EXHIBIT 4.12
[GRAPHIC OMITTED]
DATED [o] June 2005
BARCLAYCARD FUNDING PLC
as MTN Issuer
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
THE BANK OF NEW YORK
as Trustee
BARCLAYS BANK PLC
as Initial Transferor
and
BARCLAYS BANK PLC
as MTN Cash Manager
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SERIES 05-1 MTN SUPPLEMENT
Dated [o] June 2005
To
SECURITY TRUST DEED AND MTN CASH MANAGEMENT AGREEMENT
Dated 23 November 1999
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CONTENTS
Clause Page
Part 1 Interpretation.......................................................3
1. Defined Terms........................................................3
2. General..............................................................3
Part 2 Effect Of Series 05-1 Supplement.....................................5
3. Noteholders..........................................................5
4. Series 05-1 MTN Supplement To Security Trust.........................5
Part 3 Agreements..........................................................11
5. Payments On The Notes...............................................11
6. Agreement Of The Secured Creditors And Trustee......................12
7. Negative Covenants Of The Mtn Issuer................................12
8. Governing Law And Jurisdiction......................................14
9. Notices.............................................................14
10. Severability Of Provisions..........................................15
11. No Waiver; Cumulative Remedies......................................15
12. Counterparts........................................................16
13. Contract (Rights Of Third Parties) Act..............................16
The Schedule...............................................................17
Exhibit A..................................................................30
THIS SERIES 05-1 MTN SUPPLEMENT, is made on the [o] June 2005 as a Deed
BY AND BETWEEN:
(1) BARCLAYCARD FUNDING PLC, a company incorporated in England with
registered number 2530163, having its registered office at 1 Churchill
Place, London E14 5HP (the "MTN Issuer");
(2) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in
Jersey with registered number 75210, having its registered office at 26
New Street, St. Helier, Jersey JE2 3RA (the "Receivables Trustee");
(3) BARCLAYS BANK PLC, a company incorporated in England, acting through its
business unit, Barclaycard, whose principal place of business is at 1234
Pavilion Drive, Northampton, NN4 7SG (the "Initial Transferor");
(4) BARCLAYS BANK PLC, a company incorporated in England having its
registered office at 1 Churchill Place, London E14 5HP (the "MTN
Cash Manager"); and
(5) THE BANK OF NEW YORK, a banking institution incorporated under the laws
of New York and acting thorough its London Branch whose principal place
of business is at 48th Floor, One Canada Square, London E14, 5AL, in its
capacity as trustee (the "Trustee" which term shall include wherever the
context so admits, such company and all or any other persons or
companies for the time being acting as the Trustee of this Deed for any
series).
WHEREAS
(A) The MTN Issuer has established a programme for the issuance of medium
term notes and note certificates, pursuant to the terms of the Security
Trust Deed and MTN Cash Management Agreement.
(B) The MTN Issuer now intends to issue a Series of Notes in accordance
with Clauses 2.1 to 2.3 of the Security Trust Deed and MTN Cash
Management Agreement, in the manner and in the amount set out herein.
(C) The Trustee, the MTN Issuer, the MTN Cash Manager and the Initial
Transferor supplemented and varied the Security Trust Deed and MTN Cash
Management Agreement by entering into the (i) Series 02-1 MTN Supplement
on 24 October 2002; (ii) Series 03-1 MTN Supplement on 8 April 2003;
(iii) Series 03-2 MTN Supplement on 19 June 2003; (iv) Series 03-3 MTN
Supplement on 18 September 2003; (v) Series 04-1 MTN Supplement on 11
March 2004; and (vi) Series 04-2 MTN Supplement on 23 November 2004.
(D) The Trustee, the MTN Issuer, the MTN Cash Manager and the Initial
Transferor intend to supplement and vary the Security Trust Deed and MTN
Cash Management Agreement in the manner and to the extent set out herein
(the "Series 05-1 MTN Supplement").
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(E) It is intended by the parties hereto that, following the completion of
the transactions contemplated by this Series 05-1 MTN Supplement, each
Noteholder will become a Secured Creditor in respect of the Secured
Property, as supplemented and varied in accordance with the provisions
hereof and that each such Note held by a Noteholder will constitute or
form part of a Series for the purposes of the Security Trust Deed and
MTN Cash Management Agreement; such Series to be referred to as "Series
05-1".
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NOW IT IS HEREBY AGREED as follows:
PART A
INTERPRETATION
1. DEFINED TERMS
Terms defined in the MTN Master Definitions Schedule dated 23 November
1999 as amended and restated on 24 October 2002 between the Trustee, the
MTN Cash Manager, the Initial Transferor and the MTN Issuer (as the same
may be amended, varied or supplemented from time to time (the "MTN
Master Definitions Schedule")), the Security Trust Deed and MTN Cash
Management Agreement and in the Schedule hereto (including, without
limitation, the Conditions of the Notes) shall have the same meanings
when used in this Series 05-1 MTN Supplement and the recitals hereto
unless the context requires otherwise Provided, however, that in the
event that any term or provision contained in the Schedule hereto shall
conflict with or be inconsistent with any provision contained in the
Security Trust Deed and MTN Cash Management Agreement or the terms of
the MTN Master Definition Schedule, the terms and provisions contained
in the Schedule shall prevail with respect to Series 05-1 only.
2. GENERAL
2.1 The headings and the contents pages in this Series 05-1 MTN Supplement
shall not affect its interpretation.
2.2 Words denoting the singular number only shall include the plural
number also and vice versa; words denoting one gender only
shall include the other gender.
2.3 References to Clauses, paragraphs, Exhibits, and Schedules shall, unless
the context requires otherwise, be to clauses, paragraphs, exhibits and
schedules in this Series 05-1 MTN Supplement.
