[CLIFFORD CHANCE LOGO] LIMITED LIABILITY PARTNERSHIP
EXHIBIT 2.1
Dated 24 October 2002
GRACECHURCH CARD FUNDING (NO.2) PLC
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THE BANK OF NEW YORK
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TRUST DEED
Constituting
$900,000,000 Class A Floating Rate Asset-Backed Notes due 2007
$50,000,000 Class B Floating Rate Asset-Backed Notes due 2007
and
$50,000,000 Class C Floating Rate Asset-Backed Notes due 2007
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CONTENTS
CLAUSE PAGE
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1. Definitions And Interpretation.............................................................. 1
2. Covenant To Repay And Pay Interest On The Notes; Note Trustee's Requirements
Following An Event Of Default............................................................... 11
3. Form Of Issue Of Notes; Issue Of Individual Note Certificates............................... 13
4. Covenant Of Compliance...................................................................... 15
5. Cancellation Of Notes....................................................................... 16
6. Enforcement................................................................................. 16
7. Proceedings................................................................................. 17
8. Priority Of Payments And Notice Of Payment.................................................. 18
9. Investment By Note Trustee.................................................................. 18
10. Covenants By The Issuer..................................................................... 19
11. Remuneration And Indemnification Of Note Trustee............................................ 23
12. Supplement To Trustee Acts.................................................................. 24
13. Note Trustee's Liability.................................................................... 33
14. Delegation By Note Trustee.................................................................. 33
15. Employment Of Agent By Note Trustee......................................................... 34
16. Note Trustee Contracting With Issuer........................................................ 34
17. Waiver; Authorisation; Determination; Modification; Substitution Of Principal Debtor........ 35
18. Currency Indemnity.......................................................................... 37
19. Eligibility And Disqualification; New Note Trustee; Separate And Co-Note Trustees;
Note Trustee Information.................................................................... 38
20. Note Trustee's Retirement And Removal....................................................... 39
21. Note Trustee's Powers Additional............................................................ 40
22. Notices..................................................................................... 40
23. Governing Law And Jurisdiction.............................................................. 41
24. Tia Prevails................................................................................ 42
25. Amendments.................................................................................. 42
26. Counterparts................................................................................ 42
27. Certificates And Opinions................................................................... 42
28. Post Maturity Call Option................................................................... 43
29. Release Of Collateral....................................................................... 43
30. Contract (Rights Of Third Parties) Act...................................................... 44
CLAUSE PAGE
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THE FIRST SCHEDULE FORM OF CLASS A GLOBAL NOTE CERTIFICATE........................................ 45
THE SECOND SCHEDULE FORM OF CLASS B GLOBAL NOTE CERTIFICATE........................................ 51
THE THIRD SCHEDULE FORM OF CLASS C GLOBAL NOTE CERTIFICATE......................................... 57
THE FOURTH SCHEDULE FORM OF INDIVIDUAL CLASS A NOTE CERTIFICATE.................................... 63
THE FIFTH SCHEDULE FORM OF INDIVIDUAL CLASS B NOTE CERTIFICATE..................................... 67
THE SIXTH SCHEDULE FORM OF INDIVIDUAL CLASS C NOTE CERTIFICATE..................................... 71
THE SEVENTH SCHEDULE TERMS AND CONDITIONS OF THE NOTES............................................. 75
THE EIGHTH SCHEDULE PROVISIONS FOR MEETINGS OF NOTEHOLDERS......................................... 91
THE NINTH SCHEDULE PRIORITY OF PAYMENTS............................................................ 101
THIS TRUST DEED is made the 24 October 2002
BETWEEN:
(1) GRACECHURCH CARD FUNDING (NO.2) PLC a public company incorporated under
the laws of England and Wales with registered number 4497894 whose
registered office is at 54 Lombard Street, London EC3P 3AH (hereinafter
called the "ISSUER"); and
(2) THE BANK OF NEW YORK a New York banking corporation acting through its
London branch whose principal place of business is at One Canada Square,
Canary Wharf, London E14 5AL (hereinafter called the "NOTE TRUSTEE",
which expression shall, wherever the context so admits, include such
company and all other persons or companies for the time being the
trustee or trustees of this Deed).
WHEREAS:
(1) By resolutions of the Board of Directors of the Issuer passed on 16
October 2002, the Issuer has resolved to issue $1,000,000,000 in
aggregate principal amount of asset backed floating rate notes
comprising $900,000,000 in aggregate principal amount of Class A
Floating Rate Asset-Backed Notes due 2007 (the "CLASS A NOTES"),
$50,000,000 in aggregate principal amount of Class B Floating Rate
Asset-Backed Notes due 2007 (the "CLASS B NOTES") and $50,000,000 in
aggregate principal amount of Class C Floating Rate Asset-Backed Notes
due 2007 (the "CLASS C NOTES" and, together with the Class A Notes and
the Class B Notes, the "NOTES") to be constituted and secured in the
manner hereinafter appearing and in the manner appearing in the Deed of
Charge.
(2) The Note Trustee has agreed to act as trustee of this Deed (including
the security constituted by the Deed of Charge) for the Noteholders
upon and subject to the terms and conditions of this Deed.
NOW THIS TRUST DEED WITNESSES AND IT IS HEREBY AGREED AND DECLARED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Deed, including the recitals hereto, unless there is anything in
the subject or context inconsistent therewith the expressions listed
below shall have the following meanings, namely:
"AFFILIATE" has the meaning ascribed to it in Rule 405 under the
Securities Act;
"AGENT BANK" means The Bank of New York, London Branch;
"AGENTS" means the Principal Paying Agent, the other Paying Agents, the
Registrar, the Transfer Agents, or any of them;
"AUDITORS" means PricewaterhouseCoopers or such other reputable firm of
accountants qualified to practice in the United Kingdom as may be
appointed by the Issuer from time to time;
"AUTHORISED INVESTMENTS" means any one or more of the following:
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(i) demand or time deposits, certificates of deposit and other
short-term unsecured debt obligations at or of any
institution, provided that, in each case, at the time the
deposit is made or the certificate or obligation is acquired
the then current rating of the unsecured and unguaranteed debt
obligations of that institution (or, where the investment in
question is guaranteed, of the guaranteeing institution) is
A1+ and P-1, or (if different) the then highest rating
conferred in respect of such obligation by S&P and Moody's
(respectively); or
(ii) short-term unsecured debt obligations (including commercial
paper) issued or guaranteed by any body corporate provided
that at the time the obligation is acquired the then current
rating of the unsecured and unguaranteed debt obligations of
that body corporate (or where the debt obligations in question
are guaranteed, of the guaranteeing institution) is A1+ and
P-1, or (if different) the then highest rating conferred in
respect of such obligation by S&P and Moody's (respectively);
"BASIC TERMS MODIFICATION" has the meaning ascribed to it in Note
Condition 13;
"BELGIAN PLEDGE" means the pledge agreement dated of even date hereof
and entered in to between the Issuer and the Note Trustee;
"BUSINESS DAY" means a day other than a Saturday or a Sunday or a day on
which banking institutions in London or New York are authorised or
obliged by law to be closed;
"CLASS A GLOBAL NOTE CERTIFICATE" means the global note certificate
representing the Class A Notes and issued pursuant to the provisions of
this Trust Deed in, or substantially in, the form set out in the First
Schedule;
"CLASS A INDIVIDUAL NOTE CERTIFICATE" means any individual note
certificate representing a Class A Noteholder's entire holding of Class
A Notes, in or substantially in the form set out in the Fourth Schedule;
"CLASS A NOTEHOLDERS" means the persons who are for the time being the
holders of one or more of the Class A Notes (being, so long as such
Notes or any part thereof are represented by the Class A Global Note
Certificate, the person in whose name the Class A Note is registered in
the Register of Noteholders and so long as such Notes or any part
thereof are represented by Individual Class A Note Certificates, each
person who is for the time being shown in the Register as the holder of
a particular principal amount thereof) SAVE THAT so long as such Notes
or any part thereof are represented by the Class A Global Note
Certificate, each person who is for the time being shown in the records
of DTC (other than Euroclear or Clearstream, Luxembourg, if Euroclear or
Clearstream, Luxembourg are participants in DTC), Euroclear (other than
DTC or Clearstream, Luxembourg, if DTC or Clearstream, Luxembourg are
accountholders of Euroclear) or Clearstream, Luxembourg (other than DTC
or Euroclear, if DTC or Euroclear are accountholders of Clearstream,
Luxembourg) as the holder of a particular principal amount of Class A
Notes shall be deemed to be and shall be treated as the holder thereof
PROVIDED THAT such deeming and treatment shall not affect the right to
payments in respect of the Class A Global Note Certificate which shall
be vested solely in the
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registered holder of the Class A Global Note Certificate in accordance
with and subject to its terms and the terms of this Trust Deed;
"CLASS A NOTES" means the notes in registered form, in or substantially
in the form set out in the First Schedule in denominations of $1,000
comprising the Class A Notes of the Issuer constituted by this Trust
Deed, to be represented by a Note Certificate or Note Certificates, and
for the time being outstanding or, as the context may require, a
specific number of such notes and the Class A Global Note Certificate
for as long as it has not been exchanged in accordance with its terms;
"CLASS B GLOBAL NOTE CERTIFICATE" means the global note certificate
representing the Class B Notes and issued pursuant to the provisions of
this Trust Deed in, or substantially in, the form set out in the Second
Schedule;
"CLASS B INDIVIDUAL NOTE CERTIFICATE" means any individual note
certificate representing a Class B Noteholder's entire holding of Class
B Notes, in or substantially in the form set out in the Fifth Schedule;
"CLASS B NOTEHOLDERS" means the persons who are for the time being the
holders of one or more of the Class B Notes (being, so long as such
Notes or any part thereof are represented by the Class B Global Note
Certificate, the person in whose name the Class B Note is registered in
the Register and so long as such Notes or any part thereof are
represented by Individual Class B Notes Certificates, each person who is
for the time being shown in the Register as the holder of a particular
principal amount thereof) SAVE THAT so long as such Notes or any part
thereof are represented by the Class B Global Note Certificate, each
person who is for the time being shown in the records of DTC (other than
Euroclear or Clearstream, Luxembourg, if Euroclear or Clearstream,
Luxembourg are participants in DTC), Euroclear (other than DTC or
Clearstream, Luxembourg, if DTC or Clearstream, Luxembourg are
accountholders of Euroclear) or Clearstream, Luxembourg (other than DTC
or Euroclear, if DTC or Euroclear are accountholders of Clearstream,
Luxembourg) as the holder of a particular principal amount of Class B
Notes shall be deemed to be and shall be treated as the holder thereof
PROVIDED THAT such deeming and treatment shall not affect the right to
payments in respect of the Class B Global Note Certificate which shall
be vested solely in the registered holder of the Class B Global Note
Certificate in accordance with and subject to its terms and the terms of
this Trust Deed;
"CLASS B NOTES" means the notes in registered form, in or substantially
in the form set out in the Second Schedule in denominations of $1,000
comprising the Class B Notes of the Issuer constituted by this Trust
Deed, to be represented by a Note Certificate or Note Certificates and
for the time being outstanding or, as the context may require, a
specific number of such notes and the Class B Global Note Certificate
for as long as it has not been exchanged in accordance with its terms;
"CLASS C GLOBAL NOTE CERTIFICATE" means the global note certificate
representing the Class B Notes and issued pursuant to the provisions of
this Trust Deed in, or substantially in, the form set out in the Third
Schedule;
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"CLASS C INDIVIDUAL NOTE CERTIFICATE" means any individual note
certificate representing a Class C Noteholder's entire holding of Class
C Notes, in or substantially in the form set out in the Sixth Schedule;
"CLASS C NOTEHOLDERS" means the persons who are for the time being the
holders of one or more of the Class C Notes (being, so long as such
Notes or any part thereof are represented by the Class C Global Note
Certificate, the person in whose name the Class C Note is registered in
the Register and so long as such Notes or any part thereof are
represented by Individual Class C Note Certificates, each person who is
for the time being shown in the Register as the holder of a particular
principal amount thereof) SAVE THAT so long as such Notes or any part
thereof are represented by the Class C Global Note Certificate, each
person who is for the time being shown in the records of DTC (other than
Euroclear or Clearstream, Luxembourg, if Euroclear or Clearstream,
Luxembourg are participants in DTC), Euroclear (other than DTC or
Clearstream, Luxembourg, if DTC or Clearstream, Luxembourg are
accountholders of Euroclear) or Clearstream, Luxembourg (other than DTC
or Euroclear, if DTC or Euroclear are accountholders of Clearstream,
Luxembourg) as the holder of a particular principal amount of Class C
Notes shall be deemed to be and shall be treated as the holder thereof
PROVIDED THAT such deeming and treatment shall not affect the right to
payments in respect of the Class C Global Note Certificate which shall
be vested solely in the registered holder of the Class C Global Note
Certificate in accordance with and subject to its terms and the terms of
this Trust Deed;
"CLASS C NOTES" means the notes in registered form, in or substantially
in the form set out in the Third Schedule in denominations of $1,000
comprising the Class C Notes of the Issuer constituted by this Trust
Deed, to be represented by a Note Certificate or Note Certificates, and
for the time being outstanding or, as the context may require, a
specific number of such notes and the Class C Global Note Certificate
for as long as it has not been exchanged in accordance with its terms;
"CLEARING SYSTEMS" means DTC, Clearstream, Luxembourg and Euroclear;
"CLEARSTREAM, LUXEMBOURG" means Clearstream, Luxembourg, societe
anonyme;
"CLOSING DATE" means 24 October 2002 or such later date as may be agreed
pursuant to the Underwriting Agreement;
"DEED OF CHARGE" means a deed of charge of even date herewith entered
into by inter alios the Issuer in favour of the Note Trustee;
"DISTRIBUTION DATE" shall mean the 15th day of each calendar month
starting on 15 December 2002 or, if such day is not a Business Day, the
next following Business Day;
"DOCUMENTS" means this Trust Deed, the Deed of Charge, the Underwriting
Agreement, the Paying Agency and Agent Bank Agreement, the Swap
Agreements and the Series 02-1 MTN;
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"DOLLAR A SWAP AGREEMENT" means the ISDA Master Agreement together with
the applicable schedule and confirmation dated 24 October 2002 and made
between the Issuer and the Swap Counterparty in respect of payments made
under the Class A Notes;
"DOLLAR B SWAP AGREEMENT" means the ISDA Master Agreement, together with
the applicable schedule and confirmation, dated 24 October 2002 and made
between the Issuer and the Swap Counterparty in respect of payments made
under the Class B Notes;
"DOLLAR C SWAP AGREEMENT" means the ISDA Master Agreement, together with
the applicable schedule and confirmation, dated 24 October 2002 and made
between the Issuer and the Swap Counterparty in respect of payments made
under the Class C Notes;
"DTC" means The Depository Trust Company of New York;
"ENFORCEMENT NOTICE" has the meaning ascribed thereto in Note
Condition 9;
"EUROCLEAR" means Euroclear Bank S.A./N.V. as operator of the Euroclear
System;
"EVENT OF DEFAULT" means any of the events described as Events of
Default in Note Condition 9;
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended;
"EXPENSES LOAN AGREEMENT" means an expenses loan agreement dated of even
date herewith between the Issuer, the Note Trustee and Barclays Bank
PLC;
"EXTRAORDINARY RESOLUTION" has the meaning ascribed thereto in the
Eighth Schedule;
"GLOBAL NOTES" means the Class A Notes, Class B Notes and the Class C
Notes in global form, or any of them as the context may require;
"GLOBAL NOTE CERTIFICATES" means the Class A Global Note Certificate,
the Class B Global Note Certificate and the Class C Global Notes
Certificate, or any of them, as the context may require;
"INDEBTEDNESS" means in relation to the Issuer any indebtedness to any
other person;
"INDEPENDENT" means, when used with respect to any specified person,
that the person (1) is in fact independent of the Issuer and any other
obligor in respect of the Notes and any other person with an ownership
interest in the receivables trust and of any affiliate of any of the
foregoing persons, (2) does not have any direct financial interest or
any material indirect financial interest in the Issuer or in any such
other obligor or any such other person with such an ownership interest
in the receivables trust or in any affiliate of any of the foregoing
persons, and (3) is not connected with the Issuer or any such other
obligor or any affiliate of the Issuer or any such other person with
such an ownership interest in the receivables trust as an officer,
employee, promoter, underwriter, trustee, partner, director, or person
performing similar functions;
"INDEPENDENT CERTIFICATE" means a certificate or opinion to be delivered
to the Note Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Clause 12(w) hereof, made
by an independent appraiser or
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other expert appointed by an Issuer Order and approved by the Note
Trustee in the exercise of reasonable care, and such opinion or
certificate shall state that the signer has read the definition of
"Independent" in this Trust Deed and that the signer is Independent
within the meaning thereof;
"INDIVIDUAL NOTE CERTIFICATES" means the Class A Individual Note
Certificates, the Class B Individual Note Certificates and the Class C
Individual Note Certificates, or any of them, as the context may
require;
"ISSUER ORDER" means a written order of request signed in the name of
the Issuer by any one of its authorised officers and delivered to the
Note Trustee;
"INTEREST PAYMENT DATE" shall mean the 15th day of each calendar month
starting on 15 December 2002;
"INTEREST PERIOD" has the meaning ascribed thereto in Note Condition 5;
"INVESTOR INTEREST" means the beneficial entitlement to receivables
trust property of the MTN Issuer in respect of Series 02-1;
"JUNIOR NOTES" means, in relation to the Class A Notes, the Class B
Notes and the Class C Notes and, in relation to the Class B Notes, the
Class C Notes;
"JUNIOR NOTEHOLDERS" means, in relation to the Class A Noteholders, the
Class B Noteholders and the Class C Noteholders, and in relation to the
Class B Noteholders, the Class C Noteholders;
"LONDON STOCK EXCHANGE" means the London Stock Exchange plc;
"MOODY'S" means Moody's Investors Service Limited;
"MTN ISSUER" means Barclaycard Funding PLC, a public limited company
incorporated under the laws of England and Wales with company number
2530163, in its capacity as issuer of medium term notes and medium term
note certificates under the Programme;
"MTN MASTER DEFINITIONS SCHEDULE" means the MTN Master Definitions
Schedule dated 24 October 2002;
"MTN TRUSTEE" means the Bank of New York in its capacity as such under
the Security Trust Deed and MTN Cash Management Agreement dated 23
November 1999;
"NEW YORK PAYING AGENT" means the Bank of New York, acting through its
New York office;
"NOTE CERTIFICATE" means any Global Note Certificate or Individual Note
Certificate and includes any replacement Note Certificates issued
pursuant to the Note Conditions;
"NOTE CONDITIONS" means the Terms and Conditions applicable to the Notes
in the form or substantially in the form set out in the Seventh
Schedule, as the same may from time to time be modified in accordance
with this Deed and any reference in this Deed to a particular numbered
Note Condition shall be construed accordingly;
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"NOTEHOLDERS" means the Class A Noteholders, the Class B Noteholders and
the Class C Noteholders, and "NOTEHOLDER" means any of them;
"NOTES" means the Class A Notes, the Class B Notes and the Class C
Notes, or any of them, as the context may require;
"OFFICERS' CERTIFICATE" shall mean, with respect to any Person, a
certificate signed (i) by the Chairman of the Board, the Vice Chairman
of the Board, the President, any Vice President or the Treasurer of such
Person and (ii) by any other such officer or any Assistant Treasurer or
the Secretary or any Assistant Secretary of such Person. Each such
certificate shall include the statements provided for in Clause 10(u) if
and to the extent required by the provisions hereof;
"OPINION OF COUNSEL" shall mean an opinion in writing signed by legal
counsel who shall be reasonably acceptable to the Note Trustee and who
may be an employee of or of counsel to the Issuer or an affiliate of the
Issuer. Each such opinion shall include the statements provided for in
Clause 10(u) if and to the extent required by the provisions thereof.
The acceptance by the Note Trustee of, and its actions on, an Opinion of
Counsel shall be sufficient evidence that such counsel is acceptable to
the Note Trustee;
"PAYING AGENCY AND AGENT BANK AGREEMENT" means the paying agency and
agent bank agreement of even date herewith and made between the Issuer,
the Paying Agents, the Transfer Agent, the Registrar, the Agent Bank and
the Note Trustee;
"PAYING AGENTS" means the Principal Paying Agent, the New York Paying
Agent and any other person appointed as paying agent pursuant to the
Paying Agency and Agent Bank Agreement, and "PAYING AGENT" means any of
them;
"PRINCIPAL AMOUNT OUTSTANDING" means in relation to a Note on any date,
the principal amount of that Note on the date of issue less the
aggregate amount of all principal payments in respect of that Note that
have been paid by the Issuer to the Noteholder concerned under the Note
Conditions prior to such date in accordance with the Note Conditions;
"PRINCIPAL PAYING AGENT" means The Bank of New York acting through its
London branch located at One Canada Square, London E14 5AL, or such
other Principal Paying Agent in respect of the Notes for the time being
as may have been appointed as such by the Issuer with the prior approval
of, and on terms previously approved in writing, by the Note Trustee and
(except in the case of initial Principal Paying Agent), notice of whose
appointment has been given to the Noteholders pursuant to Clause 10(m)
in accordance with the Note Conditions;
"PROGRAMME" means the secured medium term note issuance programme
established by the MTN Issuer;
"RATING AGENCIES" means Moody's and S&P;
"REGISTER" means the register maintained by the Registrar in accordance
with Clause 4.1 of the Paying Agency and Agent Bank Agreement;
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"REGISTRAR" means the registrar appointed in accordance with the terms
of the Paying Agency and Agent Bank Agreement;
"S&P" means Standard and Poor's Ratings Group, a division of the
McGraw-Hill Companies Inc.;
"SCHEDULED REDEMPTION DATE" means the Interest Payment Date falling in
October 2007;
"SEC" means the United States Securities and Exchange Commission;
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended;
"SECURITY TRUSTEE" means The Bank of New York in its capacity as
security trustee in respect of the Programme;
"SENIOR NOTES" means in relation to the Class B Notes, the Class A
Notes, and in relation to the Class C Notes, the Class A Notes and the
Class B Notes;
"SENIOR NOTEHOLDERS" means in relation to the Class B Noteholders, the
Class A Noteholders and in relation to the Class C Noteholders, the
Class A Noteholders and the Class B Noteholders;
"SERIES 02-1 MTN" means the Series 02-1 medium term note certificate
issued by the MTN Issuer under the Programme, and subscribed for by the
Issuer using the proceeds of the Notes;
"SERIES 02-1 SUPPLEMENT" means the supplement dated 24 October 2002 to
the Declaration of Trust and Trust Cash Management Agreement dated 23
November 1999;
"SERIES 02-1 TERMINATION DATE" means the earlier of the Distribution
Date on which the Investor Interest has been reduced to zero and the
Interest Payment Date falling in October 2009;
"SWAP AGREEMENTS" means the Dollar A Swap Agreement, the Dollar B Swap
Agreement and the Dollar C Swap Agreement;
"SWAP COUNTERPARTY" means Barclays Bank PLC, acting through its office
at 5 The North Colonnade, London E14 4BB:
"TIA" means the United States Trust Indenture Act of 1939, as amended;
"TRANSFER AGENT" has the meaning given to it in the Paying Agency and
Agent Bank Agreement;
"TRUST CORPORATION" means a corporation entitled by rules made under the
Public Trustee Act 1906 of Great Britain to act as a custodian trustee
or entitled pursuant to any other comparable legislation applicable to a
trustee in any other jurisdiction to carry out the functions of a
custodian trustee and shall be deemed to include The Bank of New York;
and
"TRUSTEE ACTS" means both the Trustee Acts 1925 and the Trustee Act 2000
of England and Wales; and
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"UNDERWRITING AGREEMENT" means the Underwriting Agreement between the
Issuer and the Underwriters named therein dated 16 October 2002.
1.2 Any reference in this Deed to:
"OUTSTANDING" means in relation to the Notes, as of any date of
determination, all the Notes issued other than (a) those Notes which
have been redeemed in full and cancelled pursuant to Note Condition 6 or
otherwise pursuant to this Deed; (b) those Notes in respect of which the
date for redemption in full in accordance with the Conditions has
occurred and the redemption moneys for which (including all interest
payable thereon) have been duly paid to the Note Trustee or to the
Principal Paying Agent in the manner provided in the Paying Agency and
Agent Bank Agreement (and, where appropriate, notice to that effect has
been given to the Noteholders in accordance with Note Condition 14) and
remain available for payment against presentation of the relevant Notes;
(c) those Notes which have been purchased and cancelled in accordance
with Note Condition 6; and (d) those Notes which have become void under
Note Condition 10,
provided that for each of the following purposes, namely:
1.2.1 the right to attend and vote at any meeting of the Noteholders;
1.2.2 the determination of how many and which Notes are for the time
being outstanding for the purposes of Clause 7.1 and Clause 18,
Note Conditions 9 and 13 and paragraphs 2, 5, 6 and 9 of the
Eighth Schedule;
(i) any discretion, power or authority contained in this Deed which
the Note Trustee is required, expressly or impliedly, to
exercise in or by reference to the interests of any of the
Noteholders; and
(iii) the determination by the Note Trustee whether any of the events
specified in Note Condition 9 is materially prejudicial to the
interests of the Noteholders,
those Notes (if any) which are for the time being held beneficially by
or for the account of the Issuer or any of its respective subsidiaries,
Affiliates or holding companies or other subsidiaries or Affiliates of
such holding companies shall (unless and until ceasing to be so held or,
in the case of the Issuer, cancelled) be deemed not to remain
outstanding;
"REPAY", "REDEEM" and "PAY" shall each include both the others and
"REPAID", "REPAYABLE" and "REPAYMENT", "REDEEMED", "REDEEMABLE" and
"REDEMPTION" and "PAID", "PAYABLE" and "PAYMENT" shall be construed
accordingly; and
"THIS DEED" and "TRUST DEED" means this Trust Deed and the Schedules and
any Trust Deed supplemental hereto and the Schedules (if any) thereto,
all as from time to time supplemented or modified in accordance with the
provisions contained in this Deed and where applicable, therein.
