[LOGO]
DRAFT FOR DISCUSSION PURPOSE ONLY: 14 MARCH 2003
BARCLAYCARD FUNDING PLC
as MTN Issuer
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
THE BANK OF NEW YORK
as Trustee
BARCLAYS BANK PLC
as Initial Transferor
and
BARCLAYS BANK PLC
as MTN Cash Manager
-----------------------------------------------------
SERIES 03-1 MTN SUPPLEMENT
Dated [{circle}]
To
SECURITY TRUST DEED AND MTN CASH MANAGEMENT AGREEMENT
Dated 23 November 1999
-----------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Defined Terms.............................................................3
2. General...................................................................3
3. Noteholders...............................................................5
4. Series 03-1 MTN Supplement To Security Trust..............................5
1. Payments On The Notes....................................................10
2. Agreement Of The Secured Creditors And Trustee...........................10
3. Negative Covenants Of The MTN Issuer.....................................11
4. Governing Law And Jurisdiction...........................................13
5. Notices..................................................................13
6. Severability Of Provisions...............................................14
7. No Waiver; Cumulative Remedies...........................................14
8. Counterparts.............................................................15
9. Contract (Rights Of Third Parties) Act...................................15
The Schedule Part 1 - Section A: Definitions..................................16
Part 2 - Cash Management Compensation.........................................21
Part 3 - Supplements To Clauses 3, 6.1 To 6.3 And 18..........................21
Exhibit A.....................................................................27
THIS SERIES 03-1 MTN SUPPLEMENT, is made on the [{circle}] day of April 2003 as
a Deed
BY AND BETWEEN:
(1) BARCLAYCARD FUNDING PLC, a company incorporated in England with
registered number 2530163, having its registered office at 54 Lombard
Street London EC3P 3AH (the "MTN ISSUER");
(2) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey
with registered number 75210, having its registered office at 26 New
Street, St. Helier, Jersey JE2 3RA (the "RECEIVABLES TRUSTEE");
(3) BARCLAYS BANK PLC, a company incorporated in England, acting through its
business unit, Barclaycard, whose principal place of business is at 1234
Pavilion Drive, Northampton, NN4 7SG (the "INITIAL TRANSFEROR");
(4) BARCLAYS BANK PLC, a company incorporated in England having its
registered office at 54 Lombard Street, London EC3P 3AH (the "MTN CASH
MANAGER"); and
(5) THE BANK OF NEW YORK, a banking institution incorporated under the laws
of New York and acting thorough its London Branch whose principal place
of business is at 48th Floor, One Canada Square, London E14, 5AL, in its
capacity as trustee (the "TRUSTEE" which term shall include wherever the
context so admits, such company and all or any other persons or companies
for the time being acting as the Trustee of this Deed for any series).
WHEREAS
(A) The MTN Issuer has established a programme for the issuance of medium
term notes and note certificates, pursuant to the terms of the Security
Trust Deed and MTN Cash Management Agreement.
(B) The MTN Issuer now intends to issue a Series of Notes in accordance with
Clauses 2.1 to 2.3 of the Security Trust Deed and MTN Cash Management
Agreement, in the manner and in the amount set out herein.
(C) The Trustee, the MTN Issuer, the MTN Cash Manager and the Initial
Transferor supplemented and varied the Security Trust Deed and MTN Cash
Management Agreement by entering into a series 02-1 MTN supplement on 24
October 2002 (the "SERIES 02-1 MTN SUPPLEMENT")
(D) The Trustee, the MTN Issuer, the MTN Cash Manager and the Initial
Transferor intend to supplement and vary the Security Trust Deed and MTN
Cash Management Agreement in the manner and to the extent set out herein.
(E) It is intended by the parties hereto that, following the completion of
the transactions contemplated by this Series 03-1 MTN Supplement, each
Noteholder will become a Secured Creditor in respect of the Secured
Property, as supplemented and varied in accordance with the provisions
hereof and that each such Note held by a Noteholder will
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constitute or form part of a Series for the purposes of the Security Trust
Deed and MTN Cash Management Agreement; such Series to be referred to as
"SERIES 03- 1".
2
NOW IT IS HEREBY AGREED as follows:
PART 1
INTERPRETATION
1. DEFINED TERMS
Terms defined in the MTN Master Definitions Schedule dated 23 November
1999 as amended and restated on 24 October 2002 between the Trustee, the
MTN Cash Manager, the Initial Transferor and the MTN Issuer (as the same
may be amended, varied or supplemented from time to time (the "MTN MASTER
DEFINITIONS SCHEDULE") the Series 03-1 Supplement and in the Schedule
hereto (including, without limitation, the Conditions of the Notes) shall
have the same meanings when used in this Series 03-1 MTN Supplement and
the recitals hereto unless the context requires otherwise PROVIDED,
HOWEVER, that in the event that any term or provision contained in the
Schedule attached hereto shall conflict with or be inconsistent with any
provision contained in the Security Trust Deed and MTN Cash Management
Agreement or the terms of the MTN Master Definition Schedule, the terms
and provisions contained in the Schedule shall prevail with respect to
Series 03-1 only.
2. GENERAL
2.1 The headings and the contents pages in this Series 03-1 MTN Supplement
shall not affect its interpretation.
2.2 Words denoting the singular number only shall include the plural number
also and vice versa; words denoting one gender only shall include the
other gender.
2.3 References to Clauses, paragraphs, Exhibits, and Schedules shall, unless
the context requires otherwise, be to clauses, paragraphs, exhibits and
schedules in this Series 03-1 MTN Supplement.
2.4 Save where the contrary is indicated, any reference in this Series 03-1
MTN Supplement to:
(a) this Series 03-1 MTN Supplement or any other agreement or document
shall be construed as a reference to this Series 03-1 MTN
Supplement, or as the case may be, such other agreement or
document as the same may have been, or may from time to time be,
amended, varied, novated or supplemented;
(b) an enactment is a reference to it as already amended and includes
a reference to any repealed enactment which it may re-enact, with
or without amendment, and to any re-enactment and/or amendment of
it; and
(c) a time of day (including opening and closing of business) shall be
construed as a reference to London time.
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2.5 Save where the context otherwise requires, all sums payable by any party
to any other party pursuant hereto are inclusive of any VAT which is
chargeable on the supply or supplies for which such sums (or any part
thereof) are the whole or part of the consideration for VAT purposes
(irrespective of whether such supply is or such supplies are made to such
first mentioned party or another person) and section 89 of the Value
Added Tax Act 1994 shall not apply to affect the amount of such sums and
the phrase "inclusive of VAT" shall be construed accordingly.
2.6 Any reference herein to any fee, cost, disbursement, expense or liability
incurred by any party and in respect of which such party is to be
reimbursed (or indemnified) by any other person or the amount of which is
to be taken into account in any calculation or computation shall, save
where the context otherwise requires, include a reference to such part of
such cost or expense as represents VAT.
2.7 References to the parties hereto shall be construed so as to include its
and any subsequent successors and permitted assigns in accordance with
their respective interests.
2.8 The Schedule forms part of this Supplement and the Security Trust Deed
and MTN Cash Management Agreement and each of them shall be construed
accordingly.
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PART 2
EFFECT OF SERIES 03-1 SUPPLEMENT
3. NOTEHOLDERS
3.1 Upon (i) the making of the advance and the payment referred to in Clause
3.2 and (ii) the issue of a duly executed and authenticated Series 03-1
Temporary Global Note, the person who has made such advance shall be
treated for all purposes under the Security Trust Deed and MTN Cash
Management Agreement, as supplemented by this Series 03-1 MTN Supplement,
as a Noteholder in respect of Series 03-1 and a Secured Creditor in
respect of Secured Property on the Issue Date in accordance with Clauses
4.1 to 4.3 of the Security Trust Deed and MTN Cash Management Agreement,
and as such shall be beneficially entitled to a security interest in such
Secured Property to the extent of the Principal Amount together with
interest and any other amounts in respect of the Notes.
3.2 In order for the issue and due authentication and delivery of each Note
referred to in Clause 3.1 to be effected, the Noteholder shall make an
advance in an amount of {pound-sterling}[{circle}] to the MTN Issuer by
depositing such amount in the Series 03-1 Distribution Account for value
on the Closing Date. On each Distribution Date, the Noteholder shall pay
to the MTN Issuer the Deferred Subscription Price Amount, to the extent
that such amount is available.
3.3 The Temporary Global Note representing the Notes shall be substantially
in the form of Part 1 of Exhibit A-1, to the Schedule. The Permanent
Global Note representing each Note shall be substantially in the form of
Part 2 of Exhibit A-1 to the Schedule.
