C L I F F O R D LIMITED LIABILITY PARTNERSHIP
C H A N C E
EXHIBIT 4.5
Dated [8] April 2003
GRACECHURCH CARD FUNDING (NO.3) PLC
as Issuer
THE BANK OF NEW YORK
as Note Trustee
BARCLAYS BANK PLC
as Swap Counterparty
- AND -
BARCLAYS BANK PLC
as Expenses Loan Provider
____________________________________________________
DEED OF CHARGE
____________________________________________________
CONTENTS
CLAUSE PAGE
1. Interpretation...........................................................1
2. Covenants By The Issuer..................................................2
3. Security And Declaration Of Trust........................................2
4. Redemption...............................................................4
5. Payments Out Of Series 03-1 Issuer Accounts..............................4
6. Enforcement Notice.......................................................4
7. Conflict.................................................................6
8. Continuance Of Security And Other Matters................................6
9. Expenses.................................................................7
10. The Note Trustee's Powers................................................7
11. Receiver ..............................................................9
12. Protection Of Third Parties.............................................11
13. Protection Of Note Trustee And Receiver.................................11
14. Indemnity .............................................................12
15. Further Assurance And Power Of Attorney.................................12
16. Other Security Etc......................................................13
17. Limited Recourse; Non-Petition..........................................13
18. Notices And Demands.....................................................14
19. Variation .............................................................15
20. Waivers And Consents....................................................15
21. Powers Cumulative.......................................................15
22. Partial Invalidity......................................................15
23. Counterparts............................................................15
24. Governing Law...........................................................15
25. Contract (Rights Of Third Parties) Act..................................15
THE SCHEDULE .............................................................16
THIS DEED OF CHARGE is made on [8] April 2003
BETWEEN
(A) GRACECHURCH CARD FUNDING (NO.3) PLC, a public limited company
incorporated in England and Wales with registered number 4642617, having
its registered office at 54 Lombard Street, London EC3P 3AH (the
"ISSUER");
(B) THE BANK OF NEW YORK, a New York banking corporation acting through its
London branch located at 48th Floor, One Canada Square, London E14 5PL
(together with any successor trustee under the Trust Deed, the "NOTE
TRUSTEE");
(C) BARCLAYS BANK PLC, a company incorporated in England and Wales having its
registered office at 54 Lombard Street, London, EC3P 3AH (in its capacity
as counterparty under the Swap Agreements, the "SWAP COUNTERPARTY");
(D) BARCLAYS BANK PLC, a company incorporated in England and Wales having its
registered office at 54 Lombard Street, London, EC3P 3AH (in its capacity
as the lender under the Expenses Loan Agreement, the "EXPENSES LOAN
PROVIDER").
THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 Wherever used in this Deed, unless the context otherwise requires, the
following expressions shall have the following meanings:
"CHARGED PROPERTY" shall mean the property charged pursuant to Clause 3;
"DEFERRED SUBSCRIPTION PRICE AMOUNT" means on any Distribution Date an
amount equal to the Further Interest received on the Series 03-1 MTN
Certificate on such Distribution Date and not utilised by the Issuer.
"ENFORCEMENT NOTICE" shall mean a notice served by the Note Trustee
pursuant to Clause 6.1;
"FURTHER INTEREST" means the amount to be paid by the MTN Issuer to the
Issuer which is equal to the amount received by the MTN Issuer under the
Agreement between Beneficiaries;
"LPA" means the Law of Property Act 1925;
"RECEIVER" shall mean any receiver, manager or administrative receiver
appointed by the Note Trustee in relation to this Deed;
"SECURED AMOUNTS" shall mean the monies and liabilities secured under or
pursuant to this Deed, excluding the Deferred Subscription Price Amount,
which the Issuer covenants and undertakes in Clause 2 to pay or
discharge;
"SECURITY INTEREST" shall mean any mortgage, charge, pledge, lien or
other encumbrance, howsoever created or arising;
- 1 -
"SERIES 03-1 ISSUER ACCOUNTS" means the account of the Issuer held at
Barclays Bank Plc, 54 Lombard Street, London EC3P 3AH specified in Clause
1.1 of the Issuer Bank Agreement dated [8] April 2003; and
"SERIES 03-1 MTN CERTIFICATE" means the medium term note certificate
issued by the MTN Issuer with respect to Series 03-1.
1.2 In addition to the definitions stated above, wherever used in this Deed,
the words and phrases defined in the Trust Deed dated on or about the
date hereof and signed by the Issuer and the Note Trustee, shall, unless
otherwise defined herein or the context otherwise requires, bear the same
meanings herein (including the recitals hereto).