2.4 Save where the contrary is indicated, any reference in this Series
05-1 MTN Supplement to:
(a) this Series 05-1 MTN Supplement or any other agreement or
document shall be construed as a reference to this Series 05-1
MTN Supplement, or as the case may be, such other agreement or
document as the same may have been, or may from time to time be,
amended, varied, novated or supplemented;
(b) an enactment is a reference to it as already amended and
includes a reference to any repealed enactment which it may
re-enact, with or without amendment, and to any re-enactment
and/or amendment of it; and
(c) a time of day (including opening and closing of business) shall
be construed as a reference to London time.
2.5 Save where the context otherwise requires, all sums payable by any party
to any other party pursuant hereto are inclusive of any VAT which is
chargeable on the supply or
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supplies for which such sums (or any part thereof) are the whole or
part of the consideration for VAT purposes (irrespective of whether
such supply is or such supplies are made to such first mentioned
party or another person) and section 89 of the Value Added Tax Act
1994 shall not apply to affect the amount of such sums and the phrase
"inclusive of VAT" shall be construed accordingly.
2.6 Any reference herein to any fee, cost, disbursement, expense or
liability incurred by any party and in respect of which such party is to
be reimbursed (or indemnified) by any other person or the amount of
which is to be taken into account in any calculation or computation
shall, save where the context otherwise requires, include a reference to
such part of such cost or expense as represents VAT.
2.7 References to the parties hereto shall be construed so as to include its
and any subsequent successors and permitted assigns in accordance with
their respective interests.
2.8 The Schedule forms part of this Supplement and the Security Trust
Deed and MTN Cash Management Agreement and each of them
shall be construed accordingly.
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PART B
EFFECT OF SERIES 05-1 SUPPLEMENT
3. NOTEHOLDERS
3.1 Upon (i) the making of the advance and the payment referred to in Clause
3.2 and (ii) the issue of a duly executed and authenticated Series 05-1
Temporary Global Note, the person who has made such advance shall be
treated for all purposes under the Security Trust Deed and MTN Cash
Management Agreement, as supplemented by this Series 05-1 MTN
Supplement, as a Noteholder in respect of Series 05-1 and a Secured
Creditor in respect of Secured Property on the Issue Date in accordance
with Clauses 4.1 to 4.3 of the Security Trust Deed and MTN Cash
Management Agreement, and as such shall be beneficially entitled to a
security interest in such Secured Property to the extent of the
Principal Amount together with interest and any other amounts due or
owing in respect of the Notes.
3.2 In order for the issue and due authentication and delivery of each Note
referred to in Clause 3.1 to be effected, the Noteholder shall make an
advance in an amount of (pound)628,140,703.52 to the MTN Issuer by
depositing such amount in the Series 05-1 Distribution Account for value
on the Closing Date. On each Distribution Date, the Noteholder shall pay
to the MTN Issuer the Deferred Subscription Price Amount, to the extent
that such amount is available.
3.3 The Temporary Global Note representing the Notes shall be substantially
in the form of Part 1 of Exhibit A-1, to the Schedule. The Permanent
Global Note representing each Note shall be substantially in the form of
Part 2 of Exhibit A-1 to the Schedule.
4. SERIES 05-1 MTN SUPPLEMENT TO SECURITY TRUST
4.1 The Security Trust Deed and MTN Cash Management Agreement shall be
supplemented and varied in the manner and to the extent set out below
and shall from such time on the Issue Date be read and construed for all
purposes as supplemented and varied as set out in the Schedule and the
Security in respect of Series 05-1 shall be constituted accordingly:
(a) Clause 1 of the Security Trust Deed and MTN Cash Management
Agreement shall be supplemented and varied with respect to
Series 05-1 by the addition of the definitions as contained in
Section A of Part 1 of the Schedule. In the event that any term
or provision contained therein shall conflict with or be
inconsistent with any provision contained in the Security Trust
Deed and MTN Cash Management Agreement, the terms and provisions
of this Supplement shall govern with respect to Series 05-1. All
clause or sub-clause references in the Schedule shall be to the
relevant clause or sub-clauses of the Security Trust Deed and
MTN Cash Management Agreement, except as otherwise provided in
the Schedule. All capitalised terms used in the Schedule which
are not otherwise defined therein are defined in the MTN Master
Definitions Schedule.
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Each capitalised term defined in the Schedule shall relate only
to Series 05-1 and no other Series;
(b) the Conditions of the Notes set out in Schedule 4 of the
Security Trust Deed and MTN Cash Management Agreement shall be
supplemented with respect to Series 05-1 by the additional
provisions set out in Section B of Part 1 of the Schedule;
(c) for the purposes of Clause 10.6 of the Security Trust Deed and
MTN Cash Management Agreement, the MTN Cash Manager Fee payable
by the MTN Issuer to the MTN Cash Manager shall be paid in the
amount and the manner set out in Part 2 of the Schedule; and
(d) Clauses 3 and 6.1 to 6.3 and 18 of the Security Trust Deed and
MTN Cash Management Agreement shall be supplemented by the
additional provisions set out in Part 3 of the Schedule. Clauses
3 and 6.4 to 6.6 shall be read in their entirety as set out in
Part 3 of the Schedule and, in the case of Clauses 6.4 to 6.6
only, shall be applicable only to the Notes constituting Series
05-1; and
(e) Clause 8.2.1(c) of the Security Trust Deed and MTN Cash
Management Agreement shall be supplemented and varied with
respect to Series 05-1 to read as follows: "The Trustee shall be
entitled to take into account, for the purposes of exercising
any power, trust, authority, duty or discretion under or in
relation to any Series Document that such exercise will not be
materially prejudicial to the beneficial interest of the Secured
Creditors in a security interest in respect of the Secured
Property of the relevant Series (the "No Material Prejudice
Test") if each Rating Agency has given written confirmation that
such Rating Agency would not reduce or withdraw its then current
rating of any outstanding Associated Debt in respect of the
relevant Series as a result of such exercise, provided that the
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".
