Draft Date: 13 October 1999
Dated * November 1999
GRACECHURCH CARD FUNDING (NO.1 ) PLC
as Issuer
THE BANK OF NEW YORK, LONDON BRANCH
as Note Trustee
THE BANK OF NEW YORK, NEW YORK
as Depository
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DEPOSITORY AGREEMENT
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CLIFFORD CHANCE
CONTENTS
Clause Page
1. Definitions And Other General Provisions...............................3
2. Book-Entry Interests...................................................6
2.1 Deposit Of The Global Notes....................................6
2.2 Book-Entry System..............................................6
2.3 Registration Of Transfer Of The Cdis...........................6
2.4 The Depository And The Global Notes............................7
2.5 Definitive Notes...............................................7
2.6 Payments In Respect Of The Cdis And Global Notes...............8
2.7 Payments In Respect Of The Global Notes........................9
2.8 Transfers And Exchanges Of Global Notes........................9
2.9 Change In Principal Amount Of Outstanding Of Global Notes.....12
2.10 Surrender And Cancellation Of The Global Notes................12
2.11 Record Date...................................................13
2.12 Action In Respect Of The Cdis Or The Global Notes.............13
2.13 Reports.......................................................13
2.14 Tax...........................................................14
3. The Depository........................................................15
3.1 Certain Duties And Responsibilities...........................15
3.2 Notice Of Default.............................................16
3.3 Certain Rights Of Depository..................................16
3.4 Not Responsible For Recitals Of Note Proceeds.................17
3.5 Money Held In Trust...........................................17
3.6 Fees And Expenses.............................................17
3.7 Depository Required; Eligibility..............................18
3.8 Resignation And Removal; Appointment Of Successor.............18
3.9 Acceptance Of Appointment By Successor........................19
3.10 Merger, Conversion, Consolidation Or Succession To Business...20
4. Miscellaneous Provisions..............................................21
4.1 Notices To Depository, Issuer Or The Note Trustee.............21
4.2 Notice To Holder; Waiver......................................21
4.3 Successors And Assigns........................................22
4.4 Separability Clause...........................................22
4.5 Benefits Of Agreement.........................................22
4.6 Governing Law.................................................22
4.7 Jurisdiction..................................................22
4.8 Counterparts..................................................23
4.9 Inspection Of Agreement.......................................23
4.10 Satisfaction And Discharge....................................23
4.11 Amendments....................................................23
4.12 Depository To Sign Amendments.................................24
SCHEDULE 1 EXHIBIT A...............................................26
SCHEDULE 2 EXHIBIT B...............................................28
SCHEDULE 3 EXHIBIT C FORM OF TRANSFER CERTIFICATE -................30
SCHEDULE 4 EXHIBIT D...............................................32
SCHEDULE 5 EXHIBIT E...............................................34
THIS DEPOSITORY AGREEMENT is made on this [*] day of November 1999
BETWEEN
(1) GRACECHURCH CARD FUNDING (NO.1) PLC, a company incorporated in England
and Wales with company number 3794757 and having its registered office
at 200 Aldersgate Street, London EC1A 4JJ (the "Issuer");
(2) THE BANK OF NEW YORK, LONDON BRANCH, a New York banking corporation
whose London branch is located at One Canada Square, London E14 5AL (the
"Note Trustee", which expression shall include such company and all
other persons for the time being acting as the Note Trustee or Note
Trustees under the Trust Deed (as defined below) and as transfer agent
(the "Transfer Agent", which expression shall include any successor
Transfer Agent appointed under the [*])); and
(3) THE BANK OF NEW YORK, a New York banking corporation, as Depository (the
"Depository", which expression shall include any Successor Depository
appointed hereunder).
WHEREAS:
(A) The Issuer has authorised the creation and issue of the Notes (as
defined below) constituted by a trust deed dated [*] November 1999
between the Issuer and the Note Trustee (the "Trust Deed").
(B) The Depository has agreed to act as the Depository in respect of the
Notes (as defined below), subject to and in accordance with this
Agreement.
(C) The Issuer, the Note Trustee and the Depository wish to record certain
arrangements which they have made in relation to the Notes.
ARTICLE I
1. DEFINITIONS AND OTHER GENERAL PROVISIONS
Terms not defined herein have the meanings ascribed to them in the Trust Deed.
The following terms, as used herein, have the following meanings:
"Authorised Denominations" means $100,000 and integral multiples thereof;
"Book-Entry Interest" means a beneficial interest in the Notes shown on records
maintained in book-entry form by DTC;
"Book-Entry Register" has the meaning ascribed thereto in Section 2.3;
"Business Day" means a day on which commercial banks and foreign exchange
markets settle payments in London and New York and the city where the Specified
Office of the relevant Paying Agent is located;
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"Certificateless Depository Interests" or "CDI" means collectively, in respect
of the Notes, the beneficial interests that shall, at all times prior to the
issuance of Definitive Notes in respect thereof, represent the right to receive
100% of the principal, premium (if any) and interest of the underlying SEC
Global Notes and the beneficial interests that shall, at all times prior to the
issuance of Definitive Notes in respect thereof, represent the right to receive
100% of the principal, premium (if any) and interest of the underlying Rule 144A
Global Note and that in each case is issued to the Holder or its nominee by the
Depository;
"Closing Date" means [*] November 1999;
"DTC" means The Depository Trust Company or its nominee;
"Exchange Act" means the Securities Exchange Act of 1934, as amended;
"Global Notes" means the global notes issued in respect of Notes pursuant to the
Trust Deed, initially in the form of a Rule 144A Global Note in respect of the
Class C Notes and an SEC Global Note in respect of the Class A3 Notes and an SEC
Global Note in respect of the Class B Notes;
"Holder" means, in respect of each CDI, the person in whose name such CDI is
recorded on the Book-Entry Register, being in every case, DTC or any successor
thereto;
"Issuer's Certificate" means a certificate signed in the name of the Issuer by
two directors of the Issuer;
"Issuer Order" means a written order or request signed in the name of the Issuer
by two directors of the Issuer;
"Letter of Representations" means the Letter of Representations to DTC dated [*]
November 1999, from the Depository and the Issuer;
"Notes" means the bearer notes in the minimum denomination of $100,000 which
comprise the $[*] Class A3 Asset Backed Floating Rate Notes due November 2002
("Class A3 Notes"), $[*] Class B Asset Backed Floating Rate Notes due November
2002 ("Class B Notes") and $[*] Class C Asset Backed Floating Rate Notes due
November 2002 ("Class C Notes") constituted by a Trust Deed dated [*] November
1999 between the Issuer and the Note Trustee, or any of them, and, unless stated
to the contrary, includes each Global Note and any Definitive Notes issued in
respect thereof;
"Opinion of Counsel" means a written opinion from legal counsel, who may be an
employee of or counsel to the Issuer and who shall otherwise be satisfactory to
the Depository and the Note Trustee;
"Responsible Officer", with respect to the Depository, means the chairman or
vice-chairman of the board of directors, the chairman or vice-chairman of the
executive committee of the board of directors, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any senior trust officer, any
trust officer or assistant trust officer, the controller and any assistant
controller or any other officer of the Depository customarily performing
functions similar to those performed
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by any of the above-designated officers and also means, with respect to a
particular corporate trust or agency matter, any other officer to whom such
matter is referred to because of his or her knowledge and familiarity with the
particular subject;
"Restricted Period" means the period up to and including the 40th day after the
later of the commencement of the offering of the Notes and the Closing Date;
"Specified Event" has the meaning ascribed thereto in Section 2.5;
"Specified Office" means [*] or such other office in the same city as such
office as the Depository may specify by notice to the Issuer and the Note
Trustee; and
"Successor" means in relation to the Depository, such other person as may from
time to time be appointed as Depository under this Agreement by the Issuer with
the prior written approval of the Note Trustee.