1.3 CONSTRUCTION
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1.3.1 In this Deed all references to costs or charges or expenses
shall include any value added tax or similar tax charged or
chargeable in respect thereof;
1.3.2 all references to "STERLING", "POUNDS STERLING" or the sign
"(POUND)" shall be construed as references to the lawful
currency for the time being of the United Kingdom of Great
Britain and Northern Ireland; and
1.3.3 all references to "DOLLARS" or the signs "US$" or "$" shall be
construed as references to the lawful currency for the time
being of the United States of America.
1.4 All references in this Deed to any provision of any statute shall be
deemed also to refer to any statutory modification or re-enactment
thereof or any statutory instrument, order or regulation made thereunder
or under such re-enactment.
1.5 Unless otherwise defined herein or unless the context otherwise requires
words or expressions contained in this Deed shall bear the same meanings
as in the Companies Act 1985, the MTN Master Definitions Schedule and
the Series 02-1 Supplement.
1.6 In this Deed references to Schedules, Clauses, sub-clauses, paragraphs
and sub-paragraphs shall be construed as references to the schedules to
this Deed and to the clauses, sub-clauses, paragraphs and sub-paragraphs
of this Deed respectively and, unless otherwise stated, references to
sub-clauses are references to sub-clauses of the Clause in which the
reference appears.
1.7 References in this Deed to any action, remedy or method of judicial
proceeding for the enforcement of the rights of creditors shall be
deemed to include, in respect of any jurisdiction other than England,
references to such action, remedy or method of judicial proceeding for
the enforcement of the rights of creditors available or appropriate in
such jurisdiction as shall most nearly approximate to such action,
remedy or method of judicial proceeding described or referred to in this
Deed.
1.8 Any reference to and the definition of any document (including this
Deed) shall be deemed to be a reference to such document as from time to
time amended, supplemented, modified or replaced (in whole or in part),
but disregarding any amendment, supplement, variation or replacement
taking place in breach of the terms of this Deed.
1.9 Words denoting the singular number only shall include the plural number
also and vice versa and words denoting one gender only shall include the
other genders and words denoting persons only shall include firms and
corporations and vice versa.
1.10 Any reference in this Deed to any party or person includes any person
deriving title therefrom and any of their respective successors or
assigns.
1.11 All headings used herein and in the Schedules shall be disregarded for
the purposes of the interpretation of this Deed.
1.12 Whenever this Deed refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Deed. All other TIA
terms used in this Deed that are
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defined by the TIA, defined in the TIA by reference to another statute
or defined by SEC rule have the meanings assigned to them.
2. COVENANT TO REPAY AND PAY INTEREST ON THE NOTES; NOTE TRUSTEE'S
REQUIREMENTS FOLLOWING AN EVENT OF DEFAULT
2.1 ISSUANCE
2.1.1 The aggregate principal amount on issue at the date hereof of
the Notes is limited to $1,000,000,000 comprising $900,000,000
Class A Notes, $50,000,000 Class B Notes and $50,000,000 Class C
Notes.
2.1.2 On the date hereof, the Issuer shall issue the Notes subject to
the satisfaction of the conditions precedent set forth in the
Underwriting Agreement. Except as specifically provided herein
no additional Notes shall be issued.
2.2 COVENANT TO REPAY
The Issuer hereby covenants with the Note Trustee that it will, in
accordance with the terms of the Notes (including the Note Conditions)
and this Deed, on the Scheduled Redemption Date thereof as specified in
such Note Conditions, or on each such earlier date as the Notes, or any
of them or any part thereof, may become repayable thereunder (whether in
full or in part), pay or procure to be paid unconditionally to or to the
order of the Note Trustee in Dollars in New York for immediate value the
principal amount of such Notes repayable subject to and in accordance
with the terms of such Notes (including the Note Conditions) and this
Deed, on that date and shall, subject to the terms of such Notes
(including the Note Conditions), in the meantime and until such payment
(after as well as before any judgment or other order of a court of
competent jurisdiction) pay or procure to be paid unconditionally to or
to the order of the Note Trustee as aforesaid interest on the Principal
Amount Outstanding of the Notes at the rates calculated from time to
time in accordance with and on the dates provided for in the Note
Conditions, provided that:
2.2.1 if on the Scheduled Redemption Date there are insufficient funds
available to be applied in or towards redemption of the Notes in
full pursuant to this Clause 2.2 then the above reference to
"Scheduled Redemption Date" in Clause 2.2 shall be deemed to be
replaced by a reference to the "Series 02-1 Termination Date"
and the covenant contained in this Clause 2.2 shall be construed
accordingly;
2.2.2 every payment of principal or interest in respect of the Notes
to or to the account of the New York Paying Agent in the manner
provided in the Paying Agency and Agent Bank Agreement shall
satisfy, to the extent of such payment, the relative covenant in
relation to such Notes by the Issuer contained in this Clause
except to the extent that there is default in the subsequent
payment thereof by the New York Paying Agent (in the case of any
of the Global Note Certificates) to or to the order of the
registered owner thereof in accordance with the provisions of
the Global Note Certificates or (in the case of the Individual
Note Certificates relating thereto) to the relevant Noteholders;
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2.2.3 in any case where payment of principal or interest in respect of
the Notes is not made to the New York Paying Agent on or before
the due date whether at scheduled maturity or accelerated
maturity following an Event of Default or on an Interest Payment
Date, interest shall continue to accrue on such amount (both
before and after judgment or other order of a court of competent
jurisdiction) at the rate calculated in accordance with Note
Condition 5 plus a margin of 2% per annum until whichever is the
earlier of (i) the day on which all sums due in respect of such
Note up to that day are received by or on behalf of the relevant
Noteholder and (ii) the day which is seven days after the New
York Paying Agent or the Note Trustee has notified the
Noteholders either in accordance with Note Condition 14 or
individually that it has received all sums due in respect of the
Notes up to such seventh day (except to the extent that there is
any subsequent default in payment);
2.2.4 in any case where payment of principal or interest in respect of
any Notes is improperly withheld or refused upon due
presentation thereof (other than in circumstances contemplated
by sub-clause 2.2.2) interest shall accrue on that principal or
interest amount or part thereof payment of which has been so
withheld or refused (both before and after judgment or other
order of a court of competent jurisdiction) at the rate
calculated in accordance with Note Condition 5 plus a margin of
2% per annum from and including the date of such withholding or
refusal until the date on which upon presentation of the
relevant Note payment of the full amount (including interest as
aforesaid) is in fact made or (if earlier) the seventh day after
notice is given in accordance with Note Condition 14 that the
full amount payable in respect of such Note is available for
payment, provided that, upon the presentation of the relevant
Note, payment is in fact made; and
2.2.5 notwithstanding any other provision of this Trust Deed, the
right of any Noteholder to receive payment of principal and
interest on the Note, on or after the respective due dates
expressed in the Note, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Noteholder.
2.3 FOLLOWING AN EVENT OF DEFAULT
At any time after an Event of Default or the Notes shall otherwise have
become due and repayable or the Note Trustee shall have received any
money which it proposes to pay under Clause 8 to the Noteholders or at
any time after Individual Note Certificates have not been issued when so
required in accordance with this Deed, the Note Trustee may:
2.3.1 by notice in writing to the Issuer, the Principal Paying Agent,
the Agent Bank, the Registrar, and the other Paying Agents
require the Principal Paying Agent, the Registrar, the other
Paying Agents and the Agent Bank pursuant to the Paying Agency
and the Agent Bank Agreement:
(a) to act thereafter as Principal Paying Agent, Paying
Agents, the Registrar and the Agent Bank respectively of
the Note Trustee in relation to
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payments to be made or in relation to calculations and
other related functions (as the case may be) by or on
behalf of the Note Trustee under the provisions of this
Deed on the terms provided in the Paying Agency and
Agent Bank Agreement (with consequential amendments as
necessary and save that the Note Trustee's liability
under any provisions thereof for the indemnification of
the Principal Paying Agent, the Paying Agents, the
Registrar and the Agent Bank shall be limited to that
amount for the time being held by the Note Trustee on
the relative trusts of this Deed which is available to
be applied by the Note Trustee for such purpose) and
thereafter to hold all Note Certificates and all sums,
documents and records held by them in respect of the
Notes on behalf of the Note Trustee; and/or
(b) to deliver up all Note Certificates and all sums,
documents and records held by them in respect of such
Notes to the Note Trustee or as the Note Trustee shall
direct in such notice,
provided that such notice shall be deemed not to apply to any
documents or records which the relevant Paying Agent, the
Registrar or Agent Bank is obliged not to release by any law or
regulation; and
2.3.2 by notice in writing to the Issuer require it to make all
subsequent payments in respect of the Notes appertaining thereto
to or to the order of the Note Trustee and not to the Principal
Paying Agent and, with effect from the issue of any such notice
to the Issuer and until such notice is withdrawn, Clause 2.2.2
shall cease to have effect.
3. FORM OF ISSUE OF NOTES; ISSUE OF INDIVIDUAL NOTE CERTIFICATES
3.1 GLOBAL NOTE CERTIFICATES
3.1.1 The Notes shall on issue be represented by the Global Note
Certificates. The Issuer shall on the date hereof deposit the
Global Note Certificates with and register them in the name of a
nominee for a common depositary of the Clearing Systems.
3.1.2 The Global Note Certificates shall be printed or typed in the
form or substantially in the forms set out in the First
Schedule, the Second Schedule and the Third Schedule.
3.1.3 The procedures as regards the exchange, authentication,
delivery, surrender, cancellation, presentation, marking down of
any of the Global Notes (or part thereof) and any other matters
to be carried out by the relevant parties upon such exchange (in
whole or part) shall be made in accordance with the provisions
of the relevant terms of the Global Notes, the Paying Agency and
Agent Bank Agreement and the rules and procedures of DTC,
Clearstream, Luxembourg and Euroclear for the time being. The
Global Notes shall be in the aggregate principal amount of up to
$900,000,000 in respect of the Class A Global Note, $50,000,000
in respect of the Class B Global Note and
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$50,000,000 in respect of the Class C Global Note and each of
the Global Notes Certificates shall be signed manually by a
person duly authorised by the Issuer on behalf of the Issuer.
3.1.4 The Issuer shall procure that, prior to the issue and delivery
of each Global Note Certificate, each Global Note Certificate
will be authenticated by an authorised signatory on behalf of
the Registrar and no Global Note Certificate shall be valid for
any purpose unless and until so authenticated. Until it (or part
thereof) has been exchanged pursuant to this Clause 3.1 or
Clause 3.2 each Global Note Certificate shall be subject to the
provisions of this Deed and the registered owner of the
corresponding Note shall be the only person entitled to receive
payments of principal and interest as set out therein.
3.2 ISSUE OF INDIVIDUAL NOTE CERTIFICATES
3.2.1 If (while the Notes are represented by Global Note
Certificates):
(a) the Notes become immediately due and repayable by reason
of an Event of Default; or
(b) DTC at any time notifies the Issuer that it is at any
time unwilling or unable to hold the Global Note
Certificates or is unwilling or unable to continue as or
has ceased to be, a clearing agency registered under the
Exchange Act and in each case the Issuer is unable to
locate a qualified successor within 90 days of receiving
such notification;
then the Issuer shall (subject as mentioned below), in the event
of sub-clauses (a) or (b) above (but subject to Clause 3.2.3
below) within 30 days of the occurrence of the relevant event
issue Individual Note Certificates in exchange for the whole (or
the remaining parts(s) outstanding) of the relevant Global Note
Certificate.
3.2.2 All Individual Note Certificates shall be printed, executed and
delivered as set out below but shall be held by the Registrar
until a Noteholder requests that the Individual Note
Certificates to which he is entitled in exchange for his
interest in the Global Note Certificates be issued, whereupon
the Individual Note Certificates shall be issued as aforesaid.
The procedures to be carried out by the relevant parties upon
such exchange shall be made in accordance with the provisions of
the relevant terms of the relevant Global Note Certificate in
respect of which exchange is to be made and/or the normal
practice of the Registrar and the rules and procedures of DTC,
Clearstream, Luxembourg and Euroclear for the time being.
Additionally, if any of the events mentioned in Clause 3.2.1
above occurs whilst the Notes (or any part thereof) are
represented by a Global Note Certificate (or part thereof), such
Global Note Certificate (or part thereof) shall forthwith be
exchanged for the Individual Note Certificates (or part thereof)
in accordance with its terms and Clause 3.1 above so that the
relevant Notes (or any part thereof) are then represented solely
by such Individual Note Certificates.
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3.2.3 Notwithstanding the foregoing provisions of this Clause 3.2, the
Issuer shall not be obliged to issue Individual Note
Certificates until the later of (a) the expiry of 40 days after
the date hereof and (b) 30 days after the occurrence of the
relevant event.
3.3 ISSUER TO NOTIFY NOTE TRUSTEE AND NOTEHOLDERS
The Issuer shall notify the Note Trustee forthwith upon the occurrence
of any of the events referred to in Clause 3.2.1 and shall, unless the
Note Trustee agrees otherwise, promptly give notice thereof and of its
obligations to issue Individual Note Certificates to the Class A
Noteholders, the Class B Noteholders or (as the case may be) the Class C
Noteholders in accordance with Note Condition 14.
3.4 FORM OF THE INDIVIDUAL NOTE CERTIFICATES
The Individual Note Certificates shall be security printed in accordance
with all applicable legal requirements in or substantially in the form
set in the Fourth Schedule for Class A Notes, the Fifth Schedule for
Class B Notes and the Sixth Schedule for Class C Notes and shall be
payable or distributable to the registered holder thereof and the
Individual Note Certificates shall be issued in the denomination of,
$1,000 each (in each case serially numbered) and shall be endorsed with
the Note Conditions. Title to the Individual Note Certificates shall
pass by registration in the Register.
3.5 SIGNATURE
The Individual Note Certificates shall be signed manually or in
facsimile by two of the Directors of the Issuer. The Issuer may use the
facsimile signature of any person who at the date of printing of the
Individual Note Certificates is a Director of the Issuer notwithstanding
that at the time of issue of any of the Individual Note Certificates he
may have ceased for any reason to be the holder of such office and the
Individual Note Certificates so executed shall be binding and valid
obligations of the Issuer. The Issuer shall procure that, prior to their
issue, the Individual Note Certificates will be authenticated by an
authorised signatory of the Registrar and none of the Individual Note
Certificates shall be valid for any purpose unless and until so
authenticated.
4. COVENANT OF COMPLIANCE
4.1 COVENANT
The Issuer hereby covenants with the Note Trustee that it will comply
with and perform and observe all the provisions of this Deed which are
expressed to be binding on it. The Note Conditions shall be binding on
the Issuer, the Note Trustee, the Noteholders and all persons claiming
through or under them respectively.
4.2 ENFORCEMENT
The Note Trustee shall be entitled to enforce the obligations of the
Issuer under the Notes and the Note Conditions as if the same were set
out and contained in this Deed which shall be read and construed as one
document with the Notes.
4.3 MEETING OF NOTEHOLDERS
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The provisions contained in the Eighth Schedule shall have effect in the
same manner as if herein set forth.
4.4 DECLARATION OF TRUST
The Note Trustee shall hold the benefit of the covenants given in this
Deed upon trust for itself and the Noteholders according to its and
their respective interests.
4.5 STATEMENT AS TO COMPLIANCE
The Issuer will deliver to the Note Trustee, within 120 days after the
end of each fiscal year, a written statement signed by the principal
executive officer of the Issuer, stating that:
4.5.1 a review of the activities of the Issuer during such year and of
performance under this Trust Deed has been made under his or her
supervision and
4.5.2 to the best of his or her knowledge, based on such review, the
Issuer has fulfilled all its obligations under this Trust Deed
throughout such year, or, if there has been a default in the
fulfilment of any such obligation, specifying each such default
known to him or her and the nature and status thereof.
5. CANCELLATION OF NOTES
5.1 CANCELLATION
The Issuer shall procure that all Notes (i) which have been redeemed in
full or (ii) which have been purchased by the Issuer shall forthwith be
cancelled by or on behalf of the Issuer by the Registrar and a
certificate stating the aggregate amounts of principal and interest paid
in respect of the Notes which have been redeemed in full and serial
numbers of the corresponding Note Certificates shall be given to the
Note Trustee by or on behalf of the Issuer as soon as possible and in
any event within four months after the date of such redemption,
purchase, payment or replacement (as the case may be). The Note Trustee
may accept such certificate as conclusive evidence of repayment,
purchase or replacement pro tanto of the Notes or payment of interest
thereon respectively and of cancellation of the relative Notes.
5.2 RECORDS HELD BY PRINCIPAL PAYING AGENT
The Issuer shall procure (i) that the Registrar shall keep a full and
complete record of all Notes and of their redemption, payment, exchange
or cancellation (as the case may be) and (ii) that such records shall be
made available to the Note Trustee at all reasonable times.
6. ENFORCEMENT
6.1 DISCRETION OF THE NOTE TRUSTEE
At any time after the Notes, or any of them, shall have become due and
repayable in accordance with the Note Conditions and shall not have been
repaid (including, without limitation, following a default in payment of
principal or interest thereunder), the Note
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Trustee may at its discretion and without further notice, recover
judgment in its own name and as trustee of an express trust against the
Issuer for the whole amount of principal and interest remaining unpaid
and take such other steps and/or institute such proceedings as it may
think fit against, or in relation to, the Issuer and/or such steps as it
may think fit to enforce the security created in favour of the Note
Trustee by, and contained in, the Deed of Charge and to enforce its
obligations under this Deed including, without limitation, to enforce
repayment of the Notes together with accrued interest and any other
moneys payable pursuant to this Deed, provided that the Note Trustee
shall be bound by the terms of the Deed of Charge in determining the
priority in which any moneys received by it shall be applied.
6.2 STANDARD OF PROOF
Should the Note Trustee take legal or other proceedings against the
Issuer to enforce any of the provisions of the Notes, or any of them or
this Deed proof therein that, as regards any Note, the Issuer has made
default in paying any principal or interest due in respect of such Note
shall (unless the contrary be proved) be sufficient evidence that the
Issuer has made the like default as regards all other Notes in respect
of which the relevant payment is then due and payable. The Note Trustee
may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Note Trustee
and the Noteholders allowed in any judicial proceedings relating to the
Issuer, its auditors or its property.
7. PROCEEDINGS
7.1 NOTE TRUSTEE NOT BOUND
The Note Trustee shall not be bound to take any such proceedings or
steps as are mentioned in Clause 6.1 or any other proceedings pursuant
to or in connection with this Deed, the Notes or any of them or to give
any notice pursuant to Note Condition 14 unless respectively directed or
requested to do so (i) by an Extraordinary Resolution or (ii) in writing
by the holders of at least one quarter of the aggregate Principal Amount
Outstanding of the Class A Notes for the time being outstanding, then
the Class B Notes and thereafter the Class C Notes, and in either case
then only if it shall be indemnified and/or secured to its satisfaction
against all actions, proceedings, claims and demands to which it may
thereby render itself liable and all costs, charges, damages,
liabilities and expenses which it may incur by so doing, provided that
so long as in relation to any class of Notes any of the Senior Notes are
outstanding, the Note Trustee shall not, and shall not be bound to, act
at the request or direction of the Junior Noteholders as aforesaid
unless:
(a) to do so would not, in its opinion, be materially prejudicial to
the interests of the Senior Noteholders; or
(b) such action is sanctioned by an Extraordinary Resolution of the
Senior Noteholders.
7.2 LEGAL PROCEEDINGS
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Only the Note Trustee may enforce (i) the security created in favour of
the Note Trustee by, and contained in, the Deed of Charge or any other
security or (ii) the provisions of the Notes or this Deed and no
Noteholders shall be entitled to enforce such security or to proceed
directly against the Issuer to enforce its rights under or in respect of
the Notes or this Trust Deed unless (i) the Note Trustee has become
bound to institute proceedings and has failed to do so within a
reasonable time and (ii) such failure is continuing.
7.3 Notwithstanding any other provision in this Deed and in accordance with
Section 316(b) of the TIA, the right of any Noteholder to receive
payment of principal and interest on its Notes on or after the due date
for such principal or interest, or to institute suit for the enforcement
of payment of that principal or interest, may not be impaired or
affected without the consent of the Noteholder, provided that no such
right of enforcement shall exist (i) in respect of a postponement of an
interest payment which has been consented to by the Noteholders in
accordance with the Conditions or (ii) to the extent that the
institution or prosecution of such suit or the entry of judgment therein
would, under applicable law, result in the surrender, impairment, waiver
or loss of the lien or security of this Deed or the Deed of Charge upon
any property subject to such lien or security.
8. PRIORITY OF PAYMENTS AND NOTICE OF PAYMENT
8.1 PRIORITY OF PAYMENTS
Subject to Clause 9.1 the Note Trustee shall apply all monies received
by it under this Deed in accordance with the provisions of the Ninth
Schedule.
8.2 NOTICE OF PAYMENT
The Note Trustee shall give notice to the relevant Noteholders in
accordance with Note Condition 14 of the day fixed for any payment to
them under the Ninth Schedule. Such payment may be made in accordance
with Note Condition 7 and such payment so made or made by the Note
Trustee to the New York Paying Agent for such purposes shall be a good
discharge to the Note Trustee.
9. INVESTMENT BY NOTE TRUSTEE
9.1 POWER OF INVESTMENT
If the amount of the moneys at any time available for the payment of
principal and interest in respect of the Notes under Clause 8 shall be
less than 10 per cent. of the aggregate Principal Amount Outstanding of
the Notes the Note Trustee may at its discretion invest such moneys in
some or one of the investments hereinafter authorised and such
investments with the resulting income therefrom may be accumulated until
the accumulations together with any other funds for the time being under
the control of the Note Trustee and available for such purpose shall
amount to a sum being not less than 10 per cent. of the aggregate
Principal Amount Outstanding of the Notes and then such accumulations
and funds shall be applied in the manner provided in Clause 8.
9.2 AUTHORISED INVESTMENTS
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Any moneys which under this Deed may be invested by the Note Trustee may
be invested in the name or under the control of the Note Trustee in any
Authorised Investments and the Note Trustee may at any time or times
vary any such Authorised Investments into other Authorised Investments
and shall not be responsible for any loss due to depreciation in value,
or otherwise resulting from any such Authorised Investments (save due to
the negligence, fraud or wilful default of the Note Trustee).
9.3 RATE OF INTEREST
If any bank with which any monies are invested is a subsidiary, holding
or associated company of the Note Trustee, neither the Note Trustee nor
that bank shall be obliged to account for any amount of interest greater
than the standard amount of interest payable to a standard customer on
an account of the type in which these monies are invested.