4. SERIES 03-1 MTN SUPPLEMENT TO SECURITY TRUST
4.1 The Security Trust Deed and MTN Cash Management Agreement shall be
supplemented and varied in the manner and to the extent set out below and
shall from such time on the Issue Date be read and construed for all
purposes as supplemented and varied as set out in the Schedule and the
Security Trust in respect of Series 03-1 shall be constituted
accordingly:
(a) Clause 1 of the Security Trust Deed and MTN Cash Management
Agreement shall be supplemented and varied with respect to Series
03-1 by the addition of the definitions as contained in Section A
of Part 1 of the Schedule. In the event that any term or provision
contained therein shall conflict with or be inconsistent with any
provision contained in the Security Trust Deed and MTN Cash
Management Agreement, the terms and provisions of this Supplement
shall govern. All clause or sub-clause references in the Schedule
shall be to the relevant clause or sub-clauses of the Security
Trust Deed and MTN Cash Management Agreement, except as otherwise
provided in the Schedule. All capitalised terms used in the
Schedule which are not otherwise defined therein are defined in
the MTN Master Definitions Schedule. Each capitalised term defined
in the Schedule shall relate only to Series 03-1 and no other
Series;
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(b) the Conditions of the Notes set out in Schedule 4 of the Security
Trust Deed and MTN Cash Management Agreement shall be supplemented
with respect to Series 03-1 by the additional provisions set out
in Section B of Part 1 of the Schedule;
(c) for the purposes of Clause 10.6 of the Security Trust Deed and MTN
Cash Management Agreement, the MTN Cash Manager Fee payable by the
MTN Issuer to the MTN Cash Manager shall be paid in the amount and
the manner set out in Part 2 of the Schedule; and
(d) Clauses 3 and 6.1 to 6.3 and 18 of the Security Trust Deed and MTN
Cash Management Agreement shall be supplemented by the additional
provisions set out in Part 3 of the Schedule. Clauses 3 and 6.4
to 6.6 shall be read in their entirety as set out in Part 3 of the
Schedule and, in the case of Clauses 6.4 to 6.6 only, shall be
applicable only to the Notes constituting Series 03-1.
4.2 As continuing first fixed security for the payment or discharge of the
Secured Obligations save to the extent that they constitute Jersey Assets
and subject always to Clause 4.11 below, the MTN Issuer with full title
guarantee hereby conveys, assigns and transfers by way of first fixed
security to and in favour of the Trustee for itself and on trust for the
Secured Creditors in respect of Series 03-1:
(a) its beneficial interest (and all rights and interests arising in
respect thereof) in respect of Series 03-1 under the Receivables
Trust as an Investor Beneficiary thereof to the extent specified
in the Series 03-1 Trust Supplement and in the Declaration of
Trust and Trust Cash Management Agreement;
(b) all its right, title, interest and benefit present and future in
and to any agreement relating to Series 03-1 (other than the
Declaration of Trust and Trust Cash Management Agreement (as the
same has been supplemented from time to time) to the extent
secured under (a) above) or document relating to Series 03-1 which
the MTN Issuer is or may at any time be, expressed to have the
benefit of or to have any rights under or to have any other
interest in unless otherwise charged or secured by way of fixed
security under this Clause 4.2, (INCLUDING, without limitation,
all supplements and accretions thereto, all rights to receive
payment of any amounts which may become payable thereunder and all
payments received by the MTN Issuer thereunder and all items
expressed to be held on trust for the MTN Issuer thereunder or
comprised therein, all rights to serve notices or give consents
and directions or make demands thereunder or take such steps as
are required to cause payments to become due and payable
thereunder and all rights of actions in respect of any breach
thereof and all rights to receive damages or obtain other relief
in respect thereof);
(c) all its right, title, interest and benefit present and future in
and to all sums of money which may now or hereafter from time to
time be credited to the Series 03-1 Distribution Account or any
other MTN Issuer account established by the MTN Issuer in respect
of Series 03-1 or in respect of any amounts representing
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or derived from Series 03-1 Trust Property or received from
Barclays Bank PLC pursuant to the Agreement Between Beneficiaries
or to any bank or other accounts in which the MTN Issuer may at any
time have or acquire any right, title, interest or benefit together
with all interest accruing from time to time thereon and the debts
represented thereby and all its right, title, interest and benefit
present and future therein;
(d) all of the MTN Issuer's rights in and to the Permitted Investments
in respect of Series 03-1 and any payment due in respect thereof
and the debts represented thereby; and
(e) all of the MTN Issuer's right, title, interest and benefit in
respect of amounts credited to the Trustee Bank Accounts in
respect of Series 03-1.
4.3 The MTN Issuer by way of first fixed security for payment and discharge
of the Secured Obligations, as beneficial owner thereof and subject
always to Clause 4.11, hereby assigns to the Trustee the Jersey
Collateral in order to create a security interest therein pursuant to
Article 2(6) of the Jersey Security Interests Law as a continuing
security for discharge of the Secured Obligations.
4.4 For the purposes of Article 3 of the Jersey Security Interests Law and
for the avoidance of doubt, it is hereby agreed as follows:
(a) the debtor in respect of the creation of the Jersey Security
Interest is the MTN Issuer;
(b) the secured parties in respect of the creation of the Jersey
Security Interest are the Trustee and the Secured Creditors,
provided however that all rights in connection therewith are to be
exercised on their behalf by the Trustee in accordance with the
terms of this Supplement, the Security Trust Deed and MTN Cash
Management Agreement and the Jersey Security Interests Law;
(c) the collateral in respect of which the Jersey Security Interest is
created comprises the Jersey Collateral;
(d) the events of default in respect of the Jersey Security Interest
are the events set out in Condition 9 of the Notes under the
heading "Events of Default" referred to herein as a Series 03-1
Enforcement Event; and
(e) the obligations in respect of which the Jersey Security Interest
is created comprise the Secured Obligations.
4.5 The MTN Issuer and the Trustee hereby give notice, for the purposes of
Article 2(8) of the Jersey Security Interests Law, of the creation of the
Jersey Security Interest and the Receivables Trustee by execution of this
Series 03-1 MTN Supplement:
(a) acknowledges receipt of such notice;
(b) confirms that it does not have and will not make or exercise any
claims or demands, any rights of counterclaims, rights of set-off
any other rights against
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the MTN Issuer in respect of the Jersey Collateral or any part
thereof and it has not, as of the date of this Series 03-1 MTN
Supplement, received any notice that any third party has or will
have any rights or interest whatsoever in or has made or will be
making any claim or demand or taking any action whatsoever against
the Jersey Collateral or any part thereof; and
(c) undertakes in the event that it becomes aware at any time that any
person or entity other than the Trustee (as trustee for the
Secured Creditors in respect of Series 03-1) has or will have any
right or interest whatsoever against the Jersey Collateral or any
part thereof, it will immediately give written notice of any such
right or interest, claim or demand or action to both the Trustee
and the MTN Issuer.
4.6 Following irrevocable discharge in full of the Secured Obligations of
which the Trustee has notice, the Trustee shall reassign to the MTN
Issuer the Jersey Collateral.
4.7 The MTN Issuer hereby gives notice to the Receivables Trustee and the
Cash Manager (as operating bank) of the assignment by way of security
made by the MTN Issuer to the Trustee (for itself, and on trust for the
Noteholders) under Clause 4.2, which notice each of the Receivables
Trustee and the Cash Manager acknowledges by execution of this Series
03-1 MTN Supplement.
4.8 Notwithstanding the charges and securities created by or pursuant to this
Series 03-1 MTN Supplement, the Trustee agrees that, until the occurrence
of a Series 03-1 Enforcement Event, payments becoming due to the MTN
Issuer by the Receivables Trustee as provided by the Declaration of Trust
and Trust Cash Management Agreement and the Series 03-1 Trust Supplement,
together with all other monies payable to the MTN Issuer pursuant to any
other documents or arrangements to which it is a party, may (in any case)
be made to the MTN Issuer in accordance with the provisions of the
Declaration of Trust and Trust Cash Management Agreement and the Series
03-1 Trust Supplement or (as the case may be) the documents or
arrangements concerned, and the MTN Issuer may exercise its rights,
powers and discretions and perform its obligations in relation to the
Secured Property and under the Series 03-1 Documents in accordance with
the provisions of the Series 03-1 Documents or (as the case may be) such
other documents or arrangements.
4.9 Notwithstanding the Security created by or pursuant to this Series 03-1
MTN Supplement, prior to a Series 03-1 Enforcement Event, amounts
standing to the credit of the Series 03-1 Distribution Account from time
to time may be withdrawn therefrom by the MTN Issuer but only in
accordance with the applicable provisions of Series 03-1.
4.10 From and including the time when a Series 03-1 Enforcement Event has
occurred and the Notes have become due in accordance with the Conditions,
(a) the security created pursuant to this Supplement shall become
enforceable and the Trustee may enforce any rights it may have in respect
of the Secured Property, and (b) no amount may be withdrawn from the
Series 03-1 Distribution Account by the MTN Issuer or on its behalf
without the prior written consent of the Trustee.
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4.11 The Trustee shall hold and apply all moneys received by it under the
Security Trust Deed and MTN Cash Management Agreement and this Series 03-
1 MTN Supplement in connection with the realisation or enforcement of the
Secured Property in respect of Series 03-1 in accordance with the
priorities set out in Part 3 of the Schedule hereto.
4.12 Upon proof being given to the satisfaction of the Trustee as to the
irrevocable and unconditional payment or discharge of the Secured
Obligations in respect of Series 03-1, the Trustee will at the request
and cost of the MTN Issuer release, discharge or reassign the Secured
Property to the MTN Issuer or any other person entitled thereto of whom
the Trustee has notice.