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ARTICLE II
2. BOOK-ENTRY INTERESTS
2.1 Deposit of the Global Notes
On or prior to the Issue Date, the Issuer shall deliver or procure delivery of
the Global Notes to or to the order of the Depository on terms that the
Depository shall hold such Global Notes subject to and in accordance with this
Agreement. The Depository hereby agrees to accept custody of the Global Notes
and to act as Depository in respect thereof in accordance with this Agreement.
Each Global Note shall be held on behalf of the Depository by [*] or by or on
behalf of the Depository at such place or places as it shall determine with the
consent of the Issuer and the Note Trustee and shall issue the CDIs in
accordance with the Letter of Representations.
2.2 Book-Entry System
(a) Upon acceptance by DTC of the CDIs for entry into its book-entry
settlement system in accordance with the terms of the Letter of
Representations, Book-Entry Interests will be issued by DTC and traded
through DTC's book-entry system, and ownership of such Book-Entry
Interests shall be shown in, and the transfer of such ownership shall
be effected only through, records maintained by (i) DTC or its
successors or (ii) institutions that have accounts with DTC or its
successors. Book-Entry Interests shall only be transferable in amounts
representing Authorised Denominations of the Notes.
(b) The CDIs shall only be issuable to DTC or successors of DTC or their
respective nominees. Except as provided in Section 2.5, no owner of a
Book-Entry Interest shall be entitled to receive a Definitive Note on
account of such Book-Entry Interest, and such beneficial owner's
interest therein shall be shown only in accordance with the procedures
of DTC as set forth in the Letter of Representations.
2.3 Registration of Transfer of the CDIs
The Depository shall maintain at its Specified Office a register (the
"Book-Entry Register") in which the Depository shall (i) record DTC as the
initial registered owner of the CDIs and (ii) record the registration and
transfer of the CDIs. The CDIs shall not be transferred unless such transfer is
recorded on the Book-Entry Register. The Depository shall not constitute the
agent of the Issuer for any other purpose and, in particular, it shall not
constitute the agent of the Issuer in relation to any payments it may make to
the Holder of the CDIs or be authorised to undertake any obligations on behalf
of the Issuer. At any time after an Event of Default in respect of the Notes or
any of them shall have occurred and be continuing, the Depository shall, if so
required by notice in writing given by the Note Trustee to the Depository (i)
thereafter act as the agent of the Note Trustee, on the terms mutatis mutandis
contained in this Agreement (save that the Note Trustee's liability under any
provision in this Agreement for the remuneration and indemnification of the
Depository shall be limited to the amounts from
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time to time held by the Note Trustee on the trusts of the Trust Deed which are
available to be applied by the Note Trustee for such purposes) and hold on
behalf of the Note Trustee the Global Notes and all sums, documents and records
held by it in respect thereof (including the Book-Entry Register) and/or (ii)
deliver up all Global Notes and all sums, documents and records held by it in
respect thereof (including the Book-Entry Register) to the Note Trustee or as
the Note Trustee shall direct in such notice; Provided, however, that such
notice shall be deemed not to apply to any document or record which the
Depository is obliged not to release by any applicable law or regulation.
The foregoing paragraph shall not:
(a) impose an obligation on the Depository to record the interests in, or
transfers of, Book-Entry Interests held by institutions that have
accounts with DTC or its successors or persons that may hold Book-Entry
Interests through such institutions; or
(b) restrict transfers of such Book-Entry Interests held by such
institutions or persons.
The person in whose name the CDIs are registered on the Book-Entry Register
shall be the "Holder" of the CDIs for the purposes of this Agreement. The
Depository shall treat the Holder or its nominee or their respective successors
as the absolute owner thereof for all purposes whatsoever and shall not be bound
or affected by any notice to the contrary, other than an order of a court having
jurisdiction over the Depository.
2.4 The Depository and the Global Notes
The Depository shall hold each Global Note in custody for the benefit of the
Holder thereof. The Depository shall not transfer, sell or otherwise dispose of
a Global Note or any interest therein except (i) in respect of the Class C Notes
to reduce the Principal Amount Outstanding of a Class C Global Note and to
increase the Principal Amount Outstanding of the other Global Note as provided
in Section 2.8 of this Agreement (ii) to transfer a Global Notes as a whole to a
Successor Depository with the consent of the Issuer and the Note Trustee.
Notwithstanding the foregoing, the Holder may not under any circumstances
request the Depository to surrender or deliver the Global Notes or any of them
to the Holder.
2.5 Definitive Notes
(a) If:
(i) DTC is unwilling or unable to act as Depository or ceases to be, a
clearing agency under the Exchange Act and a successor Depository
registered as a clearing agency under the Exchange Act is not appointed
by the Depository at the request of the Issuer within 60 days; or
(ii) the Depository notifies the Issuer and the Note Trustee under Section
3.8 that it is at any time unwilling or unable to continue as
Depository and no Successor Depository has been appointed by the Issuer
within 60 days of such notification; or
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(iii) an Event of Default occurs and is continuing, upon the request
delivered in writing to DTC by the owner of a Book-Entry Interest; or
(iv) if, by reason of any change in the laws of the United Kingdom or the
United States of America, the Issuer is or will be required to make any
withholding or deduction from any payment in respect of the Notes which
would not be required if the Notes were in definitive form;
(each, a "Specified Event"), then DTC or the Depository (as the case may by)
shall promptly notify the Issuer and the Note Trustee of such Specified Event
and the Issuer shall promptly issue Definitive Notes subject to and in
accordance with the Trust Deed; or
(b) If any of the events specified in Clause 3 of the Trust Deed occurs,
the Issuer shall forthwith notify the Depository thereof and shall
issue Definitive Notes subject to and in accordance with the Trust
Deed.
If Definitive Notes are issued, the beneficial interests represented by the SEC
Global Notes shall be exchanged by the Issuer for SEC Definitive Notes and the
beneficial interests represented by the Class C Rule 144A Global Note shall be
exchanged by the Issuer for Rule 144A Definitive Notes, in each case, in an
aggregate principal amount equal to the Principal Amount Outstanding of the
relevant SEC Global Note or Rule 144A Global Note, as the case may be.
All Definitive Notes issued in exchange for the Global Note relating thereto
shall be registered in such name or names and in such Authorised Denominations
as the Depository shall instruct the Principal Paying Agent based on the written
instructions of the Holder. Whenever a Global Note is exchanged in full for
Definitive Notes, subject to receipt by the Depository of Definitive Notes in
accordance with Clause [4.1] of the Trust Deed (and if such exchange of the
Global Note is in part, a new Global Note reflecting the appropriate principal
reduction) the Depository shall surrender such Global Note to or to the order of
the Principal Paying Agent for cancellation in accordance with the Agency
Agreement. A Global Note may not be exchanged for Definitive Notes other than as
provided in this Section 2.5.
2.6 Payments in respect of the CDIs and Global Notes
(a) On receipt by the Depository of any payment in respect of a Global
Note, the Depository shall forthwith distribute such payment to the
Holder on the due date for such payment. So long as DTC is the Holder,
such payments shall be made in accordance with the Letter of
Representations.