2. COVENANTS BY THE ISSUER
The Issuer hereby covenants with and undertakes:
(i) to the Note Trustee, for itself and on trust for the Noteholders,
that it will duly and punctually pay or discharge to or to the
order of the Note Trustee and/or any Receiver all monies and
liabilities whatsoever which from time to time become due, owing
or payable by it to or to the order of the Note Trustee, such
Receiver and/or the Noteholders under or pursuant to the Issuer
Related Documents (as defined in Note Condition 4) or any of them
at the times and in the manner provided in such documents;
(ii) to the Swap Counterparty, that it will duly and punctually pay or
discharge to or to the order of the Swap Counterparty all monies
and liabilities whatsoever which from time to time become due,
owing or payable by it to or to the order of the Swap Counterparty
under or pursuant to the Swap Agreements at the times and in the
manner provided therein; and
(iii) to the Expenses Loan Provider, that it will duly and punctually
pay or discharge to or to the order of the Expenses Loan Provider
all monies and liabilities whatsoever which from time to time
become due, owing or payable by it to or to the order of the
Expenses Loan Provider under or pursuant to the Expenses Loan
Agreement at the times and in the manner provided therein.
3. SECURITY AND DECLARATION OF TRUST
3.1 As continuing first fixed security for the payment or discharge of the
Secured Amounts, and subject always to Clause 4 the Issuer with full
title guarantee hereby conveys, assigns and transfers by way of security
to and in favour of the Note Trustee for itself and on trust for the
Noteholders, the Swap Counterparty and for the Expenses Loan Provider:
(i) all its right, title, benefit and interest in and to the Series
03-1 MTN Certificate, and any payments arising therefrom;
(ii) all its right, title, interest and benefit present and future in
and to any agreement or document which the Issuer is, or may at
any time be, expressed to have the benefit of or to have any
rights under or to have any other interest in unless otherwise
charged or secured by way of fixed security under this Clause 3.1,
- 2 -
(including, without limitation, all supplements and accretions
thereto, all rights to receive payment of any amounts which may
become payable thereunder and all payments received by the Issuer
thereunder and all items expressed to be held on trust for the
Issuer thereunder or comprised therein, all rights to serve
notices and/or give consents and directions and/or make demands
thereunder and/or take such steps as are required to cause
payments to become due and payable thereunder and all rights of
action in respect of any breach thereof and all rights to receive
damages or obtain other relief in respect thereof);
(iii) 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 to be credited to the Series 03-1 Issuer Accounts or to any
bank or other accounts in which the Issuer may at any time have or
acquire any right, title, interest or benefit together with all
interest accruing from time to time thereon and the debts
represented thereby and all its right, title, interest and benefit
present and future therein.
3.2 As continuing security for the payment or discharge of the Secured
Amounts and subject always to Clause 4 the Issuer with full title
guarantee hereby charges in favour of the Note Trustee for itself and on
trust for the Swap Counterparty and the Expenses Loan Provider by way of
first fixed sub-charge all of its right, title and interest in the
security interests created by the MTN Issuer in favour of the MTN
Security Trustee pursuant to the Security Trust and MTN Cash Management
Deed dated 23 November 1999 and as supplemented by the series 03-1 MTN
supplement dated [8] April 2003 in respect of the Series 03-1 MTN
Certificate.
3.3 As continuing security for the payment or discharge of the Secured
Amounts and subject always to Clause 4 the Issuer with full title
guarantee hereby charges in favour of the Note Trustee for itself and on
trust for the Swap Counterparty and the Expenses Loan Provider by way of
first floating charge the whole of its undertaking and all its property,
assets and rights whatsoever, and wheresoever, present and future but
excluding any other property or assets from time to time or for the time
being effectively charged or sub-charged by way of fixed charge or sub-
charge or otherwise effectively transferred or assigned by way of fixed
security by this Clause 3.
3.4 The Issuer hereby agrees to give notice to the bank at which the Series
03-1 Issuer Accounts is held in the form of the notice set out in the
Schedule.
3.5 Notwithstanding the charges and securities created by or pursuant to this
Deed, the Note Trustee, the Swap Counterparty and the Expenses Loan
Provider acknowledge that, until receipt of notice to the contrary from
the Note Trustee following service of an Enforcement Notice, payments
becoming due to the Issuer by the MTN Issuer pursuant to the Series 03-1
MTN Certificate, together with all other monies payable to the Issuer
pursuant to any other documents or arrangements to which it is a party,
may (in any case) be made to the Issuer in accordance with the provisions
of the Series 03-1 MTN Certificate or (as the case may be) the documents
or arrangements concerned, and the Issuer may exercise its rights, powers
and discretions and perform its obligations in relation to the Charged
Property and under the Issuer Related Documents in accordance
- 3 -
with the provisions of the Issuer Related Documents or (as the case may
be) such other documents or arrangements.
3.6 The Note Trustee declares itself a trustee of the covenants,
undertakings, charges and securities given or created under or pursuant
to this Deed for itself, and on trust for the Noteholders, the Swap
Counterparty and the Expenses Loan Provider subject to Clause 4.
4. REDEMPTION
Upon proof being given to the satisfaction of the Note Trustee as to the
irrevocable and unconditional payment or discharge of the Secured
Amounts, the Note Trustee will at the request and cost of the Issuer
release, discharge or reassign the Charged Property to the Issuer or any
other person entitled thereto of whom the Note Trustee has notice.