4.13 Section 103 of the LPA shall not apply in relation to any of the Security
created by this Clause 4. The statutory powers of sale and of appointing
a receiver which are conferred upon the Trustee as varied and extended by
this Deed and all other powers shall in favour of any purchaser be deemed
to arise and be exercisable immediately after the execution of this Deed
but shall only be exercised upon and following the giving of an
Enforcement Notice and in the case of the Jersey Security Interest,
subject to the provisions of Articles 6(5) and 8(3) of the Jersey
Security Interests Law, the Trustee shall have an immediate power of sale
over the Jersey Collateral, without having to apply to the Royal Court of
Jersey for authority to exercise the same.
4.14 The power of sale in respect of the Jersey Security Interest shall be
exercisable by the Trustee in such manner as the Trustee may in its
absolute discretion deem appropriate and with all powers of a beneficial
owner. Without limitation the Trustee may, without liability and subject
to the Trustee having been indemnified in full to its satisfaction, sell
or dispose of the whole or part of the Jersey Collateral at such times
and in such manner and generally on such terms and conditions and for
such consideration as the Trustee may think fit. Any such sale or
disposal may be for cash, debentures or other obligations, shares,
stocks, securities or other valuable consideration and may be payable
immediately or by instalment spread over such a period as the Trustee may
think fit. The Trustee shall have right of recourse to any monies
forming part of the Jersey Collateral and may, without liability and
subject to the Trustee having been indemnified in full to its
satisfaction, apply such monies in the payment or discharge of the
Secured Obligations as if such moneys were proceeds of sale.
4.15 For the avoidance of doubt, the power of attorney granted by the MTN
Issuer under Clause 7.13.2 of the Security Trust Deed and MTN Cash
Management Agreement is granted in respect of the Security created by
this Clause 4, inter alia, pursuant to Article 5 of the Powers of
Attorney (Jersey) Law 1995 for the purposes of facilitating the Trustee's
powers hereunder and under the Jersey Security Interests Law in respect
of the Jersey Security Interest.
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PART 3
AGREEMENTS
1. PAYMENTS ON THE NOTES
1.1 COVENANT TO PAY
The MTN Issuer shall, on any date when the Notes of any Series, or any of
them, become due to be redeemed in whole or in part in accordance with
their Conditions, unconditionally pay or procure to be paid to or to the
order of or for the account of the Trustee, the amount then becoming due
on that date in respect of the Notes of each Class of such Series and
shall (subject to the terms of such Series) until such payment (after as
well as before any judgment or other order of a competent court)
unconditionally pay to or to the order of or for the account of the
Trustee in respect of interest on the Principal Amount Outstanding
including Further Interest, Deferred Interest and Additional Interest (if
any) as specified in the relevant MTN Supplement of the Notes of such
Series then outstanding at the rate or rates set out in, or calculated
from time to time in accordance with, the terms thereof and on the dates
provided for in such terms, provided that:
1.1.1 the MTN Issuer shall only be obliged to pay such Principal Amount
Outstanding and interest (including Further Interest (if any)),
Deferred Interest and Additional Interest, if any, to the extent
set out in this Deed and the related MTN Supplement, in respect of
such Series;
1.1.2 every payment of a Principal Amount Outstanding or interest
(including Further Interest (if any)), Deferred Interest and
Additional Interest, if any, in respect of Notes of such Series
made to or to the order or for the account of the Principal Paying
Agent as provided in the Agency Agreement shall, to such extent,
satisfy such obligation except to the extent that there is failure
in the subsequent payment thereof to the relevant Noteholders of
such Series under the terms of the relevant Series; and
1.1.3 in the case of any payment in respect of Notes of such a Series
made after the due date or subsequent to an Event of Default in
respect of such Series, payment shall not be deemed to have been
made until the full amount due in accordance with the terms
thereof has been received by the Principal Paying Agent or the
Trustee in respect of such Series and notice to that effect has
been duly given to the relevant Noteholder of such Series in
accordance with such terms.
The Trustee will hold the benefit of this covenant in relation to each
Series on trust for itself and the Holders of that Series according to
their respective interests.
2. AGREEMENT OF THE SECURED CREDITORS AND TRUSTEE
ADDITIONAL SUPPLEMENTS
Each Secured Creditor consents and confirms as a Secured Creditor in
respect of the Secured Property that, subject to Clause 5.6.2 of the
Security Trust Deed and MTN Cash
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Management Agreement, the Security Trust Deed and MTN Cash Management
Agreement may be supplemented and varied from time to time in accordance
with the terms of this Series 03-1 MTN Supplement or additional MTN
Supplements.
3. NEGATIVE COVENANTS OF THE MTN ISSUER
3.1 The MTN Issuer shall not, save to the extent permitted by the Security
Trust Deed and MTN Cash Management Agreement or any Supplement or with
the prior written consent of the Initial Transferor and each Rating
Agency then rating any outstanding Associated Debt of any Series:
3.1.1 dispose of any Secured Property or create or permit to subsist any
Encumbrance including, without limitation, anything analogous to
any of the foregoing under the laws of any jurisdiction upon the
whole or any part of its present or future undertaking, assets or
revenues (including, without limitation, uncalled capital and any
Secured Property) other than the interest referred to in Clauses
6.1 to 6.3 of the Security Trust Deed and MTN Cash Management
Agreement, as amended by this Series 03-1 MTN Supplement;
3.1.2 carry on any business other than as contemplated herein relating
to the purchase of beneficial interests in the Securitised
Portfolio (as defined in the Trust Master Definitions Schedule) to
be held on trust by the Receivables Trustee and the issue of the
Notes of any Series and in respect of that business shall not
engage in any activity or do anything whatsoever except:
(a) preserve and/or exercise and/or enforce any of its rights and
perform and observe its obligations under the Notes
appertaining thereto, the Security Trust Deed and MTN Cash
Management Agreement, the MTN Master Definitions Schedule,
the Declaration of Trust and Trust Cash Management Agreement,
the Trust Master Definitions Schedule, the Beneficiaries
Servicing Agreement, the MTN Issuer Bank Agreement, the
Series 03-1 Supplement, the Agreement Between Beneficiaries
and this Series 03-1 MTN Supplement and any mandate regarding
any MTN Issuer Account (together, the "SERIES 03-1
DOCUMENTS");
(b) use, invest or dispose of any of its property or assets in
the manner provided in or contemplated by the Series 03-1
Documents;
(c) perform any act incidental to or necessary in connection with
(a) or (b) above;
3.1.3 have or form, or cause to be formed, any subsidiary, subsidiary
undertakings or undertakings of any other nature or have any
employees or premises or have an interest in a bank account other
than the Series 03-1 Distribution Account or any other MTN Issuer
Accounts;
3.1.4 create, incur or suffer to exist any indebtedness (other than
indebtedness permitted to be incurred under the terms of its
articles of association and
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pursuant to or as contemplated in any of the Series 03-1
Documents) or give any guarantee in respect of any obligation of
any Person;
3.1.5 repurchase any shares or declare or pay any dividend or other
distribution to its shareholders or issue or allot shares to any
Person other than Barclays Bank PLC or the Share Trustee, except
to the extent required by law;
3.1.6 consolidate with or merge with or into any person or liquidate or
dissolve on a voluntary basis;
3.1.7 waive, modify or amend, or consent to any waiver, modification or
amendment of, any of the provisions of the Series 03-1 Documents
which the MTN Issuer is a party to, without the prior written
consent of the Initial Transferor and the Trustee;
3.1.8 offer to surrender to any company any amounts which are available
for surrender by way of group relief; and
3.1.9 take any steps in its capacity as Investor Beneficiary of the
Receivables Trust either on its own or in conjunction with any
other Beneficiary of the Receivables Trust to terminate the
Receivables Trust.
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PART 4
MISCELLANEOUS
4. GOVERNING LAW AND JURISDICTION
4.1 GOVERNING LAW
This Series 03-1 MTN Supplement and all matters arising from or connected
with it shall be governed by, and construed in accordance with, the laws
of England, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws, except to the
extent the provisions of this Series 03-1 MTN Supplement relate to the
creation and enforcement of the Jersey Security Interest, to which extent
this Deed shall be governed by and construed in accordance with Jersey
law.
4.2 JURISDICTION
(a) Each of the parties hereto irrevocably agrees for the benefit of
each other party that the courts of England shall have exclusive
jurisdiction to hear and determine any suit, action or proceeding,
and to settle any disputes, which may arise out of or in
connection with this Series 03-1 MTN Supplement, and, for such
purposes, irrevocably submits to the exclusive jurisdiction of
such courts.
(b) Each party hereto irrevocably waives any objection which it might
now or hereafter have to the courts of England referred to above
being nominated as the forum to hear and determine any suit,
action or proceeding, and to settle any disputes, which may arise
out of or in connection with this Series 03-1 MTN Supplement and
agrees not to claim that any such court is not a convenient or
appropriate forum.