(b) The Depository shall forward to the Issuer or its Agents such
information from its records as the Issuer may reasonably request to
enable the Issuer or its Agents to comply with the provisions of the
Trust Deed and the Agency Agreement and to file necessary reports with
governmental agencies, and the Issuer or its Agents may (but shall not
be required to) file any such reports necessary to obtain benefits
under any applicable tax treaties for the Holder, or beneficial owners
of interests in, the CDIs. In no event shall the Depository be
responsible for filing such reports.
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2.7 Payments in respect of the Global Notes
(c) Subject to receipt by the Depository of written instructions from the
Holder on or prior to the fifth day following the Record Date (as
defined in Section 2.11) that payments in respect of the Global Notes
will be made to or to the order of the Holder, payments in by the
Depository in respect of such Global Notes will be made on the due date
for payment thereof.
2.8 Transfers and Exchanges of Global Notes
(a) Notwithstanding any other provisions of this Agreement, the Trust Deed
or the Notes, transfers and exchanges of interests in a Class C Global
Note of the kinds described in clauses (1), (2), (3), (4) and (5) below
and exchanges of interests in a Class C Global Note or of other Notes
as described in clause (6) below, shall only be made in accordance with
the relevant clause of this Section 2.8.
(1) Transfers of the Class C Rule 144A Global Note to the
Class C Reg S Global Note during the Restricted
Period. If the holder of a beneficial interest in the
Class C Rule 144A Global Note wishes at any time
during the Restricted Period to transfer such
interest to a person who wishes to take delivery
thereof in the form of a beneficial interest in the
Class C Reg S Global Note relating thereto, such
transfer may be effected, subject to the rules and
procedures of DTC, Euroclear and Cedelbank, to the
extent applicable (the "Applicable Procedures"), only
in accordance with the provisions of this Section
2.8(a)(1). Upon receipt by the Depository and the
Transfer Agent with respect to a transfer of a
beneficial interest in such Class C Rule 144A Global
Note during the Restricted Period of a certificate in
substantially the form set forth in Exhibit A given
by the transferor, the Depository shall present the
Class C Rule 144A Global Note and the Transfer Agent
shall present the Class C Reg S Global Note to the
Principal Paying Agent to reduce the Principal Amount
Outstanding of the Class C Rule 144A Global Note and
to increase the Principal Amount Outstanding of the
Class C Reg S Global Note, by the principal amount of
the beneficial interest in the Class C Rule 144A
Global Note to be so transferred, by annotation
thereon.
(2) Transfers of the Class C Rule 144A Global Note to the
Class C Reg S Global Note after the expiration of the
Restricted Period. If the holder of a beneficial
interest in the Class C Rule 144A Global Note wishes
at any time after the expiration of the Restricted
Period to transfer such interest to a person who
wishes to take delivery thereof in the form of a
beneficial interest in the Class C Reg S Global Note
relating thereto, such transfer may be effected,
subject to the Applicable Procedures, only in
accordance with this Section 2.8(a)(2). Upon receipt
by the Depository and the Transfer Agent of a
certificate in
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substantially the form set forth in Exhibit B given
by the transferor, the Depository shall present the
Class C Rule 144A Global Note and the Transfer Agent
shall present the Class C Reg S Global Note to the
Principal Paying Agent to reduce the Principal Amount
Outstanding of such Class C Rule 144A Global Note,
and to increase the Principal Amount Outstanding of
such Class C Reg S Global Note, by the principal
amount of the beneficial interest in such Class C
Rule 144A Global Note to be so transferred, by
annotation thereon.
(3) Transfers of the Class C Reg S Global Note to the
Class C Rule 144A Global Note during the Restricted
Period. If the holder of a beneficial interest in the
Class C Reg S Global Note wishes at any time during
the Restricted Period to transfer such interest to a
person who wishes to take delivery thereof in the
form of a beneficial interest in the Class C Rule
144A Global Note relating thereto, such transfer may
be effected, subject to the Applicable Procedures,
only in accordance with this Section 2.8(a)(3). Upon
receipt by the Depository and the Transfer Agent with
respect to a transfer of a beneficial interest in
such Class C Reg S Global Note during the Restricted
Period of a certificate in substantially the form set
forth in Exhibit C given by the transferor, the
Depository shall present the Class C Rule 144A Global
Note and the Transfer Agent shall present the Class C
Reg S Global Note to the Principal Paying Agent to
reduce the Principal Amount Outstanding of such Class
C Reg S Global Note, and to increase the Principal
Amount of Outstanding of such Class C Rule 144A
Global Note, by the principal amount of the
beneficial interest in such Class C Reg S Global Note
to be so transferred, by annotation thereon. In
addition, the Issuer reserves the right to refuse to
recognise the transfer (or require the resale to
non-U.S. persons) of any Notes, or any beneficial
interest therein, if in the Issuer's sole judgement
such transfer could result in the Notes being
beneficially owned by U.S. persons that are not
qualified purchasers.
(4) Transfers of the Class C Reg S Global Note to the
Class C Rule 144A Global Note after the Restricted
Period
If the holder of a beneficial interest in the Class C
Reg S Global Note wishes at any time after the
Restricted Period to transfer such interest to a
person who wishes to take delivery thereof in the
form of a beneficial interest in the Class C Rule
144A Global Note relating thereto, such transfer may
be effected subject only to the Applicable
Procedures.
(5) Exchanges of the Class C Rule 144A Global Note for
the Class C Reg S Global Note.
If the holder of a beneficial interest in the Class C
Rule 144A Global Note wishes at any time to exchange
such interest for a beneficial interest in the Class
C Reg S Global Note relating thereto, such
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exchange may be effected, subject to the Applicable
Procedures, only in accordance with the provisions of
this Section 2.8(a)(5). Upon receipt by the
Depository and the Transfer Agent of a certificate in
substantially the form set forth in Exhibit D, given
by the holder of the beneficial interest, the
Depository shall present the Class C Rule 144A Global
Note and the Transfer Agent shall present the Class C
Reg S Global Note to the Principal Paying Agent to
reduce the Principal Amount Outstanding of such Class
C Rule 144A Global Note, and to increase the
Principal Amount Outstanding of such Reg S Global
Note, by the principal amount of the beneficial
interest in such Class C Rule 144A Global Note to be
so exchanged, by annotation thereon.
(6) Exchanges of the Class C Reg S Global Note for the
Class C Rule 144A Global Note. If the holder of a
beneficial interest in the Class C Reg S Global Note
wishes at any time to exchange such interest for a
beneficial interest in the Class C Rule 144A Global
Note relating thereto, such exchange may be effected,
subject to the Applicable Procedures, only in
accordance with the provisions of this Section
2.8(a)(6). Upon receipt by the Depository and the
Transfer Agent of a certificate in substantially the
form set forth in Exhibit E, given by the holder of
the beneficial interest, the Depository shall present
the Class C Rule 144A Global Note to and the Transfer
Agent shall present the Class C Reg S Global Note to
the Principal Paying Agent to reduce the Principal
Amount Outstanding of such Class C Reg S Global Note,
and to increase the Principal Amount Outstanding of
such Class C Rule 144A Global Note, by the principal
amount of the beneficial interest in such Class C Reg
S Global Note to be so exchanged, by annotation
thereon. In addition, the Issuer reserves the right
to refuse to recognise the transfer (or require the
resale to non-U.S. persons) of any Notes, or any
beneficial interest therein, if in the Issuer's sole
judgement such transfer could result in the Notes
being beneficially owned by U.S. persons that are not
qualified purchasers.