5. PAYMENTS OUT OF SERIES 03-1 ISSUER ACCOUNTS
5.1 Notwithstanding the security created by or pursuant to this Deed, but
subject always to Clause 6.3, prior to the service of an Enforcement
Notice by the Note Trustee, amounts standing to the credit of the Series
03-1 Issuer Distribution Account from time to time may be withdrawn
therefrom by the Issuer but only in accordance with the applicable
provisions of the Issuer Related Documents.
5.2 From and including the time when the Note Trustee serves an Enforcement
Notice on the Issuer, no amount may be withdrawn from the Series 03-1
Issuer Accounts by the Issuer or on its behalf without the prior written
consent of the Note Trustee and in any event otherwise than in accordance
with Clause 6.
6. ENFORCEMENT NOTICE
6.1 Subject to the provisions of this Clause if, at any time while any of the
Secured Amounts remain outstanding, an Event of Default in relation to
the Notes occurs which is unremedied within the period of grace (if any)
applying thereto, then the Note Trustee may in its absolute discretion
serve on the Issuer an Enforcement Notice thereby crystallising the
floating charge created by Clause 3.3 into a fixed charge or fixed
charges as regards any assets specified in the Enforcement Notice and by
way of further assurance of such fixed charge or fixed charges or
securities the Issuer shall promptly execute over such assets a fixed
charge or fixed charges or securities in favour of the Note Trustee in
such form as the Note Trustee shall require.
6.2 All monies received or recovered by the Note Trustee in respect of the
Secured Amounts after an Enforcement Notice has been served by the Note
Trustee shall be held by it, and all monies received or recovered
(whether by way of set-off, retention, compensation or balancing of
accounts) by the Noteholders (other than the Note Trustee), the Swap
Counterparty or the Expenses Loan Provider in respect of the Secured
Amounts (other than monies received pursuant to Clause 6.4) after an
Enforcement Notice has been served by the Note Trustee shall forthwith be
paid to (and, pending such payment, held on trust for) the Note Trustee
to be held by the Note Trustee, in each case on trust to be applied in
accordance with the order of priority of payments established pursuant to
Clause 6.4.
- 4 -
6.3 From the date upon which an Enforcement Notice is served, all monies
standing to the credit of the Series 03-1 Issuer Accounts from time to
time shall be applied in accordance with the order of priority of
payments established pursuant to Clause 6.4 and no amount may be debited
therefrom for any other purpose.
6.4 From the date upon which an Enforcement Notice is served, all monies
referred to in Clauses 6.2 and 6.3 above shall be applied, in the amounts
required (but only to the extent that such payment does not cause the
Series 03-1 Issuer Accounts 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 this 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/or in enforcing the security created by or
pursuant to this Deed of Charge or in perfecting title to the
Charged Property, together with interest thereon as provided in
any such document;
(b) SECONDLY, towards payment of all principal, premium (if any) and
then interest then due and unpaid in respect of the Class A Notes
after, subject to the eleventh item below, 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;
(c) THIRDLY, towards payment of all principal, premium (if any) and
then interest then due and unpaid in respect of the Class B Notes
after, subject to the twelfth item below, having paid any Sterling
Amounts required to be paid to the Swap Counterparty under the
Swap Agreement relating to the Class B Notes;
(d) FOURTHLY, towards payment of amounts of interest due and unpaid
under the terms of the Expenses Loan Agreement;
(e) FIFTHLY, towards payment of all principal, premium (if any) and
then interest then due and unpaid in respect of the Class C Notes
after, subject to the thirteenth item below, having paid any
Sterling Amounts required to be paid to the Swap Counterparty
under the Swap Agreement relating to the Class C Notes;
(f) SIXTHLY, 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;
(g) SEVENTHLY, 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);
(h) EIGHTHLY, towards payment of any sums due to third parties under
obligations incurred in the course of the Issuer's business;
(i) NINTHLY, in or towards payment of the Deferred Subscription Price
Amount;
- 5 -
(j) TENTHLY, towards payment of any dividends due and unpaid to
shareholders of the Issuer;
(k) ELEVENTHLY, towards payment of the amount equal to any termination
payment due and payable to the Swap Counterparty pursuant to the
Class A Swap Agreement where the Class A Swap Agreement has been
terminated as a result of a default by the Swap Counterparty;
(l) TWELFTHLY, towards payment of the amount equal to any termination
payment due and payable to the Swap Counterparty pursuant to the
Class B Swap Agreement where the Class B Swap Agreement has been
terminated as a result of a default by the Swap Counterparty;
(m) THIRTEENTHLY, towards payment of the amount equal to any
termination payment due and payable to the Swap Counterparty
pursuant to the Class C Swap Agreement where the Class C Swap
Agreement has been terminated as a result of a default by the Swap
Counterparty; and
(n) THIRTEENTHLY, in payment of the balance (if any) to the liquidator
of the Issuer.
7. CONFLICT
The Note Trustee shall have regard only to what, in its reasonable
opinion, it considers to be the interests of the Noteholders, the Swap
Counterparty and the Expenses Loan Provider as regards the exercise and
performance of all powers, trusts, authorities, duties and discretions of
the Note Trustee under this Deed or any other documents or assets, the
rights or benefits in or to which are comprised in the Charged Property
(except where expressly provided otherwise). If there is any conflict
between the interests of the Noteholders, the Swap Counterparty and the
Expenses Loan Provider, the Note Trustee shall have regard, first, to the
interests of the Swap Counterparty, second to the interests of the
Noteholders and, third, to the interests of the Expenses Loan Provider.