(c) Each party hereto (if it is not incorporated in England)
irrevocably appoints the person specified against its name on the
execution pages hereto to accept service of any process on its
behalf and further undertakes to the other parties hereto that it
will at all times during the continuance of this Series 03-1 MTN
Supplement maintain the appointment of some person in England as
its agent for the service of process and irrevocably agrees that
service of any writ, notice or other document for the purposes of
any suit, action or proceeding in the courts of England shall be
duly served upon it if delivered or sent by registered post to the
address of such appointee (or to such other address in England as
that party may notify to the other parties hereto).
5. NOTICES
5.1 Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in writing and may be made by telefax or letter.
5.2 Any communication, notice or document to be made or delivered by any one
person to another pursuant to this Series 03-1 MTN Supplement shall
(unless that other person has
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by fifteen days' written notice to the other parties hereto specified
another address) be made or delivered to that other person at the address
identified below and shall be deemed to have been made or delivered when
despatched and confirmation of transmission received by the sending
machine (in the case of any communication made by telefax) or (in the case
of any communication made by letter) when left at that address or (as the
case may be) ten days after being deposited in the post postage prepaid in
an envelope addressed to it at that address PROVIDED, HOWEVER, that each
telefax communication made by one party hereto to another shall be made to
that person at the telefax number notified to such party by that other
person from time to time:
5.2.1 in the case of the Initial Transferor, the MTN Cash Manager (in
whatever capacity) and the MTN Issuer to the addresses specified
in the Security Trust Deed and MTN Cash Management Agreement;
5.2.2 in the case of the Trustee, the Bank of New York, 48th Floor, One
Canada Square, London E14 5AL, fax no.: 020 7839 6259 Attention:
Corporate Trust Administration;
5.2.3 in the case of the Receivables Trustee, 26 New Street, St. Helier,
Jersey JE2 3RA, fax no.: 01534 814815 Attention: Richard Gerwat;
and
5.2.4 in the case of the Rating Agencies for Associated Debt:
(a) in the case of Standard & Poor's to Standard & Poor's Ratings
Group, 18 Finsbury Circus, London UK EC2M 7BP, fax no.: +44
171 826 3598 Attention: Structured Finance Department; and
(b) in the case of Moody's to Moody's Investors Service Inc., 2
Minster Court, Mincing Lane, London, UK EC3R 7XB, fax no.: +
44 171 772 5400 Attention: Structured Finance.
6. SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of
this Series 03-1 MTN Supplement shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or
terms of this Series 03-1 MTN Supplement and shall in no way affect the
validity or enforceability of the other provisions of this Series 03-1
MTN Supplement or of the rights of the Secured Creditors hereunder.
7. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of any of
the parties hereto, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
14
8. COUNTERPARTS
This Series 03-1 MTN Supplement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one
and the same instrument.
9. CONTRACT (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Deed has no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term of this 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 the MTN Issuer, the Receivables Trustee, the Trustee, the
MTN Cash Manager and the Initial Transferor have caused this Series 03-1 MTN
Supplement to be duly executed and delivered by their duly authorised
representatives as a deed on the day and year first above written.
15
THE SCHEDULE
PART 1 - SECTION A: DEFINITIONS
"ASSOCIATED DEBT" means, collectively, the Class A Associated Debt, the Class B
Associated Debt and the Class C Associated Debt;
"ASSOCIATED SWAP AGREEMENT" means the currency and interest rate swap agreement
dated [{circle}] April 2003 entered into between the Series 03-1 Associated
Issuer and the Associated Swap Counterparty in respect of the Associated Debt;
"ASSOCIATED SWAP COUNTERPARTY" means Barclays Bank PLC;
"AUTHORISED DENOMINATION" means [{circle}];
"CLASS A" shall mean for calculation purposes, the portion of the Notes related
to the Class A Associated Debt;
"CLASS A ASSOCIATED DEBT" means the $[{circle}] Class A Asset Backed Floating
Rate Note due [{circle}] constituted by the Trust Deed dated [{circle}] April
2003 between the Series 03-1 Associated Issuer and The Bank of New York;
"CLASS A INVESTOR INTEREST" shall have the meaning given to it in the Series
03-1 Trust Supplement;
"CLASS B" shall mean for calculation purposes, the portion of the Notes related
to the Class B Associated Debt;
"CLASS B ASSOCIATED DEBT" means the $[{circle}] Class B Asset Backed Floating
Rate Note due [{circle}] constituted by the Trust Deed dated [{circle}] April
2003 between the Series 03-1 Associated Issuer and The Bank of New York;
"CLASS B INVESTOR INTEREST" shall have the meaning given to it in the Series
03-1 Trust Supplement;
"CLASS C" shall mean for calculation purposes, the portion of the Notes related
to the Class C Associated Debt;
"CLASS C ASSOCIATED DEBT" means the $[{circle}] Class C Asset Backed Floating
Rate Note due [{circle}] constituted by the Trust Deed dated [{circle}] April
2003 between the Series 03-1 Associated Issuer and The Bank of New York;
"CLASS C INVESTOR INTEREST" shall have the meaning given to it in the Series
03-1 Trust Supplement;
"DISTRIBUTION DATE" means the 15th day of each month commencing on [{circle}]
2003 or, if such day is not a Business Day, the next following Business Day;
"FINAL REDEMPTION DATE" means the Interest Payment Date falling in [{circle}];
"INITIAL TRANSFEROR" means Barclays Bank PLC;
16
"INTEREST DETERMINATION DATE" means the first day of each Interest Period;
"INTEREST PAYMENT DATE" means each Distribution Date;
"INTEREST PERIOD" means one month;
"INTEREST RATE" means in respect of a) the first Interest Period a linear
interpolation of one-month and two-month GBP - LIBOR - BBA; b) the second
Interest Period, one month GBP; and c) Interest Periods thereafter, three month
GBP - LIBOR - BBA (except that one month GBP - LIBOR - BBA shall apply in
respect of any whole Interest Period falling after the earliest to occur of the
commencement date of the Rapid Amortisation Period and the Regulated
Amortisation Period and the Scheduled Redemption Date in the event that the
Series 03-1 MTN is not redeemed in full on such date and ending on the Series
03-1 Termination Date;
"INVESTOR BENEFICIARY" means the MTN Issuer;
"INVESTOR INTEREST" shall have the meaning given to it in the Series 03-1 Trust
Supplement;
"JERSEY ASSETS" means in relation to the MTN Issuer all or any of its
undertaking, property, assets, rights and revenues whatsoever, present and
future, situated in Jersey (including, without limitation, the Jersey
Collateral);
"JERSEY COLLATERAL" means in relation to the MTN Issuer, to the extent they
constitute Jersey Assets, all its right, title, interest and benefit present
and future in, to and under the Declaration of Trust and Trust Cash Management
Agreement (as the same has been supplemented from time to time), including
without limitation all rights to receive payment of any amount which may become
payable to the MTN Issuer thereunder or payments received by the MTN Issuer
thereunder or rights to serve notices and/or to take such steps as are required
to cause payments to be become due and payable thereunder and all rights of
action in respect of any breach thereof and all rights to receive damages or
obtain other relief in respect thereof;
"JERSEY SECURITY INTEREST" means the security created in respect of Series 03-1
pursuant to Clause 4.3 of this Supplement in accordance with the requirements
of the Jersey Security Interests Law;
"JERSEY SECURITY INTERESTS LAW" means the Security Interests (Jersey) Law,
1983;
"MARGIN" means [{circle}] per cent. per annum;
"PAGE" means Moneyline Telerate;
"PRIMARY SOURCE" means the Page;
"RELEVANT CURRENCY" means Sterling;
"SCHEDULED REDEMPTION DATE" means in respect of the Notes, the Interest Payment
Date falling in [{circle}];
"SECURED CREDITORS" means the Trustee and the Noteholders in respect of Series
03-1;
17
"SECURED PROPERTY" means all that property of the MTN Issuer held as security
(whether fixed, floating or as a Jersey Security Interest) under this
Supplement or the Security Trust Deed and MTN Cash Management Agreement;
"SERIES 03-1" means the Series of the Receivables Trust created pursuant to the
Series 03-1 Supplement to the Trust and Cash Management Agreement dated
[{circle}] April 2003;
"SERIES 03-1 ASSOCIATED ISSUER" means Gracechurch Card Funding (No. 3) PLC as
issuer of the Associated Debt and its successors and assigns as holder of the
Notes in respect of Series 03-1;
"SERIES 03-1 DISTRIBUTION ACCOUNT" means the account in the name of the MTN
Issuer at Barclays Bank PLC, 54 Lombard Street, London EC3P 3AH (account number
[{circle}]/ sort code [{circle}]);
"SERIES 03-1 ENFORCEMENT EVENT" means an event specified in Condition 9 of the
Notes;
"SERIES TERMINATION DATE" means in respect of Series 03-1 the earlier to occur
of (a) the Distribution Date on which the Investor Interest in respect of
Series 03-1 is reduced to zero; or (b) the Final Redemption Date; and
"SERIES 03-1 SUPPLEMENT" means the Series 03-1 Supplement to the Declaration of
Trust and Trust Cash Management Agreement dated [{circle}] April 2003 between
the Initial Transferor, the MTN Issuer and the Receivables Trustee.
