C L I F F O R D LIMITED LIABILITY PARTNERSHIP
C H A N C E
EXHIBIT 4.4
Dated [2] December 2004
GRACECHURCH CARD FUNDING (NO. 7) PLC
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THE BANK OF NEW YORK
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TRUST DEED
constituting
$675,000,000 Class A Floating Rate Asset-Backed Notes due 2007
$37,500,000 Class B Floating Rate Asset-Backed Notes due 2007
and
$37,500,000 Class C Floating Rate Asset-Backed Notes due 2007
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..................................................................1
2. Covenant To Repay And Pay Interest On The Notes; Note Trustee's Requirements Following An
Event Of Default...............................................................................11
3. Form Of Issue Of Notes; Issue Of Individual Note Certificates..................................14
4. Covenant Of Compliance.........................................................................16
5. Cancellation Of Notes..........................................................................17
6. Enforcement....................................................................................17
7. Proceedings....................................................................................18
8. Priority Of Payments And Notice Of Payment.....................................................19
9. Investment By Note Trustee.....................................................................19
10. Covenants By The Issuer........................................................................20
11. Remuneration And Indemnification Of Note Trustee...............................................24
12. Supplement To Trustee Acts.....................................................................26
13. Note Trustee's Liability.......................................................................35
14. Delegation By Note Trustee.....................................................................35
15. Employment Of Agent By Note Trustee............................................................35
16. Note Trustee Contracting With Issuer...........................................................36
17. Waiver; Authorisation; Determination; Modification; Substitution Of Principal Debtor...........37
18. Currency Indemnity.............................................................................39
19. Eligibility And Disqualification; New Note Trustee; Separate And Co-Note Trustees; Note Trustee
Information....................................................................................40
20. Note Trustee's Retirement And Removal..........................................................41
21. Note Trustee's Powers Additional...............................................................42
22. Notices........................................................................................42
23. Governing Law And Jurisdiction.................................................................43
24. TIA Prevails...................................................................................44
25. Amendments.....................................................................................44
26. Counterparts...................................................................................44
27. Certificates And Opinions......................................................................44
28. Post Maturity Call Option......................................................................45
29. Release Of Collateral..........................................................................45
30. Contract (Rights Of Third Parties) Act.........................................................46
THE FIRST SCHEDULE FORM OF CLASS A GLOBAL NOTE CERTIFICATE...........................................47
THE SECOND SCHEDULE Form Of Class B Global Note Certificate...........................................53
THE THIRD SCHEDULE FORM OF CLASS C GLOBAL NOTE CERTIFICATE............................................60
THE FOURTH SCHEDULE FORM OF INDIVIDUAL CLASS A NOTE CERTIFICATE.......................................66
THE FIFTH SCHEDULE FORM OF INDIVIDUAL CLASS B NOTE CERTIFICATE........................................70
THE SIXTH SCHEDULE FORM OF INDIVIDUAL CLASS C NOTE CERTIFICATE........................................74
THE SEVENTH SCHEDULE TERMS AND CONDITIONS OF THE NOTES................................................78
THE EIGHTH SCHEDULE PROVISIONS FOR MEETINGS OF NOTEHOLDERS............................................79
THE NINTH SCHEDULE PRIORITY OF PAYMENTS...............................................................89
THIS TRUST DEED is made the [2] December 2004
BETWEEN:
(1) GRACECHURCH CARD FUNDING (NO. 7) PLC a public company incorporated under
the laws of England and Wales with registered number 5183082 whose
registered office is at 54 Lombard Street, London EC3P 3AH (hereinafter
called the "ISSUER"); and
(2) THE BANK OF NEW YORK a New York banking corporation acting through its
London branch whose principal place of business is at One Canada Square,
Canary Wharf, London E14 5AL (hereinafter called the "NOTE TRUSTEE",
which expression shall, wherever the context so admits, include such
company and all other persons or companies for the time being the
trustee or trustees of this Deed).
WHEREAS:
(1) By resolutions of the Board of Directors of the Issuer passed on 27
October 2004, the Issuer has resolved to issue $750,000,000 in aggregate
principal amount of asset backed notes comprising $675,000,000 in
aggregate principal amount of Class A Floating Rate Asset-Backed Notes
due 2007 (the "CLASS A NOTES"), $37,500,000 in aggregate principal
amount of Class B Floating Rate Asset-Backed Notes due 2007 (the "CLASS
B NOTES") and $37,500,000 in aggregate principal amount of Class C
Floating Rate Asset-Backed Notes due 2007 (the "CLASS C NOTES" and,
together with the Class A Notes and the Class B Notes, the "NOTES") to
be constituted and secured in the manner hereinafter appearing and in
the manner appearing in the Deed of Charge.
(2) The Note Trustee has agreed to act as trustee of this Deed (including
the security constituted by the Deed of Charge) for the Noteholders upon
and subject to the terms and conditions of this Deed.
NOW THIS TRUST DEED WITNESSES AND IT IS HEREBY AGREED AND DECLARED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Deed, including the recitals hereto, unless there is anything in
the subject or context inconsistent therewith the expressions listed
below shall have the following meanings, namely:
"AFFILIATE" has the meaning ascribed to it in Rule 405 under the
Securities Act;
"AGENT BANK" means The Bank of New York, London Branch;
"AGENTS" means the Principal Paying Agent, the other Paying Agents, the
Registrar, the Transfer Agents, or any of them;
"AUDITORS" means PricewaterhouseCoopers LLP or such other reputable firm
of accountants qualified to practice in the United Kingdom as may be
appointed by the Issuer from time to time;
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"AUTHORISED INVESTMENTS" means any one or more of the following:
(i) demand or time deposits, certificates of deposit and other
short-term unsecured debt obligations at or of any institution,
provided that, in each case, at the time the deposit is made or
the certificate or obligation is acquired the then current
rating of the unsecured and unguaranteed debt obligations of
that institution (or, where the investment in question is
guaranteed, of the guaranteeing institution) is A1+ and P-1, or
(if different) the then highest rating conferred in respect of
such obligation by S&P and Moody's (respectively); or
(ii) short-term unsecured debt obligations (including commercial
paper) issued or guaranteed by any body corporate provided that
at the time the obligation is acquired the then current rating
of the unsecured and unguaranteed debt obligations of that body
corporate (or where the debt obligations in question are
guaranteed, of the guaranteeing institution) is A+ and P-1, or
(if different) the then highest rating conferred in respect of
such obligation by S&P and Moody's (respectively);
"BASIC TERMS MODIFICATION" has the meaning ascribed to it in Note
Condition 13;
"BELGIAN PLEDGE" means the pledge agreement dated of even date hereof
and entered in to between the Issuer and the Note Trustee;
"BUSINESS DAY" means a day other than a Saturday or a Sunday or a day on
which banking institutions in London or New York are authorised or
obliged by law to be closed;
"CLASS A GLOBAL NOTE CERTIFICATE" means the global note certificate
representing the Class A Notes and issued pursuant to the provisions of
this Trust Deed in, or substantially in, the form set out in the First
Schedule;
"CLASS A INDIVIDUAL NOTE CERTIFICATE" means any individual note
certificate representing a Class A Noteholder's entire holding of Class
A Notes, in or substantially in the form set out in the Fourth Schedule;
"CLASS A NOTEHOLDERS" means the persons who are for the time being the
holders of one or more of the Class A Notes (being, so long as such
Notes or any part thereof are represented by the Class A Global Note
Certificate, the person in whose name the Class A Note is registered in
the Register of Noteholders and so long as such Notes or any part
thereof are represented by Individual Class A Note Certificates, each
person who is for the time being shown in the Register as the holder of
a particular principal amount thereof) SAVE THAT so long as such Notes
or any part thereof are represented by the Class A Global Note
Certificate, each person who is for the time being shown in the records
of DTC (other than Euroclear or Clearstream, Luxembourg, if Euroclear or
Clearstream, Luxembourg are participants in DTC), Euroclear (other than
DTC or Clearstream, Luxembourg, if DTC or Clearstream, Luxembourg are
accountholders of Euroclear) or Clearstream, Luxembourg (other than DTC
or Euroclear, if DTC or
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Euroclear are accountholders of Clearstream, Luxembourg) as the holder
of a particular principal amount of Class A Notes shall be deemed to be
and shall be treated as the holder thereof PROVIDED THAT such deeming
and treatment shall not affect the right to payments in respect of the
Class A Global Note Certificate which shall be vested solely in the
registered holder of the Class A Global Note Certificate in accordance
with and subject to its terms and the terms of this Trust Deed;
"CLASS A NOTES" means the notes in registered form, in or substantially
in the form set out in the First Schedule in denominations of $1,000
comprising the Class A Notes of the Issuer constituted by this Trust
Deed, to be represented by a Note Certificate or Note Certificates, and
for the time being outstanding or, as the context may require, a
specific number of such notes and the Class A Global Note Certificate
for as long as it has not been exchanged in accordance with its terms;
"CLASS A SWAP AGREEMENT" means the ISDA Master Agreement together with
the applicable schedule and confirmation dated [2] December 2004 and
made between the Issuer and the Swap Counterparty in respect of payments
made under the Class A Notes;
"CLASS B GLOBAL NOTE CERTIFICATE" means the global note certificate
representing the Class B Notes and issued pursuant to the provisions of
this Trust Deed in, or substantially in, the form set out in the Second
Schedule;
"CLASS B INDIVIDUAL NOTE CERTIFICATE" means any individual note
certificate representing a Class B Noteholder's entire holding of Class
B Notes, in or substantially in the form set out in the Fifth Schedule;
"CLASS B NOTEHOLDERS" means the persons who are for the time being the
holders of one or more of the Class B Notes (being, so long as such
Notes or any part thereof are represented by the Class B Global Note
Certificate, the person in whose name the Class B Note is registered in
the Register and so long as such Notes or any part thereof are
represented by Individual Class B Notes Certificates, each person who is
for the time being shown in the Register as the holder of a particular
principal amount thereof) SAVE THAT so long as such Notes or any part
thereof are represented by the Class B Global Note Certificate, each
person who is for the time being shown in the records of DTC (other than
Euroclear or Clearstream, Luxembourg, if Euroclear or Clearstream,
Luxembourg are participants in DTC), Euroclear (other than DTC or
Clearstream, Luxembourg, if DTC or Clearstream, Luxembourg are
accountholders of Euroclear) or Clearstream, Luxembourg (other than DTC
or Euroclear, if DTC or Euroclear are accountholders of Clearstream,
Luxembourg) as the holder of a particular principal amount of Class B
Notes shall be deemed to be and shall be treated as the holder thereof
PROVIDED THAT such deeming and treatment shall not affect the right to
payments in respect of the Class B Global Note Certificate which shall
be vested solely in the registered holder of the Class B Global Note
Certificate in accordance with and subject to its terms and the terms of
this Trust Deed;
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"CLASS B NOTES" means the notes in registered form, in or substantially
in the form set out in the Third Schedule in denominations of $1,000
comprising the Class B Notes of the Issuer constituted by this Trust
Deed, to be represented by a Note Certificate or Note Certificates and
for the time being outstanding or, as the context may require, a
specific number of such notes and the Class B Global Note Certificate
for as long as it has not been exchanged in accordance with its terms;
"CLASS B SWAP AGREEMENT" means the ISDA Master Agreement, together with
the applicable schedule and confirmation, dated [2] December 2004 and
made between the Issuer and the Swap Counterparty in respect of payments
made under the Class B Notes;
"CLASS C GLOBAL NOTE CERTIFICATE" means the global note certificate
representing the Class B Notes and issued pursuant to the provisions of
this Trust Deed in, or substantially in, the form set out in the Third
Schedule;
"CLASS C INDIVIDUAL NOTE CERTIFICATE" means any individual note
certificate representing a Class C Noteholder's entire holding of Class
C Notes, in or substantially in the form set out in the Sixth Schedule;
"CLASS C NOTEHOLDERS" means the persons who are for the time being the
holders of one or more of the Class C Notes (being, so long as such
Notes or any part thereof are represented by the Class C Global Note
Certificate, the person in whose name the Class C Note is registered in
the Register and so long as such Notes or any part thereof are
represented by Individual Class C Note Certificates, each person who is
for the time being shown in the Register as the holder of a particular
principal amount thereof) SAVE THAT so long as such Notes or any part
thereof are represented by the Class C Global Note Certificate, each
person who is for the time being shown in the records of DTC (other than
Euroclear or Clearstream, Luxembourg, if Euroclear or Clearstream,
Luxembourg are participants in DTC), Euroclear (other than DTC or
Clearstream, Luxembourg, if DTC or Clearstream, Luxembourg are
accountholders of Euroclear) or Clearstream, Luxembourg (other than DTC
or Euroclear, if DTC or Euroclear are accountholders of Clearstream,
Luxembourg) as the holder of a particular principal amount of Class C
Notes shall be deemed to be and shall be treated as the holder thereof
PROVIDED THAT such deeming and treatment shall not affect the right to
payments in respect of the Class C Global Note Certificate which shall
be vested solely in the registered holder of the Class C Global Note
Certificate in accordance with and subject to its terms and the terms of
this Trust Deed;
"CLASS C NOTES" means the notes in registered form, in or substantially
in the form set out in the Fourth Schedule in denominations of $1,000
comprising the Class C Notes of the Issuer constituted by this Trust
Deed, to be represented by a Note Certificate or Note Certificates, and
for the time being outstanding or, as the context may require, a
specific number of such notes and the Class C Global Note Certificate
for as long as it has not been exchanged in accordance with its terms;
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"CLASS C SWAP AGREEMENT" means the ISDA Master Agreement, together with
the applicable schedule and confirmation, dated [2] December 2004 and
made between the Issuer and the Swap Counterparty in respect of payments
made under the Class C Notes;
"CLEARING SYSTEMS" means DTC, Clearstream, Luxembourg and Euroclear;
"CLEARSTREAM, LUXEMBOURG" means Clearstream, Luxembourg, societe
anonyme;
"CLOSING DATE" means [2] December 2004 or such later date as may be
agreed pursuant to the Underwriting Agreement;
"DEED OF CHARGE" means a deed of charge of even date herewith entered
into by inter alios the Issuer in favour of the Note Trustee;
"DISTRIBUTION DATE" shall mean the 15th day of each calendar month
starting on 17 January 2005 or, if such day is not a Business Day, the
next following Business Day;
"DOCUMENTS" means this Trust Deed, the Deed of Charge, the Underwriting
Agreement, the Paying Agency and Agent Bank Agreement, the Swap
Agreements and the Series 04-2 MTN Certificate;
"DTC" means The Depository Trust Company of New York;
"ENFORCEMENT NOTICE" has the meaning ascribed thereto in Note Condition
9;
"EUROCLEAR" means Euroclear Bank S.A./N.V. as operator of the Euroclear
System;
"EVENT OF DEFAULT" means any of the events described as Events of
Default in Note Condition 9;
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended;
"EXPENSES LOAN AGREEMENT" means an expenses loan agreement dated of even
date herewith between the Issuer, the Note Trustee and Barclays Bank
PLC; "EXTRAORDINARY RESOLUTION" has the meaning ascribed thereto in the
Tenth Schedule;
"GLOBAL NOTE CERTIFICATES" means the Class A Global Note Certificate,
the Class B Global Note Certificate and the Class C Global Notes
Certificate, or any of them, as the context may require;
"GLOBAL NOTES" means the Class A Notes, Class B Notes and the Class C
Notes in global form, or any of them as the context may require;
"INDEBTEDNESS" means in relation to the Issuer any indebtedness to any
other person;
"INDEPENDENT" means, when used with respect to any specified person,
that the person (1) is in fact independent of the Issuer and any other
obligor in respect of the Notes and any other person with an ownership
interest in the receivables trust and of any
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affiliate of any of the foregoing persons, (2) does not have any direct
financial interest or any material indirect financial interest in the
Issuer or in any such other obligor or any such other person with such
an ownership interest in the receivables trust or in any affiliate of
any of the foregoing persons, and (3) is not connected with the Issuer
or any such other obligor or any affiliate of the Issuer or any such
other person with such an ownership interest in the receivables trust as
an officer, employee, promoter, underwriter, trustee, partner, director,
or person performing similar functions;
"INDEPENDENT CERTIFICATE" means a certificate or opinion to be delivered
to the Note Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Clause 12(w) hereof, made
by an independent appraiser or other expert appointed by an Issuer Order
and approved by the Note Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read the
definition of "Independent" in this Trust Deed and that the signer is
Independent within the meaning thereof;
"INDIVIDUAL NOTE CERTIFICATES" means the Class A Individual Note
Certificates, the Class B Individual Note Certificates and the Class C
Individual Note Certificates, or any of them, as the context may
require;
"INTEREST PAYMENT DATE" shall mean the Business Day which falls on the
15th day of each calendar month starting on 17 January 2005;
"INTEREST PERIOD" has the meaning ascribed thereto in Note Condition 5;
"INVESTOR INTEREST" means the beneficial entitlement to receivables
trust property of the MTN Issuer in respect of Series 04-2;
"ISSUER ORDER" means a written order of request signed in the name of
the Issuer by any one of its authorised officers and delivered to the
Note Trustee;
"JUNIOR NOTEHOLDERS" means, in relation to the Class A Noteholders, the
Class B Noteholders and the Class C Noteholders, and in relation to the
Class B Noteholders, the Class C Noteholders;
"JUNIOR NOTES" means, in relation to the Class A Notes, the Class B
Notes and the Class C Notes and, in relation to the Class B Notes, the
Class C Notes;
"LONDON STOCK EXCHANGE" means the London Stock Exchange plc;
"MOODY'S" means Moody's Investors Service Limited;
"MTN ISSUER" means Barclaycard Funding PLC, a public limited company
incorporated under the laws of England and Wales with company number
2530163, in its capacity as issuer of medium term notes and medium term
note certificates under the Programme;
"MTN MASTER DEFINITIONS SCHEDULE" means the MTN Master Definitions
Schedule as amended and restated;
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"MTN TRUSTEE" means the Bank of New York in its capacity as such under
the Security Trust Deed and MTN Cash Management Agreement dated 23
November 1999, as amended and/or supplemented;
"NEW YORK PAYING AGENT" means the Bank of New York, acting through its
New York office;
"NOTE CERTIFICATE" means any Global Note Certificate or Individual Note
Certificate and includes any replacement Note Certificates issued
pursuant to the Note Conditions;
"NOTE CONDITIONS" means the Terms and Conditions applicable to the Notes
in the form or substantially in the form set out in the Seventh
Schedule, as the same may from time to time be modified in accordance
with this Deed and any reference in this Deed to a particular numbered
Note Condition shall be construed accordingly;
"NOTEHOLDERS" means the Class A Noteholders, the Class B Noteholders and
the Class C Noteholders, and "NOTEHOLDER" means any of them;
"NOTES" means the Class A Notes, the Class B Notes and the Class C
Notes, or any of them, as the context may require;
"OFFICERS' CERTIFICATE" shall mean, with respect to any Person, a
certificate signed (i) by the Chairman of the Board, the Vice Chairman
of the Board, the President, any Vice President or the Treasurer of such
Person and (ii) by any other such officer or any Assistant Treasurer or
the Secretary or any Assistant Secretary of such Person. Each such
certificate shall include the statements provided for in Clause 10(u) if
and to the extent required by the provisions hereof;
"OPINION OF COUNSEL" shall mean an opinion in writing signed by legal
counsel who shall be reasonably acceptable to the Note Trustee and who
may be an employee of or of counsel to the Issuer or an affiliate of the
Issuer. Each such opinion shall include the statements provided for in
Clause 10(u) if and to the extent required by the provisions thereof.
The acceptance by the Note Trustee of, and its actions on, an Opinion of
Counsel shall be sufficient evidence that such counsel is acceptable to
the Note Trustee;
"PAYING AGENCY AND AGENT BANK AGREEMENT" means the paying agency and
agent bank agreement of even date herewith and made between the Issuer,
the Paying Agents, the Transfer Agent, the Registrar, the Agent Bank and
the Note Trustee;
"PAYING AGENTS" means the Principal Paying Agent, the New York Paying
Agent and any other person appointed as paying agent pursuant to the
Paying Agency and Agent Bank Agreement, and "PAYING AGENT" means any of
them;
"PRINCIPAL AMOUNT OUTSTANDING" means in relation to a Note on any date,
the principal amount of that Note on the date of issue less the
aggregate amount of all principal payments in respect of that Note that
have been paid by the Issuer to the Noteholder concerned under the Note
Conditions prior to such date in accordance with the Note Conditions;
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"PRINCIPAL PAYING AGENT" means The Bank of New York acting through its
London branch located at One Canada Square, London E14 5AL, or such
other Principal Paying Agent in respect of the Notes for the time being
as may have been appointed as such by the Issuer with the prior approval
of, and on terms previously approved in writing, by the Note Trustee and
(except in the case of initial Principal Paying Agent), notice of whose
appointment has been given to the Noteholders pursuant to Clause 10(m)
in accordance with the Note Conditions;
"PROGRAMME" means the secured medium term note issuance programme
established by the MTN Issuer;
"RATING AGENCIES" means Moody's and S&P;
"REGISTER" means the register maintained by the Registrar in accordance
with Clause 4.1 of the Paying Agency and Agent Bank Agreement;
"REGISTRAR" means the registrar appointed in accordance with the terms
of the Paying Agency and Agent Bank Agreement;
"S&P" means Standard and Poor's Ratings Group, a division of the
McGraw-Hill Companies Inc.;
"SCHEDULED REDEMPTION DATE" means the Interest Payment Date falling in
November 2007;
"SEC" means the United States Securities and Exchange Commission;
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended;
"SECURITY TRUSTEE" means The Bank of New York in its capacity as
security trustee in respect of the Programme;
"SENIOR NOTES" means in relation to the Class B Notes, the Class A
Notes, and in relation to the Class C Notes, the Class A Notes and the
Class B Notes;
"SENIOR NOTEHOLDERS" means in relation to the Class B Noteholders, the
Class A Noteholders, and in relation to the Class C Noteholders, the
Class A Noteholders and the Class B Noteholders;
"SERIES 04-2 ISSUER ACCOUNTS" means the accounts of the Issuer at
Barclays Bank PLC with account number 49269111, sort code 20-19-90 (the
"SERIES 04-2 ISSUER DOLLAR ACCOUNT") and with account number 90271012,
sort code 20-19-90 (the "SERIES 04-2 ISSUER STERLING ACCOUNT" and each a
"SERIES ISSUER ACCOUNT"), or any successor or replacement account in
respect thereof;
"SERIES 04-2 MTN" means the Series 04-2 medium term note certificate
issued by the MTN Issuer under the Programme, and subscribed for by the
Issuer using the proceeds of the Notes;
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"SERIES 04-2 SUPPLEMENT" means the supplement dated [2] December 2004 to
the Declaration of Trust and Trust Cash Management Agreement dated 23
November 1999;
"SERIES 04-2 TERMINATION DATE" means the earlier of the Distribution
Date on which the Investor Interest has been reduced to zero and the
Interest Payment Date falling in November 2009;
"SWAP AGREEMENTS" means the Class A Swap Agreement, the Class B Swap
Agreement and the Class C Swap Agreement;
"SWAP COUNTERPARTY" means Barclays Bank PLC, acting through its office
at 5 The North Colonnade, London E14 4BB;
"TIA" means the United States Trust Indenture Act of 1939, as amended;
"TRANSFER AGENT" has the meaning given to it in the Paying Agency and
Agent Bank Agreement;
"TRUST CORPORATION" means a corporation entitled by rules made under the
Public Trustee Act 1906 of Great Britain to act as a custodian trustee
or entitled pursuant to any other comparable legislation applicable to a
trustee in any other jurisdiction to carry out the functions of a
custodian trustee and shall be deemed to include The Bank of New York;
"TRUSTEE ACTS" means both the Trustee Acts 1925 and the Trustee Act 2000
of England and Wales;
"UNDERWRITING AGREEMENT" means the Underwriting Agreement between the
Issuer and the Underwriters named therein dated [o] November 2004; and
"VAT" means value added tax as imposed by the Value Added Tax Act 1994
and any other tax of a similar fiscal nature, whether imposed in the
United Kingdom (instead of or in addition to VAT) or imposed elsewhere
from time to time.