If there is any conflict between the interests of any Senior Noteholders
and any Junior Noteholders, the Note Trustee shall have regard only to
the interests of such Senior Noteholders.
8. CONTINUANCE OF SECURITY AND OTHER MATTERS
8.1 Without prejudice to the generality of Clause 2, and subject only to
Clause 4, the charges, securities, covenants, undertakings and provisions
contained in this Deed shall remain in force as continuing securities to
the Note Trustee for itself, and on trust for the Noteholders, the Swap
Counterparty and the Expenses Loan Provider, notwithstanding any
intermediate payment or satisfaction of any part of the Secured Amounts
or any settlement of account or any other act, event or matter whatsoever
but shall secure the ultimate balance of the Secured Amounts.
8.2 In relation to the duties, obligations and responsibilities of the Note
Trustee to the Noteholders, the Swap Counterparty and the Expenses Loan
Provider as trustee of the Charged Property, the Note Trustee may
discharge these by performing and observing its duties, obligations and
responsibilities as trustee of such Charged Property in accordance with
the provisions of, and subject to the provisions in favour of the Note
Trustee contained in the Issuer Related Documents and the Noteholders,
the Swap Counterparty
- 6 -
and the Expenses Loan Provider shall accordingly be bound by, and deemed
to have notice of, all of such provisions as if they were parties thereto.
9. EXPENSES
The Issuer hereby further covenants with and undertakes to the Note
Trustee to reimburse or pay, in accordance with the provisions of Clauses
5 and 6 of this Deed, to the Note Trustee and/or (as the case may be) the
Receiver on demand (on the basis of a full indemnity) the amount of all
reasonable costs, liabilities, charges and expenses (together with any
VAT or similar tax charged or chargeable in respect thereof) incurred by
the Note Trustee and/or (as the case may be) the Receiver in connection
with this Deed.
10. THE NOTE TRUSTEE'S POWERS
10.1 The provisions of the LPA relating to the power of sale and the other
powers conferred by section 101(1) and (2) of the LPA, to the extent that
such powers are applicable hereto, are hereby extended (as if such
extensions were contained in the LPA) to authorise the Note Trustee and,
in any event, the Note Trustee is hereby authorised, at its absolute
discretion (from the date hereof but subject to Clause 10.4 below) and
upon such terms as the Note Trustee may think fit (but subject in the
case of the Charged Property referred to in Clauses 3.1(i) and 3.1(iii)
above to any provisions set out in any of the Issuer Related Documents
affecting or restricting the exercise of any such powers, whether or not
explicitly):
(i) to sell or otherwise dispose of all title to and interest in the
Charged Property or any interest in the same, and to do so for
shares, debentures or any other securities whatsoever, or in
consideration of an agreement to pay all or part of the purchase
price at a later date or dates, or an agreement to make periodical
payments, whether or not the agreement is secured by a Security
Interest or a guarantee, or for such other consideration
whatsoever as the Note Trustee may think fit, and also to grant
any option to purchase;
(ii) with a view to, or in connection with, the management or disposal
of the Charged Property to carry out any transaction, scheme or
arrangement which the Note Trustee may, in its absolute
discretion, consider appropriate;
(iii) to take possession of, get in and collect the Charged Property;
(iv) to carry on and/or manage and/or concur in managing the business
of the Issuer as it thinks fit and demand, sue for and collect and
get in all monies due to the Issuer as it thinks fit;
(v) to appoint and engage employees, managers, agents and advisers
upon such terms as to remuneration and otherwise and for such
periods as it may determine, and to dismiss them;
(vi) in connection with the exercise, or the proposed exercise, of any
of its powers to borrow or raise money from any person without
security or on the security of
- 7 -
the Charged Property and generally in such manner and on such terms
as it may think fit;
(vii) to bring, defend, submit to arbitration, negotiate, compromise,
abandon and settle any claims and proceedings concerning the
Charged Property;
(viii) to transfer all or any of the Charged Property and/or any of the
liabilities of the Issuer to any other company or body corporate
(with the consent of that company or body corporate), whether or
not formed or acquired for the purpose and whether or not an
affiliate of the Note Trustee or the Issuer;
(ix) generally to carry out, or cause or authorise to be carried out,
any transaction, scheme or arrangement whatsoever, whether or not
similar to any of the foregoing, in relation to the Charged
Property which it may consider expedient as effectually as if it
were solely and absolutely entitled to the Charged Property;
(x) in connection with the exercise of any of its powers, to execute
or do, or cause or authorise to be executed or done, on behalf of
or in the name of the Issuer or otherwise, as it may think fit,
all documents, acts or things which it may consider appropriate
and to exercise in relation to the Charged Property all such
powers as it would be capable of exercising if it were the
absolute sole, legal and beneficial owner of the same and to use
the name of the Issuer for all or any of the foregoing purposes;
(xi) to pay and discharge, out of the profits and income of the Charged
Property and the monies to be made by it in carrying on any such
business as aforesaid, the expenses incurred in and about the
carrying on and management of any such business as aforesaid or in
the exercise of any of the powers conferred by this Clause 10.1 or
otherwise in respect of the Charged Property in relation to the
Issuer and all outgoings which it shall think fit to pay in
accordance with the provisions of Clause 6;
(xii) to exercise any of the powers and perform any of the duties
conferred on the Issuer by or pursuant to any of the Issuer
Related Documents or any statute, deed or contract;
(xiii) to do all such other acts and things as it may consider necessary,
incidental or conducive to the exercise of any of the powers
hereby conferred; and generally to use the name of the Issuer in
the exercise of all or any of the powers hereby conferred;
(xiv) generally to do anything in relation to the Charged Property as it
could do if it were absolutely entitled thereto, subject to the
provisions of the Issuer Related Documents; and
(xv) to sanction or confirm anything suffered by the Issuer and concur
with the Issuer in any dealing not hereinbefore specifically
mentioned.
