to time represented hereby, on the
maturity date specified in the Terms and Conditions or on such earlier date as
any such Note may become due and payable in accordance with the Terms and
Conditions, the Principal Amount on such dates as may be specified in the Terms
and Conditions or, if any such Note shall become due and payable on any other
date, the Principal Amount and, in respect of each such Note, to pay interest
and all other amounts as may be payable pursuant to the Terms and Conditions all
subject to and in accordance therewith.
Except as specified herein, the bearer of this Temporary Global Note is entitled
to the benefit of the Terms and Conditions and of the same obligations on the
part of the Issuer as if such bearer were the bearer of the Notes represented
hereby and to the benefit of those provisions of the Terms and Conditions (and
the obligations on the part of the Issuer contained therein) applicable
specifically to Temporary Global Note, and all payments under and to the bearer
of
-23-
this Temporary Global Note shall be valid and effective to satisfy and discharge
the corresponding Liabilities of the Issuer in respect of the Notes.
This Temporary Global Note is issued pursuant to a security trust deed and MTN
cash management deed dated [___] 2002 (the "PRINCIPAL TRUST DEED") together with
the supplemental trust deed in respect of Series 02-1 (the "SERIES 02-1
SUPPLEMENT" and, together with the Principal Trust Deed, the "TRUST DEED") and
made between the Issuer and The Bank of New York, London Branch as trustee (the
"TRUSTEE" which expression includes any person or corporation from time to time
appointed as trustee). Words and expressions defined expressly or by reference
in the Terms and Conditions and the Trust Deed shall have the same meanings in
this Temporary Global Note.
On or after the expiry of 40 days after the date of issue of this Temporary
Global Note (the "Exchange Date"), this Temporary Global Note shall be
exchangeable in whole or in part for a Permanent Global Note or, in the
circumstances set out in the Series 02-1 Supplement for Definitive Note. An
exchange for a Permanent Global Note or, as the case may be, Definitive Note
will be made only on or after the Exchange Date (specified in the Series 02-1
Supplement) and upon presentation or, as the case may be, surrender of this
Temporary Global Note to the Principal Paying Agent at its specified office and
upon and to the extent of delivery to the Principal Paying Agent of a
certificate or certificates issued by Euroclear Bank S.A./N.V. as operator of
the Euroclear System ("EUROCLEAR") or Clearstream, Luxembourg or by any other
relevant clearing system and dated not earlier than the Exchange Date in
substantially the form set out in Annex I hereto or, as the case may be, in the
form that is customarily issued in such circumstances by such other clearing
system. Any Definitive Note will be made available for collection by the persons
entitled thereto at the specified office of the Principal Paying Agent.
The Issuer undertakes to procure that the relevant Permanent Global Note and
Definitive Note will be duly issued in accordance with the Terms and Conditions,
the provisions hereof and of the Trust Deed.
The bearer of this Temporary Global Note shall not (unless, upon due
presentation of this Temporary Global Note for exchange (in whole or in part)
for a Permanent Global Note or for delivery of Definitive Note, such exchange or
delivery is improperly withheld or refused and such withholding or refusal is
continuing at the relevant payment date) be entitled to receive any payment in
respect of the Notes represented by this Temporary Global Note which falls due
on or after the Exchange Date or be entitled to exercise any option on a date
after the Exchange Date.
Payments of interest otherwise falling due before the Exchange Date will be made
only upon presentation of this Temporary Global Note at the specified office of
any of the Paying Agents outside the United States and upon and to the extent of
delivery to the relevant Paying Agent of a certificate or certificates issued by
Euroclear or Clearstream, Luxembourg or by any other relevant clearing system
and dated not earlier than the relevant interest payment date in substantially
the form set out in Annex II hereto or, as the case may be, in the form that is
customarily issued in such circumstances by such other clearing system.
-24-
On any occasion on which a payment of principal is made in respect of this
Temporary Global Note or on which this Temporary Global Note is exchanged in
whole or in part as aforesaid or on which Note represented by this Temporary
Global Note are to be cancelled, the Issuer shall procure that (i) the aggregate
principal amount of the Notes in respect of which such payment is made (or, in
the case of a partial payment, the corresponding part thereof) or which are
delivered in definitive form or which are to be exchanged for a permanent global
instrument or which are to be cancelled and (ii) the remaining principal amount
of this Temporary Global Note (which shall be the previous principal amount
hereof less the amount referred to at (i) above) are noted on the Schedule
hereto, whereupon the principal amount of this Temporary Global Note shall for
all purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Note
represented by this Temporary Global Note, the Issuer shall procure that the
appropriate notations are made on the Schedule hereto.