10. COVENANTS BY THE ISSUER
So long as any of the Notes remains outstanding the Issuer covenants
with the Note Trustee that it shall:
(a) CONDUCT: at all times carry on and conduct its affairs in a
proper and efficient manner;
(b) INFORMATION: give to the Note Trustee and procure that there is
given to it such certificates, information and evidence as it
shall reasonably require and in such form as it shall reasonably
require (including but without prejudice to the generality of
the foregoing the procurement by the Issuer of all such
certificates called for by the Note Trustee pursuant to Clause
12(c) for the purpose of the discharge of the duties, trusts,
powers, authorities and discretions vested in it under this
Deed, any other Document, or by operation of law);
(c) AUDITORS' REPORTS: cause to be prepared and certified by the
Auditors in respect of each financial year, accounts in such
form as will comply with accounting principles generally
accepted in the United Kingdom and with the requirements of the
London Stock Exchange;
(d) BOOKS OF ACCOUNTS: at all times keep proper books of account and
allow the Note Trustee, the Note Trustee's auditors, or, with
the Issuer's prior approval, any professional or financial
adviser of the Note Trustee at any time upon reasonable notice
to have free access to all books of record and account at the
Issuer's registered office and other relevant records during
normal business hours;
(e) COPIES OF SECURITIES AND SHAREHOLDERS' DOCUMENTS: send to the
Note Trustee (in addition to any copies to which it may be
entitled as a holder of any securities of the Issuer) two copies
of every balance sheet, profit and loss account, report,
circular and notice of general meeting and every other document
issued or sent to its shareholders together with any of the
foregoing, and every document issued or sent to holders of
securities of the Issuer other than its shareholders as soon as
practicable after the issue or publication thereof;
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(f) NOTIFICATION OF EVENT OF DEFAULT: upon becoming aware thereof
give notice in writing to the Note Trustee of the occurrence of
any Event of Default or any condition, event or act which with
the giving of notice and/or the lapse of time and/or the issue
of a certificate or determination of materiality would
constitute an Event of Default and without waiting for the Note
Trustee to take any action in respect thereof;
(g) FINANCIAL STATEMENTS: give to the Note Trustee (a) within seven
days after demand by the Note Trustee therefor; and (b) (without
the necessity for any such demand) promptly after the
publication of its audited accounts in respect of each financial
period commencing with the financial period first ending after
the date hereof and in any event not later than 180 days after
the end of each such financial period a certificate of the
Issuer signed by two Directors of the Issuer to the effect that,
as at a date not more than seven days before delivering such
certificate (the "RELEVANT DATE"), to the best of the knowledge,
information and belief of the Issuer, there did not exist and
had not existed since the relevant date of the previous
certificate (or in the case of the first such certificate the
date hereof) any Event of Default or any condition, event or act
which with the giving of notice and/or the lapse of time and/or
the issue of a certificate or determination of materiality would
constitute an Event of Default (or if such exists or existed
specifying the same) and that during the period from and
including the relevant date of the last such certificate (or in
the case of the first such certificate the date hereof) to and
including the relevant date of such certificate the Issuer has
complied with all its obligations contained in this Deed and in
each of the other Documents or (if such is not the case)
specifying the respects in which it has not complied;
(h) FURTHER ACTS: at all times execute and do all such further
documents, acts and things as may be necessary at any time or
times in the opinion of the Note Trustee to give effect to the
Note Conditions and to this Deed and each of the other
Documents;
(i) MAINTENANCE OF A REGISTRAR AND PAYING AGENTS: at all times
maintain an Agent Bank, a Registrar and Paying Agents in
accordance with the Note Conditions and at all times maintain
any other agents required by the Note Conditions, this Deed or
any other Document relating to any Notes which are outstanding;
(j) NOTIFICATION OF LATE PAYMENT: procure the New York Paying Agent
to notify the Note Trustee forthwith in the event that it does
not, by the due date for any payment in respect of the Notes (or
any of the them), receive unconditionally pursuant to the Paying
Agency and Agent Bank Agreement payment of the full amount in
Dollars of the moneys payable in accordance with the Conditions
on such due date in respect of all such Notes;
(k) NOTIFICATION OF UNCONDITIONAL PAYMENT: in the event of the
unconditional payment to the New York Paying Agent of any sum
due in respect of the Notes (or any of them) being made after
the due date for payment thereof, forthwith
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give or procure to be given notice to Noteholders in accordance
with Note Condition 14 that such payment has been made;
(l) LISTING: use all reasonable endeavours to obtain and maintain
the listing of the Notes on the London Stock Exchange (including
compliance with the continuing obligations applicable to the
Issuer by virtue of the admission of the Notes to the Official
List of the London Stock Exchange) or, if it is unable to do so
having used all reasonable endeavours, use all reasonable
endeavours to obtain and maintain a quotation or listing of the
Notes on such other stock exchange or exchanges or securities
market or markets as the Issuer may (with the prior written
approval of the Note Trustee) decide, and shall also use all
reasonable endeavours to procure that there will at all times be
furnished to the London Stock Exchange or to any other such
stock exchange or securities market such information as the
London Stock Exchange or, as the case may be, any other such
stock exchange or securities market may require to be furnished
in accordance with its requirements and shall also upon
obtaining a quotation or listing of the Notes on such other
stock exchange or exchanges or securities market or markets
enter into a deed supplemental to this Deed to effect such
consequential amendments to this Deed as the Note Trustee may
require or as shall be requisite to comply with the requirements
of any such stock exchange or securities market;
(m) CHANGE OF AGENTS: give notice to the Noteholders in accordance
with Note Condition 14 of any appointment, resignation or
removal of an Agent (other than the appointment of the initial
Agents) after having obtained the written approval of the Note
Trustee thereto or of change of the specified office of any
Agent, provided that so long as any of the Notes remain
outstanding, in the case of the termination of the appointment
of the Agent Bank, Principal Paying Agent or New York Paying
Agent, no such termination shall take effect until a new Agent
Bank, Principal Paying Agent (in London) or, as the case may be,
New York Paying Agent (in New York) has been appointed on terms
approved in writing by the Note Trustee;
(n) NOTICE TO NOTEHOLDERS: obtain the prior written approval of the
Note Trustee to, and promptly give to the Note Trustee, or
ensure that the Note Trustee receives, four copies of, the form
of every notice given to the Noteholders in accordance with Note
Condition 14; such approval, unless so expressed, shall not
constitute approval for the purposes of the Financial Services
and Markets Act 2000 of the United Kingdom of any such notice
which is an investment advertisement (as therein defined);
(o) COMPLIANCE WITH PAYING AGENCY AND AGENT BANK AGREEMENT: comply
with and perform all its obligations under the Paying Agency and
Agent Bank Agreement and use all reasonable endeavours to
procure that each of the Agents and (except where such Agent and
the Note Trustee are one and the same person) comply with and
perform all their respective obligations thereunder and any
notice given by the Note Trustee pursuant to Clause 2.3.1 and
not make any
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amendment or modification thereto without the prior written
approval of the Note Trustee;
(p) ASCERTAINMENT OF OUTSTANDING AMOUNTS OF THE NOTES: in order to
enable the Note Trustee to ascertain the number and amount of
Notes for the time being outstanding for any of the purposes
referred to in the proviso to the definition of "OUTSTANDING"
contained in Clause 1.2, deliver to the Note Trustee forthwith
upon being so requested in writing by the Note Trustee a
certificate in writing signed by two Directors of the Issuer
setting out the total number and the principal amount of the
Notes which:
(i) up to and including the date of such certificate have
been purchased by the Issuer and cancelled; and
(ii) are at the date of such certificate beneficially held by
or for the account of the Issuer, any of its respective
subsidiaries or Affiliates or holding companies or other
subsidiaries or Affiliates of such holding companies;
(q) COMPLIANCE: at all times comply with and perform all its
obligations under this Deed, the Conditions and under the
Documents and use all reasonable endeavours to procure that the
other parties thereto, other than the Note Trustee (or any
person which is the Note Trustee acting in another capacity),
comply with and perform all their respective obligations
thereunder and not make any amendment or modification thereto or
agree to waive or authorise any breach thereof without the prior
written approval of the Note Trustee;
(r) MODIFICATIONS TO DOCUMENTS: not waive, modify, amend or consent
to any waiver modification or amendment of the Documents without
the consent of the Note Trustee;
(s) SEC REPORTS: file with the Note Trustee copies of the annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Issuer is required
to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act within 15 days after it files them with the SEC.
The Issuer also shall comply with the other provisions of TIA
ss. 314(a);
(t) INFORMATION REGARDING NOTEHOLDERS: shall furnish or cause to be
furnished to the Note Trustee on June 30 and December 31 of each
year, commencing December 31, 2002, and at such other times as
the Note Trustee may request in writing, all information in the
possession or control of the Issuer, or of its registrar, as to
the names and addresses of the Noteholders, and requiring the
Note Trustee to preserve, in as current a form as is reasonably
practicable, all such information so furnished to it or received
by it in the capacity of registrar;
(u) OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE
CONTAINED THEREIN: Upon any application, demand or request by
the Issuer to the Note Trustee to take any action under any of
the provisions of this Trust Deed (other than the issuance of
Notes) and upon request of the Note Trustee, the Issuer
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shall furnish to the Note Trustee an Officers' Certificate and
Opinion of Counsel complying with the provisions of Section 314
(e) of the TIA. Each certificate or opinion provided for in this
Trust Deed and delivered to the Note Trustee with respect to
compliance with a condition or covenant provided for in this
Trust Deed shall include the items required by Section 314(e) of
the TIA;
(v) promptly after the execution and delivery of this Trust Deed and
each supplement hereto, the Issuer will furnish to Note Trustee
an Opinion of Counsel stating that in the opinion of such
counsel, appropriate steps have been taken to protect the lien
of the Note Trustee in the Series 02-1 MTN under the Deed of
Charge and reciting the details of such action, or stating that
in the opinion of such counsel no such action is necessary; and
the Issuer shall furnish to the Note Trustee, not more than
three (3) months after the anniversary of each calendar year,
commencing with calendar year 2003, an Opinion of Counsel
stating either that, in the opinion of such Counsel, (i) such
action has been taken as is necessary for the proper protection
of the lien of the Note Trustee in the Series 02-1 MTN under the
Deed of Charge and reciting the details of such action or (ii)
no such action is necessary for any of such purposes.
11. REMUNERATION AND INDEMNIFICATION OF NOTE TRUSTEE
11.1 ANNUAL FEE
The Issuer shall pay to the Note Trustee remuneration for its services
as trustee as from the date of this Deed, such remuneration to be at
such annual rate as may from time to time be agreed between the Issuer
and the Note Trustee. Such remuneration shall be payable in advance on
15 November in each year (or if such day is not a Business Day, the next
succeeding Business Day), the first such payment to be made on 15
November 2003 in respect of the period from and including the Closing
Date to and including November 2003. Remuneration shall accrue from day
to day and be payable (in priority to payments to the Noteholders) up to
(and including) the date when, the Notes having become due for
redemption in full, the redemption moneys and interest thereon to the
date of redemption have been paid to the New York Paying Agent or the
Note Trustee.
11.2 ADDITIONAL FEE FOR EXCEPTIONAL DUTIES
In the event of the Note Trustee giving an Enforcement Notice or
considering it expedient or necessary or being requested by the Issuer
to undertake duties which the Note Trustee and the Issuer agree to be of
an exceptional nature or otherwise outside the scope of the normal
duties of the Note Trustee under this Deed the Issuer shall pay to the
Note Trustee such additional remuneration as shall be agreed between
them.
11.3 TAX
The Issuer shall in addition pay to the Note Trustee an amount equal to
the amount of any value added tax or similar tax chargeable in respect
of its remuneration under this Deed.
11.4 NOTE TRUSTEE'S COSTS AND EXPENSES
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The Issuer shall also pay or discharge all legal fees and other costs,
charges, liabilities and expenses properly incurred by the Note Trustee
in relation to the preparation and execution of, the exercise of its
powers and the performance of its duties under, and in any other manner
in relation to, this Deed, the Notes or the Documents, including but not
limited to legal and travelling expenses and any stamp, issue,
registration, documentary and other taxes or duties paid or payable by
the Note Trustee in connection with any action or legal proceedings
brought or contemplated by the Note Trustee for enforcing the security
created in favour of the Note Trustee by, and contained in, the Deed of
Charge or on its behalf against the Issuer or any other person for
enforcing any obligations under this Deed, the Notes or the Documents.
11.5 TERMS OF PAYMENT
All costs, charges, liabilities and expenses incurred and payments made
by the Note Trustee in the lawful exercise of the powers conferred upon
it by this Deed and all amounts pursuant to Clause 11 and all
remuneration payable to the Note Trustee shall be payable by the Issuer
on the Interest Payment Date next following receipt by the Issuer of a
written demand accompanied by appropriate VAT invoices (to the extent
that VAT is chargeable) and shall (if not paid on such Interest Payment
Date) carry interest at the rate of two per cent. per annum above the
base rate from time to time of Barclays Bank PLC from such Interest
Payment Date.
11.6 DISCHARGE
Unless otherwise specifically stated in any discharge of this Deed the
provisions of this Clause 11 and Clause 12(i) shall continue in full
force and effect notwithstanding such discharge.
11.7 STAMP DUTY
The Issuer shall pay all stamp, issue, registration, documentary and
other fees, duties or taxes including interest and penalties (if any)
payable in the United Kingdom on or arising out of or in consequence of
(i) the constitution and issue of the Notes, (ii) the initial delivery
of the Notes, (iii) the creation of the security constituted by the Deed
of Charge, (iv) any action taken by the Note Trustee (or any Noteholder
where permitted under the Note Conditions and this Deed so to do) to
enforce the provisions of the Notes or this Deed or the Documents or to
enforce the said security and (v) the execution and delivery of this
Deed and the Documents to which the Note Trustee is a party.
12. SUPPLEMENT TO TRUSTEE ACTS
The Note Trustee shall have all powers conferred upon trustees by the
Trustees Act 1925 and by way of supplement to the Trustee Acts and
subject to Clause 14, it is expressly declared as follows (which
provisions shall, except as expressly provided in this Clause 12, be in
lieu of the provisions contained in section 315(a) of the TIA):
(a) ADVICE: The Note Trustee may in relation to this Deed act on the
advice or opinion of or any information obtained from any
lawyer, valuer, accountant, banker, broker, credit-rating agency
or other expert whether obtained by the Issuer, the Note Trustee
or otherwise and shall not in the absence of negligence
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or wilful misconduct or fraud on the part of the Note Trustee,
be responsible for any loss occasioned by so acting.
(b) TRANSMISSION OF ADVICE: Any such advice, opinion or information
may be sent or obtained by letter, telex, telegram, facsimile
transmission or cable and in the absence of negligence or wilful
misconduct or fraud on the part of the Note Trustee, the Note
Trustee shall not be liable for acting on any advice, opinion or
information purporting to be conveyed by any such letter, telex,
telegram, facsimile transmission or cable although the same
shall contain some error or shall not be authentic.
(c) CERTIFICATE OF AUTHORISED SIGNATORY: The Note Trustee may call
for and shall be at liberty to accept as sufficient evidence of
any fact or matter or the expediency of any transaction or
thing, unless any of its officers in charge of the
administration of this Deed shall have actual knowledge or
express notice to the contrary, a certificate signed by two
Directors of the Issuer and the Note Trustee shall not be bound
in any such case to call for further evidence or be responsible
for any loss that may be occasioned by the Note Trustee acting
on such certificate.
(d) DEPOSIT OF DOCUMENTS: The Note Trustee shall be at liberty to
hold or to place this Deed, any other documents relating to this
Deed and any of the Documents in any part of the world with any
banker or banking company or company whose business includes
undertaking the safe custody of documents or lawyer or firm of
lawyers considered by the Note Trustee to be of good repute and
the Note Trustee shall not be responsible for or required to
insure against any loss incurred in connection with any such
deposit and may pay all sums required to be paid on account of
or in respect of any such deposit.
(e) PAYMENT FOR AND DELIVERY OF THE NOTES: The Note Trustee shall
not be responsible for the application of the proceeds of the
issue of any of the Notes by the Issuer or the exchange of any
Global Note Certificate for any other Global Note Certificate or
Individual Note Certificate, as the case may be.
(f) EVENTS OF DEFAULT: Except to the extent required pursuant to
section 315(b) of the TIA, the Note Trustee shall not be bound
to give notice to any person of the execution of this Deed or
any of the Documents or any transaction contemplated hereby or
thereby or to take any steps to ascertain whether any Event of
Default (or any condition, event or act which with the giving of
notice and/or the lapse of time and/or the issue of a
certificate or determination of materiality would constitute an
Event of Default) has happened and, until it shall have actual
knowledge or express written notice to the contrary, the Note
Trustee shall be entitled to assume that no Event of Default or
such condition, event or act has happened and that the Issuer
and each other party to any Document is observing and performing
all the obligations on its part contained in the Notes and under
this Deed and/or any Document to which it is a party.
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(g) DISCRETION OF THE NOTE TRUSTEE: Save as expressly otherwise
provided in this Deed, the Note Conditions or the Documents, the
Note Trustee shall have absolute and uncontrolled discretion as
to the exercise of the discretions vested in the Note Trustee by
this Deed, the Note Conditions and the Documents (the exercise
of which as between the Note Trustee and the Noteholders and
other parties thereto shall be conclusive and binding on the
Noteholders and other parties thereto) but whenever the Note
Trustee is under the provisions of this Deed, the Note
Conditions or the Documents bound to act at the request or
direction of the Noteholders, or any of them, or any other
relevant party, the Note Trustee shall nevertheless not be so
bound unless first indemnified to its satisfaction against all
actions, proceedings, claims and demands to which it may render
itself liable and all costs, charges, damages, expenses and
liabilities which it may incur by so doing.
(h) RESOLUTION OF THE NOTEHOLDERS: The Note Trustee shall not be
liable for acting upon any resolution purporting to have been
passed at any meeting of the Noteholders in respect whereof
minutes have been made and signed even though subsequent to its
acting it may be found that there was some defect in the
constitution of the meeting or the passing of the resolution or
that for any reason the resolution was not valid or binding upon
the Noteholders.
(i) RELIANCE ON CERTIFICATION OF CLEARING SYSTEM: The Note Trustee
shall not, in the absence of negligence or wilful misconduct or
fraud on the part of the Note Trustee be liable to the Issuer or
any Noteholder or any other person by reason of having accepted
as valid or not having rejected any Individual Note Certificate
purporting to be such and subsequently found to be forged or not
authentic and the Note Trustee may call for and shall be at
liberty to accept and place full reliance on as sufficient
evidence of the facts stated therein a certificate or letter of
confirmation certified as true and accurate and signed on behalf
of DTC, Euroclear, Clearstream, Luxembourg or any Depository for
them or such person as the Note Trustee considers appropriate,
or any form of record made by any of them to the effect that at
any particular time or through any particular period any
particular person is, was, or will be, shown in its records as
entitled to a particular number of Notes.
(j) COVENANT TO INDEMNIFY NOTE TRUSTEE AND OTHERS: Without prejudice
to the right of indemnity by law given to trustees, the Issuer
hereby covenants to indemnify and keep indemnified the Note
Trustee and every attorney, receiver, manager, agent, delegate
or other person appointed by it under this Deed (after prior
consultation by the Note Trustee with the Issuer and after
consideration in good faith by the Note Trustee of any
representations made by the Issuer concerning the proposed
appointee except where, in the opinion of the Note Trustee, such
consultation and consideration was not practicable and in
particular no such prior consultation will be required if (i)
the appointment relates to any enforcement action undertaken by
the Note Trustee through its appointment of a receiver, manager,
agent or similar officer or (ii) such prior consultation would
cause the Note Trustee to breach any of its fiduciary duties)
from and against all
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liabilities, losses, damages, costs, expenses, actions,
proceedings, claims and demands incurred by or made against it
or him in the execution or purported execution of the trusts,
authorities or discretions of this Deed or the Note Conditions
or of their powers or in respect of any matter or thing done or
omitted in any way relating to this Deed, the Note Conditions or
any of the Documents or any such appointment except such as may
arise from such person's negligent action, negligent failure to
act, or wilful misconduct or fraud of any such indemnified
person.
(k) NOTE TRUSTEE'S CONSENT: Any consent or approval given by the
Note Trustee for the purpose of this Deed, the Note Conditions
and any Document may be given on such terms and subject to such
conditions (if any) as the Note Trustee thinks fit and
notwithstanding anything to the contrary contained in this Deed,
any Document or the Note Conditions may be given
retrospectively.
(l) CONFIDENTIALITY: The Note Trustee shall not (unless and to the
extent ordered so to do by a court of competent jurisdiction) be
required to disclose to any Noteholder or any other person any
confidential financial, price sensitive or other information
made available to the Note Trustee by the Issuer or any other
person in connection with the trusts created under this Deed and
no Noteholder or other person shall be entitled to take any
action to obtain from the Note Trustee any such information.
(m) CURRENCY CONVERSION: Where it is necessary or desirable for any
purpose in connection with this Deed or the Note Conditions to
convert any sum from one currency to another it shall (unless
otherwise provided by this Deed or the Note Conditions or
required by law) be converted at such rate or rates, in
accordance with such method and as at such date for the
determination of such rate of exchange, as may be agreed by the
Note Trustee in consultation with the Issuer as relevant and any
rate, method and date so agreed shall be binding on the Issuer
and the Noteholders.
(n) DEFAULT IN PERFORMANCE: The Note Trustee may certify in the
circumstances stated in Note Condition 14 whether or not a
default by the Issuer in the performance or observance of any of
its obligations pursuant to that Condition is in its opinion
materially prejudicial to the interests of the Noteholders and
any such certificate shall be conclusive and binding upon the
Issuer and the Noteholders.
(o) ASSUMPTION OF DUE PERFORMANCE: The Note Trustee shall not be
bound to take any steps to ascertain whether any event,
condition or act, the happening of which would cause a right or
remedy to become exercisable by the Note Trustee under this Deed
or the Note Conditions or by the Issuer under any of the
Documents has happened or to monitor or supervise the observance
and performance by the Issuer or any of the other parties
thereto of their respective obligations thereunder and, until it
shall have actual knowledge to the contrary, the Note Trustee
shall be entitled to assume that no such event, condition or act
-27-
has happened and that the Issuer and each of the other parties
thereto are observing and performing all their respective
obligations thereunder.
(p) RELIANCE ON DOCUMENTS: The Note Trustee shall not be responsible for:
(i) recitals, statements, warranties or representations of any party
contained in any Document or other document entered into in
connection therewith and shall assume the accuracy and
correctness thereof and the Note Trustee may accept without
enquiry, requisition or objection such title as the Issuer may
have to the security constituted by the Deed of Charge or any
part thereof; or
(ii) the execution, legality, effectiveness, adequacy, genuineness,
validity or enforceability or admissibility in evidence of any
such agreement or other document or security thereby
constituted.
Notwithstanding the generality of the foregoing, each Noteholder shall
be solely responsible for making its own independent appraisal of and
investigation into the financial condition, creditworthiness, condition,
affairs, status and nature of the Issuer and the Note Trustee shall not
at any time have any responsibility for the same and each Noteholder
shall not rely on the Note Trustee in respect thereof.
(q) CONSIDERATION OF THE INTERESTS OF NOTEHOLDERS: In connection with the
exercise by it of any of its trusts, powers, authorities and discretions
under this Deed (including, without limitation, any modification,
waiver, authorisation, determination or substitution) or the Note
Conditions, the Note Trustee shall have regard to the interests of the
Noteholders and, in particular but without limitation, shall not have
regard to the consequences of such exercise for individual Noteholders
resulting from their being for any purpose domiciled or resident in, or
otherwise connected with, or subject to the jurisdiction of, any
particular territory or any political sub-division thereof and the Note
Trustee shall not be entitled to require, nor shall any Noteholder be
entitled to claim, from the Issuer, the Note Trustee or any other person
any indemnification or payment in respect of any tax consequence of any
such exercise upon individual Noteholders except to the extent already
provided for in the Note Conditions and/or any undertaking given in
addition thereto or in substitution therefor under this Deed, provided
that, where, in the opinion of the Note Trustee, there is a conflict
between the interests of the Senior Noteholders and the Junior
Noteholders the Note Trustee shall give priority to the interests of the
Senior Noteholders whose interests shall prevail.
(r) NO LIABILITY FOR EMPLOYEES: The Note Trustee shall not be liable for any
error of judgment made in good faith by any officer or employee of the
Note Trustee assigned by the Note Trustee to administer its corporate
trust matters unless it shall be proved that the Note Trustee was
negligent in ascertaining the pertinent facts.
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(s) FINANCIAL LIABILITY: No provision of this Deed or the Note Conditions
shall require the Note Trustee to do anything which may be illegal or
contrary to applicable law or regulation or expend or risk its own funds
or otherwise incur any financial liability in the performance of any of
its duties, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such fund
or adequate indemnity against such risk or liability is not assured to
it.
(t) DETERMINATIONS OF THE NOTE TRUSTEE CONCLUSIVE: The Note Trustee as
between itself and the Noteholders shall have full power to determine
all questions and doubts arising in relation to any of the provisions of
this Deed or the Note Conditions, and every such determination, whether
made upon a question actually raised or implied in the acts or
proceedings of the Note Trustee, shall be conclusive and shall bind the
Issuer and the Noteholders.
(u) DETERMINATION OF DEFAULT IN PERFORMANCE: The Note Trustee may determine
whether or not a default in the performance by the Issuer of any
obligation under the provisions of this Deed or contained in the Notes
or any of the Documents is capable of remedy and, if the Note Trustee
shall certify that any such default is, in its opinion, not capable of
remedy, such certificate shall be conclusive and binding upon the Issuer
and the Noteholders.
(v) RESPONSIBILITY: Notwithstanding the generality of sub-clauses (n) or (o)
above, the Note Trustee shall not be responsible for the genuineness,
validity, effectiveness or suitability of any of the Documents or other
documents entered into in connection therewith or any other document or
any obligation or rights created or purported to be created thereby or
pursuant thereto or any security or the priority thereof constituted or
purported to be constituted thereby or pursuant thereto, nor shall it be
responsible or liable to any person because of any invalidity of any
provision of such documents or the unenforceability thereof, whether
arising from statute, law or decision of any court and (without
prejudice to the generality of the foregoing) the Note Trustee shall not
have any responsibility for or have any duty to make any investigation
in respect of or in any way be liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of the MTN
Issuer or the Issuer or any other person or entity who has at
any time provided any security or support whether by way of
guarantee, charge or otherwise in respect of any advance made to
the MTN Issuer or the Issuer;
(ii) the title, ownership, value, sufficiency or existence of the
Series 02-1 MTN;
(iii) the registration, filing, protection or perfection of any
assignment or security interest or the priority of the security
thereby created;
(iv) the existence, accuracy or sufficiency of any legal or other
opinions, searches, reports, certificates, valuations or
investigations delivered or
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obtained or required to be delivered or obtained at any time in
connection herewith;
(v) the failure by the MTN Issuer, the Security Trustee or the
Issuer to obtain or comply with any licence, consent or other
authority in connection with the origination, sale, purchase or
administration of the Series 02-1 MTN or the failure to effect
or procure registration of or to give notice to any person in
relation to the Series 02-1 MTN or other Documents or otherwise
protect interests in, and/or the security created or purported
to be created by or pursuant to the Series 02-1 MTN or other
documents entered into in connection therewith;
(vi) the failure to call for delivery of documents of title to or
require any transfers, legal mortgages, charges or other further
assurances in relation to any of the assets the subject matter
of any of the Documents or any other document;
(vii) any accounts, books, records or files maintained by the Issuer,
the MTN Issuer, the Security Trustee or any other person in
respect of the Series 02-1 MTN;
(viii) obtaining insurance for any of the security constituted by the
Deed of Charge or any deeds or documents of title or other
evidence in respect thereof and shall not be responsible for any
loss, expense or liability which may be suffered as a result of
the lack of or inadequacy of any such insurance; or
(ix) any deficiency in amounts payable to Noteholders by virtue of
the Note Trustee being liable to tax or obliged to deduct tax in
respect of sums received, held or paid out by it under the
Documents.
(w) EXCLUSION OF LIABILITY: The Note Trustee shall not be liable or
responsible for any loss, cost, damages, expenses or inconvenience which
may result from anything done or omitted to be done by it in accordance
with the provisions of this Deed, any Documents or any other document or
as a consequence of or in connection with it being held or treated as,
or being deemed to be, a creditor, for the purposes of the Consumer
Credit Act 1974, in respect of any of the Receivables.