1.2 Any reference in this Deed to:
"OUTSTANDING" means in relation to the Notes, as of any date of
determination, all the Notes issued other than (a) those Notes which
have been redeemed in full and cancelled pursuant to Note Condition 6 or
otherwise pursuant to this Deed; (b) those Notes in respect of which the
date for redemption in full in accordance with the Conditions has
occurred and the redemption monies for which (including all interest
payable thereon) have been duly paid to the Note Trustee or to the
Principal Paying Agent in the manner provided in the Paying Agency and
Agent Bank Agreement (and, where appropriate, notice to that effect has
been given to the Noteholders in accordance with Note Condition 14) and
remain available for payment against presentation of the relevant Notes;
(c) those Notes which have been purchased and cancelled in accordance
with Note Condition 6; and (d) those Notes which have become void under
Note Condition 10,
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provided that for each of the following purposes, namely:
1.2.1 the right to attend and vote at any meeting of the Noteholders;
1.2.2 the determination of how many and which Notes are for the time
being outstanding for the purposes of Clause 7.1 and Clause 18,
Note Conditions 9 and 13 and paragraphs 2, 5, 6 and 9 of the
Eighth Schedule;
(i) any discretion, power or authority contained in this Deed which
the Note Trustee is required, expressly or impliedly, to
exercise in or by reference to the interests of any of the
Noteholders; and
(iii) the determination by the Note Trustee whether any of the events
specified in Note Condition 9 is materially prejudicial to the
interests of the Noteholders,
those Notes (if any) which are for the time being held beneficially by
or for the account of the Issuer or any of its respective subsidiaries,
Affiliates or holding companies or other subsidiaries or Affiliates of
such holding companies shall (unless and until ceasing to be so held or,
in the case of the Issuer, cancelled) be deemed not to remain
outstanding;
"REPAY", "REDEEM" and "PAY" shall each include both the others and
"REPAID", "REPAYABLE" and "REPAYMENT", "REDEEMED", "REDEEMABLE" and
"REDEMPTION" and "PAID", "PAYABLE" and "PAYMENT" shall be construed
accordingly; and
"THIS DEED" and "TRUST DEED" means this Trust Deed and the Schedules and
any Trust Deed supplemental hereto and the Schedules (if any) thereto,
all as from time to time supplemented or modified in accordance with the
provisions contained in this Deed and where applicable, therein.
1.3 CONSTRUCTION
1.3.1 In this Deed all references to costs or charges or expenses
shall include any value added tax or similar tax charged or
chargeable in respect thereof;
1.3.2 all references to "STERLING", "POUNDS STERLING" or the sign
"(POUND)" shall be construed as references to the lawful
currency for the time being of the United Kingdom of Great
Britain and Northern Ireland; and
1.3.3 all references to "DOLLARS" or the signs "US$" or "$" shall be
construed as references to the lawful currency for the time
being of the United States of America.
1.4 All references in this Deed to any provision of any statute shall be
deemed also to refer to any statutory modification or re-enactment
thereof or any statutory instrument, order or regulation made thereunder
or under such re-enactment.
1.5 Unless otherwise defined herein or unless the context otherwise requires
words or expressions contained in this Deed shall bear the same meanings
as in the Companies Act 1985, the MTN Master Definitions Schedule and
the Series 04-2 Supplement.
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1.6 In this Deed references to Schedules, Clauses, sub-clauses, paragraphs
and sub-paragraphs shall be construed as references to the schedules to
this Deed and to the clauses, sub-clauses, paragraphs and sub-paragraphs
of this Deed respectively and, unless otherwise stated, references to
sub-clauses are references to sub-clauses of the Clause in which the
reference appears.
1.7 References in this Deed to any action, remedy or method of judicial
proceeding for the enforcement of the rights of creditors shall be
deemed to include, in respect of any jurisdiction other than England,
references to such action, remedy or method of judicial proceeding for
the enforcement of the rights of creditors available or appropriate in
such jurisdiction as shall most nearly approximate to such action,
remedy or method of judicial proceeding described or referred to in this
Deed.
1.8 Any reference to and the definition of any document (including this
Deed) shall be deemed to be a reference to such document as from time to
time amended, supplemented, modified or replaced (in whole or in part),
but disregarding any amendment, supplement, variation or replacement
taking place in breach of the terms of this Deed.
1.9 Words denoting the singular number only shall include the plural number
also and vice versa and words denoting one gender only shall include the
other genders and words denoting persons only shall include firms and
corporations and vice versa.
1.10 Any reference in this Deed to any party or person includes any person
deriving title therefrom and any of their respective successors or
assigns.
1.11 All headings used herein and in the Schedules shall be disregarded for
the purposes of the interpretation of this Deed.
1.12 Whenever this Deed refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Deed. All other TIA
terms used in this Deed that are defined by the TIA, defined in the TIA
by reference to another statute or defined by SEC rule have the meanings
assigned to them.
2. COVENANT TO REPAY AND PAY INTEREST ON THE NOTES; NOTE TRUSTEE'S
REQUIREMENTS FOLLOWING AN EVENT OF DEFAULT
2.1 ISSUANCE
2.1.1 The aggregate principal amount on issue at the date hereof of
the Notes is limited to $750,000,000 comprising $675,000,000
Class A Notes, $37,500,000 Class B Notes and $37,500,000 Class C
Notes.
2.1.2 On the date hereof, the Issuer shall issue the Notes subject to
the satisfaction of the conditions precedent set forth in the
Underwriting Agreement. Except as specifically provided herein
no additional Notes shall be issued.
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2.2 COVENANT TO REPAY
The Issuer hereby covenants with the Note Trustee that it will, in
accordance with the terms of the Notes (including the Note Conditions)
and this Deed, on the Scheduled Redemption Date thereof as specified in
such Note Conditions, or on each such earlier date as the Notes, or any
of them or any part thereof, may become repayable thereunder (whether in
full or in part), pay or procure to be paid unconditionally to or to the
order of the Note Trustee in Dollars in New York for immediate value the
principal amount of such Notes repayable subject to and in accordance
with the terms of such Notes (including the Note Conditions) and this
Deed, on that date and shall, subject to the terms of such Notes
(including the Note Conditions), in the meantime and until such payment
(after as well as before any judgment or other order of a court of
competent jurisdiction) pay or procure to be paid unconditionally to or
to the order of the Note Trustee as aforesaid interest on the Principal
Amount Outstanding of the Notes at the rates calculated from time to
time in accordance with and on the dates provided for in the Note
Conditions, provided that:
2.2.1 if on the Scheduled Redemption Date there are insufficient funds
available to be applied in or towards redemption of the Notes in
full pursuant to this Clause 2.2 then the above reference to
"Scheduled Redemption Date" in Clause 2.2 shall be deemed to be
replaced by a reference to the "Series 04-2 Termination Date"
and the covenant contained in this Clause 2.2 shall be construed
accordingly;
2.2.2 every payment of principal or interest in respect of the Notes
to or to the account of the New York Paying Agent in the manner
provided in the Paying Agency and Agent Bank Agreement shall
satisfy, to the extent of such payment, the relative covenant in
relation to such Notes by the Issuer contained in this Clause
except to the extent that there is default in the subsequent
payment thereof by the New York Paying Agent (in the case of any
of the Global Note Certificates) to or to the order of the
registered owner thereof in accordance with the provisions of
the Global Note Certificates or (in the case of the Individual
Note Certificates relating thereto) to the relevant Noteholders;
2.2.3 in any case where payment of principal or interest in respect of
the Notes is not made to the New York Paying Agent on or before
the due date whether at scheduled maturity or accelerated
maturity following an Event of Default or on an Interest Payment
Date, interest shall continue to accrue on such amount (both
before and after judgment or other order of a court of competent
jurisdiction) at the rate calculated in accordance with Note
Condition 5 plus a margin of 2% per annum until whichever is the
earlier of (i) the day on which all sums due in respect of such
Note up to that day are received by or on behalf of the relevant
Noteholder and (ii) the day which is seven days after the New
York Paying Agent or the Note Trustee has notified the
Noteholders either in accordance with Note Condition 14 or
individually that it has
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received all sums due in respect of the Notes up to such seventh
day (except to the extent that there is any subsequent default
in payment);
2.2.4 in any case where payment of principal or interest in respect of
any Notes is improperly withheld or refused upon due
presentation thereof (other than in circumstances contemplated
by sub-clause 2.2.2) interest shall accrue on that principal or
interest amount or part thereof payment of which has been so
withheld or refused (both before and after judgment or other
order of a court of competent jurisdiction) at the rate
calculated in accordance with Note Condition 5 plus a margin of
2% per annum from and including the date of such withholding or
refusal until the date on which upon presentation of the
relevant Note payment of the full amount (including interest as
aforesaid) is in fact made or (if earlier) the seventh day after
notice is given in accordance with Note Condition 14 that the
full amount payable in respect of such Note is available for
payment, provided that, upon the presentation of the relevant
Note, payment is in fact made; and
2.2.5 notwithstanding any other provision of this Trust Deed, the
right of any Noteholder to receive payment of principal and
interest on the Note, on or after the respective due dates
expressed in the Note, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Noteholder.
2.3 FOLLOWING AN EVENT OF DEFAULT
At any time after an Event of Default or the Notes shall otherwise have
become due and repayable or the Note Trustee shall have received any
money which it proposes to pay under Clause 8 to the Noteholders or at
any time after Individual Note Certificates have not been issued when so
required in accordance with this Deed, the Note Trustee may:
2.3.1 by notice in writing to the Issuer, the Principal Paying Agent,
the Agent Bank, the Registrar, and the other Paying Agents
require the Principal Paying Agent, the Registrar, the other
Paying Agents and the Agent Bank pursuant to the Paying Agency
and the Agent Bank Agreement:
(a) to act thereafter as Principal Paying Agent, Paying
Agents, the Registrar and the Agent Bank respectively of
the Note Trustee in relation to payments to be made or
in relation to calculations and other related functions
(as the case may be) by or on behalf of the Note Trustee
under the provisions of this Deed on the terms provided
in the Paying Agency and Agent Bank Agreement (with
consequential amendments as necessary and save that the
Note Trustee's liability under any provisions thereof
for the indemnification of the Principal Paying Agent,
the Paying Agents, the Registrar and the Agent Bank
shall be limited to that amount for the time being held
by the Note Trustee on the relative trusts of this Deed
which is available to be applied by the Note Trustee for
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such purpose) and thereafter to hold all Note
Certificates and all sums, documents and records held by
them in respect of the Notes on behalf of the Note
Trustee; and/or
(b) to deliver up all Note Certificates and all sums,
documents and records held by them in respect of such
Notes to the Note Trustee or as the Note Trustee shall
direct in such notice,
provided that such notice shall be deemed not to apply to any
documents or records which the relevant Paying Agent, the
Registrar or Agent Bank is obliged not to release by any law or
regulation; and
2.3.2 by notice in writing to the Issuer require it to make
all subsequent payments in respect of the Notes
appertaining thereto to, or to the order of, the Note
Trustee and not to the Principal Paying Agent and, with
effect from the issue of any such notice to the Issuer
and until such notice is withdrawn, Clause 2.2.2 shall
cease to have effect.
3. FORM OF ISSUE OF NOTES; ISSUE OF INDIVIDUAL NOTE CERTIFICATES
3.1 GLOBAL NOTE CERTIFICATES
3.1.1 The Notes shall on issue be represented by the Global Note
Certificates. The Issuer shall on the date hereof deposit the
Global Note Certificates with and register them in the name of a
nominee for a common depositary of the Clearing Systems.
3.1.2 The Global Note Certificates shall be printed or typed in the
form or substantially in the forms set out in the First
Schedule, the Second Schedule, and the Third Schedule.
3.1.3 The procedures as regards the exchange, authentication,
delivery, surrender, cancellation, presentation, marking down of
any of the Global Notes (or part thereof) and any other matters
to be carried out by the relevant parties upon such exchange (in
whole or part) shall be made in accordance with the provisions
of the relevant terms of the Global Notes, the Paying Agency and
Agent Bank Agreement and the rules and procedures of DTC,
Clearstream, Luxembourg and Euroclear for the time being. The
Global Notes shall be in the aggregate principal amount of up to
$675,000,000 in respect of the Class A Global Note, $37,500,000
in respect of the Class B Global Note and $37,500,000 in respect
of the Class C Global Note and each of the Global Notes
Certificates shall be signed manually by a person duly
authorised by the Issuer on behalf of the Issuer.
3.1.4 The Issuer shall procure that, prior to the issue and delivery
of each Global Note Certificate, each Global Note Certificate
will be authenticated by an authorised signatory on behalf of
the Registrar and no Global Note Certificate shall be valid for
any purpose unless and until so authenticated. Until it (or part
thereof) has been exchanged pursuant to this Clause 3.1 or
Clause 3.2
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each Global Note Certificate shall be subject to the provisions
of this Deed and the registered owner of the corresponding Note
shall be the only person entitled to receive payments of
principal and interest as set out therein.
3.2 ISSUE OF INDIVIDUAL NOTE CERTIFICATES
3.2.1 If (while the Notes are represented by Global Note
Certificates):
(a) the Notes become immediately due and repayable by reason
of an Event of Default; or
(b) DTC at any time notifies the Issuer that it is at any
time unwilling or unable to hold the Global Note
Certificates or is unwilling or unable to continue as or
has ceased to be, a clearing agency registered under the
Exchange Act and in each case the Issuer is unable to
locate a qualified successor within 90 days of receiving
such notification;
then the Issuer shall (subject as mentioned below), in the
event of sub-clauses (a) or (b) above (but subject to Clause
3.2.3 below) within 30 days of the occurrence of the relevant
event issue Individual Note Certificates in exchange for the
whole (or the remaining parts(s) outstanding) of the relevant
Global Note Certificate.
3.2.2 All Individual Note Certificates shall be printed, executed and
delivered as set out below but shall be held by the Registrar
until a Noteholder requests that the Individual Note
Certificates to which he is entitled in exchange for his
interest in the Global Note Certificates be issued, whereupon
the Individual Note Certificates shall be issued as aforesaid.
The procedures to be carried out by the relevant parties upon
such exchange shall be made in accordance with the provisions of
the relevant terms of the relevant Global Note Certificate in
respect of which exchange is to be made and/or the normal
practice of the Registrar and the rules and procedures of DTC,
Clearstream, Luxembourg and Euroclear for the time being.
Additionally, if any of the events mentioned in Clause 3.2.1
above occurs whilst the Notes (or any part thereof) are
represented by a Global Note Certificate (or part thereof), such
Global Note Certificate (or part thereof) shall forthwith be
exchanged for the Individual Note Certificates (or part thereof)
in accordance with its terms and Clause 3.1 above so that the
relevant Notes (or any part thereof) are then represented solely
by such Individual Note Certificates.
3.2.3 Notwithstanding the foregoing provisions of this Clause 3.2, the
Issuer shall not be obliged to issue Individual Note
Certificates until the later of (a) the expiry of 40 days after
the date hereof and (b) 30 days after the occurrence of the
relevant event.
3.3 ISSUER TO NOTIFY NOTE TRUSTEE AND NOTEHOLDERS
The Issuer shall notify the Note Trustee forthwith upon the occurrence
of any of the events referred to in Clause 3.2.1 and shall, unless the
Note Trustee agrees otherwise,
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promptly give notice thereof and of its obligations to issue Individual
Note Certificates to the Class A Noteholders, the Class B Noteholders or
(as the case may be) the Class C Noteholders in accordance with Note
Condition 14.
3.4 FORM OF THE INDIVIDUAL NOTE CERTIFICATES
The Individual Note Certificates shall be security printed in accordance
with all applicable legal requirements in or substantially in the form
set in the Fourth Schedule for Class A Notes, the Fifth Schedule for
Class B Notes and the Sixth Schedule for Class C Notes and shall be
payable or distributable to the registered holder thereof and the
Individual Note Certificates shall be issued in the denomination of
$1,000 each (in each case serially numbered) and shall be endorsed with
the Note Conditions. Title to the Individual Note Certificates shall
pass by registration in the Register.
3.5 SIGNATURE
The Individual Note Certificates shall be signed manually or in
facsimile by two of the Directors of the Issuer. The Issuer may use the
facsimile signature of any person who at the date of printing of the
Individual Note Certificates is a Director of the Issuer notwithstanding
that at the time of issue of any of the Individual Note Certificates he
may have ceased for any reason to be the holder of such office and the
Individual Note Certificates so executed shall be binding and valid
obligations of the Issuer. The Issuer shall procure that, prior to their
issue, the Individual Note Certificates will be authenticated by an
authorised signatory of the Registrar and none of the Individual Note
Certificates shall be valid for any purpose unless and until so
authenticated.
4. COVENANT OF COMPLIANCE
4.1 COVENANT
The Issuer hereby covenants with the Note Trustee that it will comply
with and perform and observe all the provisions of this Deed which are
expressed to be binding on it. The Note Conditions shall be binding on
the Issuer, the Note Trustee, the Noteholders and all persons claiming
through or under them respectively.
4.2 ENFORCEMENT
The Note Trustee shall be entitled to enforce the obligations of the
Issuer under the Notes and the Note Conditions as if the same were set
out and contained in this Deed which shall be read and construed as one
document with the Note Conditions.
4.3 MEETING OF NOTEHOLDERS
The provisions contained in the Eighth Schedule shall have effect in the
same manner as if herein set forth.
4.4 DECLARATION OF TRUST
The Note Trustee shall hold the benefit of the covenants given in this
Deed upon trust for itself and the Noteholders according to its and
their respective interests.
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4.5 STATEMENT AS TO COMPLIANCE
The Issuer will deliver to the Note Trustee, within 120 days after the
end of each fiscal year, a written statement signed by the principal
executive officer of the Issuer, stating that:
4.5.1 a review of the activities of the Issuer during such year and of
performance under this Trust Deed has been made under his or her
supervision; and
4.5.2 to the best of his or her knowledge, based on such review, the
Issuer has fulfilled all its obligations under this Trust Deed
throughout such year, or, if there has been a default in the
fulfilment of any such obligation, specifying each such default
known to him or her and the nature and status thereof.
5. CANCELLATION OF NOTES
5.1 CANCELLATION
The Issuer shall procure that all Notes (i) which have been redeemed in
full or (ii) which have been purchased by the Issuer shall forthwith be
cancelled by or on behalf of the Issuer by the Registrar and a
certificate stating the aggregate amounts of principal and interest paid
in respect of the Notes which have been redeemed in full and serial
numbers of the corresponding Note Certificates shall be given to the
Note Trustee by or on behalf of the Issuer as soon as possible and in
any event within four months after the date of such redemption,
purchase, payment or replacement (as the case may be). The Note Trustee
may accept such certificate as conclusive evidence of repayment,
purchase or replacement pro tanto of the Notes or payment of interest
thereon respectively and of cancellation of the relative Notes.
5.2 RECORDS HELD BY PRINCIPAL PAYING AGENT
The Issuer shall procure (i) that the Registrar shall keep a full and
complete record of all Notes and of their redemption, payment, exchange
or cancellation (as the case may be) and (ii) that such records shall be
made available to the Note Trustee at all reasonable times.
6. ENFORCEMENT
6.1 DISCRETION OF THE NOTE TRUSTEE
At any time after the Notes, or any of them, shall have become due and
repayable in accordance with the Note Conditions and shall not have been
repaid (including, without limitation, following a default in payment of
principal or interest thereunder) or upon delivery of an Enforcement
Notice, the Note Trustee may at its discretion and without further
notice, recover judgment in its own name and as trustee of an express
trust against the Issuer for the whole amount of principal and interest
remaining unpaid and take such other steps and/or institute such
proceedings as it may think fit against, or in relation to, the Issuer
and/or such steps as it may think fit to enforce the security created in
favour of the Note Trustee by, and contained in, the Deed of Charge and
to
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enforce its obligations under this Deed including, without
limitation, to enforce repayment of the Notes together with accrued
interest and any other monies payable pursuant to this Deed, provided
that the Note Trustee shall be bound by the terms of the Deed of Charge
in determining the priority in which any monies received by it shall be
applied.