The obligations of the Issuer in respect of this Temporary Global Note are
limited recourse in nature, as more particularly set out in the Terms and
Conditions and the Trust Deed. In addition the bearer of this Temporary Global
Note and, inter alios, the Trustee are restricted in the proceedings which they
may take against the Issuer to enforce their rights hereunder and under the
Trust Deed, as more particularly set out in the Terms and Conditions and the
Trust Deed.
This Temporary Global Note is governed by, and shall be construed in accordance
with, English law.
The Issuer irrevocably agrees for the benefit of the bearer that the courts of
England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in connection
with these presents (respectively, "PROCEEDINGS" and "DISPUTES") and, for such
purposes, irrevocably submits to the jurisdiction of such courts. The Issuer
irrevocably waives any objection which it might now or hereafter have to the
courts of England being nominated as the forum to hear and determine any
Proceedings and to settle any Disputes and agrees not to claim that any such
court is not a convenient or appropriate forum.
This Temporary Global Note shall not be valid for any purpose until
authenticated for and on behalf of The Bank of New York, London Branch as Issue
Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the Issuer.
-25-
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTE, EXCHANGE FOR PERMANENT GLOBAL NOTE, EXERCISE OF
OPTIONS AND CANCELLATION OF NOTE
==============================================================================================================================
Date of Amount of Amount of Aggregate Aggregate Aggregate Aggregate Remaining Authorised
payment, interest then principal principal principal principal principal principal signature by
delivery, paid then paid amount of amount of amount of amount in amount of or on behalf
exchange, Definitive Note this Note then respect of this of the
exercise of Certificates Temporary cancelled which option Temporary Principal
option (and then delivered Global Note is exercised Global Note Paying Agent
date upon then
which exchanged for
exercise is the Permanent
effective) or Global Note
cancellation
- ------------------------------------------------------------------------------------------------------------------------------
==============================================================================================================================
-26-
BARCLAYCARD FUNDING PLC
By: [manual/facsimile signature]
(director)
ISSUED in London on [___]
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK
as Issue Agent without recourse,
warranty or liability
By: [manual signature]
(duly authorised)
-27-
ANNEX I
[Form of certificate to be given in relation to exchanges of this
Temporary Global Note for the Permanent Global Note or Definitive Note:]
BARCLAYCARD FUNDING PLC
(POUND)[___] FLOATING RATE ASSET BACKED NOTE
(the "NOTES")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (OUR "MEMBER ORGANISATIONS") substantially to the effect
set forth in the Agency Agreement as of the date hereof, [ ] principal amount of
the above-captioned Note (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("UNITED STATES PERSONS"), (ii) is
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) ("FINANCIAL INSTITUTIONS")) purchasing for their own account
or for resale, or (b) acquired the Notes through and are holding through on the
date hereof (as such terms "acquired through" and "holding through" are
described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign
branches of United States financial institutions (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Notes for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as at the date hereof.
-28-
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date: [__________](1)
[Euroclear Bank S.A./N.V. as operator of the Euroclear System/Clearstream,
Luxembourg]
By: [authorised signature]
- -------------------
(1) To be dated not earlier than the Exchange Date.
-29-
ANNEX II
[Form of certificate to be given in relation to payments of interest
falling due before the Exchange Date:]
BARCLAYCARD FUNDING PLC
(POUND)[___] FLOATING RATE ASSET BACKED NOTE
(the "NOTES")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "MEMBER ORGANISATIONS") substantially to the effect
set forth in the Issue and Paying Agency Agreement as of the date hereof, [ ]
principal amount of the above-captioned Note (i) is owned by persons that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("UNITED STATES
PERSONS"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) ("FINANCIAL INSTITUTIONS")) purchasing for their own
account or for resale, or (b) acquired the Notes through and are holding through
on the date hereof (as such terms "acquired through" and "holding through" are
described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign
branches of United States financial institutions (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Notes for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of the Notes set forth above that,
except as set out below, we have received in writing, by tested telex or by
electronic transmission, from our Member Organisations entitled to a portion of
such principal amount, certifications with respect of such portion,
substantially to the effect set forth in the temporary Global Note representing
the Notes.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global
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security excepted in such certifications and (ii) that as of the date hereof we
have not received any notification from any of our Member Organisations to the
effect that the statements made by such Member Organisations with respect to any
portion of the part submitted herewith for exchange (or, if relevant, exercise
of any rights or collection of any interest) are no longer true and cannot be
relied upon as at the date hereof.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date: [__________](1)
[Euroclear Bank S.A./N.V. as operator of the Euroclear System/Clearstream,
Luxembourg]
By: [authorised signature]
- --------------
(1) To be dated not earlier than the relevant interest payment date.