(x) CERTIFICATES OF OTHER PARTIES TO THE DOCUMENTS: The Note Trustee shall
be entitled to call for and to rely upon a certificate or any letter of
confirmation or explanation reasonably believed by it to be genuine, of
the MTN Trustee, any Agent, the Custodian, the Rating Agencies or any
other credit-rating agency in respect of every matter and circumstance
for which a certificate is expressly provided for under this Deed or in
respect of the rating of the Notes or the Note Conditions and to call
for and rely upon a certificate of the MTN Issuer or the Security
Trustee reasonably believed by it to be genuine as to any other fact or
matter prima facie within the knowledge of the Series 02-1 MTN Issuer or
the Security Trustee as sufficient evidence thereof and the Note Trustee
shall not be
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bound in any such case to call for further evidence or be responsible
for any loss, liability, costs, damages, expenses or inconvenience that
may be occasioned by its failing so to do.
(y) CONSEQUENCE OF MODIFICATIONS: In connection with any proposed
modification, waiver, authorisation or determination permitted by the
terms of this Deed or the Note Conditions, the Note Trustee shall not
have regard to the consequences thereof for individual Noteholders
resulting from their being for any purpose domiciled or resident in, or
otherwise connected with, or subject to, the jurisdiction of any
particular territory.
(z) RESPONSIBILITY FOR THE LISTING AND RATING OF THE NOTES: The Note Trustee
shall have no responsibility for the maintenance of any listing of the
Notes or rating of the Notes by the Rating Agencies or any other
credit-rating agency or any other person.
(aa) GLOBAL NOTES AND NOTEHOLDERS: For the avoidance of doubt, to the extent
that any Notes are in global registered form, the Note Trustee shall be
entitled to rely on a certificate from DTC, Euroclear or Clearstream,
Luxembourg in determining whether a person is a "NOTEHOLDER" for the
purposes of this Deed and the Note Conditions except for the purposes of
payments in respect of such Global Note, the right to which shall be
vested solely in the registered owner thereof.
(bb) NO LIABILITY AS A RESULT OF THE DELIVERY OF A CERTIFICATE: The Note
Trustee shall have no liability whatsoever for any loss, cost, damages
or expenses directly or indirectly suffered or incurred by the Issuer,
any Noteholder or any other person as a result of the delivery by the
Note Trustee of a certificate, or the omission by it to deliver a
certificate, to the Issuer as to material prejudice, on the basis of an
opinion formed by it in good faith.
(cc) NO DUTY TO SUPERVISE: The Note Trustee shall be under no obligation to
monitor or supervise the functions of any other person under any
Document and shall be entitled, in the absence of actual knowledge by
the persons administering this trust of a breach of duty or obligation,
to assume that such other person is properly performing its obligations
in accordance with each Document.
(dd) CALCULATION OF INTEREST: The Note Trustee acknowledges that the Agent
Bank is responsible, pursuant to Note Condition 5, for determining the
amount of interest due in relation to any Interest Payment Date and the
actual amount of interest on the Notes and the Note Trustee shall have
no responsibility to recalculate any such amounts notwithstanding a
manifest error therein. However, if the Agent Bank fails at any time to
determine such amount the Note Trustee, or its appointed agent, without
accepting any liability therefore, may determine such amount in
accordance with Note Condition 5, and such determination shall be deemed
to have been made by the Agent Bank pursuant to Note Condition 5 and the
Note Trustee shall have no liability in respect thereof other than as a
result of the negligence, bad faith or wilful default of the
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Note Trustee. For the avoidance of doubt, this provision also applies to
any obligation on the Trustee to convert currencies upon termination of
each of the Swap Agreements in the event that no replacement Swap
Counterparty is appointed;
(ee) MATERIAL PREJUDICE: The Note Trustee shall be entitled to assume, for
the purposes of exercising any power, trust, authority, duty or
discretion under or in relation to this Deed or the Note Conditions that
such exercise will not be materially prejudicial to the interests of the
Noteholders if the Rating Agencies have confirmed that the then current
rating of the Notes would not be adversely affected by such exercise.
(ff) REPORTS BY NOTE TRUSTEE TO NOTEHOLDERS: If required by TIA Section
313(a), within 60 days after November 15 of any year, commencing the
November 15 following the date of this Deed, and at intervals of not
more than 12 months, the Note Trustee shall deliver to each Noteholder a
brief report dated as of such November 15 that complies with TIA Section
313(a). The Note Trustee also shall comply with TIA Sections 313(b), (c)
and (d).
Reports delivered pursuant to this Clause 12(ee) shall be sent as
provided in Clause 22.3.
(gg) PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER: The Note Trustee
shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Note Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein. The provisions of TIA Section 311 shall apply
to the Issuer as the obligor of the Notes.
(hh) WHEN TREASURY SECURITIES DISREGARDED: In determining whether the
Noteholders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Issuer or by any
affiliate of the Issuer shall be disregarded, except that for the
purposes of determining whether the Note Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which the
Note Trustee knows are so owned shall be disregarded.
(ii) DUTIES OF THE TRUSTEE: Notwithstanding any additional duties imposed on
the Note Trustee under the Trustee Act or otherwise, if an Event of
Default has occurred and is continuing, the Note Trustee shall exercise
the rights and powers and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(jj) DISAPPLICATION OF TRUSTEE ACT 2000: Section 1 of the Trustee Act 2000
shall not apply to the duties of the Note Trustee in relation to the
trusts constituted by this Trust Deed. Where there are any
inconsistencies between the Trustee Acts and the provisions of this
Trust Deed, the provisions of this Trust Deed shall, to the extent
allowed by law, prevail and, in the case of any such inconsistency with
-32-
the Trustee Act 2000, the provisions of this Trust Deed shall constitute
a restriction or exclusion for the purposes of that Act.
(kk) NO LIABILITY FOR LOSS: the Note Trustee will not be liable for any
decline in the value nor any loss realised upon any sale or other
disposition pursuant to the Trust Documents of, any of the Charged
Property. In particular and without limitation, the Note Trustee shall
not be liable for any such decline or loss directly or indirectly
arising from its acting or failing to act as a consequence of an opinion
reached by it in good faith based on advice received by it in accordance
with the Trust Documents and the Conditions;
(ll) NO LIABILITY FOR MONITORING EVENT OF DEFAULT: the Note Trustee shall not
be responsible for monitoring whether a Series 02-1 Enforcement Event
has occurred and shall have no obligation to procure the giving of a
Series 02-1 Enforcement Notice, or to instruct any party to give such a
notice or to act in any way, unless it has been instructed and
indemnified in accordance with the provisions of this Deed.
13. NOTE TRUSTEE'S LIABILITY
Nothing contained in this Deed shall, in any case in which the Note
Trustee has failed to show the degree of care and diligence required of
it as trustee having regard to the provisions of this Deed conferring on
it any powers, authorities or discretions, (i) exempt the Note Trustee
from or indemnify it against any liability for breach of trust or any
liability which by virtue of any rule of law would otherwise attach to
it in respect of any negligence, default, breach of duty or breach of
trust of which it may be guilty in relation to its duties under this
Deed or (ii) relieve the Notes Trustee from liability for its own
negligent action, its own negligent failure to act, on its own wilful
misconduct, except as permitted in Section 315(d) of the TIA.
14. DELEGATION BY NOTE TRUSTEE
The Note Trustee may whenever it thinks fit delegate (after prior
consultation by the Note Trustee with the Issuer and after consideration
in good faith by the Note Trustee of any representations made by the
Issuer concerning the proposed appointee except where, in the opinion of
the Note Trustee, such consultation and consideration was not
practicable and in particular no such prior consultation will be
required if (i) the delegation relates to any enforcement action
undertaken by the Note Trustee through its appointment of a receiver,
manager, agent or similar officer or (ii) such prior consultation would
cause the Note Trustee to breach any of its fiduciary duties) by power
of attorney or otherwise to any person or persons or fluctuating body of
persons (whether being a joint trustee of this Deed or not) for any
period (whether exceeding one year or not) or indefinitely all or any of
the trusts, powers and authorities vested in the Note Trustee by this
Deed and such delegation may be made upon such terms and subject to such
conditions including power to sub-delegate, and subject to such
regulations as the Note Trustee may in the interests of the Noteholders
think fit, and provided that the Note Trustee shall have exercised
reasonable care in the selection of such delegate the Note Trustee shall
not be in any way responsible for any loss incurred by reason of any
misconduct or default on the part of any such delegate or sub-delegate.
The Note Trustee
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shall within a reasonable time prior to any such delegation or any
renewal, extension or termination thereof give notice thereof to the
Issuer.
15. EMPLOYMENT OF AGENT BY NOTE TRUSTEE
15.1 POWER OF ATTORNEY
The Note Trustee may in the conduct of the trusts of this Deed instead
of acting personally employ (after prior consultation by the Note
Trustee with the Issuer and after consideration in good faith by the
Note Trustee of any representations made by the Issuer concerning the
proposed appointee except where, in the opinion of the Note Trustee,
such consultation and consideration was not practicable) and pay an
agent, whether being a lawyer or other professional person, to transact
or concur in transacting any business and to do or concur in doing all
acts required to be done in connection with the trusts of this Deed and
the Documents and its powers and provided that, the Note Trustee shall
have exercised reasonable care in the selection of such agent, the Note
Trustee shall not in any way be responsible for any loss incurred by
reason of any misconduct or default on the part of any such agent
appointed by it under this Deed or the Documents or to be bound to
supervise the proceedings, or acts of any such agent.
15.2 AGENT'S FEES
Any trustee of this Deed being a lawyer, accountant, broker or other
person engaged in any profession or business shall be entitled to charge
and be paid all usual professional and other charges for business
transacted and acts done by him or his firm in connection with the
trusts of this Deed and the Documents and also his reasonable charges in
addition to disbursements for all other work and business done and all
time spent by him or his firm in connection with matters arising in
connection with this Deed and the Documents.
16. NOTE TRUSTEE CONTRACTING WITH ISSUER
Neither the Note Trustee nor any body corporate which is a parent
undertaking or a subsidiary undertaking, or a subsidiary undertaking of
a parent undertaking nor any director or officer of a corporation acting
as a trustee under this Deed, shall by reason of its or his fiduciary
position, be in any way precluded from entering into or being interested
in any contract or financial or other transaction or arrangement with
the Issuer or any other party to any of the Documents or any person or
body corporate associated with the Issuer including without prejudice to
the generality of this provision any contract, transaction or
arrangement of a banking or insurance nature or any contract,
transaction or arrangement in relation to the making of loans or the
provision of financial facilities to or the purchase, placing or
underwriting of or subscribing or procuring subscriptions for or
otherwise acquiring, holding or dealing with the Notes or any of them,
or any other bonds, stocks, shares, debenture stock, debentures, notes
or other securities of the Issuer or any other party to any of the
Documents or any person or body corporate associated as aforesaid or
from accepting or holding the trusteeship of any other trust deed
constituting or securing any other securities issued by or relating to
the Issuer or any other party to any of the Documents or any such person
or body corporate so associated or any other office or profit under the
Issuer or any other party to any of the
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Documents or any such person or body corporate so associated and shall
be entitled to retain and shall not be in any way liable to account for
any profit made or share of brokerage or commission or remuneration or
other benefit received thereby or in connection therewith.
17. WAIVER; AUTHORISATION; DETERMINATION; MODIFICATION; SUBSTITUTION OF
PRINCIPAL DEBTOR
17.1 WAIVER
The Note Trustee may without prejudice to its rights in respect of any
subsequent breach, condition, event or act from time to time and at any
time but only if and in so far as in its opinion the interests of any of
the Noteholders shall not be materially prejudiced thereby waive or
authorise in writing on such terms and subject to such conditions as to
it shall seem fit and proper any breach or proposed breach by the Issuer
or any other person of any of the covenants or provisions contained in
this Deed or in the Notes (including the Note Conditions) or any other
Document or determine that any condition, event or act which
constitutes, or which with the giving of notice and/or the lapse of time
and/or the issue of a certificate or determination or materiality would
constitute, but for such determination, an Event of Default shall not,
or shall not subject to specified conditions, be treated as such for the
purposes of this Deed, provided that the Note Trustee shall not exercise
any powers conferred on it by this Clause in contravention of any
express direction given by Extraordinary Resolution or by a request
under Note Condition 13 but so that no such direction or request shall
affect any waiver, authorisation or determination previously given or
made. Any such waiver, authorisation or determination shall be binding
on the Noteholders and if, but only if, the Note Trustee shall so
require, shall be notified by the Issuer to the Noteholders in
accordance with Note Condition 14 as soon as practicable thereafter. The
provisions of this Clause 17.1 shall be in lieu of section 316(a)(1)(B)
of the TIA and section 316(a)(1)(B) of the TIA is hereby expressly
excluded from this Deed and the Notes, as permitted by the TIA.
17.2 MODIFICATION
The Note Trustee may, without the consent of the Noteholders at any time
and from time to time concur with the Issuer in making any modification
(i) to this Deed or the Note Conditions (other than the provisos to
paragraph 5 of the Eighth Schedule or any provision of this Deed or the
Note Conditions referred to in those provisos and this Clause 17.2) or
any other Documents which in the opinion of the Note Trustee it may be
proper to make, provided that the Note Trustee is of the opinion that
such modification will not be materially prejudicial to the interests of
any of the Noteholders or (ii) to this Deed or the Note Conditions or
any Documents if in the opinion of the Note Trustee such modification is
of a formal, minor or technical nature or to correct a manifest error.
Any such modification shall be binding upon the Noteholders and, unless
the Note Trustee agrees otherwise, shall be notified by the Issuer to
the Noteholders in accordance with Note Condition 14. In addition so
long as the Notes are rated by the Rating Agencies, any such
modification shall be notified in writing by the Issuer to the Rating
Agencies as soon as reasonably practicable thereafter.
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17.3 SUBSTITUTION: The Note Trustee may, without the consent of the
Noteholders, agree with the Issuer to the substitution in place of the
Issuer or any previous Substituted Issuer (as defined below) as the
principal debtor in respect of the Notes of any other body corporate
(the "SUBSTITUTED ISSUER") provided that:
(a) a trust deed or an indenture is executed or some other form of
undertaking is given by the Substituted Issuer to the Note
Trustee in form and manner satisfactory to the Note Trustee to
be bound by the terms of this Trust Deed and by the Note
Conditions (with any consequential amendments which the Note
Trustee may reasonably consider or deem to be appropriate) as
fully as if the Substituted Issuer had been a party to this
Trust Deed and named herein and in the Notes as the principal
debtor in respect of the Notes in place of the Issuer;
(b) the Substituted Issuer becomes a party to the Paying Agency and
Agent Bank Agreement and the Deed of Charge or to equivalent
documents acceptable to the Note Trustee;
(c) if a director of the Substituted Issuer certifies that the
Substituted Issuer will be solvent immediately after the time at
which the said substitution is to be effected, the Note Trustee
shall not have regard to the financial condition, profits or
prospects of the Substituted Issuer or compare the same with
those of the Issuer (or any other Substituted Issuer substituted
under this Clause);
(d) the Note Trustee is satisfied that the relevant transaction is
not materially prejudicial to the interest of Noteholders;
(e) confirmation is received from the Rating Agencies that the Class
A Notes remain AAA rated by S&P and Aaa rated by Moody's and the
Class B Notes remain A rated by S&P and A1 rated by Moody's and
the Class C Notes remain BBB rated by S&P and Baa1 by Moody's
and that such ratings will not be lowered as a result of the
substitution;
(f) the Note Trustee shall be satisfied (by means of legal opinions
in form and substance satisfactory to it or otherwise) that (i)
all necessary governmental and regulatory approvals and consents
necessary for, or in connection with, the assumption by the
Substituted Issuer of liability as principal debtor in respect
of, and of its obligations under, this Trust Deed and (ii) such
approvals and consents are at the time of substitution in full
force and effect; and
(g) the Issuer or, as the case may be, the previous Substituted
Issuer and the Substituted Issuer shall execute such other
deeds, documents and instruments (if any) and make such
representations and warranties and provide such other
documentation (particularly, but not limited to, with regard to
any applicable bankruptcy law) as the Note Trustee may require
in order to be satisfied that such substitution is fully
effective and comply with such other requirements in the
interests of the Noteholders as the Note Trustee may direct.
In connection with any proposed substitution of the Issuer or, as the
case may be, any previous Substituted Issuer, the Note Trustee, may,
without the consent of the
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Noteholders, agree to a change of the law from time to time governing
the Notes and/or this Trust Deed and/or the Paying Agency and Agent Bank
Agreement provided that such change of governing law, in the opinion of
the Note Trustee, would not be materially prejudicial to the interests
of the Noteholders.
17.4 REGISTERED OWNER DEEMED ABSOLUTE OWNER
So long as the Notes, or any of them, are represented by a Global Note
Certificate and except for the purposes of payments in respect thereof,
the right to which shall be vested, as against the Issuer, the Note
Trustee and the Agents, solely in the registered owner of the Note in
accordance with and subject to its terms and the terms of this Trust
Deed (whether or not such Note shall be overdue) and notwithstanding any
notation or notice of ownership or writing thereon or any notice of
previous loss or theft), the Issuer, the Note Trustee and any Agent may
deem and treat the person for the time being shown in the records of
DTC, Euroclear or Clearstream Luxembourg as the holder of any Note as
the absolute owner of such Note and the Issuer, the Note Trustee and any
Agent shall not be affected by any notice to the contrary. So long as
the Notes, or any of them, are represented by Individual Note
Certificates, the Issuer, the Note Trustee and any Agent may deem and
treat the person for the time being shown in the Register to be the
registered owner of such Note as the absolute owner of such Note and the
Issuer, the Note Trustee and the Agents shall not be affected by any
notice to the contrary. All payments made to any such person shall be
valid and, to the extent of the sums so paid, effective to satisfy and
discharge the liability for the moneys payable upon such Notes.
17.5 CLEARING SYSTEM CERTIFICATES
The Issuer and the Note Trustee may call for and shall be at liberty to
accept and place full reliance on as sufficient evidence thereof a
certificate or letter or confirmation signed on behalf of DTC, Euroclear
or Clearstream, Luxembourg or any form of record made by any of them to
the effect that at any particular time or throughout any particular
period any particular person is, was, or will be, shown in its records
as entitled to a particular interest in a Global Note.
18. CURRENCY INDEMNITY
If any sum due from the Issuer to the Note Trustee or the relevant
Noteholders under this Deed or the relevant Notes or any order or
judgment given or made in relation thereto has to be converted from the
currency (the "FIRST CURRENCY") in which the same is payable into
another currency (the "SECOND CURRENCY") for the purpose of (a) making
or filing a claim or proof against the Issuer, (b) obtaining an order or
judgment in any court or other tribunal or (c) enforcing any order or
judgment given or made in relation to this Deed or the relevant Notes
then the Issuer shall indemnify the Note Trustee and the Noteholders and
keep them indemnified against any loss or damage, costs or expenses
incurred by any of them arising as a result of any discrepancy between
(i) the rate of exchange used for such purpose to convert the sum in
question from the first currency into the second currency and (ii) the
rate or rates of exchange at which the Note Trustee and the Noteholders,
as the case may be, may in the ordinary course of business purchase the
first currency with the second currency upon receipt of the sum paid to
it or them, as the
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case may be, in satisfaction, in whole or in part of any such
obligation, order, judgment, claim or proof.
The above indemnities shall constitute obligations of the Issuer
separate and independent from its obligations under the Notes and shall
apply irrespective of any indulgence granted by the Note Trustee or the
Noteholders from time to time and shall continue in full force and
effect notwithstanding the judgment or filing of any proof or proofs in
any bankruptcy, insolvency or liquidation of the Issuer for a liquidated
sum or sums in respect of amounts due under this Deed (other than this
Clause) or the Notes. Any such discrepancy as aforesaid shall be deemed
to constitute a loss suffered by the Note Trustee and the Noteholders
and no proof or evidence of any actual loss shall be required by the
Issuer or its liquidator.
19. ELIGIBILITY AND DISQUALIFICATION; NEW NOTE TRUSTEE; SEPARATE AND CO-NOTE
TRUSTEES; NOTE TRUSTEE INFORMATION
19.1 ELIGIBILITY; DISQUALIFICATION
This Deed shall always have a Note Trustee which shall be eligible to
act as Note Trustee under TIA Sections 310(a)(1) and 310(a)(2). The Note
Trustee shall have a combined capital and surplus of at least
$150,000,000 as set forth in its most recent published annual report of
condition. If the Note Trustee has or shall acquire any "conflicting
interest" within the meaning of TIA Section 310(b), the Note Trustee and
the Issuer shall comply with the provisions of TIA Section 310(b);
provided, however, that there shall be excluded from the operation of
TIA Section 310(b)(1) any deed or deeds under which other securities or
certificates of interest or participation in other securities of the
Issuer are outstanding if the requirements for such exclusion set forth
in TIA Section 310(b)(1) are met. If at any time the Note Trustee shall
cease to be eligible in accordance with the provisions of this Clause
19.1, the Note Trustee shall resign promptly in the manner and with the
effect specified in Clause 20.
19.2 APPOINTMENT OF NEW NOTE TRUSTEE
The power to appoint a new trustee of this Deed shall be vested in the
Issuer but no person shall be appointed who shall not previously have
been approved by an Extraordinary Resolution of the Noteholders. One or
more persons may hold office as trustee or trustees of this Deed but
such trustee or trustees shall be or include a Trust Corporation.
Whenever there shall be more than two trustees of this Deed the majority
of such trustees shall be competent to execute and exercise all the
duties, powers, trusts, authorities and discretions vested in the Note
Trustee by this Deed, provided that a Trust Corporation shall be
included in such majority.
19.3 CO-TRUSTEE
Notwithstanding the provisions of Clause 20, the Note Trustee may (after
prior consultation by the Note Trustee with the Issuer and after
consideration in good faith by the Note Trustee of any representations
made by the Issuer concerning the proposed appointee except where, in
the opinion of the Note Trustee, such consultation and consideration was
not practicable), upon giving prior notice to the Issuer (but without
the
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consent of the Issuer or the Noteholders), appoint any person
established or resident in any jurisdiction (whether a Trust Corporation
or not) to act either as a separate trustee or as a co-trustee jointly
with the Note Trustee (i) if the Note Trustee considers such appointment
to be in the interests of the Noteholders or (ii) for the purposes of
conforming to any legal requirements, restrictions or conditions in any
jurisdiction in which any particular act or acts is or are to be
performed or (iii) for the purposes of obtaining a judgment in any
jurisdiction or the enforcement in any jurisdiction of either a judgment
already obtained or any of the provisions of this Deed against the
Issuer. The Issuer hereby irrevocably appoints the Note Trustee to be
its attorney in its name and on its behalf to execute any such
instrument of appointment. Such a person shall (subject always to the
provisions of this Deed) have such trusts, powers, authorities and
discretions (not exceeding those conferred on the Note Trustee by this
Deed) and such duties and obligations as shall be conferred or imposed
by the instrument of appointment. The Note Trustee shall have power in
like manner to remove any such person. Such reasonable remuneration as
the Note Trustee may pay to any such person, together with any
attributable costs, charges and expenses properly incurred by it in
performing its function as such separate trustee or co-trustee shall for
the purposes of this Deed be treated as costs, charges and expenses
incurred by the Note Trustee.
19.4 Any appointment of a new trustee and/or any retirement or removal of an
existing trustee of this Deed shall as soon as practicable thereafter be
notified by the Issuer to the Registrar and the Noteholders and to the
Rating Agencies.
19.5 The Note Trustee shall provide to the Issuer upon request copies of its
annual financial statements.
20. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
20.1 A trustee of this Deed may retire at any time on giving not less than 30
days prior written notice to the Issuer without assigning any reason and
without being responsible for any costs occasioned by such retirement.
The Class A Noteholders or, if none of the Class A Notes remain
outstanding, the Class B Noteholders or if none of the Class B Notes
remain outstanding, the Class C Noteholders shall have the power
exercisable by Extraordinary Resolution to remove any trustee or
trustees for the time being of this Deed. The Issuer undertakes that in
the event of the only trustee hereof which is a Trust Corporation giving
notice under this Clause or being removed by Extraordinary Resolution it
will use all reasonable endeavours to procure a new trustee of this Deed
being a Trust Corporation to be appointed as soon as reasonably
practicable thereafter. The retirement or removal of any such trustee
shall not become effective until a successor trustee being a Trust
Corporation is appointed, provided that if the Issuer shall fail to
appoint a successor within 60 days of the Note Trustee giving notice of
resignation, then the retiring Note Trustee, having regard to the
provisions of Clause 20 may appoint a successor.
20.2 Upon any resignation or removal taking effect under Clause 20.1 above,
the Note Trustee shall forthwith transfer the Series 02-1 MTN held by it
to its successor and, upon appropriate notice, provide reasonable
assistance to its successor for the discharge of its duties and
responsibilities hereunder.
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21. NOTE TRUSTEE'S POWERS ADDITIONAL
The powers conferred upon the Note Trustee by this Deed shall be in
addition to any powers which may from time to time be vested in the Note
Trustee by the general law or as a holder of any of the Notes.
22. NOTICES
22.1 DELIVERY OF NOTICES
Any notice, demand, approval or certificate to the Issuer or the Note
Trustee required to be given, made or served for any purposes under the
Notes, or any of them, or this Deed shall be given, made or served by
sending the same by pre-paid post (first class if inland, first class
airmail if overseas), telex or facsimile transmission or by delivering
it by hand as follows:
to the Issuer:
Gracechurch Card Funding (No.2) PLC
54 Lombard Street
London EC3P 3AH
Attention: The Directors
Facsimile No: (0207) 699 3271
with a copy to:
Barclays Capital
5 The North Colonnade
London E14 4BB
Attention: Structured Capital Market
Facsimile No: (0207) 7773 1930
to the Note Trustee:
The Bank of New York
One Canada Square
London E14 5AL
Attention: Corporate Trust, Global Structured Finance
Facsimile No: (+44) (0207) 964 6061
or to such other address, telex or facsimile number or marked for the
attention of such other person or department as shall have been notified
(in accordance with this Clause) to the other party hereto and any
notice or demand sent by post as aforesaid shall be deemed to have been
given, made or served three days in the case of inland post or seven
days in the case of overseas post after despatch and any notice or
demand sent by telex or facsimile transmission as aforesaid shall be
deemed to have been given, made or served 24 hours after the time of
despatch, provided that in the case of a notice or demand given
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by telex or facsimile transmission such notice or demand shall forthwith
be confirmed by post. The failure of the addressee to receive such
confirmation shall not invalidate the relevant notice or demand given,
made or served by telex or facsimile transmission.
