Exhibit 4.5
C L I F F O R D LIMITED LIABILITY PARTNERSHIP
C H A N C E
Draft : 15 August 2003
Dated [ ] September 2003
GRACECHURCH CARD FUNDING (NO.5) 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
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DEED OF CHARGE
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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 03-3 Issuer Accounts..............................4
6. Enforcement Notice.......................................................4
7. Conflict.................................................................6
8. Continuance Of Security And Other Matters................................7
9. Expenses.................................................................7
10. The Note Trustee's Powers................................................7
11. Receiver................................................................10
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...........................................................16
25. Contract (Rights Of Third Parties) Act..................................16
THE SCHEDULE..................................................................17
THIS DEED OF CHARGE is made on [ ] September 2003
BETWEEN
(A) GRACECHURCH CARD FUNDING (NO.5) PLC, a public limited company
incorporated in England and Wales with registered number 4763104, 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 in
relation to Series 03-3, an amount paid by the Issuer equal to the
Further Interest received by the Issuer in its capacity as Noteholder in
relation to the Series 03-3 MTN Certificate on such Distribution Date
and not utilised by the Issuer in paying any amounts other than the
Deferred Subscription Price Amounts;
"Enforcement Notice" shall mean a notice served by the Note Trustee
pursuant to Clause 6.1;
"Further Interest" means in relation to Series 03-3 the amount to be
paid by the MTN Issuer to the Series 03-3 Associated Issuer which is
equal to the aggregate of: (1) Excess Finance Charge Amounts received by
the MTN Issuer pursuant to the assignment contained in the Agreement
Between Beneficiaries; and (2) any other amounts which are treated as
Excess Finance Charge Amounts referable to Series 03-3 pursuant to the
Declaration of Trust and Trust Cash Management Agreement (including
Clauses 5.19(c), 5,19(d), 5.22(e) and 5.22(f), thereof as applicable in
relation to Series 03-3);
"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;
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"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;
"Series 03-3 Issuer Accounts" means the accounts 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 [ ] September 2003; and
"Series 03-3 MTN Certificate" means the medium term note certificate
issued by the MTN Issuer with respect to Series 03-3.
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:
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(i) all its right, title, benefit and interest in and to the Series
03-3 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, (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 03-3 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 03-3 MTN
supplement dated [ ] September 2003 in respect of the Series 03-3 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
03-3 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 03-3
MTN Certificate, together with all other monies payable to the Issuer
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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 03-3 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 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 03-3 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
03-3 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 03-3
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
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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.
6.3 From the date upon which an Enforcement Notice is served, all monies
standing to the credit of the Series 03-3 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 03-3 Issuer Accounts to become overdrawn) in the
following order of priority:
(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 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, pari passu and pro rata towards payment of all
interest and then principal then due and unpaid in respect of:
(1) the Class A1 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 A1 Notes; (2) the Class A2 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 A2 Notes;
(c) thirdly, towards payment of all interest and then principal 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 interest and then principal 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;
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(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;
(j) tenthly, towards payment of any dividends due and unpaid to
shareholders of the Issuer;
(k) eleventhly, pari passi and pro rata towards payment of the
amount equal to (1) any termination payment due and payable to
the Swap Counterparty pursuant to the Class A1 Swap Agreement
where the Class A1 Swap Agreement has been terminated as a
result of a default by the Swap Counterparty; (2) any
termination payment due and payable to the Swap Counterparty
pursuant to the Class A2 Swap Agreement where the Class A2 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) fourteenthly, 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.
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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 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;
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(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 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;
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(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.
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
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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.
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.
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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.
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.
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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.
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
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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 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
neither the Expenses Loan Provider nor the Swap Counterparty may take
any further steps against the Issuer or any of its assets and all claims
of the Expenses Loan Provider and the Swap Counterparty under the
Expenses Loan Agreement and the Swap Agreements respectively against the
Issuer in respect of any sum unpaid shall be extinguished.
17.3 Each of the Expenses Loan Provider and the Swap Counterparty hereby
agrees with the Note Trustee that, subject to the proviso to this
sub-clause:
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(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
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,
each of the Expenses Loan Provider and the Swap Counterparty
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 it
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 or the
Swap Counterparty 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 or to the Swap Counterparty pursuant to the applicable
provisions of the Swap Agreements, save that nothing herein
shall entitle the Expenses Loan Provider or, as the case may be,
the Swap Counterparty, to take any action under this proviso for
so long as any amount which is not paid to the Expenses Loan
Provider or, as the case may be, the Swap Counterparty, 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.
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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.
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.
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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.
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THE SCHEDULE
To: Barclays Bank PLC
54 Lombard Street
London EC2V 3EX
NOTICE IS HEREBY GIVEN BY Gracechurch Card Funding (No.5) PLC (the "Issuer")
that by a Deed of Charge made on [ ] September 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 03-3 Issuer Accounts established pursuant to the Issuer Bank Agreement
made between the Issuer and yourselves on [ ] September 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.5) PLC
We acknowledge receipt of this notice.
.......................................... Date.................
duly authorised for and on behalf of
BARCLAYS BANK PLC
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EXECUTION PAGE
The Issuer
EXECUTED )
AS A DEED for and on behalf )
of GRACECHURCH CARD FUNDING (NO.5) PLC )
Per pro SFM Directors (No.2) Limited )
Per pro SFM Directors Limited )
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
EXECUTED AND DELIVERED )
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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 7773 5539
contact: Group Treasury
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