(7) Other Exchanges. In the event that a Global Note is
exchanged for Definitive Notes pursuant to Section
2.5, any Definitive Notes in respect thereof may only
be transferred in accordance with any restrictions on
transfer set forth on such Definitive Notes and (in
respect of Class C Rule 144A Definitive Notes) the
[Agency Agreement] and the Regulations set out in the
Second Schedule thereto. In addition, the Issuer
reserves the right to refuse to recognise the
transfer (or require the resale to non-U.S. persons)
of any Notes, or any beneficial interest therein, if
in the Issuer's sole judgement such transfer could
result in the Notes being beneficially owned by U.S.
persons that are not qualified purchasers.
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(8) For the avoidance of doubt, all references in this
Section 2.8 to transfers and exchanges of beneficial
interests in the Class C Reg S Global Note or the
Class C Rule 144A Global Note shall be construed, in
respect of the holders of Book-Entry Interests, as
references to a transfer or exchange of the
Book-Entry Interests in the CDI's attributable to the
Class C Rule 144A Global Note, as the case may be.
(9) Notwithstanding any other provisions of this
Agreement, the Trust Deed or the Notes, transfers and
exchanges of interests in a Class C Global Note of
the kinds described in clauses (1), (2), (3), (4) and
(5) below and exchanges of interests in a Class C
Global Note or of other Notes as described in clause
(6) below, shall only be made in accordance with the
relevant clause of this Section 2.8.
(b) Transfers of interests in an SEC Global Note. If the holder of
a beneficial interest in an SEC Global Note wishes at any time
to transfer such interest to a person who wishes to take
delivery thereof such transfer shall be effected subject to
the Applicable Procedures.
2.9 Change in Principal Amount of Outstanding of Global Notes
(a) Upon transfer or exchange of a beneficial interest in a Class
C Global Note to the other Class C Global Note as provided in
Section 2.8(a), the Depository shall adjust accordingly the
principal amounts of the CDIs relating to the Class C Rule
144A Global Note and shall confirm such adjustments with the
Holder.
(b) In the event that the Issuer exercises any right of redemption
in respect of any Notes constituting a part of a Global Note
or purchases any Notes constituting a part of a Global Note,
upon receipt by the Depository of written notification to the
Depository by the Issuer of such redemption or purchase the
Depository shall promptly deliver such Global Note to the
Principal Paying Agent and request the Principal Paying Agent
to endorse the relevant Schedule to such Global Note to
reflect the reduction in the Principal Amount Outstanding of
such Global Note as a result of such redemption or purchase.
The redemption price or purchase price payable in connection
with the redemption or purchase of a portion of such Global
Note shall be equal to the amount received by the Depository
in respect of the aggregate principal amount of the Notes so
redeemed or purchased. The Depository shall allocate
reductions in the Principal Amount Outstanding on a pro rata
basis among the relevant CDIs.
Whenever the Principal Amount Outstanding of a Global Note
held by the Depository is increased or decreased in accordance
with this Agreement, the Depository shall notify the Holder of
the corresponding change in the Principal Amount Outstanding
of the related CDI.
2.10 Surrender and Cancellation of the Global Notes
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In the event of the redemption, payment or purchase in full or exchange in full
for Definitive Notes of all the Notes represented by the relevant Global Note,
such Global Note shall become void and the Depository shall surrender such
Global Note to the Principal Paying Agent for cancellation in accordance with
the [Agency Agreement].
2.11 Record Date
Whenever any payment is to be made in respect of a Global Note or the Depository
shall receive written notice of any action to be taken by the Holder, or
whenever the Depository otherwise deems it appropriate in respect of any other
matter, the Depository shall fix a record date (a "Record Date") (in the case of
payments only, 15 days prior to the due date for such payment) for the
determination of the Holder who shall be entitled to receive payment in respect
of the CDIs or to take any such action or to act in respect of any such matter.
Subject to the provisions of this Agreement, only the Holder who is registered
on the Book-Entry Register at the close of business on such Record Date shall be
entitled to receive any such payment, to give instructions as to such action or
to act in respect of any such matter.
2.12 Action in respect of the CDIs or the Global Notes
(a) Not later than 10 days after receipt by the Depository of written
notice of any solicitation of consents or request for a waiver or other
action by the Holder under this Agreement or the Trust Deed, the
Depository shall mail to the Holder a notice containing (i) such
information as is contained in such notice, (ii) a statement that the
Holder at the close of business on a specified Record Date (established
in accordance with Section 2.11) will be entitled, subject to the
provisions of or governing the CDI or Global Notes, as the case may be,
to instruct the Depository as to the consent, waiver or other action,
if any, pertaining to the CDIs or Global Notes, as the case may be, and
(iii) a statement as to the manner in which such instructions may be
given. Upon the written request of the Holder received on or before the
Record Date established by the Depository for such purpose, the
Depository shall endeavour insofar as practicable and permitted under
the provisions of or governing the CDIs or Global Notes, as the case
may be, to take such action regarding the requested consent, waiver or
other action in respect of such CDIs or Global Notes, as the case may
be, in accordance with any instructions set forth in such request. The
Depository shall not itself exercise any discretion in the granting of
consents or waivers or the taking of any other action in respect of the
CDIs or Global Notes.
(b) Subject to Sections 3.1(e) and 3.3(f) the Holder may by written
direction to the Depository direct the time, method and place of
conducting any proceeding for any remedy available to the Depository or
of exercising any trust or power conferred on the Depository. However,
the Depository may refuse to follow any direction that conflicts with
law or this Agreement or the Trust Deed or, subject to Section 3.1, that
the Depository determines could expose it to personal liability.
2.13 Reports
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Notwithstanding the provisions of Condition 14, while the Notes are in global
form, the Issuer shall forthwith send to the Depository a copy of any notices,
reports and other communications to be sent to the Depository in its capacity as
holder of the Global Notes.
The Depository shall promptly (and in no event later than 10 days from receipt
thereof) send to the Holder a copy of any such notices, reports and other
communications received by it in accordance with this Section 2.12.
2.14 Tax
All payments made by the Depository pursuant to this Agreement shall be made
without deduction or withholding for, or on account of, any present or future
taxes, duties, assessments or governmental charges of whatever nature
(collectively, "Taxes") imposed or levied by or on behalf of the United Kingdom
or any political subdivision thereof or any authority having power to tax
therein (each a "U.K. Tax Authority"), unless the withholding or deduction of
such Taxes is then required by law. If any deduction or withholding for, or on
account of, any Taxes or any U.K. Tax Authority shall at any time be required on
any distributions in respect of the CDIs by the Depository to the Holder of any
payments in respect of principal or interest on a Global Note, the Depository
shall not be obliged to pay any additional amounts in respect thereof. If any
such deduction or withholding is required, the Issuer shall, at least 10 days
prior to the date on which payment on the CDIs is to be made, furnish the
Depository with an Issuer's Certificate specifying the amount to be withheld on
such payments to the Holder. The Depository shall be entitled to rely absolutely
on any such Issuer's Certificate and the Issuer shall indemnify the Depository
for, and hold it harmless against, any loss, liability or reasonable expense
incurred without negligence or bad faith on its part arising out of or in
connection with actions taken or omitted by it in reliance on any Issuer's
Certificate furnished to it pursuant to this Section 2.14.