22.2 COMMUNICATIONS BY NOTEHOLDERS WITH OTHER NOTEHOLDERS
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Deed or the Notes.
The Issuer, the Note Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
22.3 NOTICES TO NOTEHOLDERS
Any notice or communication mailed to Noteholders hereunder shall be
transmitted by mail to all Noteholders, as the names and addresses of
such Noteholders appear upon the Register.
23. GOVERNING LAW AND JURISDICTION
23.1 This Deed and the Notes are governed by and shall be construed in
accordance with English law.
23.2 The Issuer irrevocably agrees for the benefit of the Note Trustee the
Noteholders that the High Court of Justice in London, England shall have
non-exclusive 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 Deed or the Notes (respectively, "PROCEEDINGS" and
"DISPUTES") and, for such purposes, irrevocably submits to the
jurisdiction of such courts. The Issuer agrees for the benefit of the
Note Trustee and the Noteholders that any Proceedings against the Issuer
arising out of or based upon this Deed 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 upon whom process may be
served in any Proceedings arising out of or based upon this Deed which
may be instituted in any state or Federal court in the Borough of
Manhattan, The City of New York and expressly accepts the non-exclusive
jurisdiction of any such court in respect of any such action. Such
appointment shall be irrevocable.
23.3 The Issuer irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 23.2 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.
23.4 The submission to the jurisdiction of the courts referred to in Clause
23.2 of this Clause shall not (and shall not be construed so as to)
limit the right of the Note Trustee or any of the Noteholders to take
Proceedings against the Issuer, the Note Trustee or any other person (as
applicable) in any other court of competent jurisdiction nor shall the
taking of Proceedings in any one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction (whether concurrently or
not) if and to the extent permitted by applicable law.
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24. TIA PREVAILS
If any provision of this Deed limits, qualifies or conflicts with
another provision which is required to be included in this Deed by the
TIA, the required provision shall prevail.
25. AMENDMENTS
This Agreement may be amended, modified or terminated only by written
instrument or instruments signed by the parties hereto. No act or course
of dealing shall be deemed to constitute an amendment, modification or
termination hereof.
26. COUNTERPARTS
This Deed may be executed by the parties hereto in separate counterparts
and any single counterpart or set of counterparts executed and delivered
by all of the parties hereto shall constitute a full and original deed
for all purposes.
27. CERTIFICATES AND OPINIONS
27.1 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Issuer to the Note Trustee to
take any action under this Deed, the Issuer shall furnish to the Note
Trustee:
27.1.1 an Officers' Certificate (which shall include the statements set
forth in Clause 27.2 below) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Deed relating to the proposed action have been complied with;
and
27.1.2 an Opinion of Counsel (which shall include the statements set
forth in Clause 27.2 below) stating that, in the opinion of such
counsel, all such conditions precedent, if any, provided for in
this Deed relating to the proposed action have been complied
with.
27.2 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION
Each certificate and opinion with respect to compliance with a condition
or covenant provided for in this Deed shall include:
27.2.1 a statement that the person making such certificate or opinion
has read such covenant or condition and the definitions relating
thereto;
27.2.2 a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
27.2.3 a statement that, in the opinion of such person, it or he has
made such examination or investigation as is necessary to enable
such person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
27.2.4 a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
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28. POST MATURITY CALL OPTION
The Note Trustee is entering into a post maturity call option agreement
dated 24 October 2002 (the "POST MATURITY CALL OPTION AGREEMENT")
between the Issuer, Gracechurch Card (Holdings) Limited and the Note
Trustee in order to acknowledge that the Note Trustee (on behalf of the
Noteholders) is bound by and the Notes are issued subject to, the option
under the Post Maturity Call Option Agreement (the "OPTION") but does so
entirely without warranty, responsibility or liability on the part of
the Note Trustee personally. So as to give full effect to the Option,
and as stated in Note Condition 6, it is hereby acknowledged that each
of the Noteholders, by subscribing for or acquiring the relevant Notes,
shall upon subscription or acquisition be deemed to have acknowledged
that the Note Trustee has the authority and the power to bind such
Noteholder in accordance with the provisions set out in the Post
Maturity Call Option Agreement and such Noteholder shall be deemed to
have irrevocably agreed to be so bound.
29. RELEASE OF COLLATERAL
29.1 Except to the extent expressly provided in this Clause 29, the Note
Trustee shall release property from the lien of the Deed of Charge only
upon receipt of an Issuer Request accompanied by an Officers'
Certificate, an Opinion of Counsel and Independent Certificates in
accordance with Sections 314(c) and 314(d)(1) of the TIA or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that
the TIA does not require any such Independent Certificates.
29.2 Prior to the release of any property or securities subject to the lien
of the Deed of Charge, the Issuer shall, in addition to any obligation
imposed in this Clause 29 or elsewhere in this Trust Deed, furnish to
the Note Trustee an Officers' Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value to
the Issuer of the property or securities to be so released. The officers
so certifying may consult with, and may conclusively rely upon a
certificate as to the fair value of such property provided to such
officers by an internationally recognised financial institution with
expertise in such matters.
29.3 Whenever the Issuer is required to furnish to the Note Trustee an
Officers' Certificate certifying or stating the opinion of any signer
thereof as to the matters described in the preceding paragraph, the
Issuer shall also deliver to the Note Trustee an Independent Certificate
as to the same matters, if the fair value to the Issuer of the property
to be so released and of all other such property made the basis of any
such release since the commencement of the then current fiscal year of
the Issuer, as set forth in the certificates delivered pursuant to this
Clause 29, is 10% or more of the Principal Amount Outstanding, but such
a certificate need not be furnished with respect to any property so
released if the fair value thereof to the Issuer as set forth in the
related Officers' Certificate is less than $25,000 or less than one
percent of the Principal Amount Outstanding.
29.4 Whenever any property is to be released from the lien of the Deed of
Charge, the Issuer shall also furnish to the Note Trustee an Officer's
Certificate certifying or stating the opinion of each Person signing
such certificate that in the opinion of such person the
-43-
proposed release will not impair the security under the Deed of Charge
in contravention of the provisions hereof.
29.5 Notwithstanding anything to the contrary contained herein, the Issuer
may (A) collect, liquidate, sell or otherwise dispose of Receivables as
and to the extent permitted or required by the Related Documents, (B)
make cash payments out of the Issuer Accounts as and to the extent
permitted or required by the Transaction Documents and (C) take any
other action not inconsistent with the TIA.
30. CONTRACT (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Trust Deed has no right under the
Contract (Rights of Third Parties) Act 1999 to enforce any term of this
Trust Deed but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
IN WITNESS whereof this Trust Deed has been executed as a deed by the Issuer and
the Note Trustee and entered into the day and year first above written.
-44-
THE FIRST SCHEDULE
FORM OF CLASS A GLOBAL NOTE CERTIFICATE
CUSIP:
ISIN:
---------------
IF THIS NOTE CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER
PERSON AS MAY BE NOMINATED BY THE DEPOSITORY TRUST COMPANY ("DTC") FOR THE
PURPOSE) (COLLECTIVELY, "CEDE & CO.") AS NOMINEE FOR DTC, THEN, UNLESS THIS NOTE
CERTIFICATE IS PRESENTED BY AN AUTHORISED REPRESENTATIVE OF DTC TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
CERTIFICATE ISSUED UPON REGISTRATION OF TRANSFER OR EXCHANGE OF THIS NOTE
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER NAME AS MAY
BE REQUESTED BY AN AUTHORISED REPRESENTATIVE OF DTC) AND ANY PAYMENT HEREUNDER
IS MADE TO CEDE & CO. (OR, AS THE CASE MAY BE, SUCH OTHER PERSON), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. (OR, AS THE CASE MAY BE,
SUCH OTHER PERSON), HAS AN INTEREST HEREIN.
GRACECHURCH CARD FUNDING (NO. 2) PLC
(incorporated with limited liability under
the laws of England and Wales)
$900,000,000
CLASS A FLOATING RATE ASSET-BACKED NOTES DUE 2007
CLASS A GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This Class A Global Note Certificate is issued in respect of the
$900,000,000 Class A Floating Rate Asset-Backed Notes due 2007 (the
"CLASS A NOTES") of Gracechurch Card Funding (No. 2) PLC (the "ISSUER").
The Class A Notes are constituted by, are subject to, and have the
benefit of, a trust deed dated 24 October 2002 (as amended or
supplemented from time to time, the "TRUST DEED") between the Issuer and
The Bank of New York as trustee (the "TRUSTEE", which expression
includes all persons for the time being appointed trustee or trustees
under the Trust Deed) and are the subject of a Paying Agency and Agent
Bank Agreement dated 24 October 2002 (as amended or supplemented from
time to time, the "PAYING AGENCY AND AGENT BANK AGREEMENT") and made
between the Issuer, The Bank of New York as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time to
time in connection with the Class A Notes), The Bank of New York as
principal paying agent, the other paying agents and the transfer agents
named therein and the Trustee.
-45-
2. REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Class A Notes attached hereto and any reference to a numbered
"CONDITION" is to the correspondingly numbered provision thereof.
3. REGISTERED HOLDER
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Class A Notes (the "REGISTER") as the duly registered
holder (the "HOLDER") of the Class A Notes represented from time to time
by this Class A Global Note Certificate.
4. PROMISE TO PAY
The Issuer, for value received, hereby promises to pay to the Holder
such principal sum as is noted in the records of the custodian for The
Depository Trust Company (the "DTC CUSTODIAN" and "DTC", respectively)
as being the principal amount of this Class A Global Note Certificate
for the time being on [final maturity date] or on such earlier date or
dates as the same may become payable in accordance with the Conditions,
and to pay interest on such principal sum in arrear on the dates and at
the rate specified in the Conditions, together with any additional
amounts payable in accordance with the Conditions, all subject to and in
accordance with the Conditions.
5. TRANSFERS IN WHOLE
Transfers of this Class A Global Note Certificate shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a
successor of DTC or to such successor's nominee.
6. EXCHANGE FOR CLASS A INDIVIDUAL NOTE CERTIFICATES
This Class A Global Note Certificate will be exchanged in whole (but not
in part) for duly authenticated and completed individual note
certificates ("CLASS A INDIVIDUAL NOTE CERTIFICATES") in substantially
the form (subject to completion) set out in the Fourth Schedule (Form of
Class A Individual Note Certificate) to the Trust Deed if any of the
following events occurs:
(a) the Notes become immediately due and repayable by reason of an
Event of Default; or
(b) DTC at any time notifies the Issuer that it is at any time
unwilling or unable to hold the Global Note Certificates or is
unwilling or unable to continue as or has ceased to be, a
clearing agency registered under the United States Securities
and Exchange Act of 1934 and in each case the Issuer is unable
to locate a qualified successor within 90 days of receiving such
notification;
-46-
Such exchange shall be effected in accordance with paragraph 7
(Delivery of Class A Individual Note Certificates) below. The
Issuer shall notify and the Holder of the occurrence of any of
the events specified in paragraphs (a) and (b) above as soon as
practicable thereafter.
7. DELIVERY OF CLASS A INDIVIDUAL NOTE CERTIFICATES
Whenever this Class A Global Note Certificate is to be exchanged for
Class A Individual Note Certificates, such Class A Individual Note
Certificates shall be issued in an aggregate principal amount equal to
the principal amount of this Class A Global Note Certificate within five
business days of the delivery, by or on behalf of the Noteholders, DTC,
Euroclear and/or Clearstream, Luxembourg, to the Registrar of such
information as is required to complete and deliver such Class A
Individual Note Certificates (including, without limitation, the names
and addresses of the persons in whose names the Class A Individual Note
Certificates are to be registered and the principal amount of each such
person's holding) against the surrender of this Class A Global Note
Certificate at the Specified Office (as defined in the Conditions) of
the Registrar. Such exchange shall be effected in accordance with the
provisions of the Paying Agency and Agent Bank Agreement and the
regulations concerning the transfer and registration of Class A Notes
scheduled thereto (if any) and, in particular, shall be effected without
charge to any Holder or the Trustee, but against such indemnity as the
Registrar may require in respect of any transfer tax, governmental
charge or any cost or expense relating to insurance, postage,
transportation or any similar charge in connection with the delivery of
such Individual Note Certificates, which will be the sole responsibility
of the Issuer. No service charge will be made for any registration of
transfer or exchange of any Individual Note Certificates. In this
paragraph, "BUSINESS DAY" means a day on which commercial banks are open
for business (including dealings in foreign currencies) in the city in
which the Registrar has its Specified Office.
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this Class A Global
Note Certificate shall have the benefit of, and be subject to, the
Conditions and, for the purposes of this Class A Global Note
Certificate, any reference in the Conditions to "NOTE CERTIFICATE" or
"NOTE CERTIFICATES" shall, except where the context otherwise requires,
be construed so as to include this Class A Global Note Certificate.
9. NOTICES
Notwithstanding Condition 14 (Notices), so long as this Class A Global
Note Certificate is held on behalf of DTC or any other clearing system
(an "ALTERNATIVE CLEARING SYSTEM"), notices to Holders of Class A Notes
represented by this Class A Global Note Certificate may be given by
delivery of the relevant notice to DTC or (as the case may be) such
Alternative Clearing System.
-47-
10. LEGENDS
The statements set out in the legends above are an integral part of this
Class A Global Note Certificate and, by acceptance hereof, each Holder
of this Class A Global Note Certificate agrees to be subject to and
bound by such legends.
11. DETERMINATION OF ENTITLEMENT
This Class A Global Note Certificate is evidence of entitlement only and
is not a document of title. Entitlements are determined by the Register
and only the Holder is entitled to payment in respect of this Class A
Global Note Certificate.
12. AUTHENTICATION
This Class A Global Note Certificate shall not be valid for any purpose
until it has been authenticated for and on behalf of The Bank of New
York as registrar.
13. GOVERNING LAW
This Class A Global Note Certificate is governed by, and shall be
construed in accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 2) PLC
By:
-------------------------------------
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By:
-------------------------------------
[manual signature]
(duly authorised)
-48-
FORM OF TRANSFER
FOR VALUE RECEIVED ....................., being the registered holder of this
Class A Global Note Certificate, hereby transfers to............................
.................................................................................
of .............................................................................
.................................................................................
.................................,
$ ................ in principal amount of the $900,000,000 Class A Asset-Backed
Floating Rate Notes due [maturity] (the "CLASS A NOTES") of Gracechurch Card
Funding (No. 2) PLC (the "ISSUER") and irrevocably requests and authorises
The Bank of New York, in its capacity as registrar in relation to the Class A
Notes (or any successor to The Bank of New York, in its capacity as such) to
effect the relevant transfer by means of appropriate entries in the register
kept by it.
Dated:
-------------------------------------
By:
---------------------------------------
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class A Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
-49-
[Terms and Conditions as set out in the Seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
PAYING AGENTS AND TRANSFER AGENTS
[NAME] [NAME]
[ADDRESS] [ADDRESS]
-50-
THE SECOND SCHEDULE
FORM OF CLASS B GLOBAL NOTE CERTIFICATE
CUSIP:
ISIN: ............
IF THIS NOTE CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER
PERSON AS MAY BE NOMINATED BY THE DEPOSITORY TRUST COMPANY ("DTC") FOR THE
PURPOSE) (COLLECTIVELY, "CEDE & CO.") AS NOMINEE FOR DTC, THEN, UNLESS THIS NOTE
CERTIFICATE IS PRESENTED BY AN AUTHORISED REPRESENTATIVE OF DTC TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
CERTIFICATE ISSUED UPON REGISTRATION OF TRANSFER OR EXCHANGE OF THIS NOTE
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER NAME AS MAY
BE REQUESTED BY AN AUTHORISED REPRESENTATIVE OF DTC) AND ANY PAYMENT HEREUNDER
IS MADE TO CEDE & CO. (OR, AS THE CASE MAY BE, SUCH OTHER PERSON), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. (OR, AS THE CASE MAY BE,
SUCH OTHER PERSON), HAS AN INTEREST HEREIN.
CLASS B GRACECHURCH CARD FUNDING (NO. 2) PLC
(incorporated with limited liability under
the laws of England and Wales)
$50,000,000
Class B Floating Rate Asset-Backed Notes due 2007
CLASS B GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This Class B Global Note Certificate is issued in respect of the
$50,000,000 Class B Floating Rate Asset-Backed Notes due 2007 (the
"CLASS B NOTES") of Gracechurch Card Funding (No. 2) PLC (the "ISSUER").
The Class B Notes are constituted by, are subject to, and have the
benefit of, a trust deed dated 24 October 2002 (as amended or
supplemented from time to time, the "TRUST DEED") between the Issuer and
The Bank of New York as trustee (the "TRUSTEE", which expression
includes all persons for the time being appointed trustee or trustees
under the Trust Deed) and are the subject of a Paying Agency and Agent
Bank Agreement dated 24 October 2002 (as amended or supplemented from
time to time, the "PAYING AGENCY AND AGENT BANK AGREEMENT") and made
between the Issuer, The Bank of New York as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time to
time in connection with the Class B Notes), The Bank of New York as
principal paying agent, the other paying agents and the transfer agents
named therein and the Trustee.
-51-
2. REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Class B Notes attached hereto and any reference to a numbered
"CONDITION" is to the correspondingly numbered provision thereof.
3. REGISTERED HOLDER
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Class B Notes (the "REGISTER") as the duly registered
holder (the "HOLDER") of the Class B Notes represented from time to time
by this Class B Global Note Certificate.
4. PROMISE TO PAY
The Issuer, for value received, hereby promises to pay to the Holder
such principal sum as is noted in the records of the custodian for The
Depository Trust Company (the "DTC CUSTODIAN" and "DTC", respectively)
as being the principal amount of this Class B Global Note Certificate
for the time being on [final maturity date] or on such earlier date or
dates as the same may become payable in accordance with the Conditions,
and to pay interest on such principal sum in arrear on the dates and at
the rate specified in the Conditions, together with any additional
amounts payable in accordance with the Conditions, all subject to and in
accordance with the Conditions.
5. TRANSFERS IN WHOLE
Transfers of this Class B Global Note Certificate shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a
successor of DTC or to such successor's nominee.
6. EXCHANGE FOR CLASS B INDIVIDUAL NOTE CERTIFICATES
This Class B Global Note Certificate will be exchanged in whole (but not
in part) for duly authenticated and completed individual note
certificates ("CLASS B INDIVIDUAL NOTE CERTIFICATES") in substantially
the form (subject to completion) set out in the Fifth Schedule (Form of
Class B Individual Note Certificate) to the Trust Deed if any of the
following events occurs:
(a) the Notes become immediately due and repayable by reason of an
Event of Default; or
(b) DTC at any time notifies the Issuer that it is at any time
unwilling or unable to hold the Global Note Certificates or is
unwilling or unable to continue as or has ceased to be, a clearing
agency registered under the United States Securities and Exchange
Act of 1934 and in each case the Issuer is unable to locate a
qualified successor within 90 days of receiving such notification;
-52-
Such exchange shall be effected in accordance with paragraph 7
(Delivery of Class B Individual Note Certificates) below. The
Issuer shall notify the Holder of the occurrence of any of the
events specified in paragraph (a) and (b) above as soon as
practicable thereafter.
7. DELIVERY OF CLASS B INDIVIDUAL NOTE CERTIFICATES
Whenever this Class B Global Note Certificate is to be exchanged for
Class B Individual Note Certificates, such Class B Individual Note
Certificates shall be issued in an aggregate principal amount equal to
the principal amount of this Class B Global Note Certificate within five
business days of the delivery, by or on behalf of the Noteholders, DTC,
Euroclear and/or Clearstream, Luxembourg, to the Registrar of such
information as is required to complete and deliver such Class B
Individual Note Certificates (including, without limitation, the names
and addresses of the persons in whose names the Class B Individual Note
Certificates are to be registered and the principal amount of each such
person's holding) against the surrender of this Class B Global Note
Certificate at the Specified Office (as defined in the Conditions) of
the Registrar. Such exchange shall be effected in accordance with the
provisions of the Paying Agency and Agent Bank Agreement and the
regulations concerning the transfer and registration of Class B Notes
scheduled thereto (if any) and, in particular, shall be effected without
charge to any Holder or the Trustee, but against such indemnity as the
Registrar may require in respect of any transfer tax, governmental
charge or any cost or expense relating to insurance, postage,
transportation or any similar charge in connection with the delivery of
such Individual Note Certificates, which will be the sole responsibility
of the Issuer. No service charge will be made for any registration of
transfer or exchange of any Individual Note Certificates. In this
paragraph, "BUSINESS DAY" means a day on which commercial banks are open
for business (including dealings in foreign currencies) in the city in
which the Registrar has its Specified Office.
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this Class B Global
Note Certificate shall have the benefit of, and be subject to, the
Conditions and, for the purposes of this Class B Global Note
Certificate, any reference in the Conditions to "NOTE CERTIFICATE" or
"NOTE CERTIFICATES" shall, except where the context otherwise requires,
be construed so as to include this Class B Global Note Certificate.
9. NOTICES
Notwithstanding Condition 14 (Notices), so long as this Class B Global
Note Certificate is held on behalf of DTC or any other clearing system
(an "ALTERNATIVE CLEARING SYSTEM"), notices to Holders of Class B Notes
represented by this Class B Global Note Certificate may be given by
delivery of the relevant notice to DTC or (as the case may be) such
Alternative Clearing System.
10. LEGENDS
-53-
The statements set out in the legends above are an integral part of this
Class B Global Note Certificate and, by acceptance hereof, each Holder
of this Class B Global Note Certificate agrees to be subject to and
bound by such legends.
11. DETERMINATION OF ENTITLEMENT
This Class B Global Note Certificate is evidence of entitlement only and
is not a document of title. Entitlements are determined by the Register
and only the Holder is entitled to payment in respect of this Class B
Global Note Certificate.
12. AUTHENTICATION
This Class B Global Note Certificate shall not be valid for any purpose
until it has been authenticated for and on behalf of The Bank of New
York as registrar.
13. GOVERNING LAW
This Class B Global Note Certificate is governed by, and shall be
construed in accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 2) PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By: ..............................
[manual signature]
(duly authorised)
-54-
FORM OF TRANSFER
FOR VALUE RECEIVED .............................., being the registered holder
of this Class B Global Note Certificate, hereby transfers to....................
.................................................................................
....................................
of..............................................................................
.................................................................................
............................,
$ ..................................... in principal amount of the $50,000,000
Class B Asset-Backed Floating Rate Notes due [maturity] (the "CLASS B NOTES") of
Gracechurch Card Funding (No. 2) PLC (the "ISSUER") and irrevocably requests and
authorises The Bank of New York, in its capacity as registrar in relation to the
Class B Notes (or any successor to The Bank of New York, in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class B Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
-55-
[Terms and Conditions as set out in the Seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
PAYING AGENTS AND TRANSFER AGENTS
[NAME] [NAME]
[ADDRESS] [ADDRESS]
-56-
THE THIRD SCHEDULE
FORM OF CLASS C GLOBAL NOTE CERTIFICATE
CUSIP:
ISIN: ............
IF THIS NOTE CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER
PERSON AS MAY BE NOMINATED BY THE DEPOSITORY TRUST COMPANY ("DTC") FOR THE
PURPOSE) (COLLECTIVELY, "CEDE & CO.") AS NOMINEE FOR DTC, THEN, UNLESS THIS NOTE
CERTIFICATE IS PRESENTED BY AN AUTHORISED REPRESENTATIVE OF DTC TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
CERTIFICATE ISSUED UPON REGISTRATION OF TRANSFER OR EXCHANGE OF THIS NOTE
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER NAME AS MAY
BE REQUESTED BY AN AUTHORISED REPRESENTATIVE OF DTC) AND ANY PAYMENT HEREUNDER
IS MADE TO CEDE & CO. (OR, AS THE CASE MAY BE, SUCH OTHER PERSON), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. (OR, AS THE CASE MAY BE,
SUCH OTHER PERSON), HAS AN INTEREST HEREIN.
GRACECHURCH CARD FUNDING (NO. 2) PLC
(incorporated with limited liability under
the laws of England and Wales)
$50,000,000
CLASS C FLOATING RATE ASSET-BACKED NOTES DUE 2007
CLASS C GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This Class C Global Note Certificate is issued in respect of the
$50,000,000 Class C Floating Rate Asset-Backed Notes due 2007 (the
"CLASS C NOTES") of Gracechurch Card Funding (No. 2) PLC (the "ISSUER").
The Class C Notes are constituted by, are subject to, and have the
benefit of, a trust deed dated 24 October 2002 (as amended or
supplemented from time to time, the "TRUST DEED") between the Issuer and
The Bank of New York as trustee (the "TRUSTEE", which expression
includes all persons for the time being appointed trustee or trustees
under the Trust Deed) and are the subject of a Paying Agency and Agent
Bank Agreement dated 24 October 2002 (as amended or supplemented from
time to time, the "PAYING AGENCY AND AGENT BANK AGREEMENT") and made
between the Issuer, The Bank of New York as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time to
time in connection with the Class C Notes), The Bank of New York as
principal paying agent, the other paying agents and the transfer agents
named therein and the Trustee.
-57-
2. REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Class C Notes attached hereto and any reference to a numbered
"CONDITION" is to the correspondingly numbered provision thereof.
3. REGISTERED HOLDER
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Class C Notes (the "REGISTER") as the duly registered
holder (the "HOLDER") of the Class C Notes represented from time to time
by this Class C Global Note Certificate.