- 8 -
10.2 The Note Trustee may out of the profits and income of the Charged
Property as aforesaid pay and discharge the expenses incurred in the
carrying on and the management of any such business as aforesaid or in
the exercise of any of the powers conferred by Clause 10.1 or otherwise
in respect of the Charged Property and all outgoings which it shall think
fit to pay and may apply the residue of the said profits, income and
monies in the manner provided by Clause 6.
10.3 The Note Trustee and any Receiver appointed by the Note Trustee may
delegate all or any of the powers hereby or by any statute conferred upon
it or him to such person or persons as it or he may in its or his
absolute discretion think fit.
10.4 Section 103 of the LPA shall not apply in relation to any of the Security
Interests contained in this Deed. The statutory powers of sale and of
appointing a receiver which are conferred upon the Note 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.
10.5 The Note Trustee may raise and borrow money on the security of the
Charged Property or any part thereof for the purpose of defraying any
monies, costs, charges, losses and expenses paid or incurred by it in
relation to this Deed (including the costs of realisation of any or all
of the Charged Property and the remuneration of the Note Trustee). The
Note Trustee may raise and borrow such money at such rate of interest and
generally on such terms and conditions as it shall think fit and may
secure the repayment of the money so raised or borrowed with interest on
the same by mortgaging or otherwise charging the Charged Property or any
part thereof and either in priority to the security constituted by this
Deed or otherwise and generally in such manner and form as the Note
Trustee shall think fit and for such purposes may execute and do all such
assurances and things as it shall think fit.
10.6 The powers conferred by this Deed in relation to the security constituted
thereby or any part thereof on the Note Trustee or on any Receiver of the
Charged Property or any part thereof shall be in addition to and not in
substitution for the powers conferred on mortgagees or receivers under
the LPA and the Insolvency Act 1986 and where there is any ambiguity or
conflict between the powers contained in either of such Acts and those
conferred by this Deed, the terms of this Deed shall prevail.
11. RECEIVER
11.1 At any time after the service of an Enforcement Notice (and so that no
delay or waiver of the right to exercise the powers hereby conferred
shall prejudice the future exercise of such powers) the Note Trustee may,
subject to Clause 11.2, appoint such person or persons (including an
officer or officers of the Note Trustee) as it thinks fit (subject always
to any requirement under the Insolvency Act 1986 that the person
appointed be a licensed insolvency practitioner) to be Receiver or
Receivers of the Charged Property to act jointly or jointly and severally
as the Note Trustee shall determine.
- 9 -
11.2 The Note Trustee may (subject to Section 45 of the Insolvency Act 1986)
remove the Receiver whether or not appointing another in his place and
the Note Trustee may also appoint another receiver if the Receiver
resigns.
11.3 The exclusion of any part of the Charged Property from the appointment of
the Receiver shall not preclude the Note Trustee from subsequently
extending his appointment (or that of the Receiver replacing him) to that
part.
11.4 Any Receiver appointed shall, so far as the law permits, be the agent of
the Issuer and (subject to applicable law) the Issuer shall be solely
responsible for the Receiver's acts and defaults and liable on any
contracts or engagements made or entered into by the Receiver; and in no
circumstances whatsoever shall the Note Trustee, the Noteholders, the
Swap Counterparty or the Expenses Loan Provider be in any way responsible
for any misconduct, negligence or default of the Receiver. The Receiver
shall have no power to take any action in relation to the Charged
Property which the Note Trustee is prohibited from taking by virtue of
the terms of this Deed.
11.5 The remuneration of the Receiver may be fixed by the Note Trustee (and
may be or include a commission calculated by reference to the gross
amount of all money received or otherwise), but such remuneration shall
be payable by the Issuer alone and the amount of such remuneration shall
form part of the Secured Amounts and accordingly be secured on the
Charged Property under the charges and securities contained in this Deed.