4.2 As continuing first fixed security for the payment or discharge of the
Secured Obligations save to the extent that they constitute Jersey
Assets and subject always to Clause 4.13 below, the MTN Issuer with full
title guarantee hereby conveys, assigns and transfers by way of first
fixed security to and in favour of the Trustee for itself and on trust
for the Secured Creditors in respect of Series 05-1:
(a) its beneficial interest (and all rights and interests arising in
respect thereof) in respect of Series 05-1 under the Receivables
Trust as an Investor Beneficiary thereof to the extent specified
in the Series 05-1 Trust Supplement and in the Declaration of
Trust and Trust Cash Management Agreement;
(b) all its right, title, interest and benefit present and future in
and to any agreement relating to Series 05-1 (other than the
Declaration of Trust and Trust Cash Management Agreement (as the
same has been supplemented from time to time) to the extent
secured under (a) above) or document relating to Series 05-1
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which the MTN Issuer is or may at any time be, expressed to have
the benefit of or to have any rights under or to have any other
interest in unless otherwise charged or secured by way of fixed
security under this Clause 4.2, (including, without limitation,
all supplements and accretions thereto, all rights to receive
payment of any amounts which may become payable thereunder and
all payments received by the MTN Issuer thereunder and all items
expressed to be held on trust for the MTN Issuer thereunder or
comprised therein, all rights to serve notices or give consents
and directions or make demands thereunder or take such steps as
are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach
thereof and all rights to receive damages or obtain other relief
in respect thereof);
(c) all its right, title, interest and benefit present and future in
and to all sums of money which may now or hereafter from time to
time be credited to the Series 05-1 Distribution Account or any
other MTN Issuer account established by the MTN Issuer in
respect of Series 05-1 or in respect of any amounts representing
or derived from Series 05-1 Trust Property or received from
Barclays Bank PLC pursuant to the Agreement Between
Beneficiaries or to any bank or other accounts in which the MTN
Issuer may at any time have or acquire any right, title,
interest or benefit together with all interest accruing from
time to time thereon and the debts represented thereby and all
its right, title, interest and benefit present and future
therein;
(d) all of the MTN Issuer's rights in and to the Permitted
Investments in respect of Series 05-1 and any payment due in
respect thereof and the debts represented thereby; and
(e) all of the MTN Issuer's right, title, interest and benefit in
respect of amounts credited to the Trustee Bank Accounts in
respect of Series 05-1.
4.3 The MTN Issuer by way of first fixed security for payment and discharge
of the Secured Obligations, as beneficial owner thereof and subject
always to Clause 4.13, hereby assigns to the Trustee the Jersey
Collateral in order to create a security interest therein pursuant to
Article 2(6) of the Jersey Security Interests Law as a continuing
security for discharge of the Secured Obligations.
4.4 For the purposes of Article 3 of the Jersey Security Interests Law and
for the avoidance of doubt, it is hereby agreed as follows:
(a) the debtor in respect of the creation of the Jersey Security
Interest is the MTN Issuer;
(b) the secured parties in respect of the creation of the Jersey
Security Interest are the Trustee and the Secured Creditors,
provided however that all rights in connection therewith are to
be exercised on their behalf by the Trustee in accordance with
the terms of this Supplement, the Security Trust Deed and MTN
Cash Management Agreement and the Jersey Security Interests Law;
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(c) the collateral in respect of which the Jersey Security Interest
is created comprises the Jersey Collateral;
(d) the events of default in respect of the Jersey Security Interest
are the events set out in Condition 9 of the Notes under the
heading "Events of Default" referred to herein as a Series 05-1
Enforcement Event; and
(e) the obligations in respect of which the Jersey Security Interest
is created comprise the Secured Obligations.
4.5 The MTN Issuer and the Trustee hereby give notice, for the purposes of
Article 2(8) of the Jersey Security Interests Law, of the creation of
the Jersey Security Interest and the Receivables Trustee by execution of
this Series 05-1 MTN Supplement:
(a) acknowledges receipt of such notice;
(b) confirms that it does not have and will not make or exercise any
claims or demands, any rights of counterclaims, rights of
set-off any other rights against the MTN Issuer in respect of
the Jersey Collateral or any part thereof and it has not, as of
the date of this Series 05-1 MTN Supplement, received any notice
that any third party has or will have any rights or interest
whatsoever in or has made or will be making any claim or demand
or taking any action whatsoever against the Jersey Collateral or
any part thereof; and
(c) undertakes in the event that it becomes aware at any time that
any person or entity other than the Trustee (as trustee for the
Secured Creditors in respect of Series 05-1) has or will have
any right or interest whatsoever against the Jersey Collateral
or any part thereof, it will immediately give written notice of
any such right or interest, claim or demand or action to both
the Trustee and the MTN Issuer.
4.6 Following irrevocable discharge in full of the Secured Obligations of
which the Trustee has notice, the Trustee shall reassign to the MTN
Issuer the Jersey Collateral.
4.7 The MTN Issuer hereby gives notice to the Receivables Trustee and the
Cash Manager (as operating bank) of the assignment by way of security
made by the MTN Issuer to the Trustee (for itself, and on trust for the
Noteholders) under Clause 4.2, which notice each of the Receivables
Trustee and the Cash Manager acknowledges by execution of this Series
05-1 MTN Supplement.
4.8 Notwithstanding the charges and securities created by or pursuant to
this Series 05-1 MTN Supplement, the Trustee agrees that, until the
occurrence of a Series 05-1 Enforcement Event, payments becoming due to
the MTN Issuer from the Receivables Trustee as provided by the
Declaration of Trust and Trust Cash Management Agreement and the Series
05-1 Trust Supplement, together with all other monies payable to the MTN
Issuer pursuant to any other documents or arrangements to which it is a
party, may (in any case) be made to the MTN Issuer in accordance with
the provisions of the Declaration of Trust and Trust Cash Management
Agreement and the Series 05-1 Trust
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Supplement or (as the case may be) the documents or arrangements
concerned, and the MTN Issuer may exercise its rights, powers and
discretions and perform its obligations in relation to the Secured
Property and under the Series 05-1 Documents in accordance with the
provisions of the Series 05-1 Documents or (as the case may be) such
other documents or arrangements.