6.2 STANDARD OF PROOF
Should the Note Trustee take legal or other proceedings against the
Issuer to enforce any of the provisions of the Notes, or any of them or
this Deed proof therein that, as regards any Note, the Issuer has made
default in paying any principal or interest due in respect of such Note
shall (unless the contrary be proved) be sufficient evidence that the
Issuer has made the like default as regards all other Notes in respect
of which the relevant payment is then due and payable. The Note Trustee
may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Note Trustee
and the Noteholders allowed in any judicial proceedings relating to the
Issuer, its auditors or its property.
7. PROCEEDINGS
7.1 NOTE TRUSTEE NOT BOUND
The Note Trustee shall not be bound to take any such proceedings or
steps as are mentioned in Clause 6.1 or any other proceedings pursuant
to or in connection with this Deed, the Notes or any of them or to give
any notice pursuant to Note Condition 14 unless respectively directed or
requested to do so (i) by an Extraordinary Resolution or (ii) in writing
by the holders of at least one quarter of the aggregate Principal Amount
Outstanding of the Class A Notes for the time being outstanding, then
the Class B Notes and thereafter the Class C Notes, and in either case
then only if it shall be indemnified and/or secured to its satisfaction
against all actions, proceedings, claims and demands to which it may
thereby render itself liable and all costs, charges, damages,
liabilities and expenses which it may incur by so doing, provided that
so long as in relation to any class of Notes any of the Senior Notes are
outstanding, the Note Trustee shall not, and shall not be bound to, act
at the request or direction of the Junior Noteholders as aforesaid
unless:
(a) to do so would not, in its opinion, be materially prejudicial to
the interests of the Senior Noteholders; or
(b) such action is sanctioned by an Extraordinary Resolution of the
Senior Noteholders.
7.2 LEGAL PROCEEDINGS
Only the Note Trustee may enforce (i) the security created in favour of
the Note Trustee by, and contained in, the Deed of Charge or any other
security or (ii) the provisions of the Notes or this Deed and no
Noteholders shall be entitled to enforce such security or to proceed
directly against the Issuer to enforce its rights under or in respect of
the Notes or this Trust Deed unless (i) the Note Trustee has become
bound
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to institute proceedings and has failed to do so within a
reasonable time and (ii) such failure is continuing.
7.3 Notwithstanding any other provision in this Deed and in accordance with
Section 316(b) of the TIA, the right of any Noteholder to receive
payment of principal and interest on its Notes on or after the due date
for such principal or interest, or to institute suit for the enforcement
of payment of that principal or interest, may not be impaired or
affected without the consent of the Noteholder, provided that no such
right of enforcement shall exist (i) in respect of a postponement of an
interest payment which has been consented to by the Noteholders in
accordance with the Conditions or (ii) to the extent that the
institution or prosecution of such suit or the entry of judgment therein
would, under applicable law, result in the surrender, impairment, waiver
or loss of the lien or security of this Deed or the Deed of Charge upon
any property subject to such lien or security.
8. PRIORITY OF PAYMENTS AND NOTICE OF PAYMENT
8.1 PRIORITY OF PAYMENTS
Subject to Clause 9.1 the Note Trustee shall apply all monies received
by it under this Deed in accordance with the provisions of the Ninth
Schedule.
8.2 NOTICE OF PAYMENT
The Note Trustee shall give notice to the relevant Noteholders in
accordance with Note Condition 14 of the day fixed for any payment to
them under the Ninth Schedule. Such payment may be made in accordance
with Note Condition 7 and such payment so made or made by the Note
Trustee to the New York Paying Agent for such purposes shall be a good
discharge to the Note Trustee.
9. INVESTMENT BY NOTE TRUSTEE
9.1 POWER OF INVESTMENT
If the amount of the monies at any time available for the payment of
principal and interest in respect of the Notes under Clause 8 shall be
less than 10 per cent. of the aggregate Principal Amount Outstanding of
the Notes the Note Trustee may at its discretion invest such monies in
some or one of the investments hereinafter authorised and such
investments with the resulting income therefrom may be accumulated until
the accumulations together with any other funds for the time being under
the control of the Note Trustee and available for such purpose shall
amount to a sum being not less than 10 per cent. of the aggregate
Principal Amount Outstanding of the Notes and then such accumulations
and funds shall be applied in the manner provided in Clause 8.
9.2 AUTHORISED INVESTMENTS
Any monies which under this Deed may be invested by the Note Trustee may
be invested in the name or under the control of the Note Trustee in any
Authorised Investments and the Note Trustee may at any time or times
vary any such Authorised
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Investments into other Authorised Investments and shall not be
responsible for any loss due to depreciation in value, or otherwise
resulting from any such Authorised Investments (save due to the
negligence, fraud or wilful default of the Note Trustee).
9.3 RATE OF INTEREST
If any bank with which any monies are invested is a subsidiary, holding
or associated company of the Note Trustee, neither the Note Trustee nor
that bank shall be obliged to account for any amount of interest greater
than the standard amount of interest payable to a standard customer on
an account of the type in which these monies are invested.
10. COVENANTS BY THE ISSUER
So long as any of the Notes remains outstanding the Issuer covenants
with the Note Trustee that it shall:
(a) CONDUCT: at all times carry on and conduct its affairs in a
proper and efficient manner;
(b) INFORMATION: give to the Note Trustee and procure that there is
given to it such certificates, information and evidence as it
shall reasonably require and in such form as it shall reasonably
require (including but without prejudice to the generality of
the foregoing the procurement by the Issuer of all such
certificates called for by the Note Trustee pursuant to Clause
12(c) for the purpose of the discharge of the duties, trusts,
powers, authorities and discretions vested in it under this
Deed, any other Document, or by operation of law);
(c) AUDITORS' REPORTS: cause to be prepared and certified by the
Auditors in respect of each financial year, accounts in such
form as will comply with accounting principles generally
accepted in the United Kingdom and with the requirements of the
London Stock Exchange;
(d) BOOKS OF ACCOUNTS: at all times keep proper books of account and
allow the Note Trustee, the Note Trustee's auditors, or, with
the Issuer's prior approval, any professional or financial
adviser of the Note Trustee at any time upon reasonable notice
to have free access to all books of record and account at the
Issuer's registered office and other relevant records during
normal business hours;
(e) COPIES OF SECURITIES AND SHAREHOLDERS' DOCUMENTS: send to the
Note Trustee (in addition to any copies to which it may be
entitled as a holder of any securities of the Issuer) two copies
of every balance sheet, profit and loss account, report,
circular and notice of general meeting and every other document
issued or sent to its shareholders together with any of the
foregoing, and every document issued or sent to holders of
securities of the Issuer other than its shareholders as soon as
practicable after the issue or publication thereof;
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(f) NOTIFICATION OF EVENT OF DEFAULT: upon becoming aware thereof
give notice in writing to the Note Trustee of the occurrence of
any Event of Default or any condition, event or act which with
the giving of notice and/or the lapse of time and/or the issue
of a certificate or determination of materiality would
constitute an Event of Default and without waiting for the Note
Trustee to take any action in respect thereof;
(g) FINANCIAL STATEMENTS: give to the Note Trustee (a) within seven
days after demand by the Note Trustee therefor; and (b) (without
the necessity for any such demand) promptly after the
publication of its audited accounts in respect of each financial
period commencing with the financial period first ending after
the date hereof and in any event not later than 180 days after
the end of each such financial period a certificate of the
Issuer signed by two Directors of the Issuer to the effect that,
as at a date not more than seven days before delivering such
certificate (the "RELEVANT DATE"), to the best of the knowledge,
information and belief of the Issuer, there did not exist and
had not existed since the relevant date of the previous
certificate (or in the case of the first such certificate the
date hereof) any Event of Default or any condition, event or act
which with the giving of notice and/or the lapse of time and/or
the issue of a certificate or determination of materiality would
constitute an Event of Default (or if such exists or existed
specifying the same) and that during the period from and
including the relevant date of the last such certificate (or in
the case of the first such certificate the date hereof) to and
including the relevant date of such certificate the Issuer has
complied with all its obligations contained in this Deed and in
each of the other Documents or (if such is not the case)
specifying the respects in which it has not complied;
(h) FURTHER ACTS: at all times execute and do all such further
documents, acts and things as may be necessary at any time or
times in the opinion of the Note Trustee to give effect to the
Note Conditions and to this Deed and each of the other
Documents;
(i) MAINTENANCE OF A REGISTRAR AND PAYING AGENTS: at all times
maintain an Agent Bank, a Registrar and Paying Agents in
accordance with the Note Conditions and at all times maintain
any other agents required by the Note Conditions, this Deed or
any other Document relating to any Notes which are outstanding;
(j) NOTIFICATION OF LATE PAYMENT: procure the New York Paying Agent
to notify the Note Trustee forthwith in the event that it does
not, by the due date for any payment in respect of the Notes (or
any of the them), receive unconditionally pursuant to the Paying
Agency and Agent Bank Agreement payment of the full amount in
Dollars of the monies payable in accordance with the Conditions
on such due date in respect of all such Notes;
(k) NOTIFICATION OF UNCONDITIONAL PAYMENT: in the event of the
unconditional payment to the New York Paying Agent of any sum
due in respect of the
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Notes (or any of them) being made after the due date for payment
thereof, forthwith give or procure to be given notice to
Noteholders in accordance with Note Condition 14 that such
payment has been made;
(l) LISTING: use all reasonable endeavours to obtain and maintain
the listing of the Notes on the London Stock Exchange (including
compliance with the continuing obligations applicable to the
Issuer by virtue of the admission of the Notes to the Official
List of the London Stock Exchange) or, if it is unable to do so
having used all reasonable endeavours, use all reasonable
endeavours to obtain and maintain a quotation or listing of the
Notes on such other stock exchange or exchanges or securities
market or markets as the Issuer may (with the prior written
approval of the Note Trustee) decide, and shall also use all
reasonable endeavours to procure that there will at all times be
furnished to the London Stock Exchange or to any other such
stock exchange or securities market such information as the
London Stock Exchange or, as the case may be, any other such
stock exchange or securities market may require to be furnished
in accordance with its requirements and shall also upon
obtaining a quotation or listing of the Notes on such other
stock exchange or exchanges or securities market or markets
enter into a deed supplemental to this Deed to effect such
consequential amendments to this Deed as the Note Trustee may
require or as shall be requisite to comply with the requirements
of any such stock exchange or securities market;
(m) CHANGE OF AGENTS: give notice to the Noteholders in accordance
with Note Condition 14 of any appointment, resignation or
removal of an Agent (other than the appointment of the initial
Agents) after having obtained the written approval of the Note
Trustee thereto or of change of the specified office of any
Agent, provided that so long as any of the Notes remain
outstanding, in the case of the termination of the appointment
of the Agent Bank, Principal Paying Agent or New York Paying
Agent, no such termination shall take effect until a new Agent
Bank, Principal Paying Agent (in London) or, as the case may be,
New York Paying Agent (in New York) has been appointed on terms
approved in writing by the Note Trustee;
(n) NOTICE TO NOTEHOLDERS: obtain the prior written approval of the
Note Trustee to, and promptly give to the Note Trustee, or
ensure that the Note Trustee receives, four copies of the form
of every notice given to the Noteholders in accordance with Note
Condition 14; such approval, unless so expressed, shall not
constitute approval for the purposes of the Financial Services
and Markets Act 2000 of the United Kingdom of any such notice
which is an investment advertisement (as therein defined);
(o) COMPLIANCE WITH PAYING AGENCY AND AGENT BANK AGREEMENT: comply
with and perform all its obligations under the Paying Agency and
Agent Bank Agreement and use all reasonable endeavours to
procure that each of the Agents and (except where such Agent and
the Note Trustee are one and the same person) comply with and
perform all their respective obligations
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thereunder and any notice given by the Note Trustee pursuant to
Clause 2.3.1 and not make any amendment or modification thereto
without the prior written approval of the Note Trustee;
(p) ASCERTAINMENT OF OUTSTANDING AMOUNTS OF THE NOTES: in order to
enable the Note Trustee to ascertain the number and amount of
Notes for the time being outstanding for any of the purposes
referred to in the proviso to the definition of "OUTSTANDING"
contained in Clause 1.2, deliver to the Note Trustee forthwith
upon being so requested in writing by the Note Trustee a
certificate in writing signed by two Directors of the Issuer
setting out the total number and the principal amount of the
Notes which:
(i) up to and including the date of such certificate have
been purchased by the Issuer and cancelled; and
(ii) are at the date of such certificate beneficially held by
or for the account of the Issuer, any of its respective
subsidiaries or Affiliates or holding companies or other
subsidiaries or Affiliates of such holding companies;
(q) COMPLIANCE: at all times comply with and perform all its
obligations under this Deed, the Conditions and under the
Documents and use all reasonable endeavours to procure that the
other parties thereto, other than the Note Trustee (or any
person which is the Note Trustee acting in another capacity),
comply with and perform all their respective obligations
thereunder and not make any amendment or modification thereto or
agree to waive or authorise any breach thereof without the prior
written approval of the Note Trustee;
(r) MODIFICATIONS TO DOCUMENTS: not waive, modify, amend or consent
to any waiver modification or amendment of the Documents without
the consent of the Note Trustee;
(s) SEC REPORTS: file with the Note Trustee copies of the annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which the Issuer is required
to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act within 15 days after it files them with the SEC.
The Issuer also shall comply with the other provisions of TIA
ss. 314(a);
(t) INFORMATION REGARDING NOTEHOLDERS: shall furnish or cause to be
furnished to the Note Trustee on June 30 and December 31 of each
year, commencing June 2005, and at such other times as the Note
Trustee may request in writing, all information in the
possession or control of the Issuer, or of its registrar, as to
the names and addresses of the Noteholders, and requiring the
Note Trustee to preserve, in as current a form as is reasonably
practicable, all such information so furnished to it or received
by it in the capacity of registrar;
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(u) OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE
CONTAINED THEREIN: Upon any application, demand or request by
the Issuer to the Note Trustee to take any action under any of
the provisions of this Trust Deed (other than the issuance of
Notes) and upon request of the Note Trustee, the Issuer shall
furnish to the Note Trustee an Officers' Certificate and Opinion
of Counsel complying with the provisions of Section 314 (e) of
the TIA. Each certificate or opinion provided for in this Trust
Deed and delivered to the Note Trustee with respect to
compliance with a condition or covenant provided for in this
Trust Deed shall include the items required by Section 314(e) of
the TIA;
(v) OPINION OF COUNSEL: promptly after the execution and delivery of
this Trust Deed and each supplement hereto, the Issuer will
furnish to Note Trustee an Opinion of Counsel stating that in
the opinion of such counsel, appropriate steps have been taken
to protect the lien of the Note Trustee in the Series 04-2 MTN
under the Deed of Charge and reciting the details of such
action, or stating that in the opinion of such counsel no such
action is necessary; and the Issuer shall furnish to the Note
Trustee, not more than three (3) months after the anniversary of
each calendar year, commencing with calendar year 2005, an
Opinion of Counsel stating either that, in the opinion of such
Counsel, (i) such action has been taken as is necessary for the
proper protection of the lien of the Note Trustee in the Series
04-2 MTN under the Deed of Charge and reciting the details of
such action or (ii) no such action is necessary for any of such
purposes.
11. REMUNERATION AND INDEMNIFICATION OF NOTE TRUSTEE
11.1 ANNUAL FEE
The Issuer shall pay to the Note Trustee remuneration for its services
as trustee as from the date of this Deed, such remuneration to be at
such annual rate as may from time to time be agreed between the Issuer
and the Note Trustee. Such remuneration shall be payable in advance on
15 July in each year (or if such day is not a Business Day, the next
succeeding Business Day), the first such payment to be made on the
Closing Date in respect of the period from and including the Closing
Date to but excluding 15 July 2005. Remuneration shall accrue from day
to day and be payable (in priority to payments to the Noteholders) up to
(and including) the date when, the Notes having become due for
redemption in full, the redemption monies and interest thereon to the
date of redemption have been paid to the New York Paying Agent or the
Note Trustee.
11.2 ADDITIONAL FEE FOR EXCEPTIONAL DUTIES
In the event of the Note Trustee giving an Enforcement Notice or
considering it expedient or necessary or being requested by the Issuer
to undertake duties which the Note Trustee and the Issuer agree to be of
an exceptional nature or otherwise outside the scope of the normal
duties of the Note Trustee under this Deed the Issuer shall pay to the
Note Trustee such additional remuneration as shall be agreed between
them.
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11.3 TAX
The Issuer shall in addition pay to the Note Trustee an amount equal to
the amount of any VAT chargeable in respect of its remuneration under
this Deed.
11.4 NOTE TRUSTEE'S COSTS AND EXPENSES
The Issuer shall also pay or discharge all legal fees and other costs,
charges, liabilities and expenses properly incurred by the Note Trustee
in relation to the preparation and execution of, the exercise of its
powers and the performance of its duties under, and in any other manner
in relation to, this Deed, the Notes or the Documents, including but not
limited to legal and travelling expenses and any stamp, issue,
registration, documentary and other similar taxes or duties paid or
payable by the Note Trustee in connection with any action or legal
proceedings brought or contemplated by the Note Trustee for enforcing
the security created in favour of the Note Trustee by, and contained in,
the Deed of Charge or on its behalf against the Issuer or any other
person for enforcing any obligations under this Deed, the Notes or the
Documents.
11.5 TERMS OF PAYMENT
All costs, charges, liabilities and expenses incurred and payments made
by the Note Trustee in the lawful exercise of the powers conferred upon
it by this Deed and all amounts pursuant to Clause 11 and all
remuneration payable to the Note Trustee shall be payable by the Issuer
on the Interest Payment Date next following receipt by the Issuer of a
written demand accompanied by appropriate VAT invoices (to the extent
that VAT is chargeable) and shall (if not paid on such Interest Payment
Date) carry interest at the rate of two per cent. per annum above the
base rate from time to time of Barclays Bank PLC from such Interest
Payment Date.
11.6 DISCHARGE
Unless otherwise specifically stated in any discharge of this Deed the
provisions of this Clause 11 and Clause 12(i) shall continue in full
force and effect notwithstanding such discharge.
11.7 STAMP DUTY
The Issuer shall pay all stamp, issue, registration, documentary and
other similar fees, duties or taxes including interest and penalties (if
any) payable in the United Kingdom on or arising out of or in
consequence of (i) the constitution and issue of the Notes, (ii) the
initial delivery of the Notes, (iii) the creation of the security
constituted by the Deed of Charge, (iv) any action taken by the Note
Trustee (or any Noteholder where permitted under the Note Conditions and
this Deed so to do) to enforce the provisions of the Notes or this Deed
or the Documents or to enforce the said security and (v) the execution
and delivery of this Deed and the Documents to which the Note Trustee is
a party.
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12. SUPPLEMENT TO TRUSTEE ACTS
The Note Trustee shall have all powers conferred upon trustees by the
Trustees Act 1925 and by way of supplement to the Trustee Acts and
subject to Clause 14, it is expressly declared as follows (which
provisions shall, except as expressly provided in this Clause 12, be in
lieu of the provisions contained in section 315(a) of the TIA):
(a) ADVICE: The Note Trustee may in relation to this Deed act on the
advice or opinion of or any information obtained from any
lawyer, valuer, accountant, banker, broker, credit-rating agency
or other expert whether obtained by the Issuer, the Note Trustee
or otherwise and shall not in the absence of negligence or
wilful misconduct or fraud on the part of the Note Trustee, be
responsible for any loss occasioned by so acting.
(b) TRANSMISSION OF ADVICE: Any such advice, opinion or information
may be sent or obtained by letter, telex, telegram, facsimile
transmission or cable and in the absence of negligence or wilful
misconduct or fraud on the part of the Note Trustee, the Note
Trustee shall not be liable for acting on any advice, opinion or
information purporting to be conveyed by any such letter, telex,
telegram, facsimile transmission or cable although the same
shall contain some error or shall not be authentic.
(c) CERTIFICATE OF AUTHORISED SIGNATORY: The Note Trustee may call
for and shall be at liberty to accept as sufficient evidence of
any fact or matter or the expediency of any transaction or
thing, unless any of its officers in charge of the
administration of this Deed shall have actual knowledge or
express notice to the contrary, a certificate signed by two
Directors of the Issuer and the Note Trustee shall not be bound
in any such case to call for further evidence or be responsible
for any loss that may be occasioned by the Note Trustee acting
on such certificate.
(d) DEPOSIT OF DOCUMENTS: The Note Trustee shall be at liberty to
hold or to place this Deed, any other documents relating to this
Deed and any of the Documents in any part of the world with any
banker or banking company or company whose business includes
undertaking the safe custody of documents or lawyer or firm of
lawyers considered by the Note Trustee to be of good repute and
the Note Trustee shall not be responsible for or required to
insure against any loss incurred in connection with any such
deposit and may pay all sums required to be paid on account of
or in respect of any such deposit, such sums to be recoverable
by the Note Trustee pursuant to Clause 11.5.
(e) PAYMENT FOR AND DELIVERY OF THE NOTES: The Note Trustee shall
not be responsible for the application of the proceeds of the
issue of any of the Notes by the Issuer or the exchange of any
Global Note Certificate for any other Global Note Certificate or
Individual Note Certificate, as the case may be.
(f) EVENTS OF DEFAULT: Except to the extent required pursuant to
section 315(b) of the TIA, the Note Trustee shall not be bound
to give notice to any person of
- 26 -
the execution of this Deed or any of the Documents or any
transaction contemplated hereby or thereby or to take any steps
to ascertain whether any Event of Default (or any condition,
event or act which with the giving of notice and/or the lapse of
time and/or the issue of a certificate or determination of
materiality would constitute an Event of Default) has happened
and, until it shall have actual knowledge or express written
notice to the contrary, the Note Trustee shall be entitled to
assume that no Event of Default or such condition, event or act
has happened and that the Issuer and each other party to any
Document is observing and performing all the obligations on its
part contained in the Notes and under this Deed and/or any
Document to which it is a party.