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ANNEX III
[Form of accountholder's certification referred to
in the preceding certificate:]
BARCLAYCARD FUNDING PLC
(POUND)[___] FLOATING RATE ASSET BACKED NOTE
(the "NOTES")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Note held by you for our account (i) are owned by persons
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
the United States Federal income taxation regardless of its source ("UNITED
STATES PERSONS"), (ii) are owned by United States person(s) that (a) are foreign
branches of a United States financial institution (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("FINANCIAL INSTITUTIONS") purchasing for
their own account or for resale, or (b) acquired the Notes through and are
holding through on the date hereof (as such terms "acquired through" and
"holding through" are described in U.S. Treasury Regulations Section 1.163-5(c)
(2)(i) (D)(6)) foreign branches of United States financial institutions (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise the Issuer
or the Issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition if the owner of the Notes is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)) this is further to certify that such financial institution
has not acquired the Notes for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
If the Notes are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933 (the "ACT") then this is also to
certify that, as except as set forth below, the Notes are beneficially owned by
(a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Notes in
transactions which did not require registration under the Act. As used in this
paragraph, the term "U.S. person" has the meaning given to it by Regulation S
under the Act.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Notes held by you
for our account in accordance with your operating procedures if any applicable
statement herein is not correct on such date, and in the absence of any such
notification it may be assumed that this certification applies as of such date.
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This certification excepts and does not relate to [_____] of such interest in
the above Note in respect of which we are not able to certify and as to which we
understand exchange and delivery of definitive Note (or, if relevant, exercise
of any rights or collection of any interest) cannot be made until we do so
certify.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date: [__________](1)
[ACCOUNTHOLDER] AS (OR AS AGENT FOR) THE BENEFICIAL OWNER OF THE NOTES.
By: [authorised signature]
- ------------------
(1) To be dated not earlier than fifteen days before the Exchange Date or, as
the case may be, the relevant interest payment date.
-33-
PART 2
FORM OF CLASS A PERMANENT GLOBAL NOTE
PERMANENT GLOBAL NOTE
ISIN: [___] Common Code: [___]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
PERMANENT GLOBAL NOTE
representing up to
(pound)[___]
FLOATING RATE ASSET BACKED NOTE DUE [___]
This global instrument is a Permanent Global Note with interest coupons issued
in respect of an issue of an aggregate principal amount of (pound)[___] of
Floating Rate Asset Backed Note due [___] (the "NOTES") by BARCLAYCARD FUNDING
PLC (the "ISSUER").
The Issuer for value received promises, all in accordance with the terms and
conditions set out in the Series 02-1 Supplement ("TERMS AND CONDITIONS") and
the Trust Deed (as defined below) to pay to the bearer upon presentation or, as
the case may be, surrender hereof in respect of each Note for the time being
from time to time represented hereby, on the maturity date specified in the
Terms and Conditions or on such earlier date as any such Note may become due and
payable in accordance with the Terms and Conditions, the Principal Amount on
such dates as may be specified in the Terms and Conditions or, if any such Note
shall become due and payable on any other date, the Principal Amount and, in
respect of each such Note, to pay interest and all other amounts as may be
payable pursuant to the Terms and Conditions, all subject to and in accordance
therewith.
Except as specified herein, the bearer of this Permanent Global Note is entitled
to the benefit of the Terms and Conditions and of the same obligations on the
part of the Issuer as if such bearer were the bearer of the Notes represented
hereby and to the benefit of those Terms and Conditions (and the obligations on
the part of the Issuer contained therein) applicable specifically to Permanent
Global Note, and all payments under and to the bearer of this
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Permanent Global Note shall be valid and effective to satisfy and discharge the
corresponding Liabilities of the Issuer in respect of the Notes.
This Permanent Global Note is issued pursuant to a security trust deed dated
[___] 2002 (the "PRINCIPAL TRUST DEED") and the supplement thereto in respect of
Series 02-1 (the "Series 02-1 Supplement" and together with the Security Trust
Deed, the "TRUST DEED") and made between the Issuer and The Bank of New York,
London Branch as trustee (the "TRUSTEE" which expression includes any person or
corporation appointed from time to time as trustee). Words and expressions
defined expressly or by reference in the Terms and Conditions and the Trust Deed
shall have the same meanings in this Permanent Global Note.