4.9 Notwithstanding the Security created by or pursuant to this Series 05-1
MTN Supplement, prior to a Series 05-1 Enforcement Event, amounts
standing to the credit of the Series 05-1 Distribution Account from time
to time may be withdrawn therefrom by the MTN Issuer but only in
accordance with the applicable provisions of the documents governing
Series 05-1.
4.10 From and including the time when a Series 05-1 Enforcement Event has
occurred and the Notes have become due in accordance with the
Conditions, (a) the security created pursuant to this Supplement shall
become enforceable and the Trustee may enforce any rights it may have in
respect of the Secured Property, and (b) no amount may be withdrawn from
the Series 05-1 Distribution Account by the MTN Issuer or on its behalf
without the prior written consent of the Trustee.
4.11 The Trustee shall hold and apply all moneys received by it under the
Security Trust Deed and MTN Cash Management Agreement and this Series
05-1 MTN Supplement in connection with the realisation or enforcement of
the Secured Property in respect of Series 05-1 in accordance with the
priorities set out in Part 3 of the Schedule hereto.
4.12 Upon proof being given to the satisfaction of the Trustee as to the
irrevocable and unconditional payment or discharge of the Secured
Obligations in respect of Series 05-1, the Trustee will at the request
and cost of the MTN Issuer release, discharge or reassign the Secured
Property to the MTN Issuer or any other person entitled thereto of whom
the Trustee has notice.
4.13 Section 103 of the LPA shall not apply in relation to any of the
Security created by this Clause 4. The statutory powers of sale and of
appointing a receiver which are conferred upon the Trustee as varied and
extended by this Deed and all other powers shall in favour of any
purchaser be deemed to arise and be exercisable immediately after the
execution of this Deed but shall only be exercised upon and following
the giving of an Enforcement Notice and in the case of the Jersey
Security Interest, subject to the provisions of Articles 6(5) and 8(3)
of the Jersey Security Interests Law, the Trustee shall have an
immediate power of sale over the Jersey Collateral, without having to
apply to the Royal Court of Jersey for authority to exercise the same.
4.14 The power of sale in respect of the Jersey Security Interest shall be
exercisable by the Trustee in such manner as the Trustee may in its
absolute discretion deem appropriate and with all powers of a beneficial
owner. Without limitation the Trustee may, without liability and subject
to the Trustee having been indemnified in full to its satisfaction, sell
or dispose of the whole or part of the Jersey Collateral at such times
and in such manner and generally on such terms and conditions and for
such consideration as the Trustee may think fit. Any such sale or
disposal may be for cash, debentures or other
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obligations, shares, stocks, securities or other valuable consideration
and may be payable immediately or by instalment spread over such a
period as the Trustee may think fit. The Trustee shall have right of
recourse to any monies forming part of the Jersey Collateral and may,
without liability and subject to the Trustee having been indemnified in
full to its satisfaction, apply such monies in the payment or discharge
of the Secured Obligations as if such moneys were proceeds of sale.
4.15 For the avoidance of doubt, the power of attorney granted by the MTN
Issuer under Clause 7.13.2 of the Security Trust Deed and MTN Cash
Management Agreement is granted in respect of the Security created by
this Clause 4, inter alia, pursuant to Article 5 of the Powers of
Attorney (Jersey) Law 1995 for the purposes of facilitating the
Trustee's powers hereunder and under the Jersey Security Interests Law
in respect of the Jersey Security Interest.
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PART C
AGREEMENTS
5. PAYMENTS ON THE NOTES
COVENANT TO PAY
The MTN Issuer shall, on any date when the Notes of any Series
(including Series 05-1), or any of them, become due to be redeemed in
whole or in part in accordance with their Conditions, unconditionally
pay or procure to be paid to or to the order of or for the account of
the Trustee, the amount then becoming due on that date in respect of the
Notes of each Class of such Series and shall (subject to the terms of
such Series) until such payment (after as well as before any judgment or
other order of a competent court) unconditionally pay to or to the order
of or for the account of the Trustee in respect of interest on the
Principal Amount outstanding including Further Interest, Deferred
Interest and Additional Interest (if any) as specified in the relevant
MTN Supplement of the Notes of such Series then outstanding at the rate
or rates set out in, or calculated from time to time in accordance with,
the terms thereof and on the dates provided for in such terms, provided
that:
5.1 the MTN Issuer shall only be obliged to pay such Principal Amount
outstanding and interest (including Further Interest (if any)), Deferred
Interest and Additional Interest, if any, in respect of Series 05-1 to
the extent set out in the Security Trust Deed and MTN Cash Management
Agreement and this related Supplement, in respect of such Series;
5.2 every payment of a Principal Amount outstanding or interest (including
Further Interest (if any)), Deferred Interest and Additional Interest,
if any, in respect of Notes of such Series made to or to the order or
for the account of the Principal Paying Agent as provided in the Agency
Agreement shall, to such extent, satisfy such obligation except to the
extent that there is failure in the subsequent payment thereof to the
relevant Noteholders of such Series under the terms of the relevant
Series; and
5.3 in the case of any payment in respect of Notes of such a Series made
after the due date or subsequent to an Event of Default in respect of
such Series, payment shall not be deemed to have been made until the
full amount due in accordance with the terms thereof has been received
by the Principal Paying Agent or the Trustee in respect of such Series
and notice to that effect has been duly given to the relevant Noteholder
of such Series in accordance with such terms.
The Trustee will hold the benefit of this covenant in relation to each
Series on trust for itself and the Holders of that Series according to
their respective interests.