(g) DISCRETION OF THE NOTE TRUSTEE: Save as expressly otherwise
provided in this Deed, the Note Conditions or the Documents, the
Note Trustee shall have absolute and uncontrolled discretion as
to the exercise of the discretions vested in the Note Trustee by
this Deed, the Note Conditions and the Documents (the exercise
of which as between the Note Trustee and the Noteholders and
other parties thereto shall be conclusive and binding on the
Noteholders and other parties thereto) but whenever the Note
Trustee is under the provisions of this Deed, the Note
Conditions or the Documents bound to act at the request or
direction of the Noteholders, or any of them, or any other
relevant party, the Note Trustee shall nevertheless not be so
bound unless first indemnified to its satisfaction against all
actions, proceedings, claims and demands to which it may render
itself liable and all costs, charges, damages, expenses and
liabilities which it may incur by so doing.
(h) RESOLUTION OF THE NOTEHOLDERS: The Note Trustee shall not be
liable for acting upon any resolution purporting to have been
passed at any meeting of the Noteholders in respect whereof
minutes have been made and signed even though subsequent to its
acting it may be found that there was some defect in the
constitution of the meeting or the passing of the resolution or
that for any reason the resolution was not valid or binding upon
the Noteholders.
(i) RELIANCE ON CERTIFICATION OF CLEARING SYSTEM: The Note Trustee
shall not, in the absence of negligence or wilful misconduct or
fraud on the part of the Note Trustee be liable to the Issuer or
any Noteholder or any other person by reason of having accepted
as valid or not having rejected any Individual Note Certificate
purporting to be such and subsequently found to be forged or not
authentic and the Note Trustee may call for and shall be at
liberty to accept and place full reliance on as sufficient
evidence of the facts stated therein a certificate or letter of
confirmation certified as true and accurate and signed on behalf
of DTC, Euroclear, Clearstream, Luxembourg or any Depository for
them or such person as the Note Trustee considers appropriate,
or any form of record made by any of them to the effect that at
any particular time or through any particular period any
particular person is, was, or will be, shown in its records as
entitled to a particular number of Notes.
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(j) COVENANT TO INDEMNIFY NOTE TRUSTEE AND OTHERS: Without prejudice
to the right of indemnity by law given to trustees, the Issuer
hereby covenants to indemnify and keep indemnified the Note
Trustee and every attorney, receiver, manager, agent, delegate
or other person appointed by it under this Deed (after prior
consultation by the Note Trustee with the Issuer and after
consideration in good faith by the Note Trustee of any
representations made by the Issuer concerning the proposed
appointee except where, in the opinion of the Note Trustee, such
consultation and consideration was not practicable and in
particular no such prior consultation will be required if (i)
the appointment relates to any enforcement action undertaken by
the Note Trustee through its appointment of a receiver, manager,
agent or similar officer or (ii) such prior consultation would
cause the Note Trustee to breach any of its fiduciary duties)
from and against all liabilities, losses, damages, costs,
expenses, actions, proceedings, claims and demands incurred by
or made against it or him in the execution or purported
execution of the trusts, authorities or discretions of this Deed
or the Note Conditions or of their powers or in respect of any
matter or thing done or omitted in any way relating to this
Deed, the Note Conditions or any of the Documents or any such
appointment except such as may arise from such person's
negligent action, negligent failure to act, or wilful misconduct
or fraud of any such indemnified person.
(k) NOTE TRUSTEE'S CONSENT: Any consent or approval given by the
Note Trustee for the purpose of this Deed, the Note Conditions
and any Document may be given on such terms and subject to such
conditions (if any) as the Note Trustee thinks fit and
notwithstanding anything to the contrary contained in this Deed,
any Document or the Note Conditions may be given
retrospectively.
(l) CONFIDENTIALITY: The Note Trustee shall not (unless and to the
extent ordered so to do by a court of competent jurisdiction) be
required to disclose to any Noteholder or any other person any
confidential financial, price sensitive or other information
made available to the Note Trustee by the Issuer or any other
person in connection with the trusts created under this Deed and
no Noteholder or other person shall be entitled to take any
action to obtain from the Note Trustee any such information.
(m) CURRENCY CONVERSION: Where it is necessary or desirable for any
purpose in connection with this Deed or the Note Conditions to
convert any sum from one currency to another it shall (unless
otherwise provided by this Deed or the Note Conditions or
required by law) be converted at such rate or rates, in
accordance with such method and as at such date for the
determination of such rate of exchange, as may be agreed by the
Note Trustee in consultation with the Issuer as relevant and any
rate, method and date so agreed shall be binding on the Issuer
and the Noteholders.
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(n) DEFAULT IN PERFORMANCE: The Note Trustee may certify in the
circumstances stated in Note Condition 14 whether or not a
default by the Issuer in the performance or observance of any of
its obligations pursuant to that Condition is in its opinion
materially prejudicial to the interests of the Noteholders and
any such certificate shall be conclusive and binding upon the
Issuer and the Noteholders.
(o) ASSUMPTION OF DUE PERFORMANCE: The Note Trustee shall not be
bound to take any steps to ascertain whether any event,
condition or act, the happening of which would cause a right or
remedy to become exercisable by the Note Trustee under this Deed
or the Note Conditions or by the Issuer under any of the
Documents has happened or to monitor or supervise the observance
and performance by the Issuer or any of the other parties
thereto of their respective obligations thereunder and, until it
shall have actual knowledge to the contrary, the Note Trustee
shall be entitled to assume that no such event, condition or act
has happened and that the Issuer and each of the other parties
thereto are observing and performing all their respective
obligations thereunder.
(p) RELIANCE ON DOCUMENTS: The Note Trustee shall not be responsible
for:
(i) recitals, statements, warranties or representations of
any party contained in any Document or other document
entered into in connection therewith and shall assume
the accuracy and correctness thereof and the Note
Trustee may accept without enquiry, requisition or
objection such title as the Issuer may have to the
security constituted by the Deed of Charge or any part
thereof; or
(ii) the execution, legality, effectiveness, adequacy,
genuineness, validity or enforceability or admissibility
in evidence of any such agreement or other document or
security thereby constituted.
Notwithstanding the generality of the foregoing, each
Noteholder shall be solely responsible for making its own
independent appraisal of and investigation into the financial
condition, creditworthiness, condition, affairs, status and
nature of the Issuer and the Note Trustee shall not at any
time have any responsibility for the same and each Noteholder
shall not rely on the Note Trustee in respect thereof.
(q) CONSIDERATION OF THE INTERESTS OF NOTEHOLDERS: In connection
with the exercise by it of any of its trusts, powers,
authorities and discretions under this Deed (including, without
limitation, any modification, waiver, authorisation,
determination or substitution) or the Note Conditions, the Note
Trustee shall have regard to the interests of the Noteholders
and, in particular but without limitation, shall not have regard
to the consequences of such exercise for individual Noteholders
resulting from their being for any purpose domiciled or resident
in, or otherwise connected with, or subject to the jurisdiction
of,
- 29 -
any particular territory or any political sub-division thereof
and the Note Trustee shall not be entitled to require, nor shall
any Noteholder be entitled to claim, from the Issuer, the Note
Trustee or any other person any indemnification or payment in
respect of any tax consequence of any such exercise upon
individual Noteholders except to the extent already provided for
in the Note Conditions and/or any undertaking given in addition
thereto or in substitution therefor under this Deed, provided
that, where, in the opinion of the Note Trustee, there is a
conflict between the interests of the Senior Noteholders and the
Junior Noteholders the Note Trustee shall give priority to the
interests of the Senior Noteholders whose interests shall
prevail.
(r) NO LIABILITY FOR EMPLOYEES: The Note Trustee shall not be liable
for any error of judgment made in good faith by any officer or
employee of the Note Trustee assigned by the Note Trustee to
administer its corporate trust matters unless it shall be proved
that the Note Trustee was negligent in ascertaining the
pertinent facts.
(s) FINANCIAL LIABILITY: No provision of this Deed or the Note
Conditions shall require the Note Trustee to do anything which
may be illegal or contrary to applicable law or regulation or
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such fund or
adequate indemnity against such risk or liability is not assured
to it.
(t) DETERMINATIONS OF THE NOTE TRUSTEE CONCLUSIVE: The Note Trustee
as between itself and the Noteholders shall have full power to
determine all questions and doubts arising in relation to any of
the provisions of this Deed or the Note Conditions, and every
such determination, whether made upon a question actually raised
or implied in the acts or proceedings of the Note Trustee, shall
be conclusive and shall bind the Issuer and the Noteholders.
(u) DETERMINATION OF DEFAULT IN PERFORMANCE: The Note Trustee may
determine whether or not a default in the performance by the
Issuer of any obligation under the provisions of this Deed or
contained in the Notes or any of the Documents is capable of
remedy and, if the Note Trustee shall certify that any such
default is, in its opinion, not capable of remedy, such
certificate shall be conclusive and binding upon the Issuer and
the Noteholders.
(v) RESPONSIBILITY: Notwithstanding the generality of sub-clauses
(n) or (o) above, the Note Trustee shall not be responsible for
the genuineness, validity, effectiveness or suitability of any
of the Documents or other documents entered into in connection
therewith or any other document or any obligation or rights
created or purported to be created thereby or pursuant thereto
or any security or the priority thereof constituted or purported
to be constituted thereby or pursuant thereto, nor shall it be
responsible or liable to any person because of any invalidity of
any provision of such documents or the
- 30 -
unenforceability thereof, whether arising from statute, law or
decision of any court and (without prejudice to the generality
of the foregoing) the Note Trustee shall not have any
responsibility for or have any duty to make any investigation in
respect of or in any way be liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of the
MTN Issuer or the Issuer or any other person or entity
who has at any time provided any security or support
whether by way of guarantee, charge or otherwise in
respect of any advance made to the MTN Issuer or the
Issuer;
(ii) the title, ownership, value, sufficiency or existence of
the Series 04-2 MTN;
(iii) the registration, filing, protection or perfection of
any assignment or security interest or the priority of
the security thereby created;
(iv) the existence, accuracy or sufficiency of any legal or
other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or
required to be delivered or obtained at any time in
connection herewith;
(v) the failure by the MTN Issuer, the Security Trustee or
the Issuer to obtain or comply with any licence, consent
or other authority in connection with the origination,
sale, purchase or administration of the Series 04-2 MTN
or the failure to effect or procure registration of or
to give notice to any person in relation to the Series
04-2 MTN or other Documents or otherwise protect
interests in, and/or the security created or purported
to be created by or pursuant to the Series 04-2 MTN or
other documents entered into in connection therewith;
(vi) the failure to call for delivery of documents of title
to or require any transfers, legal mortgages, charges or
other further assurances in relation to any of the
assets the subject matter of any of the Documents or any
other document;
(vii) any accounts, books, records or files maintained by the
Issuer, the MTN Issuer, the Security Trustee or any
other person in respect of the Series 04-2 MTN;
(viii) obtaining insurance for any of the security constituted
by the Deed of Charge or any deeds or documents of title
or other evidence in respect thereof and shall not be
responsible for any loss, expense or liability which may
be suffered as a result of the lack of or inadequacy of
any such insurance; or
(ix) any deficiency in amounts payable to Noteholders by
virtue of the Note Trustee being liable to tax or
obliged to deduct tax in respect of sums received, held
or paid out by it under the Documents.
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(w) EXCLUSION OF LIABILITY: The Note Trustee shall not be liable or
responsible for any loss, cost, damages, expenses or
inconvenience which may result from anything done or omitted to
be done by it in accordance with the provisions of this Deed,
any Documents or any other document or as a consequence of or in
connection with it being held or treated as, or being deemed to
be, a creditor, for the purposes of the Consumer Credit Act
1974, in respect of any of the Receivables.
(x) CERTIFICATES OF OTHER PARTIES: The Note Trustee shall be
entitled to call for and to rely upon a certificate or any
letter of confirmation or explanation reasonably believed by it
to be genuine, of the MTN Trustee, any Agent, the Custodian, the
Rating Agencies or any other credit-rating agency in respect of
every matter and circumstance for which a certificate is
expressly provided for under this Deed or in respect of the
rating of the Notes or the Note Conditions and to call for and
rely upon a certificate of the MTN Issuer or the Security
Trustee reasonably believed by it to be genuine as to any other
fact or matter prima facie within the knowledge of the Series
04-2 MTN Issuer or the Security Trustee as sufficient evidence
thereof and the Note Trustee shall not be bound in any such case
to call for further evidence or be responsible for any loss,
liability, costs, damages, expenses or inconvenience that may be
occasioned by its failing so to do.
(y) CONSEQUENCE OF MODIFICATIONS: In connection with any proposed
modification, waiver, authorisation or determination permitted
by the terms of this Deed or the Note Conditions, the Note
Trustee shall not have regard to the consequences thereof for
individual Noteholders resulting from their being for any
purpose domiciled or resident in, or otherwise connected with,
or subject to, the jurisdiction of any particular territory.
(z) RESPONSIBILITY FOR THE LISTING AND RATING OF THE NOTES: The Note
Trustee shall have no responsibility for the maintenance of any
listing of the Notes or rating of the Notes by the Rating
Agencies or any other credit-rating agency or any other person.
(aa) GLOBAL NOTES AND NOTEHOLDERS: For the avoidance of doubt, to the
extent that any Notes are in global registered form, the Note
Trustee shall be entitled to rely on a certificate from DTC,
Euroclear or Clearstream, Luxembourg in determining whether a
person is a "NOTEHOLDER" for the purposes of this Deed and the
Note Conditions except for the purposes of payments in respect
of such Global Note, the right to which shall be vested solely
in the registered owner thereof.
(bb) NO LIABILITY AS A RESULT OF THE DELIVERY OF A CERTIFICATE: The
Note Trustee shall have no liability whatsoever for any loss,
cost, damages or expenses directly or indirectly suffered or
incurred by the Issuer, any Noteholder or any other person as a
result of the delivery by the Note Trustee of a
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certificate, or the omission by it to deliver a certificate, to
the Issuer as to material prejudice, on the basis of an opinion
formed by it in good faith.
(cc) NO DUTY TO SUPERVISE: The Note Trustee shall be under no
obligation to monitor or supervise the functions of any other
person under any Document and shall be entitled, in the absence
of actual knowledge by the persons administering this trust of a
breach of duty or obligation, to assume that such other person
is properly performing its obligations in accordance with each
Document.
(dd) CALCULATION OF INTEREST: The Note Trustee acknowledges that the
Agent Bank is responsible, pursuant to Note Condition 5, for
determining the amount of interest due in relation to any
Interest Payment Date and the actual amount of interest on the
Notes and the Note Trustee shall have no responsibility to
recalculate any such amounts notwithstanding a manifest error
therein. However, if the Agent Bank fails at any time to
determine such amount the Note Trustee, or its appointed agent,
without accepting any liability therefore, may determine such
amount in accordance with Note Condition 5, and such
determination shall be deemed to have been made by the Agent
Bank pursuant to Note Condition 5 and the Note Trustee shall
have no liability in respect thereof other than as a result of
the negligence, bad faith or wilful default of the Note Trustee.
For the avoidance of doubt, this provision also applies to any
obligation on the Trustee to convert currencies upon termination
of each of the Swap Agreements in the event that no replacement
Swap Counterparty is appointed.
(ee) MATERIAL PREJUDICE: Where the Rating Agencies have confirmed in
writing to the Issuer that an action under or in relation to the
Transaction Documents or the Notes will not result in the
withdrawal, reduction or any other adverse action with respect
to the current underlying rating of all relevant Classes of
Notes (a "RATING CONFIRMATION"), the Note Trustee in considering
whether such action is materially prejudicial to the interests
of the Noteholders of any Class (the "NO MATERIAL PREJUDICE
TEST") shall be entitled to take into account such Rating
Confirmation, PROVIDED THAT the Note Trustee shall continue to
be responsible for taking into account, for the purpose of the
No Material Prejudice Test, all other matters which would be
relevant to such No Material Prejudice Test.
(ff) REPORTS BY NOTE TRUSTEE TO NOTEHOLDERS: If required by TIA
Section 313(a), within 60 days after November 15 of any year,
commencing the November 15 following the date of this Deed, and
at intervals of not more than 12 months, the Note Trustee shall
deliver to each Noteholder a brief report dated as of such
November 15 that complies with TIA Section 313(a). The Note
Trustee also shall comply with TIA Sections 313(b), (c) and (d).
Reports delivered pursuant to this Clause 12 (ff) shall be sent
as provided in Clause 22.3.
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(gg) PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER: The Note
Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Note
Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein. The provisions
of TIA Section 311 shall apply to the Issuer as the obligor of
the Notes.
(hh) WHEN TREASURY SECURITIES DISREGARDED: In determining whether the
Noteholders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by
the Issuer or by any affiliate of the Issuer shall be
disregarded, except that for the purposes of determining whether
the Note Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which the Note Trustee
knows are so owned shall be disregarded.
(ii) DUTIES OF THE TRUSTEE: Notwithstanding any additional duties
imposed on the Note Trustee under the Trustee Act or otherwise,
if an Event of Default has occurred and is continuing, the Note
Trustee shall exercise the rights and powers and use the same
degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
(jj) DISAPPLICATION OF TRUSTEE ACT 2000: Section 1 of the Trustee Act
2000 shall not apply to the duties of the Note Trustee in
relation to the trusts constituted by this Trust Deed. Where
there are any inconsistencies between the Trustee Acts and the
provisions of this Trust Deed, the provisions of this Trust Deed
shall, to the extent allowed by law, prevail and, in the case of
any such inconsistency with the Trustee Act 2000, the provisions
of this Trust Deed shall constitute a restriction or exclusion
for the purposes of that Act.
(kk) NO LIABILITY FOR LOSS: The Note Trustee will not be liable for
any decline in the value nor any loss realised upon any sale or
other disposition pursuant to the Trust Documents of, any of the
Charged Property. In particular and without limitation, the Note
Trustee shall not be liable for any such decline or loss
directly or indirectly arising from its acting or failing to act
as a consequence of an opinion reached by it in good faith based
on advice received by it in accordance with the Trust Documents
and the Conditions.
(ll) NO LIABILITY FOR MONITORING EVENT OF DEFAULT: The Note Trustee
shall not be responsible for monitoring whether an Event of
Default under the Note Conditions or a Series 04-2 Enforcement
Event has occurred and shall have no obligation to procure the
giving of a Series 04-2 Enforcement Notice, or to instruct any
party to give such a notice or to act in any way, unless it has
been instructed and indemnified in accordance with the
provisions of this Deed.
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13. NOTE TRUSTEE'S LIABILITY
Nothing contained in this Deed shall, in any case in which the Note
Trustee has failed to show the degree of care and diligence required of
it as trustee having regard to the provisions of this Deed conferring on
it any powers, authorities or discretions, (i) exempt the Note Trustee
from or indemnify it against any liability for breach of trust or any
liability which by virtue of any rule of law would otherwise attach to
it in respect of any negligence, default, breach of duty or breach of
trust of which it may be guilty in relation to its duties under this
Deed or (ii) relieve the Note Trustee from liability for its own
negligent action, its own negligent failure to act, on its own wilful
misconduct, except as permitted in Section 315(d) of the TIA.
14. DELEGATION BY NOTE TRUSTEE
The Note Trustee may whenever it thinks fit delegate (after prior
consultation by the Note Trustee with the Issuer and after consideration
in good faith by the Note Trustee of any representations made by the
Issuer concerning the proposed appointee except where, in the opinion of
the Note Trustee, such consultation and consideration was not
practicable and in particular no such prior consultation will be
required if (i) the delegation relates to any enforcement action
undertaken by the Note Trustee through its appointment of a receiver,
manager, agent or similar officer or (ii) such prior consultation would
cause the Note Trustee to breach any of its fiduciary duties) by power
of attorney or otherwise to any person or persons or fluctuating body of
persons (whether being a joint trustee of this Deed or not) for any
period (whether exceeding one year or not) or indefinitely all or any of
the trusts, powers and authorities vested in the Note Trustee by this
Deed and such delegation may be made upon such terms and subject to such
conditions including power to sub-delegate, and subject to such
regulations as the Note Trustee may in the interests of the Noteholders
think fit, and provided that the Note Trustee shall have exercised
reasonable care in the selection of such delegate the Note Trustee shall
not be in any way responsible for any loss incurred by reason of any
misconduct or default on the part of any such delegate or sub-delegate.
The Note Trustee shall within a reasonable time prior to any such
delegation or any renewal, extension or termination thereof give notice
thereof to the Issuer.
15. EMPLOYMENT OF AGENT BY NOTE TRUSTEE
15.1 POWER OF ATTORNEY
The Note Trustee may in the conduct of the trusts of this Deed instead
of acting personally employ (after prior consultation by the Note
Trustee with the Issuer and after consideration in good faith by the
Note Trustee of any representations made by the Issuer concerning the
proposed appointee except where, in the opinion of the Note Trustee,
such consultation and consideration was not practicable) and pay an
agent, whether being a lawyer or other professional person, to transact
or concur in transacting any business and to do or concur in doing all
acts required to be done in connection with the trusts of this Deed and
the Documents and its powers and provided that, the Note Trustee shall
have exercised reasonable care in the selection of such
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agent, the Note Trustee shall not in any way be responsible for any loss
incurred by reason of any misconduct or default on the part of any such
agent appointed by it under this Deed or the Documents or to be bound to
supervise the proceedings, or acts of any such agent.
15.2 AGENT'S FEES
Any trustee of this Deed being a lawyer, accountant, broker or other
person engaged in any profession or business shall be entitled to charge
and be paid all usual professional and other charges for business
transacted and acts done by him or his firm in connection with the
trusts of this Deed and the Documents and also his reasonable charges in
addition to disbursements for all other work and business done and all
time spent by him or his firm in connection with matters arising in
connection with this Deed and the Documents.