SECTION B SUPPLEMENTS TO THE CONDITIONS
The Conditions set out in Schedule 4 to the Security Trust Deed and MTN Cash
Management Agreement shall be supplemented as follows:
1. For the purposes of Condition 5.2, all dates referred to in the
Conditions shall be subject to adjustment in accordance with the
Following Business Day Convention.
2. For the purposes of Condition 5.8, (a) the "Controlled Accumulation
Period" shall commence at the close of business on 30 September 2006 or
such later date as is determined in accordance with Clause 5.11(f) of the
Series 03-1 Trust Supplement and (b) the Day Count Fraction shall be
Actual / 365 / 366.
3. Condition 9.1 shall be supplemented by the addition of the following sub-
paragraph 9.1.10:
"9.1.10 Associated Swap Agreement: the early termination, without
replacement, of any Associated Swap Agreement".
4. Condition 5.1.1 shall be supplemented by the addition of the following
wording to be inserted in line 4 after the words "Margin (if any)":
"together with any amounts of Further Interest (if any)".
5. A further Condition 5.12 shall be added with respect to Series 03-1:
18
"The Noteholder shall, on each Distribution Date pay the Deferred
Subscription Price Amount to the MTN Issuer. By subscribing for, or
acquiring, the MTN Certificate, the Noteholder agrees to be bound by this
obligation."
19
PART 2
CASH MANAGEMENT COMPENSATION
The MTN Cash Manager's compensation for providing cash management services in
respect of Series 03-1 shall be met in full out of the MTN Cash Manager's
standard banking charges levied against the MTN Issuer from time to time in its
capacity as an account operating bank under the terms of the MTN Issuer Bank
Agreement dated [{circle}] April 2003 made between the MTN Issuer and the MTN
Cash Manager.
20
PART 3
SUPPLEMENTS TO CLAUSES 3, 6.1 TO 6.3 AND 18 OF THE SECURITY TRUST DEED
AND CASH MANAGEMENT AGREEMENT
3. ESTABLISHMENT AND MAINTENANCE OF LEDGERS
3.1 The Cash Manager shall open and maintain in the books of the MTN Issuer
certain notional ledgers (each a "LEDGER") in respect of Series 03-1 to
be known respectively as the "Class A Coupon Ledger", the "Class B Coupon
Ledger", the "Class C Coupon Ledger", the "Additional Funds Ledger", the
"Class A Principal Ledger", the "Class B Principal Ledger" and the "Class
C Principal Ledger" which together shall reflect the amount of monies
from time to time held by MTN Issuer in the Series 03-1 Distribution
Account.
3.2 The Cash Manager shall record all monies received or payments made by it
on behalf of the MTN Issuer in respect of Series 03-1 in the manner set
out in this Agreement. If at any time the Cash Manager is in any doubt
as to which Ledger a particular amount should be credited or debited, it
shall consult with the Trustee thereon.
3.3 The Cash Manager shall ensure that:
(a) the Class A Coupon Ledger will be credited on each Distribution
Date with the aggregate of (i) the MTN Issuer Costs Amounts, (ii)
the Class A Monthly Distribution Amount and (iii) all other
amounts (other than principal) distributed to the MTN Issuer by
the Receivables Trustee on such date in respect of the Class A
Investor Interest;
(b) the Class B Coupon Ledger will be credited on each Distribution
Date with the aggregate of (i) the Class B Monthly Distribution
Amount and (ii) all other amounts of (other than principal)
distributed to the MTN Issuer by the Receivables Trustee on such
date in respect of the Class B Investor Interest;
(c) the Class C Coupon Ledger will be credited on each Distribution
Date with the aggregate of (i) Class C Monthly Distribution Amount
and (ii) all other amounts (other than principal) distributed to
the MTN Issuer by the Receivables Trustee on such date in respect
of the Class C Investor Interest;
(d) the Class A Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables Trustee to
the MTN Issuer on such date in reduction of the Class A Investor
Interest;
(e) (if applicable) the Class A Principal Ledger will be credited on
each Distribution Date falling during the Rapid Amortisation
Period or the Regulated Amortisation Period with the amount paid
by the Receivables Trustee to the MTN Issuer on such date in
reduction of the Class A Investor Interest;
21
(f) the Class B Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables Trustee to
the MTN Issuer on such date in reduction of the Class B Investor
Interest;
(g) (if applicable) the Class B Principal Ledger will be credited on
each Distribution Date falling during the Rapid Amortisation
Period or the Regulated Amortisation Period with the amount paid
by the Receivables Trustee to the MTN Issuer on such date in
reduction of the Class B Investor Interest;
(h) the Class C Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables Trustee on
the Scheduled Redemption Date with the amount paid by the
Receivables Trustee to the MTN Issuer on such date in reduction of
the Class C Investor Interest;
(i) (if applicable) the Class C Principal Ledger will be credited on
each Distribution Date falling during the Rapid Amortisation
Period with the amount paid by the Receivables Trustee to the MTN
Issuer on such date in reduction of the Class C Investor Interest;
and
(j) the Additional Funds Ledger will be credited on each Distribution
Date with the Assigned Excess Spread and the Deferred Subscription
Price Amount (to the extent available).
3.4 The amounts credited to the Class A Coupon Ledger, the Class B Coupon
Ledger, the Class C Coupon Ledger and the Additional Funds Ledger on each
Distribution Date shall constitute respectively, "Class A Available
Funds", "Class B Available Funds", "Class C Available Funds" and
"Additional Available Funds".
4. APPLICATION OF MONIES PRE-ENFORCEMENT
4.1 On each Interest Payment Date:
(a) Class A Available Funds on such date will be applied in making the
following payments, in the amounts calculated by the Cash Manager
to be required, in the following order of priority (in each case
if and to the extent that payments of a higher priority have been
made in full):
(i) first, to pay when due the MTN Issuer Cost Amounts;
(ii) second, to pay all amounts of Interest payable in respect of
Class A (other than Further Interest);
(iii)third, to pay all amounts of Deferred Interest (if any)
payable in respect of Class A;
(iv) fourth, to pay all amounts of Additional Interest (if any)
payable in respect of Class A;
(v) fifth, an amount equal to the Monthly Loan Expenses Amount
plus, on the Series 03-1 Termination Date, an amount equal to
the principal calculated
22
as payable in accordance with the Expenses Loan Agreement will
be deposited in the Series 03-1 Issuer Account;
(vi) sixth, an amount equal to 1/2 of the Series 03-1 Extra Amount
will be paid to the MTN Issuer;
(vii) seventh, an amount equal to 1/2 of the Series 03-1 Extra
Amount will be deposited in the Series 03-1 Issuer Account;
(viii)eighth, pro rata, to pay to the Class A Servicing Fee and the
Class A Trust Cash Management Fee due in respect of the
preceding Monthly Period to the extent not paid directly to
the Servicer and the Trust Cash Manager out of amounts
allocated to the MTN Issuer by the Receivables Trustee on the
preceding Transfer Date; and
(ix) ninth, in payment to the MTN Issuer for distribution by way of
dividend to the shareholders of the MTN Issuer on such
Interest Payment Date or on any subsequent date on which a
dividend payment is declared and due by the MTN Issuer;
(b) Class B Available Funds on such date will be applied in making the
following payments, in the amounts calculated by the Cash Manager to
be required, in the following order of priority (in each case if and
to the extent that payments and provisions of a higher priority have
been paid in full):
(i) first, to pay all amounts of Interest payable in respect of
Class B (other than Further Interest);
(ii) second, to pay all amounts of Deferred Interest (if any)
payable in respect of Class B;
(iii)third, to pay all amounts of Additional Interest (if any)
payable in respect of Class B;
(iv) fourth, an amount equal to the Monthly Loan Expenses Amount
plus, on the Series 03-1 Termination Date, an amount equal to
the principal calculated as payable in accordance with the
Expenses Loan Agreement will be deposited in the Series 03-1
Issuer Account;
(v) fifth, an amount equal to 1/2 of the Series 03-1 Extra Amount
will be paid to the MTN Issuer;
(vi) sixth, an amount equal to 1/2 of the Series 03-1 Extra Amount
will be deposited in the Series 03-1 Issuer Account;
(vii) seventh, pro rata, to pay the Class B Servicing Fee and the
Class B Trust Cash Management Fee due in respect of the
preceding Monthly Period to the extent not paid directly to
the Servicer and the Trust Cash Manager out of amounts
allocated to the MTN Issuer by the Receivables Trustee on the
preceding Transfer Date;
23
(viii)eighth, in payment to the MTN Issuer for distribution by way
of dividend to the shareholders of the MTN Issuer on such
Interest Payment Date or on any subsequent date on which a
dividend payment is declared and due by the MTN Issuer;
(c) Class C Available Funds on such date will be applied in making the
following payments, in the amounts calculated by the Cash Manager to
be required, in the following order of priority (in each case if and
to the extent that payments and provisions of a higher priority have
been paid in full);
(i) first, to pay all amounts of Interest payable in respect of
Class C (other than Further Interest);
(ii) second, to pay all amounts of Deferred Interest (if any)
payable in respect of Class C;
(iii)third to pay all amounts of Additional Interest (if any)
payable in respect of Class C;
(iv) fourth, an amount equal to the Monthly Loan Expenses Amount
plus, on the Series 03-1 Termination Date, an amount equal to
the principal calculated as payable in accordance with the
Expenses Loan Agreement will be deposited in the Series 03-1
Issuer Account;
(v) fifth, an amount equal to 1/2 of the Series 03-1 Extra Amount
will be paid to the MTN Issuer;
(vi) sixth, an amount equal to 1/2 of the Series 03-1 Extra Amount
will be deposited in the Series 03-1 Issuer Account;
(vii) seventh, pro rata, to pay the Class C Servicing Fee and the
Class C Trust Cash Management Fee due in respect of the
preceding Monthly Period to the extent not paid directly to
the Servicer and the Trust Cash Manager out of amounts
allocated to the MTN Issuer by the Receivables Trustee on the
preceding Transfer Date; and
(viii)eighth, in payment to the MTN Issuer for distribution by way
of dividend to the shareholders of the MTN Issuer on such
Interest Payment Date or on any subsequent date on which a
dividend payment is declared and due by the MTN Issuer;
(d) Additional Available Funds (if any) on such date will be applied
in and towards firstly payment of Further Interest (if any),
secondly Excess Entitlement Consideration (if any) and then
repayment of any principal due for repayment thereunder on such
date.