6. AGREEMENT OF THE SECURED CREDITORS AND TRUSTEE
ADDITIONAL SUPPLEMENTS
Each Secured Creditor consents and confirms as a Secured Creditor in
respect of the Secured Property that, subject to Clause 5.6.2 of the
Security Trust Deed and MTN Cash
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Management Agreement, the Security Trust Deed and MTN Cash Management
Agreement may be supplemented and varied from time to time in accordance
with the terms of this Series 05-1 MTN Supplement or additional MTN
Supplements.
7. NEGATIVE COVENANTS OF THE MTN ISSUER
The MTN Issuer shall not, save to the extent permitted by the Security
Trust Deed and MTN Cash Management Agreement or any Supplement or with
the prior written consent of the Initial Transferor and each Rating
Agency then rating any outstanding Associated Debt of any Series:
7.1 dispose of any Secured Property or create or permit to subsist any
Encumbrance including, without limitation, anything analogous to any of
the foregoing under the laws of any jurisdiction upon the whole or any
part of its present or future undertaking, assets or revenues
(including, without limitation, uncalled capital and any Secured
Property) other than the interest referred to in Clauses 6.1 to 6.3 of
the Security Trust Deed and MTN Cash Management Agreement, as amended by
this Series 05-1 MTN Supplement;
7.2 carry on any business other than as contemplated herein relating to the
purchase of beneficial interests in the Securitised Portfolio (as
defined in the Trust Master Definitions Schedule) to be held on trust by
the Receivables Trustee and the issue of the Notes of any Series and in
respect of that business shall not engage in any activity or do anything
whatsoever except:
(a) preserve and/or exercise and/or enforce any of its rights and
perform and observe its obligations under the Notes appertaining
thereto, the Security Trust Deed and MTN Cash Management
Agreement, the MTN Master Definitions Schedule, the Declaration
of Trust and Trust Cash Management Agreement, the Trust Master
Definitions Schedule, the Beneficiaries Servicing Agreement, the
MTN Issuer Bank Agreement, the Series 05-1 Supplement, the
Agreement Between Beneficiaries and this Series 05-1 MTN
Supplement and any mandate regarding any MTN Issuer Account
(together, the "Series 05-1 Documents");
(b) use, invest or dispose of any of its property or assets in the
manner provided in or contemplated by the Series 05-1 Documents;
(c) perform any act incidental to or necessary in connection with
(a) or (b) above;
7.3 have or form, or cause to be formed, any subsidiary, subsidiary
undertakings or undertakings of any other nature or have any employees
or premises or have an interest in a bank account other than the Series
05-1 Distribution Account or any other MTN Issuer Accounts;
7.4 create, incur or suffer to exist any indebtedness (other than
indebtedness permitted to be incurred under the terms of its articles of
association and pursuant to or as contemplated in any of the Series 05-1
Documents) or give any guarantee in respect of any obligation of any
Person;
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7.5 repurchase any shares (except to the extent of any Extra Amount received
and retained by the MTN Issuer in accordance with the Security Trust
Deed and MTN Cash Management Agreement and this Supplement) or declare
or pay any dividend or other distribution to its shareholders or issue
or allot shares to any Person other than Barclays Bank PLC or the Share
Trustee, except to the extent required by law;
7.6 consolidate with or merge with or into any person or on a voluntary
basis enter into an administration or any form or reorganisation or
liquidate or dissolve;
7.7 waive, modify or amend, or consent to any waiver, modification or
amendment of, any of the provisions of the Series 05-1 Documents which
the MTN Issuer is a party to, without the prior written consent of the
Initial Transferor and the Trustee;
7.8 offer to surrender to any company any amounts which are available for
surrender by way of group relief; and
7.9 take any steps in its capacity as Investor Beneficiary of the
Receivables Trust either on its own or in conjunction with any other
Beneficiary of the Receivables Trust to terminate the Receivables Trust.
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PART 4
MISCELLANEOUS
8. GOVERNING LAW AND JURISDICTION
8.1 GOVERNING LAW
This Series 05-1 MTN Supplement and all matters arising from or
connected with it shall be governed by, and construed in accordance
with, the laws of England, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws,
except to the extent the provisions of this Series 05-1 MTN Supplement
relate to the creation and enforcement of the Jersey Security Interest,
to which extent this Deed shall be governed by and construed in
accordance with Jersey law.
8.2 JURISDICTION
(a) Each of the parties hereto irrevocably agrees for the benefit of
each other party that the courts of England shall have exclusive
jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of
or in connection with this Series 05-1 MTN Supplement, and, for
such purposes, irrevocably submits to the exclusive jurisdiction
of such courts.
(b) Each party hereto irrevocably waives any objection which it
might now or hereafter have to the courts of England referred to
above being nominated as the forum to hear and determine any
suit, action or proceeding, and to settle any disputes, which
may arise out of or in connection with this Series 05-1 MTN
Supplement and agrees not to claim that any such court is not a
convenient or appropriate forum.
(c) Each party hereto (if it is not incorporated in England)
irrevocably appoints the person specified against its name on
the execution pages hereto to accept service of any process on
its behalf and further undertakes to the other parties hereto
that it will at all times during the continuance of this Series
05-1 MTN Supplement maintain the appointment of some person in
England as its agent for the service of process and irrevocably
agrees that service of any writ, notice or other document for
the purposes of any suit, action or proceeding in the courts of
England shall be duly served upon it if delivered or sent by
registered post to the address of such appointee (or to such
other address in England as that party may notify to the other
parties hereto).
9. NOTICES
9.1 Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in writing and may be made by telefax or letter.