16. NOTE TRUSTEE CONTRACTING WITH ISSUER
Neither the Note Trustee nor any body corporate which is a parent
undertaking or a subsidiary undertaking, or a subsidiary undertaking of
a parent undertaking nor any director or officer of a corporation acting
as a trustee under this Deed, shall by reason of its or his fiduciary
position, be in any way precluded from entering into or being interested
in any contract or financial or other transaction or arrangement with
the Issuer or any other party to any of the Documents or any person or
body corporate associated with the Issuer including without prejudice to
the generality of this provision any contract, transaction or
arrangement of a banking or insurance nature or any contract,
transaction or arrangement in relation to the making of loans or the
provision of financial facilities to or the purchase, placing or
underwriting of or subscribing or procuring subscriptions for or
otherwise acquiring, holding or dealing with the Notes or any of them,
or any other bonds, stocks, shares, debenture stock, debentures, notes
or other securities of the Issuer or any other party to any of the
Documents or any person or body corporate associated as aforesaid or
from accepting or holding the trusteeship of any other trust deed
constituting or securing any other securities issued by or relating to
the Issuer or any other party to any of the Documents or any such person
or body corporate so associated or any other office or profit under the
Issuer or any other party to any of the Documents or any such person or
body corporate so associated and shall be entitled to retain and shall
not be in any way liable to account for any profit made or share of
brokerage or commission or remuneration or other benefit received
thereby or in connection therewith.
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17. WAIVER; AUTHORISATION; DETERMINATION; MODIFICATION; SUBSTITUTION OF
PRINCIPAL DEBTOR
17.1 WAIVER
The Note Trustee may without prejudice to its rights in respect of any
subsequent breach, condition, event or act from time to time and at any
time but only if and in so far as in its opinion the interests of any of
the Noteholders shall not be materially prejudiced thereby waive or
authorise in writing on such terms and subject to such conditions as to
it shall seem fit and proper any breach or proposed breach by the Issuer
or any other person of any of the covenants or provisions contained in
this Deed or in the Notes (including the Note Conditions) or any other
Document or determine that any condition, event or act which
constitutes, or which with the giving of notice and/or the lapse of time
and/or the issue of a certificate or determination or materiality would
constitute, but for such determination, an Event of Default shall not,
or shall not subject to specified conditions, be treated as such for the
purposes of this Deed, provided that the Note Trustee shall not exercise
any powers conferred on it by this Clause in contravention of any
express direction given by Extraordinary Resolution or by a request
under Note Condition 13 but so that no such direction or request shall
affect any waiver, authorisation or determination previously given or
made. Any such waiver, authorisation or determination shall be binding
on the Noteholders and if, but only if, the Note Trustee shall so
require, shall be notified by the Issuer to the Noteholders in
accordance with Note Condition 14 as soon as practicable thereafter. The
provisions of this Clause 17.1 shall be in lieu of section 316(a)(1)(B)
of the TIA and section 316(a)(1)(B) of the TIA is hereby expressly
excluded from this Deed and the Notes, as permitted by the TIA.
17.2 MODIFICATION
The Note Trustee may, without the consent of the Noteholders at any time
and from time to time concur with the Issuer in making any modification
(i) to this Deed or the Note Conditions (other than the provisos to
paragraph 5 of the Eighth Schedule or any provision of this Deed or the
Note Conditions referred to in those provisos and this Clause 17.2) or
any other Documents which in the opinion of the Note Trustee it may be
proper to make, provided that the Note Trustee is of the opinion that
such modification will not be materially prejudicial to the interests of
any of the Noteholders or (ii) to this Deed or the Note Conditions or
any Documents if in the opinion of the Note Trustee such modification is
of a formal, minor or technical nature or to correct a manifest error.
Any such modification shall be binding upon the Noteholders and, unless
the Note Trustee agrees otherwise, shall be notified by the Issuer to
the Noteholders in accordance with Note Condition 14. In addition so
long as the Notes are rated by the Rating Agencies, any such
modification shall be notified in writing by the Issuer to the Rating
Agencies as soon as reasonably practicable thereafter.
17.3 SUBSTITUTION: The Note Trustee may, without the consent of the
Noteholders, agree with the Issuer to the substitution in place of the
Issuer or any previous Substituted Issuer (as defined below) as the
principal debtor in respect of the Notes of any other body corporate
(the "SUBSTITUTED ISSUER") provided that:
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(a) a trust deed or an indenture is executed or some other form of
undertaking is given by the Substituted Issuer to the Note
Trustee in form and manner satisfactory to the Note Trustee to
be bound by the terms of this Trust Deed and by the Note
Conditions (with any consequential amendments which the Note
Trustee may reasonably consider or deem to be appropriate) as
fully as if the Substituted Issuer had been a party to this
Trust Deed and named herein and in the Notes as the principal
debtor in respect of the Notes in place of the Issuer;
(b) the Substituted Issuer becomes a party to the Paying Agency and
Agent Bank Agreement and the Deed of Charge or to equivalent
documents acceptable to the Note Trustee;
(c) if a director of the Substituted Issuer certifies that the
Substituted Issuer will be solvent immediately after the time at
which the said substitution is to be effected, the Note Trustee
shall not have regard to the financial condition, profits or
prospects of the Substituted Issuer or compare the same with
those of the Issuer (or any other Substituted Issuer substituted
under this Clause);
(d) the Note Trustee is satisfied that the relevant transaction is
not materially prejudicial to the interest of Noteholders;
(e) confirmation is received from the Rating Agencies that the Class
A Notes remain AAA rated by S&P and Aaa rated by Moody's and the
Class B Notes remain A rated by S&P and A1 rated by Moody's and
the Class C Notes remain BBB rated by S&P and Baa1 by Moody's
and that such ratings will not be lowered as a result of the
substitution;
(f) the Note Trustee shall be satisfied (by means of legal opinions
in form and substance satisfactory to it or otherwise) that (i)
all necessary governmental and regulatory approvals and consents
necessary for, or in connection with, the assumption by the
Substituted Issuer of liability as principal debtor in respect
of, and of its obligations under, this Trust Deed and (ii) such
approvals and consents are at the time of substitution in full
force and effect; and
(g) the Issuer or, as the case may be, the previous Substituted
Issuer and the Substituted Issuer shall execute such other
deeds, documents and instruments (if any) and make such
representations and warranties and provide such other
documentation (particularly, but not limited to, with regard to
any applicable bankruptcy law) as the Note Trustee may require
in order to be satisfied that such substitution is fully
effective and comply with such other requirements in the
interests of the Noteholders as the Note Trustee may direct.
In connection with any proposed substitution of the Issuer or, as the
case may be, any previous Substituted Issuer, the Note Trustee, may,
without the consent of the Noteholders, agree to a change of the law
from time to time governing the Notes and/or this Trust Deed and/or the
Paying Agency and Agent Bank Agreement provided
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that such change of governing law, in the opinion of the Note Trustee,
would not be materially prejudicial to the interests of the Noteholders.
17.4 REGISTERED OWNER DEEMED ABSOLUTE OWNER
So long as the Notes, or any of them, are represented by a Global Note
Certificate and except for the purposes of payments in respect thereof,
the right to which shall be vested, as against the Issuer, the Note
Trustee and the Agents, solely in the registered owner of the Note in
accordance with and subject to its terms and the terms of this Trust
Deed (whether or not such Note shall be overdue) and notwithstanding any
notation or notice of ownership or writing thereon or any notice of
previous loss or theft), the Issuer, the Note Trustee and any Agent may
deem and treat the person for the time being shown in the records of
DTC, Euroclear or Clearstream Luxembourg as the holder of any Note as
the absolute owner of such Note and the Issuer, the Note Trustee and any
Agent shall not be affected by any notice to the contrary. So long as
the Notes, or any of them, are represented by Individual Note
Certificates, the Issuer, the Note Trustee and any Agent may deem and
treat the person for the time being shown in the Register to be the
registered owner of such Note as the absolute owner of such Note and the
Issuer, the Note Trustee and the Agents shall not be affected by any
notice to the contrary. All payments made to any such person shall be
valid and, to the extent of the sums so paid, effective to satisfy and
discharge the liability for the monies payable upon such Notes.
17.5 CLEARING SYSTEM CERTIFICATES
The Issuer and the Note Trustee may call for and shall be at liberty to
accept and place full reliance on as sufficient evidence thereof a
certificate or letter or confirmation signed on behalf of DTC, Euroclear
or Clearstream, Luxembourg or any form of record made by any of them to
the effect that at any particular time or throughout any particular
period any particular person is, was, or will be, shown in its records
as entitled to a particular interest in a Global Note.
18. CURRENCY INDEMNITY
If any sum due from the Issuer to the Note Trustee or the relevant
Noteholders under this Deed or the relevant Notes or any order or
judgment given or made in relation thereto has to be converted from the
currency (the "FIRST CURRENCY") in which the same is payable into
another currency (the "SECOND CURRENCY") for the purpose of (a) making
or filing a claim or proof against the Issuer, (b) obtaining an order or
judgment in any court or other tribunal or (c) enforcing any order or
judgment given or made in relation to this Deed or the relevant Notes
then the Issuer shall indemnify the Note Trustee and the Noteholders and
keep them indemnified against any loss or damage, costs or expenses
incurred by any of them arising as a result of any discrepancy between
(i) the rate of exchange used for such purpose to convert the sum in
question from the first currency into the second currency and (ii) the
rate or rates of exchange at which the Note Trustee and the Noteholders,
as the case may be, may in the ordinary course of business purchase the
first currency with the second currency upon
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receipt of the sum paid to it or them, as the case may be, in
satisfaction, in whole or in part of any such obligation, order,
judgment, claim or proof.
The above indemnities shall constitute obligations of the Issuer
separate and independent from its obligations under the Notes and shall
apply irrespective of any indulgence granted by the Note Trustee or the
Noteholders from time to time and shall continue in full force and
effect notwithstanding the judgment or filing of any proof or proofs in
any bankruptcy, insolvency or liquidation of the Issuer for a liquidated
sum or sums in respect of amounts due under this Deed (other than this
Clause) or the Notes. Any such discrepancy as aforesaid shall be deemed
to constitute a loss suffered by the Note Trustee and the Noteholders
and no proof or evidence of any actual loss shall be required by the
Issuer or its liquidator.
19. ELIGIBILITY AND DISQUALIFICATION; NEW NOTE TRUSTEE; SEPARATE AND CO-NOTE
TRUSTEES; NOTE TRUSTEE INFORMATION
19.1 ELIGIBILITY; DISQUALIFICATION
This Deed shall always have a Note Trustee which shall be eligible to
act as Note Trustee under TIA Sections 310(a)(1) and 310(a)(2). The Note
Trustee shall have a combined capital and surplus of at least
$150,000,000 as set forth in its most recent published annual report of
condition. If the Note Trustee has or shall acquire any "conflicting
interest" within the meaning of TIA Section 310(b), the Note Trustee and
the Issuer shall comply with the provisions of TIA Section 310(b);
provided, however, that there shall be excluded from the operation of
TIA Section 310(b)(1) any deed or deeds under which other securities or
certificates of interest or participation in other securities of the
Issuer are outstanding if the requirements for such exclusion set forth
in TIA Section 310(b)(1) are met. If at any time the Note Trustee shall
cease to be eligible in accordance with the provisions of this Clause
19.1, the Note Trustee shall resign promptly in the manner and with the
effect specified in Clause 20.
19.2 APPOINTMENT OF NEW NOTE TRUSTEE
The power to appoint a new trustee of this Deed shall be vested in the
Issuer but no person shall be appointed who shall not previously have
been approved by an Extraordinary Resolution of the Noteholders. One or
more persons may hold office as trustee or trustees of this Deed but
such trustee or trustees shall be or include a Trust Corporation.
Whenever there shall be more than two trustees of this Deed the majority
of such trustees shall be competent to execute and exercise all the
duties, powers, trusts, authorities and discretions vested in the Note
Trustee by this Deed, provided that a Trust Corporation shall be
included in such majority.
19.3 CO-TRUSTEE
Notwithstanding the provisions of Clause 20, the Note Trustee may (after
prior consultation by the Note Trustee with the Issuer and after
consideration in good faith by the Note Trustee of any representations
made by the Issuer concerning the proposed appointee except where, in
the opinion of the Note Trustee, such consultation and
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consideration was not practicable), upon giving prior notice to the
Issuer (but without the consent of the Issuer or the Noteholders),
appoint any person established or resident in any jurisdiction (whether
a Trust Corporation or not) to act either as a separate trustee or as a
co-trustee jointly with the Note Trustee (i) if the Note Trustee
considers such appointment to be in the interests of the Noteholders or
(ii) for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any particular
act or acts is or are to be performed or (iii) for the purposes of
obtaining a judgment in any jurisdiction or the enforcement in any
jurisdiction of either a judgment already obtained or any of the
provisions of this Deed against the Issuer. The Issuer hereby
irrevocably appoints the Note Trustee to be its attorney in its name and
on its behalf to execute any such instrument of appointment. Such a
person shall (subject always to the provisions of this Deed) have such
trusts, powers, authorities and discretions (not exceeding those
conferred on the Note Trustee by this Deed) and such duties and
obligations as shall be conferred or imposed by the instrument of
appointment. The Note Trustee shall have power in like manner to remove
any such person. Such reasonable remuneration as the Note Trustee may
pay to any such person, together with any attributable costs, charges
and expenses properly incurred by it in performing its function as such
separate trustee or co-trustee shall for the purposes of this Deed be
treated as costs, charges and expenses incurred by the Note Trustee.
19.4 Any appointment of a new trustee and/or any retirement or removal of an
existing trustee of this Deed shall as soon as practicable thereafter be
notified by the Issuer to the Registrar and the Noteholders and to the
Rating Agencies.
19.5 The Note Trustee shall provide to the Issuer upon request copies of its
annual financial statements.
20. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
20.1 A trustee of this Deed may retire at any time on giving not less than 30
days prior written notice to the Issuer without assigning any reason and
without being responsible for any costs occasioned by such retirement.
The Class A Noteholders or, if none of the Class A Notes remain
outstanding, the Class B Noteholders or if none of the Class B Notes
remain outstanding, the Class C Noteholders shall have the power
exercisable by Extraordinary Resolution to remove any trustee or
trustees for the time being of this Deed. The Issuer undertakes that in
the event of the only trustee hereof which is a Trust Corporation giving
notice under this Clause or being removed by Extraordinary Resolution it
will use all reasonable endeavours to procure a new trustee of this Deed
being a Trust Corporation to be appointed as soon as reasonably
practicable thereafter. The retirement or removal of any such trustee
shall not become effective until a successor trustee being a Trust
Corporation is appointed, provided that if the Issuer shall fail to
appoint a successor within 60 days of the Note Trustee giving notice of
resignation, then the retiring Note Trustee, having regard to the
provisions of Clause 20 may appoint a successor.
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20.2 Upon any resignation or removal taking effect under Clause 20.1 above,
the Note Trustee shall forthwith transfer the Series 04-2 MTN held by it
to its successor and, upon appropriate notice, provide reasonable
assistance to its successor for the discharge of its duties and
responsibilities hereunder.
21. NOTE TRUSTEE'S POWERS ADDITIONAL
The powers conferred upon the Note Trustee by this Deed shall be in
addition to any powers which may from time to time be vested in the Note
Trustee by the general law or as a holder of any of the Notes.
22. NOTICES
22.1 DELIVERY OF NOTICES
Any notice, demand, approval or certificate to the Issuer or the Note
Trustee required to be given, made or served for any purposes under the
Notes, or any of them, or this Deed shall be given, made or served by
sending the same by pre-paid post (first class if inland, first class
airmail if overseas), telex or facsimile transmission or by delivering
it by hand as follows:
to the Issuer:
Gracechurch Card Funding (No. 7) PLC
54 Lombard Street
London EC3P 3AH
Attention: The Directors
Facsimile No: (020) 7699 3271
with a copy to:
Barclays Capital
5 The North Colonnade
London E14 4BB
Attention: Structured Capital Market
Facsimile No: (020) 7773 1930
to the Note Trustee:
The Bank of New York
One Canada Square
London E14 5AL
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Attention: Global Structured Finance - Europe
Facsimile No: (+44) (0207) 964 6061/6399
or to such other address, telex or facsimile number or marked for the
attention of such other person or department as shall have been notified
(in accordance with this Clause) to the other party hereto and any
notice or demand sent by post as aforesaid shall be deemed to have been
given, made or served three days in the case of inland post or seven
days in the case of overseas post after despatch and any notice or
demand sent by telex or facsimile transmission as aforesaid shall be
deemed to have been given, made or served 24 hours after the time of
despatch, provided that in the case of a notice or demand given by telex
or facsimile transmission such notice or demand shall forthwith be
confirmed by post. The failure of the addressee to receive such
confirmation shall not invalidate the relevant notice or demand given,
made or served by telex or facsimile transmission.
22.2 COMMUNICATIONS BY NOTEHOLDERS WITH OTHER NOTEHOLDERS
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Deed or the Notes.
The Issuer, the Note Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
22.3 NOTICES TO NOTEHOLDERS
Any notice or communication mailed to Noteholders hereunder shall be
transmitted by mail to all Noteholders, as the names and addresses of
such Noteholders appear upon the Register.
23. GOVERNING LAW AND JURISDICTION
23.1 This Deed and the Notes are governed by and shall be construed in
accordance with English law.
23.2 The Issuer irrevocably agrees for the benefit of the Note Trustee the
Noteholders that the High Court of Justice in London, England shall have
non-exclusive jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in
connection with this Deed or the Notes (respectively, "PROCEEDINGS" and
"DISPUTES") and, for such purposes, irrevocably submits to the
jurisdiction of such courts. The Issuer agrees for the benefit of the
Note Trustee and the Noteholders that any Proceedings against the Issuer
arising out of or based upon this Deed may be instituted in any state or
Federal court in the Borough of Manhattan, The City of New York, and
waives any objection which it may now or hereafter have to the laying of
venue of any such proceeding and irrevocably submits to the nonexclusive
jurisdiction of such courts in any suit, action or proceeding. The
Issuer has appointed CT Corporation at its offices at 1633 Broadway, New
York, New York, 10019 as its authorised agent upon whom process may be
served in any Proceedings arising out of or based upon this Deed which
may be instituted in any state or Federal court in the Borough of
Manhattan, The City of New York and expressly accepts the
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non-exclusive jurisdiction of any such court in respect of any such
action. Such appointment shall be irrevocable.
23.3 The Issuer irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 23.2 being nominated
as the forum to hear and determine any Proceedings and to settle any
Disputes and agrees not to claim that any such court is not a convenient
or appropriate forum.
23.4 The submission to the jurisdiction of the courts referred to in Clause
23.2 of this Clause shall not (and shall not be construed so as to)
limit the right of the Note Trustee or any of the Noteholders to take
Proceedings against the Issuer, the Note Trustee or any other person (as
applicable) in any other court of competent jurisdiction nor shall the
taking of Proceedings in any one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction (whether concurrently or
not) if and to the extent permitted by applicable law.
24. TIA PREVAILS
If any provision of this Deed limits, qualifies or conflicts with
another provision which is required to be included in this Deed by the
TIA, the required provision shall prevail.
25. AMENDMENTS
This Agreement may be amended, modified or terminated only by written
instrument or instruments signed by the parties hereto. No act or course
of dealing shall be deemed to constitute an amendment, modification or
termination hereof.
26. COUNTERPARTS
This Deed may be executed by the parties hereto in separate counterparts
and any single counterpart or set of counterparts executed and delivered
by all of the parties hereto shall constitute a full and original deed
for all purposes.
27. CERTIFICATES AND OPINIONS
27.1 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Issuer to the Note Trustee to
take any action under this Deed, the Issuer shall furnish to the Note
Trustee:
27.1.1 an Officers' Certificate (which shall include the statements set
forth in Clause 27.2 below) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Deed relating to the proposed action have been complied with;
and
27.1.2 an Opinion of Counsel (which shall include the statements set
forth in Clause 27.2 below) stating that, in the opinion of such
counsel, all such conditions precedent, if any, provided for in
this Deed relating to the proposed action have been complied
with.
27.2 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION
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Each certificate and opinion with respect to compliance with a condition
or covenant provided for in this Deed shall include:
27.2.1 a statement that the person making such certificate or opinion
has read such covenant or condition and the definitions relating
thereto;
27.2.2 a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
27.2.3 a statement that, in the opinion of such person, it or he has
made such examination or investigation as is necessary to enable
such person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
27.2.4 a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
28. POST MATURITY CALL OPTION
The Note Trustee is entering into a post maturity call option agreement
dated [2] December 2004 (the "POST MATURITY CALL OPTION AGREEMENT")
between Gracechurch Card (Holdings) Limited and the Note Trustee in
order to acknowledge that the Note Trustee (on behalf of the
Noteholders) is bound by and the Notes are issued subject to, the option
under the Post Maturity Call Option Agreement (the "Option") but does so
entirely without warranty, responsibility or liability on the part of
the Note Trustee personally. So as to give full effect to the Option,
and as stated in Note Condition 6, it is hereby acknowledged that each
of the Noteholders, by subscribing for or acquiring the relevant Notes,
shall upon subscription or acquisition be deemed to have acknowledged
that the Note Trustee has the authority and the power to bind such
Noteholder in accordance with the provisions set out in the Post
Maturity Call Option Agreement and such Noteholder shall be deemed to
have irrevocably agreed to be so bound.
29. RELEASE OF COLLATERAL
29.1 Except to the extent expressly provided in this Clause 29, the Note
Trustee shall release property from the lien of the Deed of Charge only
upon receipt of an Issuer Request accompanied by an Officers'
Certificate, an Opinion of Counsel and Independent Certificates in
accordance with Sections 314(c) and 314(d)(1) of the TIA or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that
the TIA does not require any such Independent Certificates.
29.2 Prior to the release of any property or securities subject to the lien
of the Deed of Charge, the Issuer shall, in addition to any obligation
imposed in this Clause 29 or elsewhere in this Trust Deed, furnish to
the Note Trustee an Officers' Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value to
the Issuer of the property or securities to be so released. The officers
so certifying may consult with, and may conclusively rely upon a
certificate as to the fair
- 45 -
value of such property provided to such officers by an internationally
recognised financial institution with expertise in such matters.