11.6 The Receiver shall have, mutatis mutandis, the powers, authorities and
discretions conferred upon the Note Trustee under this Deed, subject to
such restrictions as the Note Trustee may think fit. Without prejudice to
the generality of the foregoing, any Receiver appointed to the whole or
substantially the whole of the Charged Property shall have the powers
referred to in Schedule 1 of the Insolvency Act 1986.
11.7 The Receiver shall in the exercise of his powers, authorities and
discretions conform to the regulations and directions from time to time
made and given by the Note Trustee.
11.8 The Note Trustee may from time to time and at any time require any such
Receiver to give security for the due performance of his duties as such
Receiver and may fix the nature and amount of the security to be so given
but the Note Trustee shall not be bound in any case to require any such
security.
11.9 Save so far as otherwise directed by the Note Trustee and as otherwise
required by law all monies from time to time received by such Receiver
shall be paid over to the Note Trustee to be applied by it in the manner
set out in Clause 6.
11.10 The Note Trustee may pay over to such Receiver any monies constituting
part of the Charged Property to the intent that the same may be applied
for the purposes of this Deed by such Receiver and the Note Trustee may
from time to time determine what funds the Receiver shall be at liberty
to keep in hand with a view to the performance of his duties as such
Receiver.
11.11 Sections 109(6) and (8) of the LPA (relating to application of monies
received by receiver) shall not apply in relation to a Receiver appointed
under the foregoing provisions of this Clause 11.
- 10 -
11.12 None of the restrictions imposed by the LPA in relation to appointment of
receivers or as to the giving of notice or otherwise shall apply.
12. PROTECTION OF THIRD PARTIES
12.1 No purchaser from, or other person dealing with, the Note Trustee and/or
any Receiver shall be concerned to enquire whether any of the powers
which they have exercised or purported to exercise has arisen or become
exercisable, or whether the Secured Amounts remain outstanding or whether
any event has occurred to authorise the Receiver to act or as to the
propriety or validity of the exercise or purported exercise of any such
powers and the title of such a purchaser and the position of such a
person shall not be impeachable by reference to any of those matters.
12.2 The receipt of the Note Trustee or the Receiver shall be an absolute and
a conclusive discharge to a purchaser or other such person as is referred
to in Clause 12.1 and shall relieve such purchaser or other person of any
obligation to see to the application of any monies paid to or by the
direction of the Note Trustee or the Receiver.
12.3 In Clauses 12.1 and 12.2 "PURCHASER" means any person acquiring in good
faith, for money or money's worth, any Security Interest over, or any
other interest or right whatsoever in relation to, the Charged Property.
13. PROTECTION OF NOTE TRUSTEE AND RECEIVER
13.1 The Note Trustee shall not nor shall any Receiver appointed as aforesaid
or any attorney or agent of the Note Trustee by reason of taking
possession of the Charged Property or any part thereof or for any other
reason whatsoever and whether as mortgagee in possession or on any other
basis whatsoever be liable to account to the Issuer or any other person
whatsoever for any thing except actual receipts or be liable to the
Issuer or any other person whatsoever for any loss or damage arising from
realisation of the Charged Property or any part thereof or from any act,
default or omission in relation to the security constituted by or
pursuant to this Deed or any part thereof or from any exercise or non-
exercise by it of any power, authority or discretion conferred upon it in
relation to the security constituted by or pursuant to this Deed or any
part thereof by or pursuant to this Deed or otherwise unless such loss or
damage shall be caused by its own negligence, fraud, wilful default or
bad faith.
13.2 Without prejudice to the generality of Clause 13.1 entry into possession
of the Charged Property or any part thereof shall not render the Note
Trustee or the Receiver liable to account as mortgagee in possession or
liable for any loss on realisation or for any default or omission for
which a mortgagee in possession might be liable; and if and whenever the
Note Trustee enters into possession of the Charged Property, it shall be
entitled at any time at its pleasure to go out of such possession.
13.3 The provisions of Clauses 12 and 20 of the Trust Deed shall be
incorporated by reference in this Deed.
- 11 -
14. INDEMNITY
The Issuer hereby further covenants with and undertakes to the Note
Trustee fully to indemnify and keep indemnified the Note Trustee and the
Receiver (and their respective officers or employees) from and against
all liabilities, losses, damages, costs, expenses, charges, actions,
proceedings, claims and demands which the Note Trustee or the Receiver
(or their respective officers or employees) may incur in performance of
the terms of this Deed except insofar as they are incurred because of
negligence or wilful default on the part of the Note Trustee or the
Receiver (as the case may be).
15. FURTHER ASSURANCE AND POWER OF ATTORNEY
15.1 The Issuer hereby further covenants with and undertakes to the Note
Trustee that it will from time to time upon demand:
(a) execute, at its own cost, any document or do any act or thing
which the Note Trustee or the Receiver may specify with a view to:
(i) perfecting or improving any charge or security created or
intended to be created by this Deed, including, without
limitation, such additional or corroborative security
document and in such forms as the Note Trustee or the
Receiver may specify; or
(ii) after service of an Enforcement Notice, facilitating the
exercise, or the proposed exercise, of any of their powers;
and
(b) give or join in giving or procuring the giving of such notices to
such persons, and all in such form, as the Note Trustee or the
Receiver may require at the cost of the Issuer,
PROVIDED, HOWEVER that for the avoidance of doubt, the Issuer and the
Note Trustee shall not (and shall not be entitled to) execute or cause to
be executed any assignments and shall not give any notices to any of the
underlying credit card obligors.