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ARTICLE III
3. THE DEPOSITORY
3.1 Certain Duties and Responsibilities
(a) The Depository shall only be liable to perform such duties as are
expressly set forth in this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Depository from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(i) the duties and obligations of the Depository with respect to
the CDIs and the Global Notes shall be determined solely by
the express provisions of this Agreement and the Depository
shall only be liable for the performance of such duties and
obligations as are expressly set forth in this Agreement, and
no implied covenants or obligations shall be read into this
Agreement against the Depository; and
(ii) in the absence of bad faith, wilful misconduct or negligence
on its part, the Depository may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Depository and conforming to the
requirements of this Agreement, but in the case of any such
statements, certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Depository, the Depository shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Agreement.
(c) In the absence of bad faith, wilful misconduct or negligence, the
Depository shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Depository.
(d) The Depository shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction
of the Holder relating to the time, method and place of conducting any
proceeding for any remedy available to the Depository, or exercising any
power conferred upon the Depository, under this Agreement or the Trust
Deed.
(e) No provision of this Agreement shall require the Depository to expend or
risk its own funds or otherwise incur any financial liability in the
proper performance of any of its duties hereunder, or in the proper
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
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(f) Whether or not therein expressly so provided, every provision of this
Agreement relating to the conduct or affecting the liability of or
affording protection to the Depository shall be subject to the
provisions of this Section 3.1.
(g) The Depository owes no fiduciary duty to any person by virtue of this
Agreement except as expressly set forth herein.
(h) Notwithstanding anything in this Agreement to the contrary, in no event
shall the Depository be liable under or in connection with this
Agreement for indirect, special, or consequential losses or damages of
any kind, including lost profits, even if the Depository has been
advised of the possibility thereof and regardless of the form of action
by which such losses or damages may be claimed.
3.2 Notice of Default
The Depository shall promptly after receiving notice of the occurrence of any
Event of Default in respect of the Notes (a "Note Default"), notify the Holder
in the manner provided in Section 4.2, of such Note Default, unless such Note
Default shall have been cured or waived.
3.3 Certain Rights of Depository
Subject to the provisions of Section 3.1:
(a) the Depository may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer's Certificate and any
resolution of the Board of Directors of the Issuer (a "Board
Resolution"), as the case may be, may be sufficiently evidenced by an
Issuer's Certificate certifying to such Board Resolution;
(c) the Depository may consult with counsel of its selection and the advice
of such counsel or any opinion of such counsel shall be full and
complete authorisation and protection with respect to any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(d) the Depository shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security or other paper or
document;
(e) the Depository may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys,
and the Depository shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due
care by it hereunder;
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(f) the Depository shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement or the Trust Deed at
the request, order or direction of the Holder pursuant to this
Agreement, unless the Holder shall have offered to the Depository
reasonable security or indemnity against the costs, expenses and
liabilities that might be properly incurred by it in compliance with
such request or direction and the Depository shall have concluded that
such request, order or direction shall not expose the Depository to
personal liability;
(g) the Depository shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorised or within the
discretion, rights or powers conferred upon it by this Agreement; and
(h) whenever in the administration of its duties under this Agreement the
Depository shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Depository, be deemed to be conclusively
proved and established by an Issuer's Certificate delivered to the
Depository, and such certificate, in the absence of negligence or bad
faith on behalf of the Depository, shall be full warranty to the
Depository for any action taken, suffered or omitted by it under the
provisions of the Agreement.
3.4 Not Responsible for Recitals of Note Proceeds
The recitals contained in the Trust Deed and in the Notes shall be taken as the
statements of the Issuer and the Depository assumes no responsibility for their
correctness. The Depository makes no representations as to the validity or
sufficiency of this Agreement or the Notes. The Depository shall not be
accountable for the use or application by the Issuer of the proceeds of the
issue of the Notes.
3.5 Money held in Trust
All monies held by the Depository in respect of the Notes shall be held by the
Depository in trust for the benefit of the Holder but such monies need not be
segregated from other funds held by the Depository, except to the extent
required by law. The Depository shall be under no obligation to invest or pay
interest on any money received by it hereunder, except as otherwise agreed in
writing with the Issuer. Any interest accrued on funds deposited with the
Depository under this Agreement shall be paid to the Issuer from time to time
and the Holder shall have no claim to any such interest.
3.6 Fees and Expenses
The Issuer agrees:
(a) to pay to the Depository from time to time such remuneration as the
Issuer, the Note Trustee and the Depository shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law with regard
to the compensation of a Note Trustee or an express trust);
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(b) except as otherwise expressly provided herein, to reimburse the
Depository and any predecessor Depository upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Depository in accordance with any provision of this Agreement
(including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify the Depository and any predecessor Depository for, and to
hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Agreement and
its duties hereunder, including the costs and expenses of defending
itself against or investigating any claim of liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
The obligations of the Issuer under this Section 3.6 to compensate and indemnify
the Depository and any predecessor Depository and to pay or reimburse the
Depository and any predecessor Depository for expenses, disbursements and
advances shall survive the satisfaction and discharge of this Agreement.
3.7 Depository Required; Eligibility
At all times when there is a Depository hereunder, such Depository shall be a
corporation organised and doing business under the laws of the United States of
America, any state thereof or the District of Columbia or such other
jurisdiction acceptable to the Issuer, having, together with its parent, a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal, state or District of Columbia authority and willing to
act on reasonable terms. Such corporation shall have its principal place of
business in the Borough of Manhattan, The City of New York, if there be such a
corporation in such location willing to act upon reasonable and customary terms
and conditions. If such corporation, or its parent, publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 3.7, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Depository shall cease to
be eligible in accordance with the provisions of this Section 3.7, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
3.8 Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Depository and no appointment of a
Successor Depository pursuant to this Article shall become effective
until (i) the acceptance of appointment by the Successor Depository in
accordance with the applicable requirements of Section 3.9 hereof or
(ii) the issuance of Definitive Notes in accordance with Section 2.5
and the Trust Deed.
(b) The Depository may resign by giving written notice thereof to the
Issuer, the Note Trustee and the Holder, in accordance with Section 4.1
and Section 4.2 hereof, 60 days prior to the effective date of such
resignation. The Depository may be removed at
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any time upon 90 days' notice by the filing with it of an instrument in
writing signed on behalf of the Issuer and specifying such removal and
the date when it is intended to become effective. If the instrument of
acceptance by a Successor Depository required by Section 3.9 hereof
shall not have been delivered to the Depository within 30 days after
the giving of such notice of resignation or removal, the resigning
Depository may petition any court of competent jurisdiction for the
appointment of a Successor Depository.
(c) If at any time:
(i) the Depository shall cease to be eligible under Section 3.7
hereof or shall fail to resign after written request therefor
by the Issuer (made in accordance with 3.8(b) hereof), or
(ii) the Depository shall become incapable of acting with respect
to the CDIs or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Depository or of its property
shall be appointed or any public officer shall take charge or
control of the Depository or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer, by Board Resolution, may remove
the Depository and appoint a Successor Depository, or (ii) the Holder
may, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Depository
and the appointment of a Successor Depository or Depositories, unless
Definitive Notes have been issued in accordance with the Trust Deed.
Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Depository and appoint a Successor
Depository.