29.3 Whenever the Issuer is required to furnish to the Note Trustee an
Officers' Certificate certifying or stating the opinion of any signer
thereof as to the matters described in the preceding paragraph, the
Issuer shall also deliver to the Note Trustee an Independent Certificate
as to the same matters, if the fair value to the Issuer of the property
to be so released and of all other such property made the basis of any
such release since the commencement of the then current fiscal year of
the Issuer, as set forth in the certificates delivered pursuant to this
Clause 29, is 10% or more of the Principal Amount Outstanding, but such
a certificate need not be furnished with respect to any property so
released if the fair value thereof to the Issuer as set forth in the
related Officers' Certificate is less than $25,000 or less than one
percent of the Principal Amount Outstanding.
29.4 Whenever any property is to be released from the lien of the Deed of
Charge, the Issuer shall also furnish to the Note Trustee an Officer's
Certificate certifying or stating the opinion of each Person signing
such certificate that in the opinion of such person the proposed release
will not impair the security under the Deed of Charge in contravention
of the provisions hereof.
29.5 Notwithstanding anything to the contrary contained herein, the Issuer
may (A) collect, liquidate, sell or otherwise dispose of Receivables as
and to the extent permitted or required by the Related Documents, (B)
make cash payments out of the Issuer Accounts as and to the extent
permitted or required by the Transaction Documents and (C) take any
other action not inconsistent with the TIA.
30. CONTRACT (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Trust Deed has no right under the
Contract (Rights of Third Parties) Act 1999 to enforce any term of this
Trust Deed but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
IN WITNESS whereof this Trust Deed has been executed as a deed by the Issuer and
the Note Trustee and entered into the day and year first above written.
- 46 -
THE FIRST SCHEDULE
FORM OF CLASS A GLOBAL NOTE CERTIFICATE
CUSIP: 38405V AA 0
ISIN: US38405VAA08
IF THIS NOTE CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER
PERSON AS MAY BE NOMINATED BY THE DEPOSITORY TRUST COMPANY ("DTC") FOR THE
PURPOSE) (COLLECTIVELY, "CEDE & CO.") AS NOMINEE FOR DTC, THEN, UNLESS THIS NOTE
CERTIFICATE IS PRESENTED BY AN AUTHORISED REPRESENTATIVE OF DTC TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
CERTIFICATE ISSUED UPON REGISTRATION OF TRANSFER OR EXCHANGE OF THIS NOTE
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER NAME AS MAY
BE REQUESTED BY AN AUTHORISED REPRESENTATIVE OF DTC) AND ANY PAYMENT HEREUNDER
IS MADE TO CEDE & CO. (OR, AS THE CASE MAY BE, SUCH OTHER PERSON), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. (OR, AS THE CASE MAY BE,
SUCH OTHER PERSON), HAS AN INTEREST HEREIN.
GRACECHURCH CARD FUNDING (NO. 7) PLC
(incorporated with limited liability under
the laws of England and Wales)
$675,000,000
CLASS A FLOATING RATE ASSET-BACKED NOTES DUE 2007
CLASS A GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This Class A Global Note Certificate is issued in respect of the
$675,000,000 Class A Floating Rate Asset-Backed Notes due 2007 (the
"CLASS A NOTES") of Gracechurch Card Funding (No. 7) PLC (the "ISSUER").
The Class A Notes are constituted by, are subject to, and have the
benefit of, a trust deed dated [2] December 2004 (as amended or
supplemented from time to time, the "TRUST DEED") between the Issuer and
The Bank of New York as trustee (the "TRUSTEE", which expression
includes all persons for the time being appointed trustee or trustees
under the Trust Deed) and are the subject of a Paying Agency and Agent
Bank Agreement dated [2] December 2004 (as amended or supplemented from
time to time, the "PAYING AGENCY AND AGENT BANK AGREEMENT") and made
between the Issuer, The Bank of New York as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time to
time in connection with the Class A Notes), The Bank of New York as
principal
- 47 -
paying agent, the other paying agents and the transfer agents named
therein and the Trustee.
2. REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Class A Notes attached hereto and any reference to a numbered
"CONDITION" is to the correspondingly numbered provision thereof.
3. REGISTERED HOLDER
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Class A Notes (the "REGISTER") as the duly registered
holder (the "HOLDER") of the Class A Notes represented from time to time
by this Class A Global Note Certificate.
4. PROMISE TO PAY
The Issuer, for value received, hereby promises to pay to the Holder
such principal sum as is noted in the records of the custodian for The
Depository Trust Company (the "DTC CUSTODIAN" and "DTC", respectively)
as being the principal amount of this Class A Global Note Certificate
for the time being on the Interest Payment Date in November 2009 or on
such earlier date or dates as the same may become payable in accordance
with the Conditions, and to pay interest on such principal sum in arrear
on the dates and at the rate specified in the Conditions, together with
any additional amounts payable in accordance with the Conditions, all
subject to and in accordance with the Conditions.
5. TRANSFERS IN WHOLE
Transfers of this Class A Global Note Certificate shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a
successor of DTC or to such successor's nominee.
6. EXCHANGE FOR CLASS A INDIVIDUAL NOTE CERTIFICATES
This Class A Global Note Certificate will be exchanged in whole (but not
in part) for duly authenticated and completed individual note
certificates ("CLASS A INDIVIDUAL NOTE CERTIFICATES") in substantially
the form (subject to completion) set out in the Fourth Schedule (Form of
Class A Individual Note Certificate) to the Trust Deed if any of the
following events occurs:
(a) the Notes become immediately due and repayable by reason of an
Event of Default; or
(b) DTC at any time notifies the Issuer that it is at any time
unwilling or unable to hold the Global Note Certificates or is
unwilling or unable to continue as or
- 48 -
has ceased to be, a clearing agency registered under the United
States Securities and Exchange Act of 1934 and in each case the
Issuer is unable to locate a qualified successor within 90 days
of receiving such notification;
Such exchange shall be effected in accordance with paragraph 7
(Delivery of Class A Individual Note Certificates) below. The
Issuer shall notify the Holder of the occurrence of any of the
events specified in paragraphs (a) and (b) above as soon as
practicable thereafter.
7. DELIVERY OF CLASS A INDIVIDUAL NOTE CERTIFICATES
Whenever this Class A Global Note Certificate is to be exchanged for
Class A Individual Note Certificates, such Class A Individual Note
Certificates shall be issued in an aggregate principal amount equal to
the principal amount of this Class A Global Note Certificate within five
business days of the delivery, by or on behalf of the Noteholders, DTC,
Euroclear and/or Clearstream, Luxembourg, to the Registrar of such
information as is required to complete and deliver such Class A
Individual Note Certificates (including, without limitation, the names
and addresses of the persons in whose names the Class A Individual Note
Certificates are to be registered and the principal amount of each such
person's holding) against the surrender of this Class A Global Note
Certificate at the Specified Office (as defined in the Conditions) of
the Registrar. Such exchange shall be effected in accordance with the
provisions of the Paying Agency and Agent Bank Agreement and the
regulations concerning the transfer and registration of Class A Notes
scheduled thereto (if any) and, in particular, shall be effected without
charge to any Holder or the Trustee, but against such indemnity as the
Registrar may require in respect of any transfer tax, governmental
charge or any cost or expense relating to insurance, postage,
transportation or any similar charge in connection with the delivery of
such Individual Note Certificates, which will be the sole responsibility
of the Issuer. No service charge will be made for any registration of
transfer or exchange of any Individual Note Certificates. In this
paragraph, "BUSINESS DAY" means a day on which commercial banks are open
for business (including dealings in foreign currencies) in the city in
which the Registrar has its Specified Office.
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this Class A Global
Note Certificate shall have the benefit of, and be subject to, the
Conditions and, for the purposes of this Class A Global Note
Certificate, any reference in the Conditions to "NOTE CERTIFICATE" or
"NOTE CERTIFICATES" shall, except where the context otherwise requires,
be construed so as to include this Class A Global Note Certificate.
9. NOTICES
Notwithstanding Condition 14 (Notices), so long as this Class A Global
Note Certificate is held on behalf of DTC or any other clearing system
(an "ALTERNATIVE CLEARING SYSTEM"), notices to Holders of Class A Notes
represented by this Class A
- 49 -
Global Note Certificate may be given by delivery of the relevant notice
to DTC or (as the case may be) such Alternative Clearing System.
10. LEGENDS
The statements set out in the legends above are an integral part of this
Class A Global Note Certificate and, by acceptance hereof, each Holder
of this Class A Global Note Certificate agrees to be subject to and
bound by such legends.
11. DETERMINATION OF ENTITLEMENT
This Class A Global Note Certificate is evidence of entitlement only and
is not a document of title. Entitlements are determined by the Register
and only the Holder is entitled to payment in respect of this Class A
Global Note Certificate.
12. AUTHENTICATION
This Class A Global Note Certificate shall not be valid for any purpose
until it has been authenticated for and on behalf of The Bank of New
York as registrar.
13. GOVERNING LAW
This Class A Global Note Certificate is governed by, and shall be
construed in accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 7) PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By: ..............................
[manual signature]
(duly authorised)
- 50 -
FORM OF TRANSFER
FOR VALUE RECEIVED ..................................................., being
the registered holder of this Class A Global Note Certificate, hereby transfers
to .............................................................................
of..............................................................................
.................................................................................
.................................................................................
.........................,
$..................................... in principal amount of the $675,000,000
Class A Asset-Backed Floating Rate Notes due 2007 (the "CLASS A NOTES") of
Gracechurch Card Funding (No. 7) PLC (the "ISSUER") and irrevocably requests and
authorises The Bank of New York, in its capacity as registrar in relation to the
Class A Notes (or any successor to The Bank of New York, in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class A Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
- 51 -
[Terms and Conditions as set out in the Seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
- 52 -
THE SECOND SCHEDULE
FORM OF CLASS B GLOBAL NOTE CERTIFICATE
CUSIP: 38405V AB 8
ISIN: US38405VAB80
IF THIS NOTE CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER
PERSON AS MAY BE NOMINATED BY THE DEPOSITORY TRUST COMPANY ("DTC") FOR THE
PURPOSE) (COLLECTIVELY, "CEDE & CO.") AS NOMINEE FOR DTC, THEN, UNLESS THIS NOTE
CERTIFICATE IS PRESENTED BY AN AUTHORISED REPRESENTATIVE OF DTC TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
CERTIFICATE ISSUED UPON REGISTRATION OF TRANSFER OR EXCHANGE OF THIS NOTE
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER NAME AS MAY
BE REQUESTED BY AN AUTHORISED REPRESENTATIVE OF DTC) AND ANY PAYMENT HEREUNDER
IS MADE TO CEDE & CO. (OR, AS THE CASE MAY BE, SUCH OTHER PERSON), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. (OR, AS THE CASE MAY BE,
SUCH OTHER PERSON), HAS AN INTEREST HEREIN.
CLASS B GRACECHURCH CARD FUNDING (NO. 7) PLC
(incorporated with limited liability under
the laws of England and Wales)
$37,500,000
CLASS B FLOATING RATE ASSET-BACKED NOTES DUE 2007
CLASS B GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This Class B Global Note Certificate is issued in respect of the
$37,500,000 Class B Floating Rate Asset-Backed Notes due 2007 (the
"CLASS B NOTES") of Gracechurch Card Funding (No. 7) PLC (the "ISSUER").
The Class B Notes are constituted by, are subject to, and have the
benefit of, a trust deed dated [2] December 2004 (as amended or
supplemented from time to time, the "TRUST DEED") between the Issuer and
The Bank of New York as trustee (the "TRUSTEE", which expression
includes all persons for the time being appointed trustee or trustees
under the Trust Deed) and are the subject of a Paying Agency and Agent
Bank Agreement dated [2] December 2004 (as amended or supplemented from
time to time, the "PAYING AGENCY AND AGENT BANK AGREEMENT") and made
between the Issuer, The Bank of New York as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time to
time in connection with the Class B Notes), The Bank of New York as
principal
- 53 -
paying agent, the other paying agents and the transfer agents named
therein and the Trustee.
2. REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Class B Notes attached hereto and any reference to a numbered
"CONDITION" is to the correspondingly numbered provision thereof.
3. REGISTERED HOLDER
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Class B Notes (the "REGISTER") as the duly registered
holder (the "HOLDER") of the Class B Notes represented from time to time
by this Class B Global Note Certificate.
4. PROMISE TO PAY
The Issuer, for value received, hereby promises to pay to the Holder
such principal sum as is noted in the records of the custodian for The
Depository Trust Company (the "DTC CUSTODIAN" and "DTC", respectively)
as being the principal amount of this Class B Global Note Certificate
for the time being on the Interest Payment Date in November 2009 or on
such earlier date or dates as the same may become payable in accordance
with the Conditions, and to pay interest on such principal sum in arrear
on the dates and at the rate specified in the Conditions, together with
any additional amounts payable in accordance with the Conditions, all
subject to and in accordance with the Conditions.
5. TRANSFERS IN WHOLE
Transfers of this Class B Global Note Certificate shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a
successor of DTC or to such successor's nominee.
6. EXCHANGE FOR CLASS B INDIVIDUAL NOTE CERTIFICATES
This Class B Global Note Certificate will be exchanged in whole (but not
in part) for duly authenticated and completed individual note
certificates ("CLASS B INDIVIDUAL NOTE CERTIFICATES") in substantially
the form (subject to completion) set out in the Fifth Schedule (Form of
Class B Individual Note Certificate) to the Trust Deed if any of the
following events occurs:
(a) the Notes become immediately due and repayable by reason of an
Event of Default; or
(b) DTC at any time notifies the Issuer that it is at any time
unwilling or unable to hold the Global Note Certificates or is
unwilling or unable to continue as or
- 54 -
has ceased to be, a clearing agency registered under the United
States Securities and Exchange Act of 1934 and in each case the
Issuer is unable to locate a qualified successor within 90 days
of receiving such notification;
Such exchange shall be effected in accordance with paragraph 7
(Delivery of Class B Individual Note Certificates) below. The
Issuer shall notify the Holder of the occurrence of any of the
events specified in paragraph (a) and (b) above as soon as
practicable thereafter.
7. DELIVERY OF CLASS B INDIVIDUAL NOTE CERTIFICATES
Whenever this Class B Global Note Certificate is to be exchanged for
Class B Individual Note Certificates, such Class B Individual Note
Certificates shall be issued in an aggregate principal amount equal to
the principal amount of this Class B Global Note Certificate within five
business days of the delivery, by or on behalf of the Noteholders, DTC,
Euroclear and/or Clearstream, Luxembourg, to the Registrar of such
information as is required to complete and deliver such Class B
Individual Note Certificates (including, without limitation, the names
and addresses of the persons in whose names the Class B Individual Note
Certificates are to be registered and the principal amount of each such
person's holding) against the surrender of this Class B Global Note
Certificate at the Specified Office (as defined in the Conditions) of
the Registrar. Such exchange shall be effected in accordance with the
provisions of the Paying Agency and Agent Bank Agreement and the
regulations concerning the transfer and registration of Class B Notes
scheduled thereto (if any) and, in particular, shall be effected without
charge to any Holder or the Trustee, but against such indemnity as the
Registrar may require in respect of any transfer tax, governmental
charge or any cost or expense relating to insurance, postage,
transportation or any similar charge in connection with the delivery of
such Individual Note Certificates, which will be the sole responsibility
of the Issuer. No service charge will be made for any registration of
transfer or exchange of any Individual Note Certificates. In this
paragraph, "BUSINESS DAY" means a day on which commercial banks are open
for business (including dealings in foreign currencies) in the city in
which the Registrar has its Specified Office.
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this Class B Global
Note Certificate shall have the benefit of, and be subject to, the
Conditions and, for the purposes of this Class B Global Note
Certificate, any reference in the Conditions to "NOTE CERTIFICATE" or
"NOTE CERTIFICATES" shall, except where the context otherwise requires,
be construed so as to include this Class B Global Note Certificate.
- 55 -
9. NOTICES
Notwithstanding Condition 14 (Notices), so long as this Class B Global
Note Certificate is held on behalf of DTC or any other clearing system
(an "ALTERNATIVE CLEARING SYSTEM"), notices to Holders of Class B Notes
represented by this Class B Global Note Certificate may be given by
delivery of the relevant notice to DTC or (as the case may be) such
Alternative Clearing System.
10. LEGENDS
The statements set out in the legends above are an integral part of this
Class B Global Note Certificate and, by acceptance hereof, each Holder
of this Class B Global Note Certificate agrees to be subject to and
bound by such legends.
11. DETERMINATION OF ENTITLEMENT
This Class B Global Note Certificate is evidence of entitlement only and
is not a document of title. Entitlements are determined by the Register
and only the Holder is entitled to payment in respect of this Class B
Global Note Certificate.
12. AUTHENTICATION
This Class B Global Note Certificate shall not be valid for any purpose
until it has been authenticated for and on behalf of The Bank of New
York as registrar.
13. GOVERNING LAW
This Class B Global Note Certificate is governed by, and shall be
construed in accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 7) PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
- 56 -
By: ..............................
[manual signature]
(duly authorised)
- 57 -
FORM OF TRANSFER
FOR VALUE RECEIVED ...................................., being the registered
holder of this Class B Global Note Certificate, hereby transfers
to..............................................................................
.................................................................................
of..............................................................................
.................................................................................
.................................................................................
................................,
$ ..................................... in principal amount of the $37,500,000
Class B Asset-Backed Floating Rate Notes due 2007 (the "CLASS B NOTES") of
Gracechurch Card Funding (No. 7) PLC (the "ISSUER") and irrevocably requests and
authorises The Bank of New York, in its capacity as registrar in relation to the
Class B Notes (or any successor to The Bank of New York, in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class B Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
- 58 -
[Terms and Conditions as set out in the Seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
- 59 -
THE THIRD SCHEDULE
FORM OF CLASS C GLOBAL NOTE CERTIFICATE
CUSIP: 38405V AC 6
ISIN: US38405VAC63
IF THIS NOTE CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER
PERSON AS MAY BE NOMINATED BY THE DEPOSITORY TRUST COMPANY ("DTC") FOR THE
PURPOSE) (COLLECTIVELY, "CEDE & CO.") AS NOMINEE FOR DTC, THEN, UNLESS THIS NOTE
CERTIFICATE IS PRESENTED BY AN AUTHORISED REPRESENTATIVE OF DTC TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
CERTIFICATE ISSUED UPON REGISTRATION OF TRANSFER OR EXCHANGE OF THIS NOTE
CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. (OR SUCH OTHER NAME AS MAY
BE REQUESTED BY AN AUTHORISED REPRESENTATIVE OF DTC) AND ANY PAYMENT HEREUNDER
IS MADE TO CEDE & CO. (OR, AS THE CASE MAY BE, SUCH OTHER PERSON), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. (OR, AS THE CASE MAY BE,
SUCH OTHER PERSON), HAS AN INTEREST HEREIN.
GRACECHURCH CARD FUNDING (NO. 7) PLC
(incorporated with limited liability under
the laws of England and Wales)
$37,500,000
CLASS C FLOATING RATE ASSET-BACKED NOTES DUE 2007
CLASS C GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This Class C Global Note Certificate is issued in respect of the
$37,500,000 Class C Floating Rate Asset-Backed Notes due 2007 (the
"CLASS C NOTES") of Gracechurch Card Funding (No.7) PLC (the "Issuer").
The Class C Notes are constituted by, are subject to, and have the
benefit of, a trust deed dated [2] December 2004 (as amended or
supplemented from time to time, the "TRUST DEED") between the Issuer and
The Bank of New York as trustee (the "TRUSTEE", which expression
includes all persons for the time being appointed trustee or trustees
under the Trust Deed) and are the subject of a Paying Agency and Agent
Bank Agreement dated [2] December 2004 (as amended or supplemented from
time to time, the "PAYING AGENCY AND AGENT BANK AGREEMENT") and made
between the Issuer, The Bank of New York as registrar (the "REGISTRAR",
which expression includes any successor registrar appointed from time to
time in connection with the Class C Notes), The Bank of New York as
principal
- 60 -
paying agent, the other paying agents and the transfer agents named
therein and the Trustee.
2. REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Class C Notes attached hereto and any reference to a numbered
"CONDITION" is to the correspondingly numbered provision thereof.
3. REGISTERED HOLDER
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Class C Notes (the "REGISTER") as the duly registered
holder (the "HOLDER") of the Class C Notes represented from time to time
by this Class C Global Note Certificate.
4. PROMISE TO PAY
The Issuer, for value received, hereby promises to pay to the Holder
such principal sum as is noted in the records of the custodian for The
Depository Trust Company (the "DTC CUSTODIAN" and "DTC", respectively)
as being the principal amount of this Class C Global Note Certificate
for the time being on the Interest Payment Date in November 2009 or on
such earlier date or dates as the same may become payable in accordance
with the Conditions, and to pay interest on such principal sum in arrear
on the dates and at the rate specified in the Conditions, together with
any additional amounts payable in accordance with the Conditions, all
subject to and in accordance with the Conditions.
5. TRANSFERS IN WHOLE
Transfers of this Class C Global Note Certificate shall be limited to
transfers in whole, but not in part, to nominees of DTC or to a
successor of DTC or to such successor's nominee.
6. EXCHANGE FOR CLASS C INDIVIDUAL NOTE CERTIFICATES
This Class C Global Note Certificate will be exchanged in whole (but not
in part) for duly authenticated and completed individual note
certificates ("CLASS C INDIVIDUAL NOTE CERTIFICATES") in substantially
the form (subject to completion) set out in the Sixth Schedule (Form of
Class C Individual Note Certificate) to the Trust Deed if any of the
following events occurs:
(a) the Notes become immediately due and repayable by reason of an
Event of Default; or
(b) DTC at any time notifies the Issuer that it is at any time
unwilling or unable to hold the Global Note Certificates or is
unwilling or unable to continue as or
- 61 -
has ceased to be, a clearing agency registered under the United
States Securities and Exchange Act of 1934 and in each case the
Issuer is unable to locate a qualified successor within 90 days
of receiving such notification;
Such exchange shall be effected in accordance with paragraph 7
(Delivery of Class C Individual Note Certificates) below. The
Issuer shall notify the Holder of the occurrence of any of the
events specified in paragraph (a) and (b) above as soon as
practicable thereafter.