15.2 For the purpose of securing the interest of the Note Trustee, the Swap
Counterparty, the Expenses Loan Provider and the Noteholders in and to
the Charged Property and the performance of its obligations to the Note
Trustee, the Noteholders, the Swap Counterparty and the Expenses Loan
Provider, whether under or pursuant to this Deed or any Issuer Related
Document or in relation to the Charged Property, the Issuer irrevocably
for value and by way of security appoints the Note Trustee and every
Receiver of the Charged Property or any part thereof to be its attorney
(with full power to appoint substitutes or to sub-delegate, including
power to authorise the person so appointed to make further appointments)
on behalf of the Issuer and in its name or otherwise, to execute any
document or do any act or thing which the Note Trustee or such Receiver
(or such substitute or delegate) may, in its or his absolute discretion,
properly consider appropriate in connection with the exercise of any of
the rights or powers of the Note Trustee or the Receiver under or
pursuant to this Deed or any Issuer Related Document, provided, however,
that the appointment comprised in this Clause 15.2 shall not entitle any
person to act as attorney of the Issuer until such time as an
- 12 -
Event of Default has occurred, and then only for so long as an Event of
Default is subsisting.
15.3 The Issuer hereby ratifies and confirms and agrees to ratify and confirm
whatever any such attorney shall lawfully do or purport to do in the
exercise or purported exercise of all or any of the powers, authorities
and discretions referred to in this Clause 15.
16. OTHER SECURITY ETC.
16.1 This security is in addition to, and shall neither be merged in, nor in
any way exclude or prejudice or be affected by, any other Security
Interest, right or recourse or other right whatsoever which the Note
Trustee may now or at any time hereafter hold or have (or would apart
from the provisions of this Deed hold or have) as regards the Issuer or
any other person in respect of the Secured Amounts.
16.2 Section 93 of the LPA (relating to restriction on consolidation of
mortgages) shall not apply in relation to any of the charges contained in
this security.
17. LIMITED RECOURSE; NON-PETITION
17.1 No recourse under any obligation, covenant or agreement of the Issuer
contained in these presents shall be made against any shareholder,
officer or director of the Issuer as such, by the enforcement of any
assignment or by any proceeding, by virtue of any statute or otherwise;
it being expressly agreed and understood that these presents are a
corporate obligation of the Issuer and no liability shall attach to, or
be incurred by, the shareholders, officers, agents, or directors of the
Issuer as such, or any of them, under or by reason of any of the
obligations, covenants and agreements of the Issuer contained in these
presents, or implied therefrom, and that any and all personal liability
for breach by the Issuer of any of such obligations, covenants or
agreements, either at law or by statute or certification, of every such
shareholder, officer, agent or director is hereby expressly waived by the
Issuer as a condition of any consideration for the execution of these
presents.
17.2 After realisation of the Security created under this Deed and
distribution of the net proceeds thereof in accordance with this Deed the
Expenses Loan Provider may not take any further steps against the Issuer
or any of its assets and all claims of the Expenses Loan Provider under
the Expenses Loan Agreement against the Issuer in respect of any sum
unpaid shall be extinguished.
17.3 The Expenses Loan Provider hereby agrees with the Note Trustee that,
subject to the proviso to this sub-clause:
(i) it shall not be entitled to take, and shall not take, any steps
whatsoever to enforce the Security created by Clause 3, or to
direct the Note Trustee to do so; and
(ii) it shall not be entitled to take, and shall not take, any steps
(including the exercise of any right of set-off but not including
the presentation of a petition for an administration order in
relation to the Issuer) for the purpose of recovering any of the
Secured Amounts owing to it or any other debts
- 13 -
whatsoever owing to it by the Issuer or procuring the winding-up,
examination or liquidation of the Issuer or the making of a court
protection order or the presentation of a petition for an
administration order in relation to the Issuer in respect of any of
its liabilities whatsoever,
Provided that:
(i) if the Note Trustee, having become bound to do so, fails to serve
an Enforcement Notice and/or to take any steps or proceedings to
enforce such Security pursuant to Clauses 6, 8 or 11 within a
reasonable time, and such failure is continuing, the Expenses Loan
Provider shall be entitled to take any such steps and proceedings
as it shall deem necessary (other than the presentation of a
petition for the winding-up of, or for an examination order or the
making of a court protection order in respect of, the Issuer or
the enforcement of any Security granted hereunder) provided that
the Expenses Loan Provider shall not be entitled to take any steps
or proceedings which could contravene Clauses 6 or 17; and
(ii) this Clause shall not prevent the Expenses Loan Provider from
taking any steps against the Issuer which do not amount to the
commencement or the threat of commencement of legal proceedings
against the Issuer or procuring the winding-up of the Issuer or
the making of an administration order in relation to the Issuer to
the extent of any amount which should have been paid to the
Expenses Loan Provider pursuant to the applicable provisions of
the Expenses Loan Agreement, save that nothing herein shall
entitle the Expenses Loan Provider to take any action under this
proviso for so long as any amount which is not paid to the
Expenses Loan Provider is due solely to a breach by the relevant
party of its duties in respect of the Issuer Related Documents or
otherwise because the Issuer has insufficient sums available to it
to make such payment.