This Permanent Global Note will be exchanged in whole but not in part for
Definitive Note if (a) any Note of the relevant Series becomes immediately
redeemable following the occurrence of an Event of Default in relation thereto
(b) Euroclear Bank S.A./N.V. as operator of the Euroclear System or Clearstream,
Luxembourg, or any other relevant clearing system is closed for business for a
continuous period of 14 days (other than by reason of legal holidays) or
announces an intention to cease business permanently or in fact does so; or (c)
if so specified in the Trust Deed, upon the request of a Holder of a beneficial
interest in this Permanent Global Note. In the case of (a) and (b), the Issuer
shall bear the entire cost and expense and, in the case of (c) the Holder making
such request shall bear the entire cost and expense. In order to exercise the
option contained in paragraph (c) of the preceding sentence, the bearer hereof
must, at the request of the Holder making such request, not less than forty-five
days before the date upon which the delivery of such Definitive Note is
required, deposit this Permanent Global Note with the Principal Paying Agent at
its specified office with the form of exchange notice endorsed hereon duly
completed. Any Definitive Note will be made available for collection by the
persons entitled thereto at the specified office of the Principal Paying Agent.
The Issuer undertakes to procure that the relevant Definitive Note will be duly
issued in accordance with the Terms and Conditions, the provisions hereof and of
the Trust Deed.
On any occasion on which a payment of interest is made in respect of this
Permanent Global Note, the Issuer shall procure that the same is noted on the
Schedule hereto.
On any occasion on which a payment of principal is made in respect of this
Permanent Global Note or on which this Permanent Global Note is exchanged as
aforesaid or on which any Note represented by this Permanent Global Note are to
be cancelled the Issuer shall procure that (i) the aggregate principal amount of
the Notes in respect of which such payment is made (or, in the case of a partial
payment, the corresponding part thereof) or which are delivered in definitive
form or which are to be cancelled and (ii) the remaining principal amount of
this Permanent Global Note (which shall be the previous principal amount hereof
less the amount referred to at (i) above) are noted on the Schedule hereto,
whereupon the principal amount of this Permanent Global Note shall for all
purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Note
represented by this Permanent Global Note, the Issuer shall procure that the
appropriate notations are made on the Schedule hereto.
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Insofar as the Temporary Global Note by which the Notes were initially
represented has been exchanged in part only for this Permanent Global Note and
is then to be further exchanged as to the remaining principal amount or part
thereof for this Permanent Global Note, then upon presentation of this Permanent
Global Note to the Principal Paying Agent at its specified office and to the
extent that the aggregate principal amount of such Temporary Global Note is then
reduced by reason of such further exchange, the Issuer shall procure that (i)
the aggregate principal amount of the Notes in respect of which such further
exchange is then made and (ii) the new principal amount of this Permanent Global
Note (which shall be the previous principal amount hereof plus the amount
referred to at (i) above) are noted on the Schedule hereto, whereupon the
principal amount of this Permanent Global Note shall for all purposes be as most
recently noted.
The obligations of the Issuer in respect of this Permanent Global Note are
limited recourse in nature, as more particularly set out in the Terms and
Conditions and the Trust Deed. In addition, the bearer of this Permanent Global
Note and, inter alios, the Trustee are restricted in the proceedings which they
may take against the Issuer to enforce their rights hereunder and under the
Trust Deed, as more particularly described in the Terms and Conditions and the
Trust Deed.
This Permanent Global Note is governed by, and shall be construed in accordance
with, English law.
The Issuer irrevocably agrees for the benefit of the bearer that the courts of
England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in connection
with this Permanent Global Note (respectively, "PROCEEDINGS" and "DISPUTES")
and, for such purposes, irrevocably submits to the jurisdiction of such courts.
The Issuer irrevocably waives any objection which it might now or hereafter have
to the courts of England being nominated as the forum to hear and determine any
Proceedings and to settle any Disputes and agrees not to claim that any such
court is not a convenient or appropriate forum.
This Permanent Global Note shall not be valid for any purpose until
authenticated for and on behalf of Barclays Capital as Issue Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the Issuer.