9.2 Any communication, notice or document to be made or delivered by any one
person to another pursuant to this Series 05-1 MTN Supplement shall
(unless that other person has
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by fifteen days' written notice to the other parties hereto specified
another address) be made or delivered to that other person at the
address identified below and shall be deemed to have been made or
delivered when despatched and confirmation of transmission received by
the sending machine (in the case of any communication made by telefax)
or (in the case of any communication made by letter) when left at that
address or (as the case may be) ten days after being deposited in the
post postage prepaid in an envelope addressed to it at that address
PROVIDED, HOWEVER, that each telefax communication made by one party
hereto to another shall be made to that person at the telefax number
notified to such party by that other person from time to time:
9.2.1 in the case of the Initial Transferor, the MTN Cash Manager (in
whatever capacity) and the MTN Issuer to the addresses specified
in the Security Trust Deed and MTN Cash Management Agreement;
9.2.2 in the case of the Trustee, the Bank of New York, 48th Floor,
One Canada Square, London E14 5AL, fax no.: 020 7839 6061/6399;
Attention: Global Structured Finance;
9.2.3 in the case of the Receivables Trustee, 26 New Street, St.
Helier, Jersey JE2 3RA, fax no.: 01534 814815 Attention: Richard
Gerwat; and
9.2.4 in the case of the Rating Agencies for Associated Debt:
(a) in the case of Standard & Poor's to Standard & Poor's
Ratings Group, 18 Finsbury Circus, London UK EC2M 7BP,
fax no.: +44 (020) 7826 3598 Attention: Structured
Finance Department; and
(b) in the case of Moody's to Moody's Investors Service
Inc., 2 Minster Court, Mincing Lane, London, UK EC3R
7XB, fax no.: + 44 (020) 7772 5400 Attention: Structured
Finance.
10. SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of
this Series 05-1 MTN Supplement shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or
terms of this Series 05-1 MTN Supplement and shall in no way affect the
validity or enforceability of the other provisions of this Series 05-1
MTN Supplement or of the rights of the Secured Creditors hereunder.
11. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of any of
the parties hereto, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
- 15 -
12. COUNTERPARTS
This Series 05-1 MTN Supplement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one
and the same instrument.
13. CONTRACT (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Deed but this does not affect any right or remedy of a third party which
exists or is available apart from that Act.
IN WITNESS WHEREOF the MTN Issuer, the Receivables Trustee, the Trustee, the MTN
Cash Manager and the Initial Transferor have caused this Series 05-1 MTN
Supplement to be duly executed and delivered by their duly authorised
representatives as a deed on the day and year first above written.
- 16 -
THE SCHEDULE
PART 1 - SECTION A: DEFINITIONS
"AGREEMENT BETWEEN BENEFICIARIES" means, with respect to Series 05-1, the
agreement between Barclays Bank PLC, the Receivables Trustee and the MTN Issuer
dated [o] June 2005;
"ASSIGNED EXCESS SPREAD" means, with respect to Series 05-1, the amounts payable
by the Receivables Trustee to the MTN Issuer as beneficial owner thereof in
consequence of the Agreement Between Beneficiaries;
"ASSOCIATED DEBT" means, collectively, the Class A1 Associated Debt, the Class
A2 Associated Debt, the Class B Associated Debt and the Class C Associated Debt;
"ASSOCIATED SWAP AGREEMENT" means the Class A1 currency and interest rate swap
agreement, the Class A2 currency and interest rate swap agreement, the Class B
currency and interest rate swap agreement and the Class C currency and interest
rate swap agreement, each dated [o] June 2005 and in each case entered into
between the Series 05-1 Associated Issuer and the Associated Swap Counterparty
in respect of the Associated Debt;
"ASSOCIATED SWAP COUNTERPARTY" means Barclays Bank PLC;
"AUTHORISED DENOMINATION" means (pound)[o];
"CLASS A" shall mean for calculation purposes, the aggregate of the portion of
the Notes related to the Class A1 Associated Debt and the portion of the Notes
related to the Class A2 Associated Debt;
"CLASS A ASSOCIATED DEBT" means the aggregate of the Class A1 Associated Debt
and the Class A2 Associated Debt;
"CLASS A INVESTOR INTEREST" shall have the meaning given to it in the Series
05-1 Trust Supplement;
"CLASS A1" shall mean for calculation purposes, the portion of the Notes related
to the Class A1 Associated Debt;
"CLASS A1 ASSOCIATED DEBT" means the $[o] Class A1 Asset Backed Floating Rate
Notes due 2008, constituted by the Trust Deed dated [o] June 2005 between the
Series 05-1 Associated Issuer and The Bank of New York;
"CLASS A2" shall mean for calculation purposes, the portion of the Notes related
to the Class A1 Associated Debt;
"CLASS A2 ASSOCIATED DEBT" means the $[o] Class A2 Asset Backed Fixed Rate Notes
due 2008, constituted by the Trust Deed dated [o] June 2005 between the Series
05-1 Associated Issuer and The Bank of New York;
- 17 -
"CLASS B" shall mean for calculation purposes, the portion of the Notes related
to the Class B Associated Debt;
"CLASS B ASSOCIATED DEBT" means the $[o] Class B Asset Backed Floating Rate
Notes due 2008 constituted by the Trust Deed dated [o] June 2005 between the
Series 05-1 Associated Issuer and The Bank of New York;
"CLASS B INVESTOR INTEREST" shall have the meaning given to it in the Series
05-1 Trust Supplement;
"CLASS C" shall mean for calculation purposes, the portion of the Notes related
to the Class C Associated Debt;
"CLASS C ASSOCIATED DEBT" means the $[o] Class C Asset Backed Floating Rate
Notes due 2008 constituted by the Trust Deed dated [o] June 2005 between the
Series 05-1 Associated Issuer and The Bank of New York;
"CLASS C INVESTOR INTEREST" shall have the meaning given to it in the Series
05-1 Trust Supplement;
"DAY COUNT FRACTION" means, in relation to Series 05-1, the actual number of
days in the relevant period divided by 365 (or, in the case of a leap year,
366);
"DEFERRED SUBSCRIPTION PRICE AMOUNT" means, on any Distribution Date in relation
to Series 05-1, an amount paid by the Series 05-1 Associated Issuer equal to the