4.2 Amounts credited to the Class A Principal Ledger, the Class B Principal
Ledger and the Class C Principal Ledger on the Scheduled Redemption Date
or, if applicable, each Distribution Date falling during the Rapid
Amortisation Period or, as the case may be,
24
the Regulated Amortisation Period, shall be applied on such dates in and
towards redemption of the Notes;
4.3 All Ledgers shall be reset to zero at the close of business on each
Interest Payment Date.
5. APPLICATION OF MONIES POST-ENFORCEMENT
5.1 Notwithstanding the security rights created by this MTN Supplement but
subject always to the provisions of Article 8(6)(b) of the Jersey
Security Interests Law in respect of the Jersey Security Interest, the
Trustee and each of the Secured Creditors hereby agrees, and the MTN
Issuer concurs, that from the time of the giving of an Enforcement
Notice, (a) no amount may be withdrawn from the Series 03-1 Distribution
Account except to the extent that it is applied in accordance with the
order of priorities set out in Clause 5.3 or as otherwise permitted by
the provisions of this MTN Supplement or any other Relevant Document that
are applicable after the giving of an Enforcement Notice.
5.2 Notwithstanding the security rights created by this MTN Supplement, but
subject always to the provisions of Article 8(6)(b) of the Jersey
Security Interests Law in respect of the Jersey Security Interest, the
Trustee and each of the Secured Creditors hereby agrees, and the MTN
Issuer concurs, that any monies whatsoever recovered by each of them or
on their behalf whether by the Trustee or otherwise after the giving of
an Enforcement Notice, shall be paid to the Trustee (and pending such
payment shall be held on trust for the Trustee) for application in
accordance with the order of priorities set out in Clause 5.3 (in each
case only if and to the extent that payments of higher priority have been
made in full).
5.3 The order of the priorities referred to in Clauses 5.1 and 5.2 is as
follows:
(a) FIRSTLY, in no order of priority inter se but pro rata to the
respective amounts then due, to pay remuneration then due to any
receiver appointed pursuant to this MTN Supplement or the Trustee
and all amounts due in respect of legal fees and other costs,
charges, liabilities, expenses, losses, damages, proceedings,
claims and demands then incurred by the Trustee under and in
respect of the Relevant Documents and in enforcing the security
created by or pursuant to this MTN Supplement or in perfecting
title to the Security, together with interest thereon as provided
in any such document;
(b) SECONDLY, (to the extent not covered by (a) above) in payment or
satisfaction of costs, charges, liabilities, expenses, losses,
damages, proceedings, claims and demands of the Trustee under the
Security Trust Deed and MTN Cash Management Agreement and this MTN
Supplement; and
(c) THIRDLY, in or towards payment pari passu and rateably of all
principal, premium (if any) and interest then due and unpaid in
respect of the Note Certificates (other than Further Interest);
25
(d) FOURTHLY, in or towards payment of any sums due from (or required
to be provided for by) the MTN Issuer to meet its liabilities to
any taxation authority (including in respect of corporation tax to
the Inland Revenue);
(e) FIFTHLY in or towards payment of any sums due to third parties
under obligations incurred in the course of the MTN Issuer's
business;
(f) SIXTHLY in or towards payment of any dividends due and unpaid to
shareholders of the MTN Issuer; and
(g) SEVENTHLY, to pay all amounts of Further Interest (if any);
(h) EIGHTHLY, to pay all amounts of Excess Entitlement Consideration
(if any);
(i) NINTHLY in payment of the balance (if any) to the liquidator of
the MTN Issuer,
Without prejudice to the above, if the Trustee holds any monies which represent
principal and interest in respect of any Note which has become void or in
respect of which claims have been prescribed under Condition 10, the Trustee
will hold such monies on the above trusts.
5.4 Clause 18.1 shall be supplemented by the addition of the following
wording to be inserted in line 2 after the words "applicable laws)":
"except for the purposes of payments in respect thereof, the right to
which shall be vested, as against the MTN Issuer, the Trustee and the
Agents, solely in the bearer thereof".
26
EXHIBIT A
PART 1
FORM OF TEMPORARY GLOBAL NOTE CERTIFICATE
TEMPORARY GLOBAL NOTE CERTIFICATE
ISIN: [*] Common Code: [*]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE AND NOTE CERTIFICATE PROGRAMME
TEMPORARY GLOBAL NOTE CERTIFICATE
REPRESENTING UP TO
{pound-sterling}[*]
FLOATING RATE ASSET BACKED NOTE CERTIFICATES DUE [*]
This global note is a Temporary Global Note Certificate without interest
coupons issued in respect of an issue of an aggregate principal amount of
{pound-sterling}[*] of Floating Rate Asset Backed Notes due [*] (the "NOTE
CERTIFICATES") by Barclaycard Funding PLC (the "MTN ISSUER").
The MTN Issuer for value received promises, all in accordance with the terms
and conditions set out in the applicable Series 03-1 Supplement ("TERMS AND
CONDITIONS") and the Principal Trust Deed (as defined below) to pay to the
bearer upon presentation or, as the case may be, surrender hereof in respect of
each Note Certificate for the time being from time to time represented hereby,
on the maturity date specified in the Terms and Conditions or on such earlier
date as any such Note Certificate may become due and payable in accordance with
the Terms and Conditions, the Principal Amount on such dates as may be
specified in the Terms and Conditions or, if any such Note Certificate shall
become due and payable on any other date, the Principal Amount and, in respect
of each such Note Certificate, to pay interest and all other amounts as may be
payable pursuant to the Terms and Conditions all subject to and in accordance
therewith.
Except as specified herein, the bearer of this Temporary Global Note
Certificate is entitled to the benefit of the Terms and Conditions and of the
same obligations on the part of the MTN Issuer as if such bearer were the
bearer of the Note Certificates represented hereby and to the benefit of those
provisions of the Terms and Conditions (and the obligations on the part of the
MTN Issuer contained therein) applicable specifically to Temporary Global Note
Certificate,
27
and all payments under and to the bearer of this Temporary Global Note
Certificate shall be valid and effective to satisfy and discharge the
corresponding Liabilities of the MTN Issuer in respect of the Note Certificates.
This Temporary Global Note Certificate is issued pursuant to a security trust
deed and MTN cash management deed dated 23 November 1999 (the "PRINCIPAL TRUST
DEED") together with the supplemental trust deed in respect of Series 03-1
dated [*] April 2003 (the "SERIES 03-1 SUPPLEMENT" and, together with the
Principal Trust Deed, the "TRUST DEED") and made between the MTN Issuer and The
Bank of New York, London Branch as trustee (the "TRUSTEE" which expression
includes any person or corporation from time to time appointed as trustee).
Words and expressions defined expressly or by reference in the Terms and
Conditions and the Trust Deed shall have the same meanings in this Temporary
Global Note Certificate.
On or after the expiry of 40 days after the date of issue of this Temporary
Global Note Certificate (the "EXCHANGE DATE"), this Temporary Global Note
Certificate shall be exchangeable in whole or in part for a Permanent Global
Note or, in the circumstances set out in the Series 03-1 Supplement for
Definitive Note. An exchange for a Permanent Global Note or, as the case may
be, Definitive Note will be made only on or after the Exchange Date (specified
in the Series 03-1 Supplement) and upon presentation or, as the case may be,
surrender of this Temporary Global Note Certificate to the Principal Paying
Agent at its specified office and upon and to the extent of delivery to the
Principal Paying Agent of a certificate or certificates issued by Euroclear
Bank S.A./N.V. as operator of the Euroclear System ("EUROCLEAR") or
Clearstream, Luxembourg or by any other relevant clearing system and dated not
earlier than the Exchange Date in substantially the form set out in Annex I
hereto or, as the case may be, in the form that is customarily issued in such
circumstances by such other clearing system. Any Definitive Note will be made
available for collection by the persons entitled thereto at the specified
office of the Principal Paying Agent.