4. PROMISE TO PAY
The Issuer, for value received, hereby promises to pay to the Holder
such principal sum as is noted in the records of the custodian for The
Depository Trust Company (the "DTC CUSTODIAN" and "DTC", respectively)
as being the principal amount of this Class C Global Note Certificate
for the time being on [final maturity date] or on such earlier date or
dates as the same may become payable in accordance with the Conditions,
and to pay interest on such principal sum in arrear on the dates and at
the rate specified in the Conditions, together with any additional
amounts payable in accordance with the Conditions, all subject to and in
accordance with the Conditions.
5. TRANSFERS IN WHOLE
Transfers of this Class C Global Note Certificate shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a
successor of DTC or to such successor's nominee.
6. EXCHANGE FOR CLASS C INDIVIDUAL NOTE CERTIFICATES
This Class C Global Note Certificate will be exchanged in whole (but not
in part) for duly authenticated and completed individual note
certificates ("CLASS C INDIVIDUAL NOTE CERTIFICATES") in substantially
the form (subject to completion) set out in the Sixth Schedule (Form of
Class C Individual Note Certificate) to the Trust Deed if any of the
following events occurs:
(a) the Notes become immediately due and repayable by reason of an
Event of Default; or
(b) DTC at any time notifies the Issuer that it is at any time
unwilling or unable to hold the Global Note Certificates or is
unwilling or unable to continue as or has ceased to be, a clearing
agency registered under the United States Securities and Exchange
Act of 1934 and in each case the Issuer is unable to locate a
qualified successor within 90 days of receiving such notification;
-58-
Such exchange shall be effected in accordance with paragraph 7
(Delivery of Class C Individual Note Certificates) below. The
Issuer shall notify the Holder of the occurrence of any of the
events specified in paragraph (a) and (b) above as soon as
practicable thereafter.
7. DELIVERY OF CLASS C INDIVIDUAL NOTE CERTIFICATES
Whenever this Class C Global Note Certificate is to be exchanged for
Class C Individual Note Certificates, such Class C Individual Note
Certificates shall be issued in an aggregate principal amount equal to
the principal amount of this Class C Global Note Certificate within five
business days of the delivery, by or on behalf of the Noteholders, DTC,
Euroclear and/or Clearstream, Luxembourg, to the Registrar of such
information as is required to complete and deliver such Class C
Individual Note Certificates (including, without limitation, the names
and addresses of the persons in whose names the Class C Individual Note
Certificates are to be registered and the principal amount of each such
person's holding) against the surrender of this Class C Global Note
Certificate at the Specified Office (as defined in the Conditions) of
the Registrar. Such exchange shall be effected in accordance with the
provisions of the Paying Agency and Agent Bank Agreement and the
regulations concerning the transfer and registration of Class C Notes
scheduled thereto (if any) and, in particular, shall be effected without
charge to any Holder or the Trustee, but against such indemnity as the
Registrar may require in respect of any transfer tax, governmental
charge or any cost or expense relating to insurance, postage,
transportation or any similar charge in connection with the delivery of
such Individual Note Certificates, which will be the sole responsibility
of the Issuer. No service charge will be made for any registration of
transfer or exchange of any Individual Note Certificate. In this
paragraph, "BUSINESS DAY" means a day on which commercial banks are open
for business (including dealings in foreign currencies) in the city in
which the Registrar has its Specified Office.
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this Class C Global
Note Certificate shall have the benefit of, and be subject to, the
Conditions and, for the purposes of this Class C Global Note
Certificate, any reference in the Conditions to "NOTE CERTIFICATE" or
"NOTE CERTIFICATES" shall, except where the context otherwise requires,
be construed so as to include this Class C Global Note Certificate.
9. NOTICES
Notwithstanding Condition 14 (Notices), so long as this Class C Global
Note Certificate is held on behalf of DTC or any other clearing system
(an "ALTERNATIVE CLEARING SYSTEM"), notices to Holders of Class C Notes
represented by this Class C Global Note Certificate may be given by
delivery of the relevant notice to DTC or (as the case may be) such
Alternative Clearing System.
10. LEGENDS
-59-
The statements set out in the legends above are an integral part of this
Class C Global Note Certificate and, by acceptance hereof, each Holder
of this Class C Global Note Certificate agrees to be subject to and
bound by such legends.
11. DETERMINATION OF ENTITLEMENT
This Class C Global Note Certificate is evidence of entitlement only and
is not a document of title. Entitlements are determined by the Register
and only the Holder is entitled to payment in respect of this Class C
Global Note Certificate.
12. AUTHENTICATION
This Class C Global Note Certificate shall not be valid for any purpose
until it has been authenticated for and on behalf of The Bank of New
York as registrar.
13. GOVERNING LAW
This Class C Global Note Certificate is governed by, and shall be
construed in accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 2) PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By: ..............................
[manual signature]
(duly authorised)
-60-
FORM OF TRANSFER
FOR VALUE RECEIVED .............................., being the registered holder
of this Class C Global Note Certificate, hereby transfers to....................
.................................................................................
............................................................
of..............................................................................
.................................................................................
............................,
$ ..................................... in principal amount of the $50,000,000
Class C Asset-Backed Floating Rate Notes due [maturity] (the "CLASS C NOTES") of
Gracechurch Card Funding (No. 2) PLC (the "ISSUER") and irrevocably requests and
authorises The Bank of New York, in its capacity as registrar in relation to the
Class C Notes (or any successor to The Bank of New York, in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class C Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
-61-
[Terms and Conditions as set out in the Seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
PAYING AGENTS AND TRANSFER AGENTS
[NAME] [NAME]
[ADDRESS] [ADDRESS]
-62-
THE FOURTH SCHEDULE
FORM OF INDIVIDUAL CLASS A NOTE CERTIFICATE
Serial Number: ............
GRACECHURCH CARD FUNDING (NO. 2) PLC
(incorporated with limited liability under
the laws of England and Wales)
$900,000,000
CLASS A FLOATING RATE ASSET-BACKED NOTES DUE 2007
This Class A Note Certificate is issued in respect of the $900,000,000 Class A
Floating Rate Asset-Backed Notes due [maturity] (the "NOTES") of Gracechurch
Card Funding (No. 2) PLC (the "ISSUER"). The Class A Notes are constituted by,
are subject to, and have the benefit of, a trust deed dated 24 October 2002 (as
amended or supplemented from time to time, the "TRUST DEED") between the Issuer
and The Bank of New York as trustee (the "TRUSTEE", which expression includes
all persons for the time being appointed trustee or trustees under the Trust
Deed) and are the subject of a Paying Agency and Agent Bank Agreement (as
amended or supplemented from time to time, the "PAYING AGENCY AND AGENT BANK
AGREEMENT") dated 24 October 2002 and made between the Issuer, The Bank of New
York as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Class A Notes), The
Bank of New York as principal paying agent, the other paying agents and the
transfer agents named therein and the Trustee.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Class A Notes endorsed hereon and any reference to a numbered "CONDITION" is to
the correspondingly numbered provision thereof.
This is to certify that:
..............................
of ...........................
..............................
is the person registered in the register maintained by the Registrar in relation
to the Class A Notes (the "REGISTER") as the duly registered holder or, if more
than one person is so registered, the first-named of such persons (the "HOLDER")
of:
$[o]
([o] DOLLARS)
in aggregate principal amount of the Class A Notes.
The Issuer, for value received, hereby promises to pay such principal sum to the
Holder on [final maturity date] or on such earlier date or dates as the same may
become payable in
-63-
accordance with the Conditions, and to pay interest on such principal sum in
arrear on the dates and at the rate specified in the Conditions, together with
any additional amounts payable in accordance with the Conditions, all subject to
and in accordance with the Conditions.
This Class A Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Note Certificate.
This Class A Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of The Bank of New York as registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 2) PLC
By: ........................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By: ........................................
[manual signature]
(duly authorised)
-64-
FORM OF TRANSFER
FOR VALUE RECEIVED .............................., being the registered holder
of this Class A Note Certificate, hereby transfers to...........................
.............................................................of..................
.................................................................................
.................................................................................
... $ ................................,,,,,,,,,..... in principal amount of the
$900,000,000 Class A Floating Rate Asset-Backed Notes due [maturity] (the "CLASS
A NOTES") of Gracechurch Card Funding (No. 2) PLC (the "ISSUER") and irrevocably
requests and authorises The Bank of New York, in its capacity as registrar in
relation to the Class A Notes (or any successor to The Bank of New York, in its
capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class A Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Class A Notes shall be in an amount equal to $[o] or any
integral multiple of $[o] in excess thereof.
-65-
[Terms and Conditions as set out in the seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
PAYING AGENTS AND TRANSFER AGENTS
[NAME] [NAME]
[ADDRESS] [ADDRESS]
-66-
THE FIFTH SCHEDULE
FORM OF INDIVIDUAL CLASS B NOTE CERTIFICATE
Serial Number: ............
GRACECHURCH CARD FUNDING (NO. 2) PLC
(incorporated with limited liability under
the laws of England and Wales)
$50,000,000
CLASS B FLOATING RATE ASSET-BACKED NOTES DUE 2007
This Class B Note Certificate is issued in respect of the $50,000,000 Class B
Floating Rate Asset-Backed Notes due [maturity] (the "CLASS B NOTES") of
Gracechurch Card Funding (No. 2) PLC (the "ISSUER"). The Class B Notes are
constituted by, are subject to, and have the benefit of, a trust deed dated 24
October 2002 (as amended or supplemented from time to time, the "TRUST DEED")
between the Issuer and The Bank of New York as trustee (the "TRUSTEE", which
expression includes all persons for the time being appointed trustee or trustees
under the Trust Deed) and are the subject of a Paying Agency and Agent Bank
Agreement (as amended or supplemented from time to time, the "PAYING AGENCY AND
AGENT BANK AGREEMENT") dated 24 October 2002 and made between the Issuer, The
Bank of New York as registrar (the "REGISTRAR", which expression includes any
successor registrar appointed from time to time in connection with the Class B
Notes), The Bank of New York as principal paying agent, the other paying agents
and the transfer agents named therein and the Trustee.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Class B Notes endorsed hereon and any reference to a numbered "CONDITION" is to
the correspondingly numbered provision thereof.
This is to certify that:
..............................
of ...........................
..............................
is the person registered in the register maintained by the Registrar in relation
to the Class B Notes (the "REGISTER") as the duly registered holder or, if more
than one person is so registered, the first-named of such persons (the "HOLDER")
of:
$[o]
([o] DOLLARS)
in aggregate principal amount of the Class B Notes.
The Issuer, for value received, hereby promises to pay such principal sum to the
Holder on [final maturity date] or on such earlier date or dates as the same may
become payable in
-67-
accordance with the Conditions, and to pay interest on such principal sum in
arrear on the dates and at the rate specified in the Conditions, together with
any additional amounts payable in accordance with the Conditions, all subject to
and in accordance with the Conditions.
This Class B Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Class B Note Certificate.
This Class B Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of The Bank of New York as registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 2) PLC
By: ........................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By: ........................................
[manual signature]
(duly authorised)
-68-
FORM OF TRANSFER
FOR VALUE RECEIVED .............................., being the registered holder
of this Class B Note Certificate, hereby transfers to...........................
.............................................................
of..............................................................................
.................................................................................
............... $ ..................................... in principal amount of
the $50,000,000 Class B Floating Rate Asset-Backed Notes due [maturity] (the
"CLASS B NOTES") of Gracechurch Card Funding (No. 2) PLC (the "ISSUER") and
irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Class B Notes (or any successor to The Bank of New
York, in its capacity as such) to effect the relevant transfer by means of
appropriate entries in the register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class B Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Class B Notes shall be in an amount equal to $[o] or any
integral multiple of $[o] in excess thereof.
-69-
[Terms and Conditions as set out in the seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
PAYING AGENTS AND TRANSFER AGENTS
[NAME] [NAME]
[ADDRESS] [ADDRESS]
-70-
THE SIXTH SCHEDULE
FORM OF INDIVIDUAL CLASS C NOTE CERTIFICATE
Serial Number: ............
GRACECHURCH CARD FUNDING (NO. 2) PLC
(incorporated with limited liability under
the laws of England and Wales)
$50,000,000
CLASS C FLOATING RATE ASSET-BACKED NOTES DUE 2007
This Class C Note Certificate is issued in respect of the $50,000,000 Class C
Floating Rate Asset-Backed Notes due [maturity] (the "CLASS C NOTES") of
Gracechurch Card Funding (No. 2) PLC (the "ISSUER"). The Class C Notes are
constituted by, are subject to, and have the benefit of, a trust deed dated 24
October 2002 (as amended or supplemented from time to time, the "TRUST DEED")
between the Issuer and The Bank of New York as trustee (the "TRUSTEE", which
expression includes all persons for the time being appointed trustee or trustees
under the Trust Deed) and are the subject of a Paying Agency and Agent Bank
Agreement (as amended or supplemented from time to time, the "PAYING AGENCY AND
AGENT BANK AGREEMENT") dated 24 October 2002 and made between the Issuer, The
Bank of New York as registrar (the "REGISTRAR", which expression includes any
successor registrar appointed from time to time in connection with the Class C
Notes), The Bank of New York as principal paying agent, the other paying agents
and the transfer agents named therein and the Trustee.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Class C Notes endorsed hereon and any reference to a numbered "CONDITION" is to
the correspondingly numbered provision thereof.
This is to certify that:
...........................
of ........................
...........................
is the person registered in the register maintained by the Registrar in relation
to the Class C Notes (the "REGISTER") as the duly registered holder or, if more
than one person is so registered, the first-named of such persons (the "HOLDER")
of:
$ [o]
([o] DOLLARS)
in aggregate principal amount of the Class C Notes.
The Issuer, for value received, hereby promises to pay such principal sum to the
Holder on [final maturity date] or on such earlier date or dates as the same may
become payable in
-71-
accordance with the Conditions, and to pay interest on such principal sum in
arrear on the dates and at the rate specified in the Conditions, together with
any additional amounts payable in accordance with the Conditions, all subject to
and in accordance with the Conditions.
This Class C Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Class C Note Certificate.
This Class C Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of The Bank of New York as registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 2) PLC
By: ........................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By: ........................................
[manual signature]
(duly authorised)
-72-
FORM OF TRANSFER
FOR VALUE RECEIVED .............................., being the registered holder
of this Class C Note Certificate, hereby transfers to...........................
.................................................................
of..............................................................................
.................................................................................
............... $ ..................................... in principal amount of
the $50,000,000 Class C Floating Rate Asset-Backed Notes due [maturity] (the
"CLASS C NOTES") of Gracechurch Card Funding (No. 2) PLC (the "ISSUER") and
irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Class C Notes (or any successor to The Bank of New
York, in its capacity as such) to effect the relevant transfer by means of
appropriate entries in the register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class C Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Class C Notes shall be in an amount equal to $[o] or any
integral multiple of $[o] in excess thereof.
-73-
[Terms and Conditions as set out in the seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
PAYING AGENTS AND TRANSFER AGENTS
[NAME] [NAME]
[ADDRESS] [ADDRESS]
-74-
THE SEVENTH SCHEDULE
TERMS AND CONDITIONS OF THE NOTES
You are bound by and deemed to have notice of all of the provisions of the trust
deed, the paying agency and agent bank agreement, the deed of charge, the
expenses loan agreement and the swap agreements, which are applicable to you.
You can view drafts of those documents at the principal place of business of the
note trustee or the specified office of any of the paying agents.
1. FORM, DENOMINATION, TITLE AND TRANSFER
(1) The notes are in global registered form. Transfers and exchanges of
beneficial interests in notes represented by global note certificates
are made in accordance with the rules and procedures of DTC, Euroclear
or Clearstream, Luxembourg, as applicable. The notes are being offered
in minimum denominations of $1,000.
(2) Global note certificates will be exchanged for individual note
certificates in definitive registered form only under certain limited
circumstances. If individual note certificates are issued, they will be
serially numbered and issued in an aggregate principal amount equal to
the principal amount outstanding of the relevant global note
certificates and in registered form only.
(3) The registrar will maintain a register in respect of the notes in
accordance with the provisions of the paying agent and agent bank
agreement. References in this section to a "holder" of a note means the
person in whose name such note is for the time being registered in the
register - or, in the case of a joint holding, the first named - and
"noteholder" will be construed accordingly. A "note certificate" will be
issued to each noteholder for its registered holding. Each note
certificate will be numbered serially with an identifying number which
will be recorded in the register.
(4) The registered owner of each note will - except as otherwise required by
law - be treated as the absolute owner of such note for all purposes.
This will be true whether or not it is overdue and regardless of any
notice of ownership, trust or any other interest therein, any writing on
the note certificate - other than the endorsed form of transfer - or any
notice of any previous loss or theft of the note certificate - and no
other person will be liable for so treating the registered owner.
(5) Subject to the provisions below, a note may be transferred upon
surrender of the relevant note certificate, with the endorsed form of
transfer duly completed, at the offices of the registrar or any transfer
agent specified in the paying agent and agent bank agreement, together
with such evidence as the registrar or transfer agent may reasonably
require to prove the title of the transferor and the authority of the
individuals who have executed the form of transfer. A note may not be
transferred, however, unless the principal amount of notes transferred
and - where not all of the notes held by a holder are being transferred
- the principal amount of the balance of notes not transferred are
authorised holdings. "Authorised holdings" means holdings of at least
$1,000. Where not all the notes represented by the surrendered note
certificate are the subject of the transfer, a new note certificate in
respect of the balance of the notes will be issued to the transferor.
-75-
(6) Within five business days of surrender of a note certificate, the
registrar will register the transfer in question and deliver a new note
certificate of a like principal amount to the notes transferred to each
relevant holder at its office or the office of any transfer agent
specified in the paying agent and agent bank agreement or, at the
request and risk of any such relevant holder, by uninsured first class
mail - and by airmail if the holder is overseas - to the address
specified for the purpose by which commercial banks are open for
business, including dealings in foreign currencies, in the city where
the registrar or the relevant transfer agent has its specified office.
(7) The transfer of a note will be effected without charge by or on behalf
of the issuer, the registrar or any transfer agent but against such
indemnity as the registrar or transfer agent may require for any tax or
other duty of any nature that may be levied or imposed in connection
with the transfer.
(8) All payments on the notes are subject to any applicable fiscal or other
laws and regulations. Noteholders will not be charged commissions or
expenses on these payments.
(9) If the due date for payment of any amount on the notes is not a business
day in the place it is presented, noteholders will not be entitled to
payment of the amount due in that place until the next business day in
that place and noteholders will not be entitled to any further interest
or other payment as a result of that delay.
(10) If a noteholder holds individual note certificates, payments of
principal and interest - except in the case of a final payment that pays
off the entire principal on the note - will be made by U.S. dollar check
and mailed to the noteholder at the address shown in the register. In
the case of final redemption, payment will be made only when the note
certificate is surrendered. If the noteholder makes an application to
the registrar, payments can instead be made by transfer to a bank
account.
(11) If payment of principal on a note is improperly withheld or refused, the
interest that continues to accrue will still be payable as usual.
(12) The issuer can, at any time, vary or terminate the appointment of any
paying agent and can appoint successor or additional paying agents,
registrars or transfer agents. If the issuer does this it must ensure
that it maintains a paying agent in London, a paying agent in New York
and a registrar. The issuer will ensure that at least 30 days' notice of
any change in the paying agents, the registrar or the transfer agent or
their specified offices is given to noteholders in accordance with
condition number 14.
(13) Subject as described earlier about the deferral of interest, if payment
of interest on a note is not paid for any other reason when due and
payable, the unpaid interest will itself bear interest at the applicable
rate until both the unpaid interest and the interest on that interest
are paid.
2. STATUS
Payments on the notes will be made equally amongst all notes of the same class.
-76-
3. SECURITY AND SWAP AGREEMENT
The security for the payment of amounts due under your notes, together with the
expenses which validly arise during the transaction, is created by the deed of
charge. The security is created in favour of the note trustee who will hold it
on your behalf and on the behalf of other secured creditors of the issuer. The
security consists of the following:
(1) an assignment by way of first fixed security of the issuer's right,
title and interest in and to the series 02-1 medium term note
certificate;
(2) a charge by way of first fixed sub-charge of all of the issuer's right,
title and interest in the security interest created in favour of the
security trustee in respect of the series 02-1 medium term note
certificate;
(3) an assignment by way of first fixed security of the issuer's right,
title, interest and benefit in and to the issuer related documents
except the trust deed and the deed of charge;
(4) an assignment by way of first fixed security of the issuer's right,
title, interest and benefit in and to all monies credited to the Series
02-1 Issuer Account or to any bank or other account in which the issuer
may at any time have any right, title, interest or benefit; and
(5) a first floating charge over the issuer's business and assets not
charged under (1), (2), (3) or (4) above.
The security is described in detail in the deed of charge.
The deed of charge sets out how money is distributed between the secured parties
if the security is enforced. The order of priority it sets out is as follows:
o in no order of priority between them but in proportion to the respective
amounts due, to pay fees which are due to any receiver appointed under
the deed of charge and all amounts due for legal fees and other costs,
charges, liabilities, expenses, losses, damages, proceedings, claims and
demands which have been incurred by the note trustee under the issuer
related documents and in enforcing or perfecting title to the security
together with interest due on these amounts;
o in payment or satisfaction of all costs, charges, liabilities, expenses,
losses, damages, proceedings, claims and demands of the swap
counterparty under the swap agreements;
o in payment of all amounts due and unpaid, following the applications in
the first bullet point above, to the note trustee or anyone appointed by
them under the trust deed; and
o towards payment of amounts due and unpaid on the class A notes, to
interest then to principal after having paid any amounts due to the swap
counterparty under the terms the class A swap agreement;
o towards payment of amounts due and unpaid on the class B notes, to
interest then to principal after having paid any amounts due to the swap
counterparty under the terms of class B swap agreement;
-77-
o towards payment of amounts of interest due and unpaid under the terms of
the expenses loan agreement;
o towards payment of amounts due and unpaid on the class C notes, to
interest then to principal having paid any amounts due to the swap
counterparty under the terms of the class C swap agreement;
o after the notes have been paid in full, towards payment of amounts of
principal due and unpaid under the terms of the expenses loan agreement;
o towards payment of any sums that the issuer must pay to any tax
authority;
o towards payment of any sums due to third parties under obligations
incurred in the course of the issuer's business;
o towards payment of any dividends due and unpaid to shareholders of the
issuer; and
o in payment of the balance, if any, to the liquidator of the issuer.
The security becomes enforceable when an event of default occurs. These events
are described in condition number 9 below. If an event of default occurs, the
redemption of notes will not necessarily be accelerated as described in
condition number 6 below.
The issuer will enter into three swap agreements, the material terms of which
are described under the heading "The Swap Agreements" in this prospectus.
4. NEGATIVE COVENANTS OF THE ISSUER
If any note is outstanding, the issuer will not, unless it is permitted by the
terms of the issuer related documents or by the written consent of the note
trustee:
o create or permit to subsist any mortgage, charge, pledge, lien or other
security interest, including anything which amounts to any of these
things under the laws of any jurisdiction, on the whole or any part of
its present or future business, assets or revenues, including uncalled
capital;
o carry on any business other than relating to the issue of the notes, as
described in this prospectus; in carrying on that business, the issuer
will not engage in any activity or do anything at all except:
(1) preserve, exercise or enforce any of its rights and perform and
observe its obligations under the notes, the deed of charge, the
paying agency and agent bank agreement, the trust deed, the
expenses loan agreement, each swap agreement, the series 02-1
medium term note certificate and the related purpose trust, the
corporate services agreement, the underwriting agreement, the bank
agreement and any bank mandate regarding the Series 02-1 Issuer
Account - collectively called the "issuer related documents".
(2) use, invest or dispose of any of its property or assets in the
manner provided in or contemplated by the issuer related documents;
or
-78-
(3) perform any act incidental to or necessary in connection with (1)
or (2) above.
o have any subsidiaries, subsidiary business, business of any other kind,
employees, premises or interests in bank accounts other than the Series
02-1 Issuer Account unless the account is charged to the note trustee on
acceptable terms;
o have any indebtedness, other than indebtedness permitted under the terms
of its articles of association or any of the issuer related documents;
o give any guarantee or indemnity for any obligation of any person;
o repurchase any shares of its capital stock or declare or pay any
dividend or other distributions to its shareholders;
o consolidate with or merge with or into any person or liquidate or
dissolve on a voluntary basis;
o be a member of any group of companies for the purposes of value added
tax;
o waive or consent to the modification or waiver of any of the provisions
of the issuer related documents without the prior written consent of the
note trustee; or
o offer to surrender to any company any amounts which are available for
surrender by way of group relief.
5. INTEREST
Each note will bear interest on its principal amount outstanding from, and
including, the closing date. Interest on the notes is payable in arrear in U.S.
dollars on each interest payment date.
If there is a shortfall between the amounts received by the issuer from the swap
counterparty or otherwise and the amount of interest due on any class of notes
on that interest payment date, that shortfall will be borne by each note in that
class in a proportion equal to the proportion that the interest outstanding on
the relevant note bears to the total amount of interest outstanding on all the
notes of that class. This will be determined on the interest payment date on
which the shortfall arises. Payment of the shortfall will be deferred and will
be due on the next interest payment date on which funds are available to the
issuer, or, if earlier, the October 2009 interest payment date, from payments
made to it from the swap counterparty or otherwise on that interest payment
date, to make the payment. The shortfall will accrue interest at the rate
described for each class of note below plus a margin of 2.0 per cent. per annum,
and payment of that interest will also be deferred and will be due on the next
interest payment date on which funds are available to the issuer to make the
payment or, if earlier, on the October 2009 interest payment date.
Each period beginning on, and including, the closing date or any interest
payment date and ending on, but excluding, the next interest payment date is
called an interest period. The first interest payment for the notes will be made
on 15 December 2002 for the interest period from and including the closing date
to but excluding 15 December 2002.