Further Interest received by such Series 05-1 Associated Issuer in its capacity
as Noteholder in relation to the Series 05-1 on such Distribution Date and not
utilised by the Series 05-1 Associated Issuer in paying any amounts other than
Deferred Subscription Price Amounts;
"DISTRIBUTION DATE" means the 15th day of each month commencing on 15 August
2005 or, if such day is not a Business Day, the next following Business Day;
"FINAL REDEMPTION DATE" means in respect of Series 05-1 the Interest Payment
Date falling in June 2010;
"FURTHER INTEREST" means in relation to Series 05-1 the amount to be paid by the
MTN Issuer to the Series 05-1 Associated Issuer which is equal to the aggregate
of: (1) Excess Finance Charge Amounts received by the MTN Issuer pursuant to the
assignment contained in the Agreement Between Beneficiaries; and (2) any other
amounts which are treated as Excess Finance Charge Amounts referable to Series
05-1 pursuant to the Declaration of Trust and Trust Cash Management Agreement
(including Clauses 5.19(c), 5,19(d), 5.22(e) and 5.22(f), thereof as applicable
to Series 05-1);
"INITIAL TRANSFEROR" means Barclays Bank PLC;
"INTEREST DETERMINATION DATE" means the first day of each Interest Period;
"INTEREST PAYMENT DATE" means each Distribution Date;
"INTEREST PERIOD" means one month;
- 18 -
"INTEREST RATE" means in respect of (a) the first Interest Period a linear
interpolation of one-month and two-month GBP - LIBOR - BBA; (b) the second
Interest Period, one month GBP - LIBOR - BBA; and (c) Interest Periods
thereafter, three month GBP - LIBOR - BBA (reset on the Interest Payment Dates
falling in each December, March, June and September); except that one month GBP
- - LIBOR - BBA shall apply in respect of any whole Interest Period falling after
the earliest to occur of the commencement date of the Rapid Amortisation Period
and the Regulated Amortisation Period and the Scheduled Redemption Date in the
event that the Series 05-1 MTN is not redeemed in full on such date and ending
on the Series 05-1 Termination Date;
"INVESTOR BENEFICIARY" means the MTN Issuer;
"INVESTOR INTEREST" shall have the meaning given to it in the Series 05-1 Trust
Supplement;
"JERSEY ASSETS" means in relation to the MTN Issuer all or any of its
undertaking, property, assets, rights and revenues whatsoever, present and
future, situated in Jersey (including, without limitation, the Jersey
Collateral);
"JERSEY COLLATERAL" means in relation to the MTN Issuer, to the extent they
constitute Jersey Assets, all its right, title, interest and benefit present and
future in, to and under the Declaration of Trust and Trust Cash Management
Agreement (as the same has been supplemented from time to time), including
without limitation all rights to receive payment of any amount which may become
payable to the MTN Issuer thereunder or payments received by the MTN Issuer
thereunder or rights to serve notices and/or to take such steps as are required
to cause payments to be become due and payable thereunder and all rights of
action in respect of any breach thereof and all rights to receive damages or
obtain other relief in respect thereof;
"JERSEY SECURITY INTEREST" means the security created in respect of Series 05-1
pursuant to Clause 4.3 of this Supplement in accordance with the requirements of
the Jersey Security Interests Law;
"JERSEY SECURITY INTERESTS LAW" means the Security Interests (Jersey) Law, 1983;
"MARGIN" means [o] per cent. per annum;
"MONTHLY LOAN EXPENSES AMOUNT" means in respect of Series 05-1 for any
Distribution Date the amount equal to any monthly interest accrual which is due
and payable under the Expenses Loan Agreement in respect of Series 05-1 (and,
for greater certainty, is the Monthly Loan Expenses Amount paid by the
Receivables Trustee to the MTN Issuer in relation to Series 05-1 and credited
pro rata and pari passu (in proportion to the amount that each of the Class A1
Investor Interest and the Class A2 Investor Interest bear, respectively, to the
Class A Investor Interest on such Distribution Date) by the MTN Issuer to the
Class A1 Coupon Ledger and the Class A2 Coupon Ledger);
"PAGE" means Moneyline Telerate;
"PRIMARY SOURCE" means the Page;
"RELEVANT CURRENCY" means Sterling;
- 19 -
"SCHEDULED REDEMPTION DATE" means in respect of Series 05-1 the Interest Payment
Date falling in June 2008;
"SECURED CREDITORS" means the Trustee and the Noteholder(s) in respect of Series
05-1;
"SECURED PROPERTY" means all that property of the MTN Issuer held as security
(whether fixed, floating or as a Jersey Security Interest) under this Supplement
or the Security Trust Deed and MTN Cash Management Agreement;
"SERIES 05-1" means the Series of the Receivables Trust created pursuant to the
Series 05-1 Supplement to the Trust and Cash Management Agreement dated [o] June
2005;
"SERIES 05-1 ASSOCIATED ISSUER" means Gracechurch Card Funding (No. 5) PLC as
issuer of the Associated Debt and its successors and assigns as holder of the
Notes in respect of Series 05-1;
"SERIES 05-1 DISTRIBUTION ACCOUNT" means the account in the name of the MTN
Issuer at Barclays Bank PLC, 54 Lombard Street, London EC3P 3AH (account number
10937312 sort code 20-19-90);
"SERIES 05-1 ENFORCEMENT EVENT" means an event specified in Condition 9 of the
Notes;
"SERIES 05-1 EXPENSES LOAN ACCOUNT" means the account in the name of the Series
05-1 Associated Issuer at Barclays Bank PLC, 54 Lombard Street, London EC3P 3AH
(account number 10069132 sort code 20-19-90);
"SERIES 05-1 ISSUER ACCOUNTS" means the account in the name of the Series 05-1
Associated Issuer at Barclays Bank PLC, 1 Churchill Place, London E14 5HP
(account number [o] sort code 20-19-90 (the "Series 05-1 Issuer Dollar
Account"), account number [o] sort code 20-19-90 (the "Series 05-1 Issuer
Sterling Account"), and account number [o] sort code 20-19-90 (the "Series 05-1
Issuer Swap Accumulation Account"), and each a "Series 05-1 Issuer Account";
"SERIES TERMINATION DATE" means in respect of Series 05-1 the earlier to occur
of (a) the Distribution Date on which the Investor Interest in respect of Series
05-1 is reduced to zero; or (b) the Final Redemption Date; and
"SERIES 05-1 SUPPLEMENT" means the Series 05-1 Supplement to the Declaration of
Trust and Trust Cash Management Agreement dated [o] June 2005 between the
Initial Transferor, the MTN Issuer and the Receivables Trustee.