7. DELIVERY OF CLASS C INDIVIDUAL NOTE CERTIFICATES
Whenever this Class C Global Note Certificate is to be exchanged for
Class C Individual Note Certificates, such Class C Individual Note
Certificates shall be issued in an aggregate principal amount equal to
the principal amount of this Class C Global Note Certificate within five
business days of the delivery, by or on behalf of the Noteholders, DTC,
Euroclear and/or Clearstream, Luxembourg, to the Registrar of such
information as is required to complete and deliver such Class C
Individual Note Certificates (including, without limitation, the names
and addresses of the persons in whose names the Class C Individual Note
Certificates are to be registered and the principal amount of each such
person's holding) against the surrender of this Class C Global Note
Certificate at the Specified Office (as defined in the Conditions) of
the Registrar. Such exchange shall be effected in accordance with the
provisions of the Paying Agency and Agent Bank Agreement and the
regulations concerning the transfer and registration of Class C Notes
scheduled thereto (if any) and, in particular, shall be effected without
charge to any Holder or the Trustee, but against such indemnity as the
Registrar may require in respect of any transfer tax, governmental
charge or any cost or expense relating to insurance, postage,
transportation or any similar charge in connection with the delivery of
such Individual Note Certificates, which will be the sole responsibility
of the Issuer. No service charge will be made for any registration of
transfer or exchange of any Individual Note Certificate. In this
paragraph, "BUSINESS DAY" means a day on which commercial banks are open
for business (including dealings in foreign currencies) in the city in
which the Registrar has its Specified Office.
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this Class C Global
Note Certificate shall have the benefit of, and be subject to, the
Conditions and, for the purposes of this Class C Global Note
Certificate, any reference in the Conditions to "NOTE CERTIFICATE" or
"NOTE CERTIFICATES" shall, except where the context otherwise requires,
be construed so as to include this Class C Global Note Certificate.
9. NOTICES
Notwithstanding Condition 14 (Notices), so long as this Class C Global
Note Certificate is held on behalf of DTC or any other clearing system
(an "ALTERNATIVE CLEARING SYSTEM"), notices to Holders of Class C Notes
represented by this Class C
- 62 -
Global Note Certificate may be given by delivery of the relevant notice
to DTC or (as the case may be) such Alternative Clearing System.
10. LEGENDS
The statements set out in the legends above are an integral part of this
Class C Global Note Certificate and, by acceptance hereof, each Holder
of this Class C Global Note Certificate agrees to be subject to and
bound by such legends.
11. DETERMINATION OF ENTITLEMENT
This Class C Global Note Certificate is evidence of entitlement only and
is not a document of title. Entitlements are determined by the Register
and only the Holder is entitled to payment in respect of this Class C
Global Note Certificate.
12. AUTHENTICATION
This Class C Global Note Certificate shall not be valid for any purpose
until it has been authenticated for and on behalf of The Bank of New
York as registrar.
13. GOVERNING LAW
This Class C Global Note Certificate is governed by, and shall be
construed in accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 7) PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By: ..............................
[manual signature]
(duly authorised)
- 63 -
FORM OF TRANSFER
FOR VALUE RECEIVED ....................................., being the registered
holder of this Class C Global Note Certificate, hereby transfers
to..............................................................................
.................................................................................
of..............................................................................
.................................................................................
.................................................................................
.....................,
$ ..................................... in principal amount of the $37,500,000
Class C Asset-Backed Floating Rate Notes due 2007 (the "CLASS C NOTES") of
Gracechurch Card Funding (No. 7) PLC (the "ISSUER") and irrevocably requests and
authorises The Bank of New York, in its capacity as registrar in relation to the
Class C Notes (or any successor to The Bank of New York, in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class C Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
- 64 -
[Terms and Conditions as set out in the Seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
- 65 -
THE FOURTH SCHEDULE
FORM OF INDIVIDUAL CLASS A NOTE CERTIFICATE
Serial Number: ............
GRACECHURCH CARD FUNDING (NO. 7) PLC
(incorporated with limited liability under
the laws of England and Wales)
$675,000,000
CLASS A FLOATING RATE ASSET-BACKED NOTES DUE 2007
This Class A Note Certificate is issued in respect of the $675,000,000 Class A
Floating Rate Asset-Backed Notes due 2007 (the "NOTES") of Gracechurch Card
Funding (No. 7) PLC (the "ISSUER"). The Class A Notes are constituted by, are
subject to, and have the benefit of, a trust deed dated [2] December 2004 (as
amended or supplemented from time to time, the "TRUST DEED") between the Issuer
and The Bank of New York as trustee (the "TRUSTEE", which expression includes
all persons for the time being appointed trustee or trustees under the Trust
Deed) and are the subject of a Paying Agency and Agent Bank Agreement (as
amended or supplemented from time to time, the "PAYING AGENCY AND AGENT BANK
AGREEMENT") dated [2] December 2004 and made between the Issuer, The Bank of New
York as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Class A Notes), The
Bank of New York as principal paying agent, the other paying agents and the
transfer agents named therein and the Trustee.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Class A Notes endorsed hereon and any reference to a numbered "CONDITION" is to
the correspondingly numbered provision thereof.
This is to certify that:
.....................................................
of ..................................................
.....................................................
is the person registered in the register maintained by the Registrar in relation
to the Class A Notes (the "REGISTER") as the duly registered holder or, if more
than one person is so registered, the first-named of such persons (the "HOLDER")
of:
$675,000,000
(SIX HUNDRED AND SEVENTY FIVE MILLION DOLLARS)
in aggregate principal amount of the Class A Notes.
The Issuer, for value received, hereby promises to pay such principal sum to the
Holder on interest payment date falling in November 2009 or on such earlier date
or dates as the same
- 66 -
may become payable in accordance with the Conditions, and to pay interest on
such principal sum in arrear on the dates and at the rate specified in the
Conditions, together with any additional amounts payable in accordance with the
Conditions, all subject to and in accordance with the Conditions.
This Class A Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Note Certificate.
This Class A Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of The Bank of New York as registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 7) PLC
By: ........................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By: ........................................
[manual signature]
(duly authorised)
- 67 -
FORM OF TRANSFER
FOR VALUE RECEIVED ...................................., being the registered
holder of this Class A Note Certificate, hereby transfers
to..............................................................................
of..............................................................................
.................................................................................
.................................................................................
$ ..................................... in principal amount of the $675,000,000
Class A Floating Rate Asset-Backed Notes due 2007 (the "CLASS A NOTES") of
Gracechurch Card Funding (No. 7) PLC (the "ISSUER") and irrevocably requests and
authorises The Bank of New York, in its capacity as registrar in relation to the
Class A Notes (or any successor to The Bank of New York, in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class A Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Class A Notes shall be in an amount equal to $1,000 or
any integral multiple of $1,000 in excess thereof.
- 68 -
[Terms and Conditions as set out in the Seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
PAYING AGENTS AND TRANSFER AGENTS
[NAME] [NAME]
[ADDRESS] [ADDRESS]
- 69 -
THE FIFTH SCHEDULE
FORM OF INDIVIDUAL CLASS B NOTE CERTIFICATE
Serial Number: ............
GRACECHURCH CARD FUNDING (NO. 7) PLC
(incorporated with limited liability under
the laws of England and Wales)
$37,500,000
CLASS B FLOATING RATE ASSET-BACKED NOTES DUE 2007
This Class B Note Certificate is issued in respect of the $37,500,000 Class B
Floating Rate Asset-Backed Notes due 2007 (the "CLASS B NOTES") of Gracechurch
Card Funding (No. 7) PLC (the "ISSUER"). The Class B Notes are constituted by,
are subject to, and have the benefit of, a trust deed dated [2] December 2004
(as amended or supplemented from time to time, the "TRUST DEED") between the
Issuer and The Bank of New York as trustee (the "TRUSTEE", which expression
includes all persons for the time being appointed trustee or trustees under the
Trust Deed) and are the subject of a Paying Agency and Agent Bank Agreement (as
amended or supplemented from time to time, the "PAYING AGENCY AND AGENT BANK
AGREEMENT") dated [2] December 2004 and made between the Issuer, The Bank of New
York as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Class B Notes), The
Bank of New York as principal paying agent, the other paying agents and the
transfer agents named therein and the Trustee.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Class B Notes endorsed hereon and any reference to a numbered "CONDITION" is to
the correspondingly numbered provision thereof.
This is to certify that:
.....................................................
of ..................................................
.....................................................
is the person registered in the register maintained by the Registrar in relation
to the Class B Notes (the "REGISTER") as the duly registered holder or, if more
than one person is so registered, the first-named of such persons (the "HOLDER")
of:
$37,500,000
(THIRTY SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS)
in aggregate principal amount of the Class B Notes.
- 70 -
The Issuer, for value received, hereby promises to pay such principal sum to the
Holder on the interest payment date falling in November 2009 or on such earlier
date or dates as the same may become payable in accordance with the Conditions,
and to pay interest on such principal sum in arrear on the dates and at the rate
specified in the Conditions, together with any additional amounts payable in
accordance with the Conditions, all subject to and in accordance with the
Conditions.
This Class B Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Class B Note Certificate.
This Class B Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of The Bank of New York as registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 7) PLC
By: ........................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By: ........................................
[manual signature]
(duly authorised)
- 71 -
FORM OF TRANSFER
FOR VALUE RECEIVED ..................................., being the registered
holder of this Class B Note Certificate, hereby transfers
to................................
.................................................................................
of..............................................................................
.................................................................................
.................................................................................
$ ..................................... in principal amount of the $37,500,000
Class B Floating Rate Asset-Backed Notes due 2007 (the "CLASS B NOTES") of
Gracechurch Card Funding (No. 7) PLC (the "ISSUER") and irrevocably requests and
authorises The Bank of New York, in its capacity as registrar in relation to the
Class B Notes (or any successor to The Bank of New York, in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class B Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Class B Notes shall be in an amount equal to $1,000 or
any integral multiple of $1,000 in excess thereof.
- 72 -
[Terms and Conditions as set out in the Seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
PAYING AGENTS AND TRANSFER AGENTS
[NAME] [NAME]
[ADDRESS] [ADDRESS]
- 73 -
THE SIXTH SCHEDULE
FORM OF INDIVIDUAL CLASS C NOTE CERTIFICATE
Serial Number: ............
GRACECHURCH CARD FUNDING (NO. 7) PLC
(incorporated with limited liability under
the laws of England and Wales)
$37,500,000
CLASS C FLOATING RATE ASSET-BACKED NOTES DUE 2007
This Class C Note Certificate is issued in respect of the $37,500,000 Class C
Floating Rate Asset-Backed Notes due 2007 (the "CLASS C NOTES") of Gracechurch
Card Funding (No. 7) PLC (the "ISSUER"). The Class C Notes are constituted by,
are subject to, and have the benefit of, a trust deed dated [2] December 2004
(as amended or supplemented from time to time, the "TRUST DEED") between the
Issuer and The Bank of New York as trustee (the "TRUSTEE", which expression
includes all persons for the time being appointed trustee or trustees under the
Trust Deed) and are the subject of a Paying Agency and Agent Bank Agreement (as
amended or supplemented from time to time, the "PAYING AGENCY AND AGENT BANK
AGREEMENT") dated [2] December 2004 and made between the Issuer, The Bank of New
York as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Class C Notes), The
Bank of New York as principal paying agent, the other paying agents and the
transfer agents named therein and the Trustee.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Class C Notes endorsed hereon and any reference to a numbered "CONDITION" is to
the correspondingly numbered provision thereof.
This is to certify that:
.....................................................
of ..................................................
.....................................................
is the person registered in the register maintained by the Registrar in relation
to the Class C Notes (the "REGISTER") as the duly registered holder or, if more
than one person is so registered, the first-named of such persons (the "HOLDER")
of:
$37,500,000
(THIRTY SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS)
in aggregate principal amount of the Class C Notes.
- 74 -
The Issuer, for value received, hereby promises to pay such principal sum to the
Holder on interest payment date falling in November 2009 or on such earlier date
or dates as the same may become payable in accordance with the Conditions, and
to pay interest on such principal sum in arrear on the dates and at the rate
specified in the Conditions, together with any additional amounts payable in
accordance with the Conditions, all subject to and in accordance with the
Conditions.
This Class C Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Class C Note Certificate.
This Class C Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of The Bank of New York as registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
GRACECHURCH CARD FUNDING (NO. 7) PLC
By: ........................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [issue date]
AUTHENTICATED for and on behalf of
The Bank of New York
as registrar without recourse, warranty
or liability
By: ........................................
[manual signature]
(duly authorised)
- 75 -
FORM OF TRANSFER
FOR VALUE RECEIVED ...................................., being the registered
holder of this Class C Note Certificate, hereby transfers
to..............................................................................
.................................................................................
of..............................................................................
.................................................................................
.................................................................................
$ ..................................... in principal amount of the $37,500,000
Class C Floating Rate Asset-Backed Notes due 2007 (the "CLASS C NOTES") of
Gracechurch Card Funding (No. 7) PLC (the "ISSUER") and irrevocably requests and
authorises The Bank of New York, in its capacity as registrar in relation to the
Class C Notes (or any successor to The Bank of New York, in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Class C Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Class C Notes shall be in an amount equal to $1,000 or
any integral multiple of $1,000 in excess thereof.
- 76 -
[Terms and Conditions as set out in the Seventh Schedule]
PRINCIPAL PAYING AGENT REGISTRAR, NEW YORK PAYING
AGENT AND TRANSFER AGENT
THE BANK OF NEW YORK THE BANK OF NEW YORK
ONE CANADA SQUARE ONE WALL STREET
LONDON E14 5AL NEW YORK
UK NEW YORK
USA 10286
PAYING AGENTS AND TRANSFER AGENTS
[NAME] [NAME]
[ADDRESS] [ADDRESS]
- 77 -
THE SEVENTH SCHEDULE
TERMS AND CONDITIONS OF THE NOTES
- 78 -
THE EIGHTH SCHEDULE
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. AS USED IN THIS SCHEDULE THE FOLLOWING EXPRESSIONS SHALL HAVE THE
FOLLOWING MEANINGS UNLESS THE CONTEXT OTHERWISE REQUIRES:
(i) "BLOCK VOTING INSTRUCTION" shall mean an English language
document issued by the Registrar and dated:
(a) certifying:
(1) that certain specified Notes (each a "BLOCKED
NOTE") have been blocked in an account with a
clearing system and will not be released until
the conclusion of the Meeting and that the
holder of each Blocked Note or a duly authorised
person on its behalf has instructed the
Registrar that the votes attributable to such
Blocked Note are to be cast in a particular way
on each resolution to be put to the Meeting; or
(2) that each registered holder of certain specified
Notes (each a "RELEVANT NOTE") or a duly
authorised person on its behalf has instructed
the Registrar that the votes attributable to
each Relevant Note held by it are to be cast in
a particular way on each resolution to be put to
the Meeting and in each case that, during the
period if 48 hours before the time fixed for the
Meeting, such instructions may not be amended or
revoked;
(b) listing the total amount of the Blocked Notes and the
Relevant Notes, distinguishing for each resolution
between those in respect of which instructions may not
be amended or revoked;
(c) authorising a named individual or individuals to vote in
respect of the Blocked Notes and the Relevant Notes in
accordance with such instructions;
(ii) "FORM OF PROXY" means, in relation to any Meeting, a document in
the English language available from the Registrar signed by the
Noteholder or, in the case of a corporation, executed under its
seal or signed on its behalf by a duly authorised officer and
delivered to the Registrar not later than 48 hours before the
time fixed for such Meeting, appointing a named individual or
individuals to vote in respect of the Notes held by such
Noteholder;
(iii) "PRINCIPAL AMOUNT OUTSTANDING" shall mean in relation to a Note
on any date, the principal amount of the Note upon issue (being,
in the case of Class A Notes, the Class B Notes and the Class C
Notes, $1,000 less the aggregate amount of all principal
payments in respect of that Note
- 79 -
that have been paid by the Issuer to the Noteholder prior to
such date in accordance with the Note Conditions.
(iv) "48 HOURS" shall mean a period of 48 hours including all or part
of two days upon which banks are open for business in both the
place where the relevant meeting is to be held and in each of
the places where the Registrar has its specified office
(disregarding for this purpose the day upon which such meeting
is to be held) and such period shall be extended by one or, to
the extent necessary, more periods of 24 hours until there is
included as aforesaid all or part of two days upon which banks
are open for business as aforesaid; and
(v) "24 HOURS" shall mean a period of 24 hours including all or part
of a day upon which banks are open for business in both the
place where the relevant meeting is to be held and in each of
the places where the Registrar has its specified office
(disregarding for this purpose the day upon which such meeting
is to be held) and such period shall be extended by one or, to
the extent necessary, more periods of 24 hours until there is
included as aforesaid all or part of a day upon which banks are
open for business as aforesaid;
(vi) "VOTER" means, in relation to any Meeting, (a) a Proxy or a
Noteholder, provided, however, that any Noteholder which has
appointed a Proxy under a Block Voting Instruction or Form of
Proxy shall not be a "VOTER" except to the extent that such
appointment has been revoked and the Registrar notified in
writing of such revocation at least 48 hours before the time
fixed for such Meeting;
(vii) "PROXY" means, in relation to any Meeting, a person appointed
under a Block Voting Instruction or a Form of Proxy other than:
(1) any such person whose appointment has been revoked and
in relation to whom the Registrar has been notified in
writing of such revocation by the time which is 48 hours
before the time fixed for such Meeting; and
(2) any such person appointed vote at a Meeting which has
been adjourned for want of a quorum and who has not been
re-appointment to vote at the Meeting when it is
resumed.
The holder of a Note may require the Registrar to issue a Block Voting
Instruction by arranging (to the satisfaction of the Registrar) for such
Note to be blocked in an account with a clearing system not later than
48 hours before the time fixed for the relevant Meeting. The holder of a
Note may require the Registrar to issue a Block Voting Instruction by
delivering to the Registrar written instructions not later than 48 hours
before the time fixed for the relevant Meeting. Any holder of a Note may
obtain an uncompleted and unexecuted Form of Proxy from the Registrar. A
Block Voting
- 80 -
Instruction and a Form of Proxy cannot be outstanding simultaneously in
respect of the same Note.
Where Notes are within Euroclear or Clearstream, Luxembourg, or any
other clearing system, references to the deposit, or release, of Notes
shall be construed in accordance with the usual practices (including
blocking the relevant account) of Euroclear or Clearstream, Luxembourg,
or such other clearing system.
Unless the context otherwise requires or unless otherwise defined in
this Schedule, terms defined in the Trust Deed (including the Note
Conditions) shall have the same meaning in this Schedule.
2. The Issuer or the Note Trustee may at any time and the Issuer shall upon
a requisition in writing signed by the holders of not less than
one-tenth of the Notes of the relevant class for the time being then
outstanding, convene a meeting of the Noteholders of such Class or, and
if the Issuer makes default for a period of seven days in convening such
a meeting the same may be convened by the Note Trustee or the
requisitionists. Whenever the Issuer is about to convene any such
meeting, it shall immediately give notice in writing to the Note Trustee
of the date, time and place thereof and the nature of the business to be
transacted. Every such meeting shall be held at such place as the Note
Trustee may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place,
day and hour of meeting shall be given by the Note Trustee (if the
meeting is convened by the Note Trustee) or by the Issuer (if the
meeting is convened by the Issuer on its own behalf or upon requisition
by the Noteholders pursuant to paragraph 2) to the relevant Noteholders,
the Paying Agents and the Registrar prior to any meeting of the relevant
Noteholders in the manner provided by Note Condition 14. Such notice
shall state generally the nature of the business to be transacted at the
meeting thereby convened and (except for an Extraordinary Resolution) it
shall not be necessary to specify in such notice the terms of any
resolution to be proposed. Such notice shall include a statement to the
effect that Notes may be blocked in clearing systems for the purposes of
appointing Proxies under Block Voting Instructions until 48 hours before
time fixed for the Meeting and a Noteholder may appoint a Proxy either
under a Block Voting Instruction by delivering written instructions to
the Registrar or by executing and delivering a Form of Proxy to the
Specified Office of the Registrar, in either case until 48 hours before
the time fixed for the Meeting. A copy of the notice shall be sent by
post to the Note Trustee (unless the meeting is convened by the Note
Trustee) and to the Issuer (unless the meeting is convened by the
Issuer).
4. Some person (who may but need not be a Noteholder or, if applicable, a
Noteholder of the relevant class of Notes) nominated in writing by the
Note Trustee shall be entitled to take the chair at every such meeting
but if no such nomination is made or if at any meeting the person
nominated shall not be present within fifteen minutes after the time
appointed for holding the meeting the relevant Noteholders present shall
choose one of their number to be Chairman.
- 81 -
5. At any such meeting two or more Voters holding or representing in the
aggregate not less than one-tenth of the principal amount of Notes of
the relevant class for the time being outstanding, shall form a quorum
for the transaction of business and no business (other than the choosing
of a Chairman) shall be transacted at any meeting unless the requisite
quorum be present at the commencement of business. The quorum at any
such meeting for passing an Extraordinary Resolution shall (subject as
provided below) be two or more Voters holding or representing in the
aggregate a clear majority of the aggregate Principal Amount Outstanding
of the Notes of the relevant class for the time being outstanding,
provided that at any meeting the business of which (in relation to the
relevant class of Notes):
(1) includes the sanctioning of a modification of the date of
maturity of the Notes;
(1) would have the effect of modifying any day for payment of
interest on the Notes or the Rate of Interest (as defined in
Note Condition 5) applicable in respect of the Notes or
modifying the method of determining the same;
(2) includes reducing or cancelling (or, in the case of the Notes,
increasing) the amount of principal or the rate of interest
payable in respect of the Notes;
(3) would have the effect of altering the currency of payment of the
Notes;
(4) would have the effect of sanctioning any such scheme or proposal
as is described in paragraph 18(i) below;
(5) would have the effect of altering the majority required to pass
an Extraordinary Resolution or the manner in which such majority
is constituted;
(6) would have the effect of altering the manner or priority of
redemption of the Notes; or
(7) would have the effect of altering this proviso or the proviso to
paragraph 6 below,
the quorum shall be two or more Voters holding or representing in the
aggregate not less than seventy-five per cent. of the of the aggregate
Principal Amount Outstanding of the Notes of the relevant class for the
time being outstanding. Such matters shall only be capable of being
effected after having been approved by Extraordinary Resolutions of
Noteholders of each class of Notes outstanding at such time.