(d) If the Depository shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Depository for any
cause, the Issuer, by Board Resolution, shall promptly appoint a
Successor Depository (other than the Issuer) and shall comply with the
applicable requirements of Section 3.9. If no Successor Depository
shall have been so appointed by the Issuer and accepted appointment in
the manner required by Section 3.9, Holder may, on behalf of itself and
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a Successor Depository unless
Definitive Notes have been issued in accordance with the Trust Deed.
(e) The Issuer shall give, or shall cause such Successor Depository to
give, notice of each resignation and each removal of a Depository and
each appointment of a Successor Depository to the Holder and the Note
Trustee in accordance with Section 4.2. Each notice shall include the
name of the Successor Depository and of its Specified Office.
3.9 Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a Successor Depository, every
such Successor Depository so appointed shall execute, acknowledge and
deliver to the Issuer and the Note Trustee and to the retiring
Depository an instrument accepting such appointment,
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and thereupon the resignation or removal of the retiring Depository
shall become effective and such Successor Depository, without any
further act, deed or conveyance, shall become vested with all the
rights (except the right to receive payments owing to the retiring
Depository pursuant to Section 3.6), powers, agencies and duties of the
retiring Depository, with like effect as if originally named as
Depository hereunder; but, on the request of the Issuer or the
Successor Depository, such retiring Depository shall, upon payment of
all amounts due and payable to it pursuant to Section 3.6, execute and
deliver an instrument transferring to such Successor Depository all the
rights and powers of the retiring Depository and shall duly assign,
transfer and deliver to such Successor Depository all property and
money held by such retiring Depository hereunder.
(b) Upon request of any such Successor Depository, the Issuer shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such Successor Depository all such rights, powers and
agencies referred to in paragraph (a) of this Section 3.9.
(c) No Successor Depository shall accept its appointment unless at the time
of such acceptance such Successor Depository shall be eligible under
this Article.
(d) Upon acceptance of appointment by any Successor Depository as provided
in this Section 3.9, the Issuer shall give notice thereof to the Holder
in accordance with Section 4.2 with a copy to the Successor Depository.
If the acceptance of appointment is substantially contemporaneous with
the resignation of the Depository, then the notice called for by the
preceding sentence may be combined with the notice called for by
Section 3.8(b). If the Issuer fails to give such notice within 10 days
after acceptance of appointment by the Successor Depository, the
Successor Depository shall cause such notice to be given at the expense
of the Issuer.
3.10 Merger, Conversion, Consolidation or Succession to Business
Any corporation into which the Depository may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Depository shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Depository, shall be the Successor Depository hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
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ARTICLE IV
4. MISCELLANEOUS PROVISIONS
4.1 Notices to Depository, Issuer or the Note Trustee
Any request, demand, authorisation, direction, notice, consent, or waiver or
other document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with,
(a) the Depository, by the Holder, the Note Trustee or the Issuer shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, to it at
its Specified Office, or at any other address previously furnished in
writing by the Depository to the Holder, the Note Trustee and the
Issuer or sent by facsimile to the Depository, Attention [*]; or
(b) the Issuer, by the Depository, the Note Trustee or the Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid to it at
its registered office at 200 Aldersgate Street, London EC1A 4JJ or any
other address previously furnished in writing by the Issuer to the
Depository, the Note Trustee or the Holder or sent by facsimile to the
Issuer, Attention: The Directors, facsimile no. [*]; or
(c) the Note Trustee, by the Depository, the Issuer or the Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid to it at
its principal office at [One Canada Square, London E14 5AL] or at any
other address previously furnished in writing by the Note Trustee to
the Depository, the Issuer or the Holder or sent by facsimile to the
Note Trustee, Attention: The Directors, facsimile no. [*].
4.2 Notice to Holder; Waiver
Where this Agreement provides for notice to the Holder of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided or as
provided in the Letter of Representations) if in writing and mailed (first-class
postage prepaid) or sent by facsimile to the Holder at the address or facsimile
number notified to the Depository, the Issuer and the Note Trustee in each case
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. Where this Agreement provides for
notice in any manner, such notice may be waived in writing by the person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by the Holder
shall be filed with the Depository, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
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In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Depository shall
constitute a sufficient notification for every purpose hereunder.
4.3 Successors and Assigns
All covenants and agreements in this Agreement and the Notes by the Issuer shall
bind its successors and assigns, whether so expressed or not.
4.4 Separability Clause
In case any provision in this Agreement or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
4.5 Benefits of Agreement
Nothing in this Agreement, the Notes, or the Trust Deed, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder, any benefits or any legal or equitable right, remedy or claim under
this Agreement.
4.6 Governing Law
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
4.7 Jurisdiction
The Issuer agrees for the benefit of the Note Trustee and the Depository that
any legal suit, action or proceeding against the Issuer brought by the
Depository or the Note Trustee arising out of or based upon this Agreement may
be instituted in any state or Federal court in the Borough of Manhattan, The
City of New York, and waives any objection which it may now or hereafter have to
the laying of venue of any such proceeding and irrevocably submits to the
nonexclusive jurisdiction of such courts in any suit, action or proceeding. The
Issuer has appointed [CT Corporation at its offices at 1633 Broadway, New York,
New York, 10019] as its authorised agent (the "Authorised Agent") upon whom
process may be served in any legal suit, action or proceeding arising out of or
based upon this Agreement which may be instituted in any state or Federal court
in the Borough of Manhattan, The City of New York, by the Holder, the Note
Trustee or the Depository and expressly accepts the nonexclusive jurisdiction of
any such court in respect of any such action. Such appointment shall be
irrevocable.
The Issuer represents and warrants that the Authorised Agent has agreed to act
as said agent for service of process, and the Issuer agrees to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorised Agent shall be deemed, in every respect,
effective service of process upon the Issuer. Notwithstanding the
-22-
foregoing, any action based on this Agreement may be instituted by the
Depository or the Note Trustee in any competent court in England.
4.8 Counterparts
This Agreement may be executed in any number of counterparts and by different
parties hereto on separate counterparts each of which, when executed and
delivered, shall constitute an original, but all the counterparts shall together
constitute but one and the same instrument provided, however, that this
Agreement shall have no force or effect until it is executed by the last party
to execute the same.
4.9 Inspection of Agreement
A copy of this Agreement shall be available at all reasonable times during
normal business hours at the Specified Office of the Depository for inspection
by the Holder upon reasonable notice to the Depository.
4.10 Satisfaction and Discharge
This Agreement, upon Issuer Order shall cease to be of further effect, and the
Depository, at the expense of the Issuer shall execute proper instruments
acknowledging satisfaction and discharge of this Agreement, when the Depository
has received an Issuer Certificate certifying that (i) the Trust Deed has been
satisfied and discharged pursuant to the provisions thereof or Definitive Notes
have been issued and the Global Notes have been cancelled in accordance with the
provisions of Section 2.9 and the Trust Deed, (ii) the Issuer has paid or caused
to be paid all sums payable hereunder by the Issuer and (iii) the Issuer has
delivered to the Depository an Issuer's Certificate and an Opinion of Counsel,
stating that all conditions precedent herein provided relating to the
satisfaction and discharge of this Agreement have been complied with.