The MTN Issuer undertakes to procure that the relevant Permanent Global Note
and Definitive Note will be duly issued in accordance with the Terms and
Conditions, the provisions hereof and of the Trust Deed.
The bearer of this Temporary Global Note Certificate shall not (unless, upon
due presentation of this Temporary Global Note Certificate for exchange (in
whole or in part) for a Permanent Global Note or for delivery of Definitive
Note, such exchange or delivery is improperly withheld or refused and such
withholding or refusal is continuing at the relevant payment date) be entitled
to receive any payment in respect of the Note Certificates represented by this
Temporary Global Note Certificate which falls due on or after the Exchange Date
or be entitled to exercise any option on a date after the Exchange Date.
Payments of interest otherwise falling due before the Exchange Date will be
made only upon presentation of this Temporary Global Note Certificate at the
specified office of any of the Paying Agents outside the United States and upon
and to the extent of delivery to the relevant Paying Agent of a certificate or
certificates issued by Euroclear or Clearstream, Luxembourg or by any other
relevant clearing system and dated not earlier than the relevant interest
payment date in substantially the form set out in Annex II hereto or, as the
case may be, in the form that is customarily issued in such circumstances by
such other clearing system.
28
On any occasion on which a payment of principal is made in respect of this
Temporary Global Note Certificate or on which this Temporary Global Note
Certificate is exchanged in whole or in part as aforesaid or on which Note
Certificate represented by this Temporary Global Note Certificate are to be
cancelled, the MTN Issuer shall procure that (i) the aggregate principal amount
of the Note Certificates in respect of which such payment is made (or, in the
case of a partial payment, the corresponding part thereof) or which are
delivered in definitive form or which are to be exchanged for a permanent
global instrument or which are to be cancelled and (ii) the remaining principal
amount of this Temporary Global Note Certificate (which shall be the previous
principal amount hereof less the amount referred to at (i) above) are noted on
the Schedule hereto, whereupon the principal amount of this Temporary Global
Note Certificate shall for all purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Note
Certificates represented by this Temporary Global Note Certificate, the MTN
Issuer shall procure that the appropriate notations are made on the Schedule
hereto.
The obligations of the MTN Issuer in respect of this Temporary Global Note
Certificate are limited recourse in nature, as more particularly set out in the
Terms and Conditions and the Trust Deed. In addition the bearer of this
Temporary Global Note Certificate and, inter alios, the Trustee are restricted
in the proceedings which they may take against the MTN Issuer to enforce their
rights hereunder and under the Trust Deed, as more particularly set out in the
Terms and Conditions and the Trust Deed.
This Temporary Global Note Certificate is governed by, and shall be construed
in accordance with, English law.
The MTN Issuer irrevocably agrees for the benefit of the bearer that the courts
of England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in
connection with these presents (respectively, "PROCEEDINGS" and "DISPUTES")
and, for such purposes, irrevocably submits to the jurisdiction of such courts.
The MTN Issuer irrevocably waives any objection which it might now or hereafter
have to the courts of England being nominated as the forum to hear and
determine any Proceedings and to settle any Disputes and agrees not to claim
that any such court is not a convenient or appropriate forum.
This Temporary Global Note Certificate shall not be valid for any purpose until
authenticated for and on behalf of The Bank of New York, London Branch as Issue
Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the MTN Issuer.
29
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTE CERTIFICATES, EXCHANGE FOR PERMANENT
GLOBAL NOTE CERTIFICATE, EXERCISE OF OPTIONS AND CANCELLATION OF NOTE
CERTIFICATES
Date of payment, Amount of Amount of Aggregate Aggregate principal Aggregate Aggregate Remaining Authorised
delivery, exchange, interest principal principal amount of this Tempora principal principal principal signature
exercise of option then paid then paid amount of Global Note Certificate amount of amount in amount of by or on
(and date upon Definitive then exchanged for Note respect of this behalf of
which exercise is Note the Permanent Certificate which Temporary the
effective) or Certificates Global Note then option is Global Note Principal
cancellation then Certificate cancelled exercised Certificate Paying
delivered Agent
30
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
ISSUED in London on [*]
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK
as Issue Agent without recourse,
warranty or liability
By:[manual signature]
(duly authorised)
31
ANNEX I
[Form of certificate to be given in relation to exchanges of this Temporary
Global Note for the Permanent Global Note Certificates or Definitive Note
Certificates:]
BARCLAYCARD FUNDING PLC
{pound-sterling}[*] FLOATING RATE ASSET BACKED NOTE CERTIFICATES
(the "NOTE CERTIFICATES")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member
organisations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "MEMBER ORGANISATIONS")
substantially to the effect set forth in the Agency Agreement as of the date
hereof, [ ] principal amount of the above-captioned Note Certificates (i) is
owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("UNITED STATES PERSONS"), (ii) is owned by United States persons that
(a) are foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v) ("FINANCIAL INSTITUTIONS"))
purchasing for their own account or for resale, or (b) acquired the Note
Certificates through and are holding through on the date hereof (as such terms
"acquired through" and "holding through" are described in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United States
financial institutions (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the MTN Issuer or the MTN Issuer's agent that it will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Note Certificates for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as at the date hereof.
32
We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date:[ ][1]
[Euroclear Bank S.A./N.V. as operator of the Euroclear System/Clearstream,
Luxembourg]
By:[authorised signature]
- -----------------------------------------------------------------------------
1 To be dated not earlier than the Exchange Date.
33
ANNEX II
[Form of certificate to be given in relation to payments of interest falling
due before the Exchange Date:]
BARCLAYCARD FUNDING PLC
{pound-sterling}[*] FLOATING RATE ASSET BACKED NOTE CERTIFICATES
(the "NOTE CERTIFICATES")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member
organisations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "MEMBER ORGANISATIONS")
substantially to the effect set forth in the Issue and Paying Agency Agreement
as of the date hereof, [ ] principal amount of the above-captioned Note
Certificates (i) is owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("UNITED STATES PERSONS"), (ii) is owned by United
States persons that (a) are foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
("FINANCIAL INSTITUTIONS")) purchasing for their own account or for resale, or
(b) acquired the Note Certificates through and are holding through on the date
hereof (as such terms "acquired through" and "holding through" are described in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of
United States financial institutions (and in either case (a) or (b), each such
United States financial institution has agreed, on its own behalf or through
its agent, that we may advise the MTN Issuer or the MTN Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States
or foreign financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they have not
acquired the Note Certificates for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of the Note Certificates set
forth above that, except as set out below, we have received in writing, by
tested telex or by electronic transmission, from our Member Organisations
entitled to a portion of such principal amount, certifications with respect of
such portion, substantially to the effect set forth in the Temporary Global
Note Certificate representing the Note Certificates.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
34
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as at the date hereof.
We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date:[ ][1]
[Euroclear Bank S.A./N.V. as operator of the Euroclear System/Clearstream,
Luxembourg]
By:[authorised signature]
- -------------------------------------------------------------------------------
1 To be dated not earlier than the relevant interest payment date.
35
ANNEX III
[Form of accountholder's certification referred to in the preceding
certificate:]
BARCLAYCARD FUNDING PLC
{pound-sterling}[*] FLOATING RATE ASSET BACKED NOTE CERTIFICATE
(the "NOTE CERTIFICATES")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Note Certificate held by you for our account (i) are owned
by persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to the United States Federal income taxation regardless of its
source ("UNITED STATES PERSONS"), (ii) are owned by United States person(s)
that (a) are foreign branches of a United States financial institution (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("FINANCIAL
INSTITUTIONS") purchasing for their own account or for resale, or (b) acquired
the Note Certificates through and are holding through on the date hereof (as
such terms "acquired through" and "holding through" are described in U.S.
Treasury Regulations Section 1.163-5(c) (2)(i) (D)(6)) foreign branches of
United States financial institutions (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise the MTN Issuer or the MTN Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of
the Note Certificates is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) this is further to certify that such financial institution has not
acquired the Note Certificates for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
If the Note Certificates are of the category contemplated in Section
230.903(b)(3) of Regulation S under the Securities Act of 1933 (the "ACT") then
this is also to certify that, as except as set forth below, the Note
Certificates are beneficially owned by (a) non-U.S. person(s) or (b) U.S.
person(s) who purchased the Note Certificates in transactions which did not
require registration under the Act. As used in this paragraph, the term "U.S.
person" has the meaning given to it by Regulation S under the Act.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Note Certificates
held by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
36
This certification excepts and does not relate to [ ] of such interest in
the above Note Certificate in respect of which we are not able to certify and
as to which we understand exchange and delivery of definitive Note Certificate
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced
or threatened in connection with which this certification is or would be
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Date:[ ][1]
[ACCOUNTHOLDER] AS (OR AS AGENT FOR) THE BENEFICIAL OWNER OF THE NOTE
CERTIFICATES.
By:[authorised signature]
- -------------------------------------------------------------------------------
1 To be dated not earlier than fifteen days before the Exchange Date or, is the
case may be the relevant interest payment date.