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Interest will stop accruing on any part of the principal amount outstanding of a
note from the date it is due to redeem unless payment of principal is improperly
withheld or refused. If this happens it will continue to bear interest in
accordance with this condition, both before and after any judgement is given,
until whichever is the earlier of the following:
o the day on which all sums due in respect of that note, up to that day,
are received by or on behalf of the relevant noteholder; and
o the day which is seven days after the principal paying agent or the note
trustee has notified the relevant class of noteholders, in accordance
with condition number 14, that it has received all sums due in respect
of the relevant class of notes up to that day, except to the extent that
there is any subsequent default in payment.
The rate of interest applicable to the notes for each interest period will be
determined by the agent bank on the following basis:
(1) On the quotation date for each class of note, the agent bank will
determine the offered quotation to leading banks in the London interbank
market for one-month U.S. dollar deposits or, in the case of the first
interest period, the linear interpolation of one-month and two-month
U.S. dollar deposits.
This will be determined by reference to the British Bankers Association
LIBOR Rates display as quoted on the Moneyline Telerate Service display
page designated 3750. If the display page designated 3750 stops
providing these quotations, the replacement service for the purposes of
displaying this information will be used. If the replacement service
stops displaying the information, any page showing this information will
be used. If there is more than one service displaying the information,
the one previously approved in writing by the note trustee will be used;
In each case above, the determination will be made as at or about 11.00
a.m., London time, on that date. These are called the screen rates for
the respective classes.
A "quotation date" means the second business day before the first day of
an interest period.
(2) if, on any quotation date, the screen rate is unavailable, the agent
bank will:
o request the principal London office of each of four major banks -
called "reference banks" - in the London interbank market selected
by the agent bank to provide the agent bank with its offered
quotation to leading banks of the equivalent of the screen rate on
that quotation date in an amount that represents a single
transaction in that market at that time; and
o calculate the arithmetic mean, rounded upwards to four decimal
places, of those quotations;
(3) if on any quotation date the screen rate is unavailable and only two or
three of the reference banks provide offered quotations, the rate of
interest for that interest period will be the arithmetic mean of the
quotations as last calculated in (2) above; and
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(4) if fewer than two reference banks provide quotations, the agent bank
will determine the arithmetic mean, rounded upwards to four decimal
places of the rates quoted by major banks in London, selected by the
agent bank at approximately 11.00 a.m. London time on the relevant
quotation date, to leading banks for a period equal to the relevant
interest period and in an amount that is representative for a single
transaction in that market at that time, for loans in U.S. dollars.
The rate of interest for each interest period for the class A notes will be the
sum of:
o 0.12 per cent. per annum; and
o the screen rate or the arithmetic mean calculated to replace the screen
rate.
The rate of interest for each interest period for the class B notes will be the
sum of:
o 0.45 per cent. per annum; and
o the screen rate or the arithmetic mean calculated to replace the screen
rate.
The rate of interest for each interest period for the class C notes will be the
sum of:
o 1.15 per cent. per annum; and
o the screen rate or the arithmetic mean calculated to replace the screen
rate.
If the agent bank is unable to determine the screen rate or an arithmetic mean
to replace it, as described in (2), (3) and (4) the rates of interest for any
interest period will be as follows:
o for the class A notes the rate will be the sum of 0.12 per cent. per
annum and the screen rate or arithmetic mean last determined for the
class A notes;
o for the class B notes the rate will be the sum of 0.45 per cent. per
annum and the screen rate or arithmetic mean last determined for the
class B notes; and
o for the class C notes the rate will be the sum of 1.15 per cent. per
annum and the screen rate or arithmetic mean last determined for the
class C notes.
The agent bank will, as soon as it can after the quotation date for each
interest period, calculate the amount of interest payable on each note for that
interest period. The amount of interest will be calculated by applying the rate
of interest for that interest period to the principal amount outstanding of that
note during that interest period, multiplying the product by the actual number
of days in that interest period divided by 360 and rounding to the nearest U.S.
dollars 0.01, half a cent being rounded upwards:
On each interest payment date, the agent bank will determine the actual amount
of interest which will be paid on the notes on that interest payment date and
the amount of any shortfall on the notes for that interest period and the amount
of interest on any shortfall which will be paid on that interest payment date.
The amount of any interest on the shortfall will be calculated by applying the
relevant rate of interest for those notes plus a margin of 2 per cent. per
annum, to the sum of the shortfall and accrued interest on shortfall from prior
interest periods which
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remains unpaid, multiplying by the actual number of days in the relevant
interest period and dividing by 360 and rounding the nearest U.S. dollars 0.01,
half a cent being rounded upwards.
If, on any interest payment date, the amount available to the issuer, from the
swap counterparty or otherwise is insufficient to pay in full the amount of
interest due on a class of notes, any outstanding shortfall and accrued interest
on shortfall, due on that interest payment date, that amount will be applied
first to the payment of the interest due on that class of notes, secondly to the
payment of any outstanding shortfall and thereafter to the payment of any
accrued interest on shortfall for that class of notes.
The rates and amounts determined by the agent bank will be notified to the
issuer, trustee and paying agent and published in accordance with condition
number 14 as soon as possible after these parties have been notified.
The issuer, the paying agents, the note trustee, the reference banks, the agent
bank and the noteholders will be bound by the determinations properly made as
described above and none of the reference banks, the agent bank or the note
trustee will be liable in connection with the exercise or non-exercise by them
of their powers, duties and discretions for those purposes.
If the agent bank fails to make a determination or calculation required as
described above, the note trustee, or its appointed agent, without accepting any
liability for it, will make the determination or calculation as described above.
If this happens, the determination or calculation will be deemed to have been
made by the agent bank.
The issuer will ensure that there will be four reference banks while there are
notes outstanding.
6. REDEMPTION AND PURCHASE
The issuer is only entitled to redeem the notes as provided in paragraphs (1),
(2) and (3) below.
(1) Scheduled Redemption
Class A notes:
Unless previously purchased and cancelled or unless the Regulated Amortisation
Period or Rapid Amortisation Period has already started, all class A notes will
be redeemed on the series 02-1 scheduled redemption date, unless there is a
shortfall between the amount in the Series 02-1 Issuer Account and the total
amount payable to the swap counterparty under the class A swap agreement. If
there is such a shortfall, the class A notes will be redeemed proportionately
with the amount in the Series 02-1 Issuer Account after being exchanged under
the terms of the class A swap agreement. The Rapid Amortisation Period will then
begin. The payments will be made in no order of preference and proportionately
between all class A notes.
Class B notes:
Unless previously purchased and cancelled or unless the Regulated Amortisation
Period or the Rapid Amortisation Period has already started, the class B notes
will be redeemed on the series 02-1 scheduled redemption date unless there is a
shortfall between the amount in the Series 02-1 Issuer Account, after payment of
all interest and principal due and payable on the class A notes, and the amount
due and payable to the swap counterparty under the class B swap agreement. If
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there is such a shortfall, the class B notes will be redeemed proportionately
with the amount in the Series 02-1 Issuer Account after being exchanged under
the terms of the class B swap agreement. The Rapid Amortisation Period will then
begin. The payments will be made, in no order of preference and proportionately
between all class B notes.
Class C notes:
Unless previously purchased and cancelled or unless the Regulated Amortisation
Period or the Rapid Amortisation Period has already started, the class C notes
will be redeemed on the series 02-1 scheduled redemption date unless there is a
shortfall between the amount in the Series 02-1 Issuer Account, after payment of
all interest and principal due and payable on the class A notes and the class B
notes, and the amount due and payable to the swap counterparty under the class C
swap agreement. If there is such a shortfall, the class C notes will be redeemed
proportionately with the amount in the Series 02-1 Issuer Account after being
exchanged under the terms of the class C swap agreement. The Rapid Amortisation
Period will then begin. The payments will be made, in no order of preference and
proportionately between all class C notes.
If the Rapid Amortisation Period begins as a result of there being insufficient
funds to repay principal and pay interest on the class A notes, the class B
notes or the class C notes, as described above, then on each interest payment
date after that, first the class A notes, second the class B notes and third the
class C notes, will be redeemed, to the extent of amounts available to the
issuer, after being exchanged under the swap agreements, for each note of a
class in the proportion that the principal amount outstanding of that note bears
to the total principal amount outstanding of the notes of that class. This will
happen until the earlier of the time when each class of notes has been paid in
full and the October 2009 interest payment date.
On each interest payment date, the agent bank will determine for each class of
notes the following:
o the amount of principal repayable on each note of that class; and
o the principal amount outstanding of each note of that class on the first
day of the next interest period, after deducting any principal payment
due to be made on each note of that class on that interest payment date.
The amounts and dates determined by the agent bank will be notified to the
issuer, the paying agents and the note trustee and published in accordance with
condition number 14 as soon as possible after these parties have been notified.
The issuer, the paying agents, the note trustee and the noteholders will be
bound by the determinations properly made as described above and neither the
agent bank nor the note trustee will be liable for the exercise or non-exercise
by it of its powers, duties and discretions for those purposes.
If the agent bank fails to make a determination as described above, the note
trustee will calculate the principal payment or principal amount outstanding as
described above, and each of these determinations or calculations will be deemed
to have been made by the agent bank. If this happens, the determination will be
deemed to have been made by the agent bank.
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(2) Mandatory Early Redemption
If the Regulated Amortisation Period or the Rapid Amortisation Period begins
before the series 02-1 scheduled redemption date, then on each interest payment
date after that each note of first class A, second class B, and third class C
will be redeemed, in the proportion that its principal amount outstanding bears
to the total principal amount outstanding of the notes of that class, to the
extent of the amount which is deposited into the Series 02-1 Issuer Account
towards redemption of the series 02- 1 medium term note certificate - after the
amount has been exchanged for dollars under the relevant swap agreement or by
the note trustee in the spot exchange market if the relevant swap agreement has
been terminated. This will happen until the earliest of:
o the date on which the relevant class of notes has been redeemed in full;
or
o the October 2009 interest payment date.
(3) Optional Redemption
The issuer may by not less than thirty and not more than sixty days prior notice
to the trustee and without the need to obtain the prior consent of the note
trustee or the noteholders redeem all of the remaining notes on the next
following interest payment date together with all accrued interest, deferred
interest and additional interest if any if the principal balance of the
remaining notes is less than 10 per cent. of their original principal balance
and the note trustee is satisfied that the issuer will have funds available to
it to make the required payment on that interest payment date.
(4) Final Redemption
If the notes have not previously been purchased and cancelled or redeemed in
full as described in condition number 6, the notes will be finally redeemed at
their then principal amount outstanding on the October 2009 interest payment
date, together with, in each case, all accrued and unpaid interest, shortfall
and interest on shortfall, if any.
The issuer or its parent may buy notes at any price. Any notes that are redeemed
or purchased pursuant to these provisions will be cancelled at that time and may
not be reissued or resold.
You are required, at its request, to sell all of your notes to Gracechurch Card
(Holdings) Limited, pursuant to the option granted to it by the note trustee, on
your behalf. The option is granted to acquire all, but not some only, of the
notes, plus accrued interest on them, for one penny per note, on the date upon
which the note trustee gives written notice to Gracechurch Card (Holdings)
Limited that it has determined, in its sole opinion, that all amounts
outstanding under the notes have become due and payable and there is no
reasonable likelihood of there being any further realisations, whether arising
from an enforcement of the note trustee's security or otherwise, which would be
available to pay all such amounts outstanding under the notes.
This is called the "post maturity call option".
You acknowledge that the note trustee has the authority and the power to bind
you in accordance with the terms and conditions set out in the post maturity
call option and, by
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subscribing or acquiring, as the case may be, for your note(s), you agree to be
bound in this way.
7. PAYMENTS
Payments of principal and interest in respect of the notes will be made to the
persons in whose names the global note certificates are registered on the
register at the opening of business in the place of the registrar's specified
office on the fifteenth day before the due date for such payment. Such date is
called the "record date". Payments will be made by wire transfer of immediately
available funds, if the registered holder has provided wiring instructions no
less than five business days prior to the record date, or otherwise by check
mailed to the address of the registered holder as it appears in the register at
the opening of business on the record date. In the case of the final redemption,
and provided that payment is made in full, payment will only be made against
surrender of those global note certificates to the registrar.
The note trustee will not be responsible for any deficiency which may arise
because it is liable to tax in respect of the proceeds of any security.
Similar provisions in respect of the indemnification of the security trustee are
set out in the transaction documents.
8. TAXATION
Payments of interest and principal will be made without making any deductions
for any tax imposed by any jurisdiction having power to tax unless a deduction
is required by the law of the relevant jurisdiction which has power to tax. If a
deduction for tax is made, the paying agent will account to the relevant
authority for the amount deducted. Neither the issuer nor any paying agent is
required to make any additional payments to noteholders for any deductions made
for tax.
9. EVENTS OF DEFAULT
If any of the following events occurs and is continuing it is called an "event
of default":
o the issuer fails to pay any amount of principal on the notes within 7
days of the date payment is due or fails to pay any amount of interest
on the notes within 15 days of the date payment is due; or
o the issuer fails to perform or observe any of its other obligations
under the notes, the trust deed, the deed of charge or the paying agency
and agent bank agreement other than any obligation to pay any principal
or interest on the notes, and, except where that failure is incapable of
remedy, it remains unremedied for 30 days after the note trustee has
given written notice of it to the issuer, certifying that the default
is, in its opinion, materially prejudicial to the interests of the
noteholders; or
o the early termination, without replacement, of any of the swap
agreements as described in this prospectus under "The Swap Agreements:
Common Provisions of the Swap Agreements"; or
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o a judgement or order for the payment of any amount is given against the
issuer and continues unsatisfied and unstayed for a period of 30 days
after it is given or, if a later date is specified for payment, from
that date; or
o a secured party or encumbrancer takes possession or a receiver,
administrative receiver, administrator, examiner, manager or other
similar officer is appointed, of the whole or any part of the business,
assets and revenues of the issuer or an enforcement action is begun for
unpaid rent or execution is levied against any of the assets of the
issuer; or
o the issuer becomes insolvent or is unable to pay its debts as they fall
due; or
o an administrator or liquidator of the issuer or the whole or any part of
the business, assets and revenues of the issuer is appointed, or an
application for an appointment is made; or
o the issuer takes any action for a readjustment or deferment of any of
its obligations or makes a general assignment or an arrangement or
composition with or for the benefit of its creditors or declares a
moratorium in respect of any of its indebtedness or any guarantee of
indebtedness given by it; or
o the issuer stops or threatens to stop carrying on all or any substantial
part of its business; or
o an order is made or an effective resolution is passed for the winding
up, liquidation or dissolution of the issuer; or
o any action, condition or thing at any time required to be taken,
fulfilled or done in order:
(1) to enable the issuer lawfully to enter into, exercise its rights
and perform and comply with its obligations under and in respect of
the notes and the issuer related documents; or
(2) to ensure that those obligations are legal, valid, binding and
enforceable, except as that enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganisation or
other similar laws affecting the enforcement of the rights of
creditors generally and that that enforceability may be limited by
the effect of general principles of equity,
is not taken, fulfilled or done; or
o it is or will become unlawful for the issuer to perform or comply with
any of its obligations under or in respect of the notes or the related
documents; or
o all or any substantial part of the business, assets and revenues of the
issuer is condemned, seized or otherwise appropriated by any person
acting under the authority of any national, regional or local
government; or
o the issuer is prevented by any person acting under the authority of any
national, regional or local government from exercising normal control
over all or any substantial part of its business, assets and revenues.
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If an event of default occurs then the note trustee may give an enforcement
notice or appoint a receiver if it chooses and if it is indemnified to its
satisfaction.
If an event of default occurs then the note trustee shall be bound to give an
enforcement notice if it is indemnified to its satisfaction and it is:
o required to by the swap counterparty;
o required to by holders of at least one-quarter of the aggregate
principal amount outstanding of the class A notes, if any remain
outstanding, and if none remain outstanding, the class B notes, and if
none of these remain outstanding, the class C notes; or
o directed by an extraordinary resolution, as defined in the trust deed,
of holders of outstanding class A notes, and if there are none, of
holders of outstanding class B notes, and if there are none, of holders
of outstanding class C notes.
An "enforcement notice" is a written notice to the issuer declaring the notes to
be immediately due and payable. When it is given, the notes will become
immediately due and payable at their principal amount outstanding together with
accrued interest without further action or formality. Notice of the receipt of
an enforcement notice shall be given to the noteholders as soon as possible. A
declaration that the notes have become immediately due and payable will not, of
itself, accelerate the timing or amount of redemption of the notes as described
in condition number 6.
10. PRESCRIPTION
Your notes will become void if they are not presented within the time limit for
payment. That time limit is ten years from their due date. If there is a delay
in the principal paying agent receiving the funds, the due date, for the
purposes of this time limit, is the date on which it notifies you, in accordance
with condition number 14, that it has received the relevant payment.
11. REPLACEMENT OF NOTE CERTIFICATES
If any note certificates are lost, stolen, mutilated, defaced or destroyed, you
can replace them at the specified office of the registrar. You will be required
to both pay the expenses of producing a replacement and comply with the issuer's
reasonable requests for evidence, security and indemnity. You must surrender any
defaced or mutilated note certificates before replacements will be issued.
12. NOTE TRUSTEE AND AGENTS
The note trustee is entitled to be indemnified and relieved from responsibility
in certain circumstances and to be paid its costs and expenses in priority to
your claims.
In the exercise of its powers and discretions under the conditions and the trust
deed, the note trustee will consider the interests of the noteholders as a class
and will not be responsible for any consequence to you individually as a result
of you being connected in any way with a particular territory or taxing
jurisdiction.
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In acting under the paying agency and agent bank agreement, and in connection
with your notes, the paying agents and the agent bank act only as agents of the
issuer and the note trustee and do not assume any obligations towards or
relationship of agency or trust for or with you.
The note trustee and its related companies are entitled to enter into business
transactions with the issuer, Barclays Bank PLC or related companies of either
of them without accounting for any profit resulting from those transactions.
The issuer can, at any time, vary or terminate the appointment of any paying
agent or the agent bank and can appoint successor or additional paying agents or
a successor agent bank. If the issuer does this it must ensure that it maintains
the following:
o a principal paying agent;
o a paying agent in New York and, if and for so long as any of the notes
are listed on the Official List of the UK Listing Authority and admitted
to trading on the London Stock Exchange, in London;
o an agent bank; and
o a registrar.
Notice of any change in the paying agents, agent bank, registrar or their
specified offices shall be promptly given to you in accordance with condition
number 14.
13. MEETINGS OF NOTEHOLDERS, MODIFICATION AND WAIVER, SUBSTITUTION AND
ADDITION
Meetings of Noteholders
The trust deed contains provisions for convening single and separate meetings of
each class of noteholders to consider matters relating to the notes, including
the modification of any provision of the conditions or the trust deed. Any
modification may be made if sanctioned by an extraordinary resolution.
The quorum for any meeting convened to consider an extraordinary resolution will
be two or more persons holding or representing a clear majority of the aggregate
principal amount outstanding of the relevant class of notes - and in the case of
a separate meeting, the class A notes, the class B notes or the class C notes,
as the case may be - for the time being outstanding.
Certain terms including the date of maturity of the notes, any day for payment
of interest on the notes, reducing or cancelling the amount of principal or the
rate of interest payable in respect of the notes or altering the currency of
payment of the notes, require a quorum for passing an extraordinary resolution
of two or more persons holding or representing in total not less than 75 per
cent. of the total principal amount outstanding of the relevant class of notes.
These modifications are called "Basic Terms Modifications".
Except where the extraordinary resolution effects a Basic Terms Modification,
the interests of the most senior class of notes outstanding at the time take
precedence over the interests of the subordinated classes. The note trustee may
only give effect to an extraordinary resolution passed by the class C
noteholders if it considers that the interests of the class A noteholders or the
class B noteholders will not be materially prejudiced. An extraordinary
resolution of the class B
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noteholders will only be effective if the note trustee considers that it will
not be materially prejudicial to the class A noteholders.
Subject to the foregoing, any extraordinary resolution duly passed shall be
binding on all noteholders, whether or not they are present at the meeting at
which such resolution was passed. The majority required for an extraordinary
resolution shall be 75 per cent. of the votes cast on that extraordinary
resolution.
Modification and Waiver
The note trustee may agree, without the consent of the noteholders, (1) to any
modification - except a Basic Terms Modification - of, or to the waiver or
authorisation of any breach or proposed breach of, the notes or any other
related agreement, which is not, in the opinion of the note trustee, materially
prejudicial to the interests of the noteholders or (2) to any modification of
any of the provisions of the terms and conditions or any of the related
agreements which, in the opinion of the note trustee, is of a formal, minor or
technical nature or is to correct a manifest error. Any of those modifications,
authorisations or waivers will be binding on the noteholders and, unless the
note trustee agrees otherwise, shall be promptly notified by the issuer to the
noteholders in accordance with condition number 14.
Substitution and Addition
The note trustee may also agree to the substitution of any other body corporate
in place of the issuer as principal debtor under the trust deed and the notes
and in the case of such a substitution or addition the note trustee may agree,
without the consent of the noteholders, to a change of the law governing the
notes and/or the trust deed provided that such change would not in the opinion
of the trustee be materially prejudicial to the interests of the noteholders.
Any such substitution or addition will be promptly notified to the noteholders
in accordance with condition number 14.
Enforcement
At any time after the notes become due and repayable and without prejudice to
its rights of enforcement in relation to the security, the note trustee may, at
its discretion and without notice, institute such proceedings as it thinks fit
to enforce payment of the notes, including the right to repayment of the notes
together with accrued interest thereon, and shall be bound to do so only if it
has been so directed by an extraordinary resolution of the noteholders of the
relevant class. No extraordinary resolution of the class B noteholders or class
C noteholders or any request of the class B noteholders or class C noteholders
will be effective unless there is an extraordinary resolution of the class A
noteholders or a direction of the class A noteholders to the same effect or none
of the class A notes remain outstanding.
No extraordinary resolution of the class C noteholders or any request of the
class C noteholders will be effective unless there is an extraordinary
resolution of the class B noteholders or a direction of the class B noteholders
to the same effect or none of the class B notes remain outstanding.
No noteholder may institute any proceedings against the issuer to enforce its
rights under or in respect of the notes or the trust deed unless (1) the note
trustee has become bound to institute
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proceedings and has failed to do so within a reasonable time and (2) the failure
is continuing. Notwithstanding the previous sentence and notwithstanding any
other provision of the trust deed, the right of any noteholder to receive
payment of principal of and interest on its notes on or after the due date for
the principal or interest, or to institute suit for the enforcement of payment
of that interest or principal, may not be impaired or affected without the
consent of that noteholder.
14. NOTICES
Any notice to you will be deemed to have been validly given if published in a
leading English language daily newspaper in London - which is expected to be the
Financial Times - and will be deemed to have been given on the day it is first
published.
Any notice specifying a rate of interest, an interest amount, an amount of
shortfall or interest on it, principal payment or a principal amount outstanding
will be treated as having been duly given if the information contained in that
notice appears on the relevant page of the Reuters Screen or other similar
service approved by the note trustee and notified to you. The notice will be
deemed given when it first appears on the screen. If it cannot be displayed in
this way, it will be published as described in the previous paragraph.
Copies of all notices given in accordance with these provisions will be sent to
the London Stock Exchange Company Announcements Office, Clearstream, Luxembourg,
Euroclear and DTC.
15. CURRENCY INDEMNITY
You can be indemnified against losses you suffer from the use of an exchange
rate to convert sums recovered by you in litigation against the issuer, which is
different to the rate you ordinarily use. You must request this indemnity in
writing from the issuer.
This indemnity constitutes a separate and independent obligation of the issuer
and shall give rise to a separate and independent cause of action.
16. GOVERNING LAW AND JURISDICTION
The notes, swap agreements and trust deed are governed by English Law and the
English courts have non-exclusive jurisdiction in connection with the notes.
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THE EIGHTH SCHEDULE
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
(i) "BLOCK VOTING INSTRUCTION" shall mean an English language document
issued by the Registrar and dated:
(a) certifying:
(1) that certain specified Notes (each a "BLOCKED NOTE")
have been blocked in an account with a clearing system
and will not be released until the conclusion of the
Meeting and that the holder of each Blocked Note or a
duly authorised person on its behalf has instructed the
Registrar that the votes attributable to such Blocked
Note are to be cast in a particular way on each
resolution to be put to the Meeting; or
(2) that each registered holder of certain specified Notes
(each a "RELEVANT NOTE") or a duly authorised person on
its behalf has instructed the Registrar that the votes
attributable to each Relevant Note held by it are to be
cast in a particular way on each resolution to be put to
the Meeting and in each case that, during the period if
48 hours before the time fixed for the Meeting, such
instructions may not be amended or revoked;
(b) listing the total amount of the Blocked Notes and the
Relevant Notes, distinguishing for each resolution between
those in respect of which instructions may not be amended or
revoked;
(c) authorising a named individual or individuals to vote in
respect of the Blocked Notes and the Relevant Notes in
accordance with such instructions;
(ii) "FORM OF PROXY" means, in relation to any Meeting, a document in
the English language available from the Registrar signed by the
Noteholder or, in the case of a corporation, executed under its
seal or signed on its behalf by a duly authorised officer and
delivered to the Registrar not later than 48 hours before the time
fixed for such Meeting, appointing a named individual or
individuals to vote in respect of the Notes held by such
Noteholder;
(iii) "PRINCIPAL AMOUNT OUTSTANDING" shall mean in relation to a Note on
any date, the principal amount of the Note upon issue (being, in
the case of Class A Notes, the Class B Notes and the Class C
Notes, $1,000 less the aggregate amount of all principal payments
in respect of that Note that have been paid by the Issuer to the
Noteholder prior to such date in accordance with the Note
Conditions.