4.11 Amendments
The Issuer, the Note Trustee and the Depository may amend this Agreement without
the consent of the Holder:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to add to the covenants and agreements of the Depository or the Issuer;
(c) to effectuate the assignment of the Depository's rights and duties to a
qualified Successor, as provided herein;
(d) to comply with any requirements of the Securities Act, the Exchange Act
or the U.S. Investment Company Act of 1940; or
(e) to modify, alter, amend or supplement this Agreement in any other manner
that is not materially adverse to the Holder or the holders of
Book-Entry Interests.
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Except as set forth in this Section 4.11, no amendment that materially adversely
affects the Holder or the holders of Book-Entry Interests may be made to this
Agreement or the Book-Entry Interests without the consent of the Holder.
4.12 Depository to Sign Amendments
The Depository shall sign any amendment authorised pursuant to Section 4.11 if
the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Depository. The Depository may but need not sign any other
amendment. In signing any amendment the Depository shall be entitled to receive
indemnity reasonably satisfactory to it and shall be fully protected in
reasonably relying upon an Issuer's Certificate (which need only cover the
matters set forth in clause (a) below) and an Opinion of Counsel stating that:
(a) such amendment is authorised or permitted by this Agreement;
(b) the Issuer has all necessary corporate power and authority to execute
and deliver the amendment and that the execution, delivery and
performance of such amendment has been duly authorised by all necessary
corporate action;
(c) the execution, delivery and performance of the amendment do not
conflict with, or result in the breach of or constitute a default under
any of the terms, conditions or provisions of (i) this Agreement, (ii)
the Memorandum or Articles of Association of the Issuer, (iii) any law
or regulation applicable to the Issuer, (iv) any material order, writ,
injunction or decree of any court or governmental instrumentality
applicable to the Issuer or (v) any material agreement or instrument
(including the terms and conditions of the Notes) to which the Issuer
is subject; and
(d) such amendment has been duly and validly executed and delivered by the
Issuer, and this Agreement after giving effect to such amendment
constitutes a legal, valid and binding obligation of the Issuer
enforceable against the Issuer in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights
generally and general equitable principles.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first written above.
GRACECHURCH CARD FUNDING (NO.1) PLC
By:
BANK OF NEW YORK, LONDON BRANCH
By:
BANK OF NEW YORK, NEW YORK
By:
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SCHEDULE 1
EXHIBIT A
FORM OF TRANSFER CERTIFICATE -
RULE 144A GLOBAL NOTE TO
REG S GLOBAL NOTE
DURING THE RESTRICTED PERIOD
(Transfers pursuant to Section 2.8(a)(1) of the Depository Agreement)
[*] as Depository
Attention: [*]
Re: Gracechurch Card Funding (No.1) Plc
Reference is hereby made to the Trust Deed dated as of [*] November 1999 (the
"Trust Deed"), between Gracechurch Card Funding (No.1) Plc (the "Issuer") and
Bank of New York as Note Trustee. Capitalised terms used but not defined herein
shall have the meanings given to them in the Trust Deed.
This letter relates to [ ] aggregate principal amount of the Notes which are
evidenced by the Rule 144A Global Note (CUSIP No. [*]) and held by you on behalf
of The Depository Trust Company who in turn is holding an interest therein on
behalf of the undersigned (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Notes to a Person who, during the
Restricted Period, will take delivery thereof in the form of an equal aggregate
principal amount of the Notes evidenced by the Reg S Global Note (ISIN No. [*]),
which amount, immediately after such transfer, is to be held with the Depository
through Euroclear or Cedelbank or both.
In connection with such request and in respect of such Notes, the Transferor
does hereby certify that such transfer has been effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act and accordingly
the Transferor does hereby further certify that:
(1) the offer of the Notes was not made to a person in the United States or
to or for the account or benefit of a U.S. person;
(2) either:
(A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee
was outside the United States; or
(B) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the
Transferor nor any person acting on
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its behalf knows that the transaction was pre-arranged with a
buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above will be held with the Depository through
Euroclear or Cedelbank or both.
This certificate and the statements contained herein are made for the benefit of
the Issuer and the Manager. Terms used in this certificate and not otherwise
defined in the Trust Deed have the meanings set forth in Regulation S under the
Securities Act.
Dated: [Insert Name of Transferor]
By:
-------------------------------------------
Name:
Title:
(If the transferor is a
corporation, partnership or fiduciary, the title to the Person signing on behalf
of such transferor must be stated.)
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SCHEDULE 2
EXHIBIT B
FORM OF TRANSFER CERTIFICATE -
RULE 144A GLOBAL NOTE TO
REG S GLOBAL NOTE
AFTER THE RESTRICTED PERIOD
(Transfers pursuant to Section 2.8(a)(2) of the Depository Agreement)
[*], as Depository
Attention: [*]
Re: Gracechurch Card Funding (No.1) Plc
Reference is hereby made to the Trust Deed dated as of [*] November 1999 (the
"Trust Deed"), among Gracechurch Card Funding (No.1) Plc (the "Issuer") and Bank
of New York BT Note Trustees (Jersey) Limited as Note Trustee. Capitalised terms
used but not defined herein shall have the meanings given to them in the Trust
Deed.
This letter relates to [ ] aggregate principal amount of the Notes which are
evidenced by the Rule 144A Global Note (CUSIP No. [*]) and held by you on behalf
of The Depository Trust Company who in turn is holding an interest therein on
behalf of the undersigned (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Notes to a Person who will take
delivery thereof in the form of an equal aggregate principal amount of the Notes
evidenced by the Reg S Global Note (ISIN No. [*])
In connection with such request and in respect of such Notes, the Transferor
does hereby certify that such transfer has been effected pursuant to and in
accordance with Rule 903 and Rule 904 under the Securities Act and accordingly
the Transferor does hereby certify that:
(1) the offer of the Notes was not made to a person in the United States or
to or for the account or benefit of a U.S. person;
(2) either:
(A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee
was outside the United States; or
(B) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United
States;
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(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for the benefit of
the Issuer and the Manager. Terms used in this certificate and not otherwise
defined in the Trust Deed have the meanings set forth in Regulation S under the
Securities Act.
Dated: [Insert Name of Transferor]
By:
-------------------------------------------
Name:
Title:
(If the transferor is a corporation,
partnership or fiduciary, the title to the
Person signing on behalf of such transferor
must be stated.)
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SCHEDULE 3
EXHIBIT C
FORM OF TRANSFER CERTIFICATE -
REG S GLOBAL NOTE TO
RULE 144A GLOBAL NOTE
DURING THE RESTRICTED PERIOD
(Transfers pursuant to Section 2.8(a)(3) of the Depository Agreement)
[*], as Depository
Attention: [*]
Re: Gracechurch Card Funding (No.1) Plc
Reference is hereby made to the Trust Deed dated as of [*] November 1999 (the
"Trust Deed"), among Gracechurch Card Funding (No.1) Plc (the "Issuer") and Bank
of New York as Note Trustee. Capitalised terms used but not defined herein shall
have the meanings given to them in the Trust Deed.
This letter relates to [ ] aggregate principal amount of the Notes which are
evidenced by the Reg S Global Note (ISIN No. [*]) and held by you through
Euroclear or Cedelbank or both on behalf of The Depository Trust Company who in
turn is holding an interest therein on behalf of the undersigned (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a Person who, and during the Restricted Period, will
take delivery thereof in the form of an equal principal amount of the Notes
evidenced by the Rule 144A Global Note (CUSIP No. [*]).