BARCLAYCARD FUNDING PLC
By: [manual/facsimile signature]
(director)
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ISSUED in London as of [___] 2002
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK as Issue Agent
without recourse, warranty or liability
By: [manual signature]
(duly authorised)
-37-
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTE CERTIFICATES, FURTHER EXCHANGES OF THE TEMPORARY GLOBAL NOTE,
EXERCISE OF OPTIONS AND CANCELLATION OF NOTE
================================================================================================================================
Date of payment, Amount of Amount of Aggregate Aggregate Aggregate Aggregate Current Authorised
delivery, further interest principal principal principal principal principal principal signature
exchange of then paid then paid amount of amount of amount of amount in amount of by or on
Temporary Global Definitive Note then further respect of this behalf of
Note, exercise of Note cancelled exchanges which Permanent the
option (and date Certificates of option is Global Principal
upon which exercise then Temporary exercised Note Paying Agent
is effective) or delivered Global Note
cancellation
- --------------------------------------------------------------------------------------------------------------------------------
================================================================================================================================
-38-
EXCHANGE NOTICE
.............................., being the bearer of this Permanent Global Note at
the time of its deposit with the Principal Paying Agent at its specified office
for the purposes of the Notes, hereby exercises the option set out above to have
this Permanent Global Note exchanged in whole for Definitive Note in aggregate
principal amount of [ ] and directs that such Definitive Note be made available
for collection by it from the Principal Paying Agent's specified office.
By: ...........................................
(duly authorised)
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EXHIBIT B
FORM OF NOTICE OF ASSIGNMENT
To: [
]
From: The Bank of New York, as Trustee under the Deed of Charge referred to
below.
Barclaycard Funding PLC
Dear Sirs,
BARCLAYCARD FUNDING PLC (THE "DEBTOR")
We hereby give you notice that by a Series 02-1 MTN Supplement to a Security
Trust Deed and MTN Cash Management Agreement dated [___] 2002 and made between,
inter alios, the Trustee and the Debtor the following property (inter alia) has
been assigned by the Debtor to the Trustee on behalf of the Secured Creditors
identified therein.
Assigned Property: All the Debtors' rights, title, interest and benefit
present and future in and to and under the [name of
Agreement] dated today and made between [name of
parties] including without limitation all rights to
receive payment of any amount which may become payable
to the Issuer thereunder or payments received by the
Issuer thereunder or rights to serve notice and/or to
take such steps as are required to cause payments to
become due and payable thereunder and all rights of
action in respect of any breach thereof and all rights
to receive damages or obtain other relief in respect
thereof (the "COLLATERAL").
Words and expressions defined in or incorporated by reference into the Series
02-1 MTN Supplement and the Security Trust Deed and MTN Cash Management
Agreement shall, unless expressly defined herein or unless the context otherwise
requires bear the same meaning in this Notice.
A copy of each of the Series 02-1 MTN Supplement and the Security Trust Deed and
MTN Cash Management Agreement is attached to this Notice. Henceforth the
provisions contained therein shall apply to the aforesaid property assigned by
the Debtor pursuant to the Series 02-1 MTN Supplement and the Security Trust
Deed and MTN Cash Management Agreement.
This notice is not capable of revocation by the Debtor. Please acknowledge
receipt of this Notice by signing the enclosed duplicate of this Notice.
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This Notice shall be governed by and construed in accordance with Jersey law.
Yours faithfully,
....................................
for and on behalf of the Trustee
....................................
Barclaycard Funding PLC
ACKNOWLEDGEMENT AND ACCEPTANCE
We acknowledge receipt of this Notice and accept the provisions contained
herein. We confirm as follows:
1. Other than as set out in the [relevant agreement] we do not have, and will
not make or exercise, any claims or demands, any rights of counterclaim,
rights of set-off or any other rights against the Debtor in respect of the
Collateral or any part thereof; and
2. We have not, as of the date hereof, received any notice that any third
party has or will have any right or interest whatsoever in or has made or
will be making any claim or demand or taking any action whatsoever against
the Collateral or any part thereof.
We undertake that, in the event of our becoming aware at any time that any
person or entity other than the Trustee (as agent for the Secured Creditors) has
or will have any right or interest whatsoever in or has or will be making any
claim or demand or taking any action whatsoever against the Collateral or any
part thereof, we will immediately give written notice of any of the terms of
such right or interest, claim or demand or action to both the Trustee and the
Debtor.
...........................................
[ ]
Date .....................................
-41-
ISSUER
EXECUTED as a Deed by )
BARCLAYCARD FUNDING PLC )
by its duly authorised attorney in the presence of: )
INITIAL TRANSFEROR
EXECUTED as a Deed by )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
in the presence of: )
TRUSTEE
EXECUTED as a Deed by )
THE BANK OF NEW YORK )
acting by its duly authorised )
attorney in the presence of
RECEIVABLES TRUSTEE
EXECUTED as a Deed by )
GRACECHURCH RECEIVABLES )
TRUSTEE LIMITED )
acting by its duly authorised signatory )
PROCESS AGENT
Clifford Chance Secretaries Limited
200 Aldersgate Street
London EC1A 4JJ
MTN CASH MANAGER
EXECUTED as a Deed by )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
-42-
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