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(iv) "48 HOURS" shall mean a period of 48 hours including all or part
of two days upon which banks are open for business in both the
place where the relevant meeting is to be held and in each of the
places where the Registrar has its specified office (disregarding
for this purpose the day upon which such meeting is to be held)
and such period shall be extended by one or, to the extent
necessary, more periods of 24 hours until there is included as
aforesaid all or part of two days upon which banks are open for
business as aforesaid; and
(v) "24 HOURS" shall mean a period of 24 hours including all or part
of a day upon which banks are open for business in both the place
where the relevant meeting is to be held and in each of the places
where the Registrar has its specified office (disregarding for
this purpose the day upon which such meeting is to be held) and
such period shall be extended by one or, to the extent necessary,
more periods of 24 hours until there is included as aforesaid all
or part of a day upon which banks are open for business as
aforesaid;
(vi) "VOTER" means, in relation to any Meeting, (a) a Proxy or a
Noteholder, provided, however, that any Noteholder which has
appointed a Proxy under a Block Voting Instruction or Form of
Proxy shall not be a "VOTER" except to the extent that such
appointment has been revoked and the Registrar notified in writing
of such revocation at least 48 hours before the time fixed for
such Meeting;
(vii) "PROXY" means, in relation to any Meeting, a person appointed
under a Block Voting Instruction or a Form of Proxy other than:
(1) any such person whose appointment has been revoked and in
relation to whom the Registrar has been notified in writing
of such revocation by the time which is 48 hours before the
time fixed for such Meeting; and
(2) any such person appointed vote at a Meeting which has been
adjourned for want of a quorum and who has not been
re-appointment to vote at the Meeting when it is resumed.
The holder of a Note may require the Registrar to issue a Block Voting
Instruction by arranging (to the satisfaction of the Registrar) for such
Note to be blocked in an account with a clearing system not later than
48 hours before the time fixed for the relevant Meeting. The holder of a
Note may require the Registrar to issue a Block Voting Instruction by
delivering to the Registrar written instructions not later than 48 hours
before the time fixed for the relevant Meeting. Any holder of a Note may
obtain an uncompleted and unexecuted Form of Proxy from the Registrar. A
Block Voting Instruction and a Form of Proxy cannot be outstanding
simultaneously in respect of the same Note.
Where Notes are within Euroclear or Clearstream, Luxembourg, or any
other clearing system, references to the deposit, or release, of Notes
shall be construed in accordance
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with the usual practices (including blocking the relevant account) of
Euroclear or Clearstream, Luxembourg, or such other clearing system.
Unless the context otherwise requires or unless otherwise defined in
this Schedule, terms defined in the Trust Deed (including the Note
Conditions) shall have the same meaning in this Schedule.
2. The Issuer or the Note Trustee may at any time and the Issuer shall upon
a requisition in writing signed by the holders of not less than
one-tenth of the Notes of the relevant class for the time being then
outstanding, convene a meeting of the Noteholders of such Class or, and
if the Issuer makes default for a period of seven days in convening such
a meeting the same may be convened by the Note Trustee or the
requisitionists. Whenever the Issuer is about to convene any such
meeting, it shall immediately give notice in writing to the Note Trustee
of the date, time and place thereof and the nature of the business to be
transacted. Every such meeting shall be held at such place as the Note
Trustee may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place,
day and hour of meeting shall be given by the Note Trustee (if the
meeting is convened by the Note Trustee) or by the Issuer (if the
meeting is convened by the Issuer on its own behalf or upon requisition
by the Noteholders pursuant to paragraph 2) to the relevant Noteholders,
the Paying Agents and the Registrar prior to any meeting of the relevant
Noteholders in the manner provided by Note Condition 14. Such notice
shall state generally the nature of the business to be transacted at the
meeting thereby convened and (except for an Extraordinary Resolution) it
shall not be necessary to specify in such notice the terms of any
resolution to be proposed. Such notice shall include a statement to the
effect that Notes may be blocked in clearing systems for the purposes of
appointing Proxies under Block Voting Instructions until 48 hours before
time fixed for the Meeting and a Noteholder may appoint a Proxy either
under a Block Voting Instruction by delivering written instructions to
the Registrar or by executing and delivering a Form of Proxy to the
Specified Office of the Registrar, in either case until 48 hours before
the time fixed for the Meeting. A copy of the notice shall be sent by
post to the Note Trustee (unless the meeting is convened by the Note
Trustee) and to the Issuer (unless the meeting is convened by the
Issuer).
4. Some person (who may but need not be a Noteholder or, if applicable, a
Noteholder of the relevant class of Notes) nominated in writing by the
Note Trustee shall be entitled to take the chair at every such meeting
but if no such nomination is made or if at any meeting the person
nominated shall not be present within fifteen minutes after the time
appointed for holding the meeting the relevant Noteholders present shall
choose one of their number to be Chairman.
5. At any such meeting two or more Voters holding or representing in the
aggregate not less than one-tenth of the principal amount of Notes of
the relevant class for the time being outstanding, shall form a quorum
for the transaction of business and no business (other than the choosing
of a Chairman) shall be transacted at any meeting unless the requisite
quorum be present at the commencement of business. The quorum at any
such meeting
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for passing an Extraordinary Resolution shall (subject as provided
below) be two or more Voters holding or representing in the aggregate a
clear majority of the aggregate Principal Amount Outstanding of the
Notes of the relevant class for the time being outstanding, provided
that at any meeting the business of which (in relation to the relevant
class of Notes):
(1) includes the sanctioning of a modification of the date of maturity
of the Notes;
(3) would have the effect of modifying any day for payment of interest
on the Notes or the Rate of Interest (as defined in Note Condition
5) applicable in respect of the Notes or modifying the method of
determining the same;
(4) includes reducing or cancelling (or, in the case of the Notes,
increasing) the amount of principal or the rate of interest payable
in respect of the Notes;
(5) would have the effect of altering the currency of payment of the
Notes;
(6) would have the effect of sanctioning any such scheme or proposal as
is described in paragraph 18(i) below;
(7) would have the effect of altering the majority required to pass an
Extraordinary Resolution or the manner in which such majority is
constituted;
(8) would have the effect of altering the manner or priority of
redemption of the Notes; or
(9) would have the effect of altering this proviso or the proviso to
paragraph [6] below,
the quorum shall be two or more Voters holding or representing in the
aggregate not less than seventy-five per cent. of the of the aggregate
Principal Amount Outstanding of the Notes of the relevant class for the
time being outstanding. Such matters shall only be capable of being
effected after having been approved by Extraordinary Resolutions of
Noteholders of each class of Notes outstanding at such time.
6. If within fifteen minutes after the time appointed for any such meeting
a quorum is not present the meeting shall, if convened upon the
requisition of the Noteholders be dissolved. In any other case it shall
stand adjourned to the same day in the next week (or if such day is a
public holiday the next succeeding business day) at the same time and
place (except in the case of a meeting at which an Extraordinary
Resolution is to be proposed in which case it shall stand adjourned for
such period being not less than 14 days nor more than 42 days, and at
such place as may be appointed by the Chairman of the meeting and
approved by the Note Trustee) and at such adjourned meeting two or more
Voters (whatever the aggregate of the Principal Amount Outstanding of
the Notes of the relevant class so held or represented by them) shall
(subject as provided below) form a quorum and shall (subject as provided
below) have power to pass any Extraordinary Resolution or other
resolution and to decide upon all matters which could properly have been
dealt with at the meeting from which the adjournment took place had the
requisite quorum been present. Provided that, subject to proviso (i) to
paragraph 18 below, at any adjourned meeting the business of which
includes any of the matters
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specified in the proviso to paragraph 5 above, the quorum shall be two
or more persons present holding Notes and/or voting certificates or
being proxies in respect thereof and holding or representing in the
aggregate 33 1/3 per cent. of the aggregate of the Principal Amount
Outstanding of the Notes of the relevant class then outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall (except in cases where the proviso to
paragraph 6 above shall apply when it shall state the relevant quorum)
state that Voters present at the adjourned meeting (whatever the
aggregate of the Principal Amount Outstanding of the Notes of the
relevant class then outstanding held) will form a quorum if at least two
such persons are present. Subject as aforesaid it shall not be necessary
to give any notice of any adjourned meeting.
8. Every resolution submitted to a meeting shall (subject to paragraph 21)
be decided by a simple majority, in the first instance by a show of
hands, then (subject to paragraph 9) by a poll and in case of equality
of votes the Chairman shall both on a show of hands and on a poll have a
casting vote in addition to the vote or votes (if any) to which he may
be entitled as a Noteholder of the relevant class and/or as a holder of
a voting certificate and/or as a Proxy.
9. At any meeting, unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the Issuer or
by two or more Voters being present and holding or representing in the
aggregate not less than one-fiftieth part of the Principal Amount
Outstanding of the Notes of the relevant class then outstanding a
declaration by the Chairman that a resolution has been carried by a
particular majority or lost or not carried by a particular majority
shall be conclusive evidence of that fact without proof of the number or
proportion of the votes recorded in favour or against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded, it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman directs
and the result of such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance of the
meeting for the transaction of any business other than the motion on
which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any such
meeting adjourn the same from time to time and from place to place but
no business shall be transacted at any adjourned meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman or
on any question of adjournment shall be taken at the meeting without
adjournment.
13. The Note Trustee and the Issuer (through their respective officers,
employees, advisers, agents or other representatives) and their
respective financial and legal advisers should be entitled to attend and
speak at any meeting of the Noteholders. Save as aforesaid but
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without prejudice to the proviso to the definition of "OUTSTANDING" in
Clause 1.2 of the Trust Deed no person shall be entitled to attend and
speak nor shall any person be entitled to vote at any meeting of the
Noteholders or join with others in requesting the convening of such a
meeting or to exercise the rights conferred on the Noteholders by
Condition 13 or, unless he either produces the Note(s) of which he is
the holder or a voting certificate or is a proxy.
14. Subject as provided in paragraph 12 hereof at any meeting on a show of
hands every Voter who is present in person shall have one vote or on a
poll every person who is so present shall have one vote in respect of
each $1 in Principal Amount Outstanding of the Notes of the relevant
class so produced or represented by the voting certificate so produced
or in respect of which he is a Proxy.
Without prejudice to the obligations of the Proxies named in any Block
Voting Instruction or Forms of Proxy any person entitled to more than
one vote need not use all his votes or cast all the votes to which he is
entitled in the same way.
15. The Proxies need not be Noteholders.
16. Each block voting instruction together (if so required by the Note
Trustee) with proof satisfactory to the Note Trustee of its due
execution on behalf of the Registrar shall be deposited at such place as
the Note Trustee shall approve not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at which the
Proxies named in the block voting instruction propose to vote and in
default of such deposit the block voting instruction shall not be
treated as valid unless the Chairman of the meeting decides otherwise
before such meeting or adjourned meeting proceeds to business. A
notarially certified copy of each block voting instruction shall, unless
the Note Trustee otherwise agrees, be deposited with the Note Trustee
before the commencement of the meeting or adjourned meeting but the Note
Trustee shall not thereby be obliged to investigate or be concerned with
the validity of or the authority of the Proxies named in any such block
voting instruction.
17. Any vote cast in accordance with the terms of a block voting instruction
shall be valid notwithstanding the previous revocation or amendment of
the block voting instruction or of any of the Noteholder's instructions
pursuant to which it was executed, provided that no intimation in
writing of such revocation or amendment shall have been received from
the Registrar by the Issuer at its registered office (or such other
place as may have been approved by the Note Trustee for the purpose) by
the time being 24 hours before the time appointed for holding the
meeting or adjourned meeting at which the block voting instruction is to
be used.
18. A meeting of the Noteholders shall, in respect of Notes of the relevant
class only and insofar as it affects Notes of the relevant class, and in
addition to the powers hereinbefore given, have the following powers
exercisable by Extraordinary Resolution (subject to the provisions
relating to quorum contained in paragraphs 5 and 6 above) only, namely:
(a) power to sanction any compromise or arrangement proposed to be made
between the Issuer and the Noteholders;
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(b) power to sanction any abrogation, modification (including for the
avoidance of doubt a modification which would have the effect of
increasing the amount of principal or the rate of interest payable
(in respect of the Notes)), compromise or arrangement in respect of
the rights of the Noteholders against the Issuer or against any of
its property or against any other person whether such rights shall
arise under this Deed, any of the Notes or otherwise;
(c) power to assent to any modification of the provisions contained in
this Deed, the Note Conditions or the Notes which shall be proposed
by the Issuer or the Note Trustee;
(d) power to give any authority or sanction which under the provisions
of this Deed (including the Note Conditions) is required to be
given by Extraordinary Resolution;
(e) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or discretions which the Noteholders could themselves
exercise by Extraordinary Resolution;
(f) power to approve of a person to be appointed a trustee and power to
remove any trustee or trustees for the time being of this Deed;
(g) power to discharge or exonerate the Note Trustee from all liability
in respect of any act or omission for which the Note Trustee may
have become responsible under this Deed or under the Notes;
(h) power to authorise the Note Trustee to concur in and execute and do
all such deeds, instruments, acts and things as may be necessary to
carry out and give effect to any Extraordinary Resolution;
(i) power to sanction any such substitution as is referred to in
Condition 13, but without prejudice to the Note Trustee's powers in
relation thereto or any scheme or proposal for the exchange or sale
of the Notes for, or the conversion of any of the Notes into, or
the cancellation of any of the Notes in consideration of shares,
stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or securities of the Issuer or of any other company
formed or to be formed, or for or into or in consideration of cash,
or partly for or into or in consideration of such shares, stock,
notes, bonds, debenture stock and/or other obligations and/or
securities as aforesaid and partly for or into or in consideration
of cash; and
(j) power to authorise the Note Trustee or any receiver appointed by it
where it or he shall have entered into possession of the security
to discontinue enforcement of any security constituted by this Deed
and the Deed of Charge either unconditionally or upon any
conditions,
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provided that:
(i) no modification involving any of the matters referred to in the
proviso to paragraph 5 above passed by the Class A Noteholders
shall be effective unless it is sanctioned by an Extraordinary
Resolution of each of the Class B Noteholders (provided that the
Class B Notes are then outstanding) and the Class C Noteholders
(provided that the Class C Notes are then outstanding);
(ii) no modification involving any of the matters referred to in the
proviso to paragraph 5 above passed by the Class B Noteholders
shall be effective unless it is sanctioned by an Extraordinary
Resolution of each of the Class A Noteholders (provided that the
Class A Notes are then outstanding) and the Class C Noteholders
(provided that the Class C Notes are then outstanding); and
(iii) no modification involving any of the matters referred to in the
proviso to paragraph 5 above passed by the Class C Noteholders
shall be effective unless it is sanctioned by an Extraordinary
Resolution of each of the Class A Noteholders (provided that the
Class A Notes are then outstanding) and the Class B Noteholders
(provided that the Class B Notes are then outstanding;
(iv) no other Extraordinary Resolution of the Class B Noteholders or
the Class C Noteholders shall be effective unless (a) the Note
Trustee is of the opinion that it will not be materially
prejudicial to the interests of the Class A Noteholders or the
Class B Noteholders, as the case may be, or (b) it is sanctioned
by an Extraordinary Resolution of the Class A Noteholders or the
Class B Noteholders, as the case may be, or (c) none of the Class
A Notes or, as the case may be, the Class B Notes remains
outstanding;
19. The following provisions shall apply where outstanding Notes belong to
more than one class:
(a) business which in the opinion of the Note Trustee affects the
Notes of only one class shall be transacted at a separate meeting
of the Noteholders of that class;
(b) business which in the opinion of the Note Trustee affects the
Notes of more than one class but does not give rise to an actual
or potential conflict of interest between the Noteholders of one
such class and the Noteholders of any other class shall be
transacted either at separate meetings of the Noteholders of each
such class or at a single meeting of the Noteholders of all such
classes as the Trustee shall in its absolute discretion determine;
(c) business which in the opinion of the Note Trustee affects the
Notes of more than one class and gives rise to an actual or
potential conflict of interest between the Noteholders of one such
class and the Noteholders of
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any other such class shall be transacted at separate meetings of
the Noteholders of each such class; and
(d) as may be necessary to give effect to the above provisions, the
preceding paragraphs of this Schedule shall be applied as if
references to the Notes and Noteholders were to the Notes of the
relevant class and to the Noteholders of such Notes.
20. Subject to the provisos to paragraph 18 above, any resolution passed at
a meeting of the Noteholders duly convened and held in accordance with
this Deed shall be binding upon all the Noteholders of the relevant
class or classes (as the case may be) whether present or not present at
such meeting and whether or not voting and any resolution passed at a
meeting of the Class A Noteholders duly convened and held as aforesaid
shall also be binding upon all the Class B Noteholders and Class C
Noteholders and any resolution passed at a meeting of the Class B
Noteholders duly convened and held as aforesaid shall also be binding
upon all of the Class C Noteholders.
All of the relevant classes of Noteholders shall be bound to give effect
to any such resolutions accordingly and the passing of any such
resolution shall be conclusive evidence that the circumstances justify
the passing thereof. Notice of the result of the voting on any
resolution duly considered by the Noteholders shall be published (at the
cost of the Issuer) in accordance with Note Condition 14 by the Issuer
within 14 days of such result being known, provided that the
non-publication of such notice shall not invalidate such resolution.
21. The expression "EXTRAORDINARY RESOLUTION" when used in this Deed means a
resolution passed at a meeting of the Noteholders duly convened and held
in accordance with the provisions herein contained by a majority
consisting of seventy-five per cent. of the persons voting thereat upon
a show of hands or if a poll be duly demanded then by a majority
consisting of not less than seventy-five per cent. of the votes given on
such poll.
22. Minutes of all resolutions and proceedings at every such meeting as
aforesaid shall be made and duly entered in books to be from time to
time provided for that purpose by the Issuer and any such Minutes as
aforesaid if purporting to be signed by the Chairman of the meeting at
which such resolutions were passed or proceedings had shall be
conclusive evidence of the matters therein contained and until the
contrary is proved every such meeting in respect of the proceedings of
which Minutes have been made shall be deemed to have been duly held and
convened and all resolutions passed or proceedings had thereat to have
been duly passed or had.
23. Where appropriate, subject to the provisions of this Trust Deed and the
relevant Note Conditions, joint meetings of the Class A Noteholders, the
Class B Noteholders and Class C Noteholders may be held to consider the
same resolution and/or, as the case may be, the same Extraordinary
Resolution and the provisions of this Schedule shall apply mutatis
mutandis thereto.
24. Subject to all other provisions contained in this Deed the Note Trustee
may without the consent of the Issuer or the Noteholders prescribe such
further resolutions regarding the
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requisitioning and/or the holding of meetings of Noteholders and
attendance and voting thereat as the Note Trustee may in its sole
discretion think fit.
25. References herein to a "RESOLUTION DULY PASSED AT A MEETING OF THE
NOTEHOLDERS" shall include, where the context permits, a resolution in
writing signed by or on behalf of all Noteholders of the relevant class
who for the time being are entitled to receive notice of a meeting in
accordance with the provisions herein contained. Such resolution in
writing may be contained in one document or in several documents in like
form each signed by or on behalf of one or more of such Noteholders.
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THE NINTH SCHEDULE
PRIORITY OF PAYMENTS
The Note Trustee shall (subject to Clause 8) apply all monies received by it
under this Deed:
(a) Prior to the delivery of an Enforcement Notice, on each Distribution
Date:
o FIRST, from Further Interest received, the costs and expenses of
the Issuer (including, for the avoidance of doubt, those in
relation to the Note Trustee) for the relevant Monthly Period;
o SECOND, the costs and expenses of the Issuer (including, for the
avoidance of doubt, those in relation to the Note Trustee, to the
extent not satisfied under the immediately preceding item) for the
relevant Monthly Period remaining after the first item will be paid
or reserved for within the Issuer proportionately to the Class A
Notes, the Class B Notes and the Class C Notes share for such
payment to be used to pay, or reserve for, the costs and expenses
of the Issuer;
o THIRD, from the Class A Notes Coupon Ledger, the lesser of (1) the
amount credited to the Class A Notes Coupon Ledger after paying or
reserving for the Class A Notes proportionate share of the Issuer's
costs and (2) amounts due and payable to the Swap Counterparty
under the Class A Swap Agreement for the relevant Calculation
Period, to the Swap Counterparty, and upon payment by the Swap
Counterparty in exchange therefor to the holder of the Class A Note
(or, to the extent the Class A Swap Agreement has been terminated
and not replaced, to the holder of the Class A Note);
o FOURTH, from the Class B Notes Coupon Ledger, the lesser of (1) the
amount credited to the Class B Notes Coupon Ledger after paying or
reserving for the Class B Notes proportionate share of the Issuer's
costs and (2) amounts due and payable to the Swap Counterparty
under the Class B Swap Agreement for the relevant Calculation
Period, to the Swap Counterparty, and upon payment by the Swap
Counterparty in exchange therefor to the holder of the Class B Note
(or, to the extent the Class B Swap Agreement has been terminated
and not replaced, to the holder of the Class B Note);
o FIFTH, the lesser of the remaining amount on deposit in the Series
02-1 Issuer Account and an amount equal to the Monthly Loan
Expenses Amount will be paid to the lender under the Expenses Loan
Agreement;
o SIXTH, from the Class C Notes Coupon Ledger, the lesser of (1) the
amount credited to the Class C Notes Coupon Ledger after paying or
reserving for the Class C Notes proportionate share of the Issuer's
costs and (2) amounts due and payable to the Swap Counterparty
under the Class C Swap Agreement for the relevant Calculation
Period, to the Swap Counterparty, and upon payment by the Swap
Counterparty in exchange therefore to the holder of the Class C
Note (or, to the extent the Class C Swap Agreement has been
terminated and not replaced, to the holder of the Class C Note);
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o SEVENTH, the lesser of the remaining amount on deposit in the
Series 02-1 Issuer Accounts and an amount equal to the principal
calculated as payable in accordance with the Loan Expenses
Agreement will be paid to the Lender under the Expenses Loan
Agreement;
o EIGHTH, the lesser of the remaining amount on deposit in the Series
02-1 Issuer Accounts and an amount equal to 1/2 of the Series 02-1
Extra Amount, will be paid to the Issuer;
o NINTH, any amounts due from or required to be provided for by the
Issuer to meet its liabilities to any taxation authority;
o TENTH, any amounts due to third parties under obligations incurred
in the course of the Issuer's business;
o ELEVENTH, an amount equal to the lesser of the amount on deposit in
the Series 02-1 Issuer Account and the amount needed to cover any
shortfall with respect to the Notes caused by the imposition of
withholding taxes on payments made under the Series 02-1 MTN
Certificate or the Swap Agreements; and
o TWELFTH, any amounts remaining will constitute the Deferred
Subscription Price Amount and will be paid to the MTN Issuer.
(b) From the date upon which an Enforcement Notice is served, all monies
referred to in Clauses 6.2 and 6.3 of the Deed of Charge shall be
applied, in the amounts required (but only to the extent that such
payment does not cause the Series 02-1 Issuer Account to become
overdrawn) in the following order of priority:
(a) FIRST, 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 the Deed of Charge and all amounts
due in respect of legal fees and other costs, charges, liabilities,
expenses, losses, damages, proceedings, claims and demands then
owed to or incurred by the Note Trustee under and in respect of the
Issuer Related Documents (as defined in Note Condition 4) and in
enforcing the security created by or pursuant to the Deed of Charge
or in perfecting title to the Charged Property (as defined in the
Deed of Charge), together with interest thereon as provided in any
such document;
(b) SECONDLY, (other than amounts payable under (d), (e) or (g) below)
in payment or satisfaction of all costs, charges, liabilities,
expenses, losses, damages, proceedings, claims and demands of the
Swap Counterparty in relation to each Swap Agreement;
(c) THIRDLY, (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 Note Trustee or by
anyone appointed by the Note Trustee under the Trust Deed; and
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(d) FOURTHLY, in or towards payment of all principal, premium (if any)
and then interest then due and unpaid in respect of the Class A
Notes after having paid any Sterling Amounts required to be paid to
the Swap Counterparty under the terms of the Swap Agreement
relating to the Class A Notes;
(e) FIFTHLY, in or towards payment of all principal, premium (if any)
and then interest then due and unpaid in respect of the Class B
Notes after having paid any Sterling Amounts required to be paid to
the Swap Counterparty under the Swap Agreement relating to the
Class B Notes;
(f) SIXTHLY, towards payment of amounts of interest due and unpaid
under the terms of the Expenses Loan Agreement;
(g) SEVENTHLY, towards payment of all principal, premium (if any) and
then interest then due and unpaid in respect of the Class C Notes
after having paid any Sterling Amounts required to be paid to the
Swap Counterparty under the Swap Agreement relating to the Class C
Notes;
(h) EIGHTHLY, after the Notes have been paid in full, towards payment
of amounts of principal due and unpaid under the terms of the
Expenses Loan Agreement;
(i) NINTHLY, 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);
(j) TENTHLY, towards payment of any sums due to third parties under
obligations incurred in the course of the Issuer's business;
(k) ELEVENTHLY, in or towards payment of the Deferred Subscription
Price Amount;
(l) TWELFTHLY, towards payment of any dividends due and unpaid to
shareholders of the Issuer; and
(m) THIRTEENTHLY, in payment of the balance (if any) to the liquidator
of the Issuer.
Without prejudice to the above, if the Note Trustee holds any monies which
represent principal and interest in respect of the Notes which have become void
or in respect of which claims have been prescribed under Note Condition 10, the
Note Trustee will hold such monies on the above trusts.
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Executed as a deed on behalf of ) JONATHAN KEIGHLEY
GRACECHURCH CARD FUNDING (NO.2) PLC )
by ) JAMES MACDONALD
in the presence of: )
NICOLE PINEDA
Executed as a Deed on behalf of )
THE BANK OF NEW YORK ) MIA DRENNAN
by )
in the presence of:- )
NICOLE PINEDA
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