In connection with such request and in respect of such Notes, the Transferor
does hereby certify that such transfer has been effected pursuant to and in
accordance with Rule 144A under the Securities Act and accordingly the
Transferor does hereby further certify that the Notes are being transferred to a
person that the Transferor reasonably believes is purchasing the Notes for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
"qualified purchaser" (as defined in Section 2(a)(51)(A) of the Investment
Company Act of 1940) that is a "qualified institutional buyer" (as defined in
Rule 144A), in each case in a transaction in compliance with Section 3(c)(7) of
the Investment Company Act and Rule 144A and in accordance with any applicable
securities laws of any state of the United States. The Issuer reserves the right
to refuse to recognise the transfer (or require the resale to non-U.S. persons)
of any Notes, or any beneficial interest therein, if in the Issuer's sole
judgement such transfer could result in the Notes being beneficially owned by
U.S. persons that are not qualified purchasers.
This certificate and the statements contained herein are made for the benefit of
the Issuer and the Manager.
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Dated: [Insert Name of Transferor]
By:
-------------------------------------------
Name:
Title:
(If the transferor is a corporation,
partnership or fiduciary, the title of the
Person signing on behalf of such transferor
must be stated.)
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SCHEDULE 4
EXHIBIT D
FORM OF EXCHANGE CERTIFICATE -
NOTES ACQUIRED PURSUANT TO RULE 144A
(Exchange Pursuant to Section 2.8(a)(5)
of the Depository Agreement)
[*], as Depository
Attention: [*]
Re: Gracechurch Card Funding (No.1) Plc
Reference is hereby made to the Trust Deed dated as of [*] November 1999 (the
"Trust Deed"), among Gracechurch Card Funding (No.1) Plc (the "Issuer") and Bank
of New York as Note Trustee. Capitalised terms used but not defined herein shall
have the meanings given to them in the Trust Deed.
This letter relates to [ ] aggregate principal amount of the Notes which are
evidenced by the Rule 144A Global Note (CUSIP No. [*]) and held by you on behalf
of The Depository Trust Company who in turn is holding an interest therein on
behalf of the undersigned (the "Beneficial Owner"). The Beneficial Owner has
requested that its beneficial interest in the Notes be exchanged for a
beneficial interest in an equal aggregate principal amount of the Notes
evidenced by the Reg S Global Note (ISIN No. [*]).
In connection with such request and in respect of the Notes, the Beneficial
Owner does hereby certify that (a) upon such exchange, it will be the beneficial
owner of the Notes, (b) it is not a U.S. person (as defined in Regulation S
under the Securities Act) and is located outside the United States (within the
meaning of Regulation S) and acquired, or has agreed to acquire and upon such
exchange will have acquired, such Notes outside the United States [, (c) it is
not an "affiliate" (as defined in Rule 144A under the Securities Act) of the
Issuer or a person acting on behalf of such an affiliate and (d) it is not in
the business of buying and selling securities or, if it is in such business, it
did not acquire such Notes from the Issuer or any affiliate thereof in the
initial distribution of the Notes].* [In addition, the Beneficial Owner hereby
agrees that it will not, on or before the 40th day after the later of the
commencement of the offering and the Closing Date, offer, sell, pledge or
otherwise transfer the Notes issued in such exchange except (a) to a Person who
is a "qualified purchaser" (as defined in Section 2(a)(51)(A) of the Investment
Company Act of 1940 (the "Investment Company Act")) who is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) in a
transaction in compliance with Section 3(c)(7) of the Investment Company Act and
Rule 144A and in accordance with any applicable securities laws of any state of
the United States, or (b) in an offshore transaction meeting the requirements of
Rule 903 or Rule 904 under the
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Securities Act.]* The Issuer reserves the right
to refuse to recognise the transfer (or require the resale to non-U.S. persons)
of any Notes, or any beneficial interest therein, if in the Issuer's sole
judgement such transfer could result in the Notes being beneficially owned by
U.S. persons that are not qualified purchasers.
This certificate and the statements contained herein are made for the benefit of
the Issuer and the Manager.
Dated: [Insert Name of Beneficial Owner]
By:
-------------------------------------------
Name:
Title:
(If the Beneficial Owner is a corporation,
partnership or fiduciary, the title of the
Person signing on behalf of such Beneficial
Owner must be stated.)
*Insert these bracketed provisions only if the exchange will occur
during the Restricted Period.
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SCHEDULE 5
EXHIBIT E
FORM OF EXCHANGE CERTIFICATE -
NOTES ACQUIRED PURSUANT TO REGULATION S
(Exchange Pursuant to Section 2.8(a)(6) of the Depository Agreement)
[*], as Depository
Attention: [*]
Re: Gracechurch Card Funding (No.1) Plc
Reference is hereby made to the Trust Deed dated as of [*] November 1999 (the
"Trust Deed"), among Gracechurch Card Funding (No.1) Plc (the "Issuer") and Bank
of New York as Note Trustee. Capitalised terms used but not defined herein shall
have the meanings given to them in the Trust Deed.
This letter relates to [ ] aggregate principal amount of the Notes which are
evidenced by the Reg S Global Note (ISIN No. [*]) and held by you on behalf of
The Depository Trust Company who in turn is holding an interest therein on
behalf of the undersigned (the "Beneficial Owner"). The Beneficial Owner has
requested that its beneficial interest in the Notes be exchanged for a
beneficial interest in an equal aggregate principal amount of the Notes
evidenced by the Rule 144A Global Note (CUSIP No. [*]).
In connection with such request and in respect of the Notes, as the Beneficial
Owner we acknowledge (or if we are acting for the account of another Person,
such Person has confirmed to us in writing that it acknowledges) that the Notes
have not been and will not be registered under the Securities Act.
We certify that we are (or it is) the beneficial owner of the Notes and that we
are (or it is) a "qualified purchaser" (as defined in the Investment Company Act
of 1940 (the "Investment Company Act"), is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) acting for our own account or for
the account of one or more qualified purchasers that are qualified institutional
buyers, and, accordingly, we agree (or if we were acting for the account of one
or more qualified purchasers that are qualified institutional buyers, each such
qualified purchasers that are qualified institutional buyers has confirmed to us
that it agrees) that we (or it) will not offer, sell, pledge or otherwise
transfer the Notes except (A) to a Person who is a qualified purchaser who is a
qualified institutional buyer in compliance with Rule 144A under the Securities
Act and Section 3(c)(7) of the Investment Company Act, or (B) in an offshore
transaction meeting the requirements of Rule 903 or Rule 904 of Regulation S, in
each case in accordance with any applicable securities laws of the states of the
United States. The Issuer reserves the right to refuse to recognise the transfer
(or
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require the resale to non-U.S. persons) of any Notes, or any beneficial
interest therein, if in the Issuer's sole judgement such transfer could result
in the Notes being beneficially owned by U.S.
persons that are not qualified purchasers.
If we are a broker-dealer, we further certify that we are acting for the account
of our customer and that our customer has confirmed the accuracy of the
representations contained herein that are applicable to it (including the
representations with respect to beneficial ownership).
This certificate and the statements contained herein are made for the benefit of
the Issuer and the Managers. Terms used in this certificate and not otherwise
defined in the Trust Deed have the meanings set forth in Regulation S under the
Securities Act.
Dated: [Insert Name of Beneficial Owner]
By:
-------------------------------------------
Name:
Title:
(If the Beneficial Owner is a corporation,
partnership or fiduciary, the title to the
Person signing on behalf of such Beneficial
Owner must be stated.)
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