37
PART 2
FORM OF CLASS A PERMANENT GLOBAL NOTE CERTIFICATE
PERMANENT GLOBAL NOTE CERTIFICATE
ISIN: [XS0157101873] Common Code: [15710187]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE AND NOTE CERTIFICATE PROGRAMME
PERMANENT GLOBAL NOTE CERTIFICATE
representing up to
{pound-sterling}[{circle}]
FLOATING RATE ASSET BACKED NOTE CERTIFICATES DUE [{circle}]
This global instrument is a Permanent Global Note Certificate with interest
coupons issued in respect of an issue of an aggregate principal amount of
{pound-sterling}[{circle}] of Floating Rate Asset Backed Note Certificates due
[{circle}] (the "NOTE CERTIFICATES") by Barclaycard Funding PLC (the "MTN
ISSUER").
The MTN Issuer for value received promises, all in accordance with the terms
and conditions set out in the Series 03-1 Supplement ("TERMS AND CONDITIONS")
and the Trust Deed (as defined below) to pay to the bearer upon presentation
or, as the case may be, surrender hereof in respect of each Note Certificate
for the time being from time to time represented hereby, on the maturity date
specified in the Terms and Conditions or on such earlier date as any such Note
Certificate may become due and payable in accordance with the Terms and
Conditions, the Principal Amount on such dates as may be specified in the
Terms and Conditions or, if any such Note Certificate shall become due and
payable on any other date, the Principal Amount and, in respect of each such
Note Certificate, to pay interest and all other amounts as may be payable
pursuant to the Terms and Conditions, all subject to and in accordance
therewith.
Except as specified herein, the bearer of this Permanent Global Note
Certificate is entitled to the benefit of the Terms and Conditions and of the
same obligations on the part of the MTN Issuer as if such bearer were the
bearer of the Note Certificates represented hereby and to the benefit of those
Terms and Conditions (and the obligations on the part of the MTN Issuer
contained therein) applicable specifically to Permanent Global Note
Certificate, and all payments under and to the bearer of this Permanent Global
Note Certificate shall be valid and effective to satisfy
38
and discharge the corresponding Liabilities of the MTN Issuer in respect of the
Note Certificates.
This Permanent Global Note Certificate is issued pursuant to a security trust
deed dated 23 November 1999 (the "PRINCIPAL TRUST DEED") and the supplement
thereto in respect of Series 03-1 (the "Series 03-1 Supplement" and together
with the Security Trust Deed, the "TRUST DEED") and made between the MTN Issuer
and The Bank of New York, London Branch as trustee (the "TRUSTEE" which
expression includes any person or corporation appointed from time to time as
trustee). Words and expressions defined expressly or by reference in the Terms
and Conditions and the Trust Deed shall have the same meanings in this
Permanent Global Note Certificate.
This Permanent Global Note Certificate will be exchanged in whole but not in
part for Definitive Note Certificate if (a) any Note Certificate of the
relevant Series becomes immediately redeemable following the occurrence of an
Event of Default in relation thereto (b) Euroclear Bank S.A./N.V. as operator
of the Euroclear System or Clearstream, Luxembourg, or any other relevant
clearing system is closed for business for a continuous period of 14 days
(other than by reason of legal holidays) or announces an intention to cease
business permanently or in fact does so; or (c) if so specified in the Trust
Deed, upon the request of a Holder of a beneficial interest in this Permanent
Global Note Certificate. In the case of (a) and (b), the MTN Issuer shall bear
the entire cost and expense and, in the case of (c) the Holder making such
request shall bear the entire cost and expense. In order to exercise the
option contained in paragraph (c) of the preceding sentence, the bearer hereof
must, at the request of the Holder making such request, not less than forty-
five days before the date upon which the delivery of such Definitive Note
Certificate is required, deposit this Permanent Global Note Certificate with
the Principal Paying Agent at its specified office with the form of exchange
notice endorsed hereon duly completed. Any Definitive Note Certificate will be
made available for collection by the persons entitled thereto at the specified
office of the Principal Paying Agent.
The MTN Issuer undertakes to procure that the relevant Definitive Note
Certificate will be duly issued in accordance with the Terms and Conditions,
the provisions hereof and of the Trust Deed.
On any occasion on which a payment of interest is made in respect of this
Permanent Global Note Certificate, the MTN Issuer shall procure that the same
is noted on the Schedule hereto.
On any occasion on which a payment of principal is made in respect of this
Permanent Global Note Certificate or on which this Permanent Global Note
Certificate is exchanged as aforesaid or on which any Note Certificate
represented by this Permanent Global Note Certificate are to be cancelled the
MTN Issuer shall procure that (i) the aggregate principal amount of the Note
Certificates in respect of which such payment is made (or, in the case of a
partial payment, the corresponding part thereof) or which are delivered in
definitive form or which are to be cancelled and (ii) the remaining principal
amount of this Permanent Global Note Certificate (which shall be the previous
principal amount hereof less the amount referred to at (i) above) are noted on
the Schedule hereto, whereupon the principal amount of this Permanent Global
Note Certificate shall for all purposes be as most recently so noted.
39
On each occasion on which an option is exercised in respect of any Note
Certificate represented by this Permanent Global Note Certificate, the MTN
Issuer shall procure that the appropriate notations are made on the Schedule
hereto.
Insofar as the Temporary Global Note Certificate by which the Note Certificates
were initially represented has been exchanged in part only for this Permanent
Global Note Certificate and is then to be further exchanged as to the remaining
principal amount or part thereof for this Permanent Global Note Certificate,
then upon presentation of this Permanent Global Note Certificate to the
Principal Paying Agent at its specified office and to the extent that the
aggregate principal amount of such Temporary Global Note Certificate is then
reduced by reason of such further exchange, the MTN Issuer shall procure that
(i) the aggregate principal amount of the Note Certificates in respect of which
such further exchange is then made and (ii) the new principal amount of this
Permanent Global Note Certificate (which shall be the previous principal amount
hereof plus the amount referred to at (i) above) are noted on the Schedule
hereto, whereupon the principal amount of this Permanent Global Note
Certificate shall for all purposes be as most recently noted.
The obligations of the MTN Issuer in respect of this Permanent Global Note
Certificate are limited recourse in nature, as more particularly set out in the
Terms and Conditions and the Trust Deed. In addition, the bearer of this
Permanent Global Note Certificate and, inter alios, the Trustee are restricted
in the proceedings which they may take against the MTN Issuer to enforce their
rights hereunder and under the Trust Deed, as more particularly described in
the Terms and Conditions and the Trust Deed.
This Permanent Global Note Certificate is governed by, and shall be construed
in accordance with, English law.
The MTN Issuer irrevocably agrees for the benefit of the bearer that the courts
of England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in
connection with this Permanent Global Note Certificate (respectively,
"PROCEEDINGS" and "DISPUTES") and, for such purposes, irrevocably submits to
the jurisdiction of such courts. The MTN Issuer irrevocably waives any
objection which it might now or hereafter have to the courts of England being
nominated as the forum to hear and determine any Proceedings and to settle any
Disputes and agrees not to claim that any such court is not a convenient or
appropriate forum.
This Permanent Global Note Certificate shall not be valid for any purpose until
authenticated for and on behalf of The Bank of New York, London Branch, as
Issue Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the MTN Issuer.
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
40
ISSUED in London as of [{circle}] April 2003
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK as Issue Agent
without recourse, warranty or liability
By:[manual signature]
(duly authorised)
41
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTE CERTIFICATES, FURTHER EXCHANGES OF THE
TEMPORARY GLOBAL NOTE CERTIFICATE, EXERCISE OF OPTIONS AND CANCELLATION OF NOTE
CERTIFICATES
Date of payment, delivery, further Amount of Amount of Aggregate Aggregate Aggregate Aggregate Current Authorised
exchange of Temporary Global Note interest principal principal principal principal principal principal signature
Certificate, exercise of option (and then paid then paid amount of amount of amount of amount in amount of by or on
date upon which exercise is Definitive Note further respect of this behalf of
effective) or cancellation Note Certificate exchanges which Permanent the
Certificates then of option is Global Note Principal
then cancelled Temporary exercised Certificate Paying
delivered Global Note Agent
Certificate
42
EXCHANGE NOTICE
.............................., being the bearer of this Permanent Global Note
Certificate at the time of its deposit with the Principal Paying Agent at its
specified office for the purposes of the Note Certificates, hereby exercises
the option set out above to have this Permanent Global Note exchanged in whole
for Definitive Note Certificates in aggregate principal amount of [ ]
and directs that such Definitive Note Certificates be made available for
collection by it from the Principal Paying Agent's specified office.
By: ...........................................
(duly authorised)
43
MTN ISSUER
EXECUTED as a Deed by )
BARCLAYCARD FUNDING PLC )
by its duly authorised attorney in the presence of: )
INITIAL TRANSFEROR
EXECUTED as a Deed by )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
in the presence of:
)
TRUSTEE
EXECUTED as a Deed by )
THE BANK OF NEW YORK )
acting by its duly authorised )
attorney in the presence of
RECEIVABLES TRUSTEE
EXECUTED as a Deed by )
GRACECHURCH RECEIVABLES )
TRUSTEE LIMITED )
acting by its duly authorised signatory )
PROCESS AGENT
[Barcosec
54 Lombard Street
London EC3P 3AH]
MTN CASH MANAGER
EXECUTED as a Deed by )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
44