18. NOTICES AND DEMANDS
18.1 Any notice or demand under or in connection with this Deed shall be in
writing and shall be delivered by hand or sent by first-class post or by
facsimile transmission to the address or facsimile number specified in
respect of the relevant party in the execution clause of this Deed, or to
such other address or facsimile number as may be notified in writing by
any party to the others from time to time.
18.2 In the absence of evidence of earlier receipt, any notice or demand shall
be deemed to have been duly given:
(a) if delivered by hand, when left at the address referred to in
Clause 18.1;
(b) if sent by first class mail from an address within the United
Kingdom, two days after posting it; and
(c) if sent by facsimile transmission, on confirmation of transmission
being received by the sending machine.
- 14 -
19. VARIATION
No variation of this Deed shall be effective unless it is in writing and
executed as a deed by (or by some person duly authorised by) each of the
parties hereto.
20. WAIVERS AND CONSENTS
20.1 No failure on the part of the Note Trustee to exercise, and no delay on
its part in exercising, any right or remedy under or pursuant to this
Deed will operate as a waiver thereof, nor will any single or partial
exercise of any right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy.
20.2 Any waiver and any consent by the Note Trustee under this Deed must be in
writing and may be given subject to any conditions thought fit by the
Note Trustee. Any waiver or consent shall be effective only in the
instance and for the purpose for which it is given.
21. POWERS CUMULATIVE
The powers which this Deed confers on the Note Trustee and the Receiver
are cumulative, without prejudice to their respective powers under the
general law, and may be exercised as often as the Note Trustee or the
Receiver thinks appropriate; the Note Trustee or the Receiver may, in
connection with the exercise of their powers, join or concur with any
person in any transaction, scheme or arrangement whatsoever; the
respective powers of the Note Trustee and the Receiver shall in no
circumstances whatsoever be suspended, waived or otherwise prejudiced by
anything other than an express waiver or variation in writing.
22. PARTIAL INVALIDITY
If, at any time, any provision of this Deed is or becomes illegal,
invalid or unenforceable in any respect under the laws of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions hereof, nor the legality, validity or enforceability
of such provision under the law of any other jurisdiction, shall in any
way be affected or impaired thereby.
23. COUNTERPARTS
This Deed may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together
shall constitute one and the same deed.
24. GOVERNING LAW
This Deed shall be governed by and construed in accordance with the laws
of England.
25. CONTRACT (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Deed has no right under the Contract
(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 this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the date first above written.
- 15 -
THE SCHEDULE
To: Barclays Bank PLC
54 Lombard Street
London EC2V 3EX
NOTICE IS HEREBY GIVEN BY Gracechurch Card Funding (No.3) PLC (the "ISSUER")
that by a Deed of Charge made on [8] April 2003 between the Issuer, The Bank of
New York (the "NOTE TRUSTEE") and Barclays Bank PLC (the "SWAP COUNTERPARTY"
and the "EXPENSES LOAN PROVIDER"), the Issuer charged in favour of the Note
Trustee on trust for Noteholders, the Swap Counterparty and the Expenses Loan
Provider all its right, title, interest and benefit present and future in the
Series 03-1 Issuer Accounts established pursuant to the Issuer Bank Agreement
made between the Issuer and yourselves on [8] April 2003.
Please acknowledge receipt of this notice by signing below and returning one
copy to each of the Issuer and the Note Trustee.
Yours faithfully
.............................. Date..................
duly authorised for and on behalf of
GRACECHURCH CARD FUNDING (NO.3) PLC
We acknowledge receipt of this notice.
.............................. Date..................
duly authorised for and on behalf of
BARCLAYS BANK PLC
- 16 -
EXECUTION PAGE
The Issuer
EXECUTED )
AS A DEED FOR AND ON BEHALF )
OF GRACECHURCH CARD FUNDING (NO.3) PLC )
By: )
In the presence of: )
address: 54 Lombard Street
London EC3P 3AH
fax no: 020 7699 3271/0870 242 2733
contact: Company Secretary
The Note Trustee
EXECUTED AS A DEED for and on behalf of )
THE BANK OF NEW YORK )
was hereunto affixed )
)
in the presence of: )
address: 48th Floor
One Canada Square
London E14 5AL
fax no: 020 7964 6061/6399
contact: Corporate Trust, Global Structured Finance
The Swap Counterparty and the
Expenses Loan Provider
EXECUTED AND DELIVERED )
AS A DEED by )
BARCLAYS BANK PLC )
by its authorised signatory in )
the presence of: )
address: Barclays Bank PLC
54 Lombard Street
London EC3P 3AH
fax no: 020 7977 4699
contact: RFS Structured Finance
- 17 -