6. If within fifteen minutes after the time appointed for any such meeting
a quorum is not present the meeting shall, if convened upon the
requisition of the Noteholders be dissolved. In any other case it shall
stand adjourned to the same day in the next week (or if such day is a
public holiday the next succeeding business day) at the same time and
place (except in the case of a meeting at which an Extraordinary
Resolution is to be proposed in which case it shall stand adjourned for
such period being not less than 14 days nor more than 42 days, and at
such place as may be appointed by the Chairman of the meeting and
approved by the Note Trustee) and at such adjourned meeting two or more
Voters (whatever the aggregate of the Principal Amount
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Outstanding of the Notes of the relevant class so held or represented by
them) shall (subject as provided below) form a quorum and shall (subject
as provided below) have power to pass any Extraordinary Resolution or
other resolution and to decide upon all matters which could properly
have been dealt with at the meeting from which the adjournment took
place had the requisite quorum been present. Provided that, subject to
proviso (i) to paragraph 18 below, at any adjourned meeting the business
of which includes any of the matters specified in the proviso to
paragraph 5 above, the quorum shall be two or more persons present
holding Notes and/or voting certificates or being proxies in respect
thereof and holding or representing in the aggregate 331/3 per cent. of
the aggregate of the Principal Amount Outstanding of the Notes of the
relevant class then outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall (except in cases where the proviso to
paragraph 6 above shall apply when it shall state the relevant quorum)
state that Voters present at the adjourned meeting (whatever the
aggregate of the Principal Amount Outstanding of the Notes of the
relevant class then outstanding held) will form a quorum if at least two
such persons are present. Subject as aforesaid it shall not be necessary
to give any notice of any adjourned meeting.
8. Every resolution submitted to a meeting shall (subject to paragraph 21)
be decided by a simple majority, in the first instance by a show of
hands, then (subject to paragraph 9) by a poll and in case of equality
of votes the Chairman shall both on a show of hands and on a poll have a
casting vote in addition to the vote or votes (if any) to which he may
be entitled as a Noteholder of the relevant class and/or as a holder of
a voting certificate and/or as a Proxy.
9. At any meeting, unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the Issuer or
by two or more Voters being present and holding or representing in the
aggregate not less than one-fiftieth part of the Principal Amount
Outstanding of the Notes of the relevant class then outstanding a
declaration by the Chairman that a resolution has been carried by a
particular majority or lost or not carried by a particular majority
shall be conclusive evidence of that fact without proof of the number or
proportion of the votes recorded in favour or against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded, it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman directs
and the result of such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance of the
meeting for the transaction of any business other than the motion on
which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any such
meeting adjourn the same from time to time and from place to place but
no business shall be
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transacted at any adjourned meeting except business which might lawfully
(but for lack of required quorum) have been transacted at the meeting
from which the adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman or
on any question of adjournment shall be taken at the meeting without
adjournment.
13. The Note Trustee and the Issuer (through their respective officers,
employees, advisers, agents or other representatives) and their
respective financial and legal advisers should be entitled to attend and
speak at any meeting of the Noteholders. Save as aforesaid but without
prejudice to the proviso to the definition of "OUTSTANDING" in Clause
1.2 of the Trust Deed no person shall be entitled to attend and speak
nor shall any person be entitled to vote at any meeting of the
Noteholders or join with others in requesting the convening of such a
meeting or to exercise the rights conferred on the Noteholders by
Condition 13 or, unless he either produces the Note(s) of which he is
the holder or a voting certificate or is a proxy.
14. Subject as provided in paragraph 12 hereof at any meeting on a show of
hands every Voter who is present in person shall have one vote or on a
poll every person who is so present shall have one vote in respect of
each $1 in Principal Amount Outstanding of the Notes of the relevant
class so produced or represented by the voting certificate so produced
or in respect of which he is a Proxy.
Without prejudice to the obligations of the Proxies named in any Block
Voting Instruction or Forms of Proxy any person entitled to more than
one vote need not use all his votes or cast all the votes to which he is
entitled in the same way.
15. The Proxies need not be Noteholders.
16. Each block voting instruction together (if so required by the Note
Trustee) with proof satisfactory to the Note Trustee of its due
execution on behalf of the Registrar shall be deposited at such place as
the Note Trustee shall approve not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at which the
Proxies named in the block voting instruction propose to vote and in
default of such deposit the block voting instruction shall not be
treated as valid unless the Chairman of the meeting decides otherwise
before such meeting or adjourned meeting proceeds to business. A
notarially certified copy of each block voting instruction shall, unless
the Note Trustee otherwise agrees, be deposited with the Note Trustee
before the commencement of the meeting or adjourned meeting but the Note
Trustee shall not thereby be obliged to investigate or be concerned with
the validity of or the authority of the Proxies named in any such block
voting instruction.
17. Any vote cast in accordance with the terms of a block voting instruction
shall be valid notwithstanding the previous revocation or amendment of
the block voting instruction or of any of the Noteholder's instructions
pursuant to which it was executed, provided that no intimation in
writing of such revocation or amendment shall have been received from
the Registrar by the Issuer at its registered office (or such other
place as may have been approved by the Note Trustee for the purpose) by
the time being 24 hours
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before the time appointed for holding the meeting or adjourned meeting
at which the block voting instruction is to be used.
18. A meeting of the Noteholders shall, in respect of Notes of the relevant
class only and insofar as it affects Notes of the relevant class, and in
addition to the powers hereinbefore given, have the following powers
exercisable by Extraordinary Resolution (subject to the provisions
relating to quorum contained in paragraphs 5 and 6 above) only, namely:
(a) power to sanction any compromise or arrangement proposed to be
made between the Issuer and the Noteholders;
(b) power to sanction any abrogation, modification (including for
the avoidance of doubt a modification which would have the
effect of increasing the amount of principal or the rate of
interest payable (in respect of the Notes)), compromise or
arrangement in respect of the rights of the Noteholders
against the Issuer or against any of its property or against
any other person whether such rights shall arise under this
Deed, any of the Notes or otherwise;
(c) power to assent to any modification of the provisions
contained in this Deed, the Note Conditions or the Notes which
shall be proposed by the Issuer or the Note Trustee;
(d) power to give any authority or sanction which under the
provisions of this Deed (including the Note Conditions) is
required to be given by Extraordinary Resolution;
(e) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees
any powers or discretions which the Noteholders could
themselves exercise by Extraordinary Resolution;
(f) power to approve of a person to be appointed a trustee and
power to remove any trustee or trustees for the time being of
this Deed;
(g) power to discharge or exonerate the Note Trustee from all
liability in respect of any act or omission for which the Note
Trustee may have become responsible under this Deed or under
the Notes;
(h) power to authorise the Note Trustee to concur in and execute
and do all such deeds, instruments, acts and things as may be
necessary to carry out and give effect to any Extraordinary
Resolution;
(i) power to sanction any such substitution as is referred to in
Condition 13, but without prejudice to the Note Trustee's
powers in relation thereto or any scheme or proposal for the
exchange or sale of the Notes for, or the conversion of any of
the Notes into, or the cancellation of any of the
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Notes in consideration of shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
securities of the Issuer or of any other company formed or to
be formed, or for or into or in consideration of cash, or
partly for or into or in consideration of such shares, stock,
notes, bonds, debenture stock and/or other obligations and/or
securities as aforesaid and partly for or into or in
consideration of cash; and
(j) power to authorise the Note Trustee or any receiver appointed
by it where it or he shall have entered into possession of the
security to discontinue enforcement of any security
constituted by this Deed and the Deed of Charge either
unconditionally or upon any conditions,
provided that:
(i) no modification involving any of the matters referred to in
the proviso to paragraph 5 above passed by the Class A
Noteholders shall be effective unless it is sanctioned by an
Extraordinary Resolution of each of the Class B Noteholders
(provided that the Class B Notes are then outstanding) and the
Class C Noteholders (provided that the Class C Notes are then
outstanding);
(ii) no modification involving any of the matters referred to in
the proviso to paragraph 5 above passed by the Class B
Noteholders shall be effective unless it is sanctioned by an
Extraordinary Resolution of each of the Class A Noteholders
(provided that the Class A Notes are then outstanding) and the
Class C Noteholders (provided that the Class C Notes are then
outstanding); and
(iii) no modification involving any of the matters referred to in
the proviso to paragraph 5 above passed by the Class C
Noteholders shall be effective unless it is sanctioned by an
Extraordinary Resolution of each of the Class A Noteholders
(provided that the Class A Notes are then outstanding) and the
Class B Noteholders (provided that the Class B Notes are then
outstanding;
(iv) no other Extraordinary Resolution of the Class B Noteholders
or the Class C Noteholders shall be effective unless (a) the
Note Trustee is of the opinion that it will not be materially
prejudicial to the interests of the Class A Noteholders or the
Class B Noteholders, as the case may be, or (b) it is
sanctioned by an Extraordinary Resolution of the Class A
Noteholder or the Class B Noteholders, as the case may be, or
(c) none of the Class A Notes or, as the case may be, the
Class B Notes remains outstanding;
19. The following provisions shall apply where outstanding Notes belong to
more than one class:
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(a) business which in the opinion of the Note Trustee affects the
Notes of only one class shall be transacted at a separate
meeting of the Noteholders of that class;
(b) business which in the opinion of the Note Trustee affects the
Notes of more than one class but does not give rise to an
actual or potential conflict of interest between the
Noteholders of one such class and the Noteholders of any other
class shall be transacted either at separate meetings of the
Noteholders of each such class or at a single meeting of the
Noteholders of all such classes as the Trustee shall in its
absolute discretion determine;
(c) business which in the opinion of the Note Trustee affects the
Notes of more than one class and gives rise to an actual or
potential conflict of interest between the Noteholders of one
such class and the Noteholders of any other such class shall
be transacted at separate meetings of the Noteholders of each
such class; and
(d) as may be necessary to give effect to the above provisions,
the preceding paragraphs of this Schedule shall be applied as
if references to the Notes and Noteholders were to the Notes
of the relevant class and to the Noteholders of such Notes.
20. Subject to the provisos to paragraph 18 above, any resolution passed at
a meeting of the Noteholders duly convened and held in accordance with
this Deed shall be binding upon all the Noteholders of the relevant
class or classes (as the case may be) whether present or not present at
such meeting and whether or not voting and any resolution passed at a
meeting of the Class A Noteholders duly convened and held as aforesaid
shall also be binding upon all the Class B Noteholders and Class C
Noteholders and any resolution passed at a meeting of the Class B
Noteholders duly convened and held as aforesaid shall also be binding
upon all of the Class C Noteholders.
All of the relevant classes of Noteholders shall be bound to give effect
to any such resolutions accordingly and the passing of any such
resolution shall be conclusive evidence that the circumstances justify
the passing thereof. Notice of the result of the voting on any
resolution duly considered by the Noteholders shall be published (at the
cost of the Issuer) in accordance with Note Condition 14 by the Issuer
within 14 days of such result being known, provided that the
non-publication of such notice shall not invalidate such resolution.
21. The expression "EXTRAORDINARY RESOLUTION" when used in this Deed means a
resolution passed at a meeting of the Noteholders duly convened and held
in accordance with the provisions herein contained by a majority
consisting of seventy-five per cent. of the persons voting thereat upon
a show of hands or if a poll be duly demanded then by a majority
consisting of not less than seventy-five per cent. of the votes given on
such poll.
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22. Minutes of all resolutions and proceedings at every such meeting as
aforesaid shall be made and duly entered in books to be from time to
time provided for that purpose by the Issuer and any such Minutes as
aforesaid if purporting to be signed by the Chairman of the meeting at
which such resolutions were passed or proceedings had shall be
conclusive evidence of the matters therein contained and until the
contrary is proved every such meeting in respect of the proceedings of
which Minutes have been made shall be deemed to have been duly held and
convened and all resolutions passed or proceedings had thereat to have
been duly passed or had.
23. Where appropriate, subject to the provisions of this Trust Deed and the
relevant Note Conditions, joint meetings of the Class A Noteholders, the
Class B Noteholders and Class C Noteholders may be held to consider the
same resolution and/or, as the case may be, the same Extraordinary
Resolution and the provisions of this Schedule shall apply mutatis
mutandis thereto.
24. Subject to all other provisions contained in this Deed the Note Trustee
may without the consent of the Issuer or the Noteholders prescribe such
further resolutions regarding the requisitioning and/or the holding of
meetings of Noteholders and attendance and voting thereat as the Note
Trustee may in its sole discretion think fit.
25. References herein to a "RESOLUTION DULY PASSED AT A MEETING OF THE
NOTEHOLDERS" shall include, where the context permits, a resolution in
writing signed by or on behalf of all Noteholders of the relevant class
who for the time being are entitled to receive notice of a meeting in
accordance with the provisions herein contained. Such resolution in
writing may be contained in one document or in several documents in like
form each signed by or on behalf of one or more of such Noteholders.
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THE NINTH SCHEDULE
PRIORITY OF PAYMENTS
The Note Trustee shall (subject to Clause 8) apply all monies received by it
under this Deed in the following order of priority (and from the amounts,
accounts or ledgers as calculated or specified under each item below):
(a) Prior to the delivery of an Enforcement Notice, on each Distribution
Date:
* FIRST, from Further Interest received, the costs and expenses of
the Issuer (including, for the avoidance of doubt, those in
relation to the Note Trustee and any corporate services
provider) for the relevant Monthly Period;
* SECOND, from funds which had been credited to the Class A Coupon
Ledger, Class B Coupon Ledger and Class C Coupon Ledger, the
costs and expenses of the Issuer (including, for the avoidance
of doubt, those in relation to the Note Trustee, to the extent
not satisfied under the immediately preceding item) for the
relevant Monthly Period remaining after the first item will be
paid or reserved for within the Issuer proportionately to the
Class A Notes, the Class B Notes and the Class C Notes share;
* THIRD, pari passu and pro rata from funds which had been
credited to (1) the Class A Coupon Ledger and from amounts which
had been credited to the Class A Principal Ledger, the lesser of
(1) the aggregate of the amounts credited to the Class A Coupon
Ledger and the Class A Principal Ledger after paying or
reserving for the Class A Notes proportionate share of the
Issuer's costs and (2) the amounts due and payable to the Swap
Counterparty under the Class A Swap Agreement for the relevant
Calculation Period (other than amounts payable under the twelfth
item below), to the Swap Counterparty, and upon payment to the
Issuer by the Swap Counterparty in exchange therefor, to the
holder of the Class A Note (or, to the extent the Class A Swap
Agreement has been terminated and not replaced, the lesser of
(i) the spot United States dollar equivalent (on such
Distribution Date) of (1) above and (ii) the amount due under
the Class A Note, to the holder of the Class A Note);
* FOURTH, from funds which had been credited to the Class B Coupon
Ledger and from amounts which had been credited to the Class B
Principal Ledger, the lesser of (1) the aggregate of the amounts
credited to the Class B Coupon Ledger and the Class B Principal
Ledger after paying or reserving for the Class B Notes
proportionate share of the Issuer's costs and (2) the amounts
due and payable to the Swap Counterparty under the Class B Swap
Agreement for the relevant Calculation Period (other than
amounts payable under the thirteenth item below), to the Swap
Counterparty, and upon payment to the Issuer by the Swap
Counterparty in exchange therefor to the holder of the Class B
Note (or, to the extent the Class B Swap Agreement has been
terminated and not replaced, the lesser of (i) the spot
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United States dollar equivalent (on such Distribution Date) of
(1) above and (ii) the amount due under the Class B Note to the
holder of the Class B Note);
* FIFTH, from funds which are on deposit in the Series 04-2
Expenses Loan Account, an amount equal to the Monthly Loan
Expenses Amount to the Lender under the Expenses Loan Agreement;
* SIXTH, from funds which had been credited to the Class C Coupon
Ledger and from amounts which had been credited to the Class C
Principal Ledger, the lesser of (1) the aggregate of the amounts
credited to the Class C Coupon Ledger and the Class C Principal
Ledger after paying or reserving for the Class C Notes
proportionate share of the Issuer's costs and (2) the amounts
due and payable to the Swap Counterparty under the Class C Swap
Agreement for the relevant Calculation Period (other than
amounts payable under the fourteenth item below), to the Swap
Counterparty, and upon payment to the Issuer by the Swap
Counterparty in exchange therefor to the holder of the Class C
Note (or, to the extent the Class C Swap Agreement has been
terminated and not replaced, the lesser of (i) the spot United
States dollar equivalent (on such Distribution Date) of (1)
above and (ii) the amount due under the Class C Note to the
holder of the Class C Note);
* SEVENTH, pari passu and pro rata from funds which had been
credited to the Class A Coupon Ledger and which are credited to
the Series 04-2 Expenses Loan Account, the lesser of the
remaining amount on deposit in the Series 04-2 Expenses Loan
Account and an amount equal to the principal calculated as
payable in accordance with the Expenses Loan Agreement will be
paid to the Lender under the Expenses Loan Agreement;
* EIGHTH, pari passu and pro rata from funds which had been
credited to the Class A Coupon Ledger, the lesser of the amount
on deposit in the Series 04-2 Issuer Accounts and an amount
equal to 1/2 of the Series 04-2 Extra Amount, will be paid to
the order of the Issuer;
* NINTH, pari passu and pro rata from funds which had been
credited to the Class A Coupon Ledger and the Additional Funds
Ledger, any amounts due from or required to be provided for by
the Issuer to meet its liabilities to any taxation authority
will be paid to the order of the Issuer;
* TENTH, pari passu and pro rata from funds which had been
credited to the Class A Coupon Ledger other than amounts payable
under the thirteenth item below and the Additional Funds Ledger,
any amounts due to third parties under obligations incurred in
the course of the Issuer's business will be paid to the order of
the Issuer;
* ELEVENTH, from funds which had been credited to the Class A
Coupon Ledger, Class B Coupon Ledger and Class C Coupon Ledger
and the Additional Funds Ledger, an amount equal to the lesser
of the amount on deposit in the Series 04-2 Issuer Account and
the amount needed to cover any shortfall with respect to the
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Notes caused by the imposition of withholding taxes on payments
made under the Series 04-2 MTN Certificate or the Swap
Agreements;
* TWELFTH, pari passu and pro rata from funds which had been
credited to (1) the Class A Coupon Ledger and the Class A
Principal Ledger, 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, to
be paid to the Swap Counterparty pursuant to the Class A Swap
Agreement; (2) the Class A Coupon Ledger and the Class A
Principal Ledger, 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, to
be paid to the Swap Counterparty pursuant to the Class A Swap
Agreement;
* THIRTEENTH, from funds which had been credited to the Class B
Coupon Ledger and the Class B Principal Ledger, 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, to be paid to the Swap
Counterparty pursuant to the Class B Swap Agreement;
* FOURTEENTH, from funds which had been credited to the Class C
Coupon Ledger and the Class C Principal Ledger, 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, to be paid to the Swap
Counterparty pursuant to the Class C Swap Agreement; and
* FIFTEENTH, any amounts remaining and which had been credit to
the Additional Funds Ledger, Class A Coupon Ledger, Class B
Coupon Ledger or Class C Coupon Ledger will constitute the
Deferred Subscription Price Amount and will be paid to the MTN
Issuer.
For greater certainty, the phrase "terminated as a result of a default
of the Swap Counterparty" means termination of the relevant Swap
Agreement either (i) following the occurrence of an Event of Default (as
defined in the Class A Swap Agreement, Class B Swap Agreement or Class C
Swap Agreement, as applicable) where the Swap Counterparty is the
Defaulting Party (as defined in the Class A Swap Agreement, Class B Swap
Agreement or Class C Swap Agreement, as applicable) or (ii) following
the Additional Termination Event (as defined in the Class A Swap
Agreement, Class B Swap Agreement or Class C Swap Agreement, as
applicable) set out in paragraph 1(h) (iii) (Failure to comply with
obligations) set out in Section 5(m) (Other Provisions)) of the Schedule
to the relevant Swap Agreement.
(b) From the date upon which an Enforcement Notice is served, all monies
referred to in Clauses 6.2 and 6.3 of the Deed of Charge shall be
applied, in the amounts required
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(but only to the extent that such payment does not cause the Series 04-2
Issuer Account 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 the Deed of Charge and all
amounts due in respect of legal fees and other costs, charges,
liabilities, expenses, losses, damages, proceedings, claims and
demands then owed to or incurred by the Note Trustee under and
in respect of the Issuer Related Documents (as defined in Note
Condition 4) and in enforcing the security created by or
pursuant to the Deed of Charge and/or in perfecting title to the
Charged Property (as defined in the Deed of Charge), together
with interest thereon as provided in any such document;
(b) SECONDLY, pari passu and pro rata in or towards payment of all
interest and then principal 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, in or 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;
(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 passu and pro rata the amount equal to any
termination payment due and payable to the Swap Counterparty
pursuant to the Class A
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Swap Agreement where the Class A Swap Agreement has been
terminated as a result of a default by the Swap Counterparty;
(l) TWELFTHLY, 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, 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.
Without prejudice to the above, if the Note Trustee holds any monies which
represent principal and interest in respect of the Notes which have become void
or in respect of which claims have been prescribed under Note Condition 10, the
Note Trustee will hold such monies on the above trusts.
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EXECUTION PAGE
Executed as a deed on behalf of )
GRACECHURCH CARD FUNDING (NO. 7) PLC )
by )
Director: )
)
Director: )
in the presence of:
Executed as a Deed on behalf of )
THE BANK OF NEW YORK )
)
in the presence of: )
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