- 20 -
SECTION B SUPPLEMENTS TO THE CONDITIONS
The Conditions set out in Schedule 4 to the Security Trust Deed and MTN Cash
Management Agreement shall be supplemented as follows:
1. For the purposes of Condition 5.2, all dates referred to in the
Conditions shall be subject to adjustment in accordance with the
Following Business Day Convention.
2. For the purposes of Condition 5.8, (a) the "Controlled Accumulation
Period" shall commence at the close of business on 31 May 2007 or such
later date as is determined in accordance with Clause 5.11(f) of the
Series 05-1 Trust Supplement and (b) the Day Count Fraction shall be
Actual / 365 / 366.
3. Condition 9.1 shall be supplemented by the addition of the following
sub-paragraph 9.1.10:
"9.1.10 Associated Swap Agreement: the early termination, without
replacement, of any Associated Swap Agreement".
4. Condition 5.1.1 shall be supplemented by the addition of the following
wording to be inserted in line 4 after the words "Margin (if any)":
"together with any amounts of Further Interest (if any)".
5. A further Condition 5.12 shall be added with respect to Series 05-1:
"The Noteholder shall, on each Distribution Date pay the Deferred
Subscription Price Amount to the MTN Issuer. By subscribing for, or
acquiring, the MTN Certificate, the Noteholder agrees to be bound by
this obligation."
- 21 -
PART 2
CASH MANAGEMENT COMPENSATION
The MTN Cash Manager's compensation for providing cash management services in
respect of Series 05-1 shall be met in full out of the MTN Cash Manager's
standard banking charges levied against the MTN Issuer from time to time in its
capacity as an account operating bank under the terms of the MTN Issuer Bank
Agreement dated [o] June 2005 made between the MTN Issuer and the MTN Cash
Manager.
- 22 -
PART 3
SUPPLEMENTS TO CLAUSE 3 (PAYMENTS ON THE NOTES) OF THE SECURITY TRUST DEED
AND CASH MANAGEMENT AGREEMENT
3A ESTABLISHMENT AND MAINTENANCE OF LEDGERS
3A.1 The Cash Manager shall open and maintain in the books of the MTN Issuer
certain notional ledgers (each a "LEDGER") in respect of Series 05-1 to
be known respectively as the "Class A1 Coupon Ledger", the "Class A2
Coupon Ledger", the "Class B Coupon Ledger", the "Class C Coupon
Ledger", the "Additional Funds Ledger", the "Class A1 Principal
Ledger", the "Class A2 Principal Ledger", the "Class B Principal
Ledger" and the "Class C Principal Ledger" which together shall reflect
the amount of monies from time to time held by MTN Issuer in the Series
05-1 Distribution Account.
3A.2 The Cash Manager shall record all monies received or payments made by
it on behalf of the MTN Issuer in respect of Series 05-1 in the manner
set out in this Agreement. If at any time the Cash Manager is in any
doubt as to which Ledger a particular amount should be credited or
debited, it shall consult with the Trustee thereon.
3A.3 The Cash Manager shall ensure that:
(d) the Class A1 Coupon Ledger will be credited on each Distribution
Date with the aggregate of (i) the amount credited on such
Distribution Date to the Class A1 Distribution Ledger (other
than any amounts representing Class A1 Monthly Principal
Amounts), (ii) all other amounts (other than principal)
distributed to the MTN Issuer by the Receivables Trustee on such
date in respect of the Class A1 Investor Interest;
(e) the Class A2 Coupon Ledger will be credited on each Distribution
Date with the aggregate of (i) the amount credited on such
Distribution Date to the Class A2 Distribution Ledger (other
than any amounts representing Class A2 Monthly Principal
Amounts), (ii) all other amounts (other than principal)
distributed to the MTN Issuer by the Receivables Trustee on such
date in respect of the Class A2 Investor Interest;
(f) the Class B Coupon Ledger will be credited on each Distribution
Date with the aggregate of (i) the amount credited on such
Distribution Date to the Class B Distribution Ledger (other than
any amounts representing Class B Monthly Principal Amounts) and
(ii) all other amounts (other than principal) distributed to the
MTN Issuer by the Receivables Trustee on such date in respect of
the Class B Investor Interest;
(g) the Class C Coupon Ledger will be credited on each Distribution
Date with the aggregate of (i) the amount credited on such
Distribution Date to the Class C Distribution Ledger (other than
any amounts representing Class C Monthly Principal Amounts) and
(ii) all other amounts (other than principal) distributed
- 23 -
to the MTN Issuer by the Receivables Trustee on such date in
respect of the Class C Investor Interest;
(h) the Class A1 Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables Trustee
to the MTN Issuer on such date in reduction of the Class A1
Investor Interest;
(i) the Class A2 Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables Trustee
to the MTN Issuer on such date in reduction of the Class A2
Investor Interest;
(j) (if applicable) the Class A1 Principal Ledger will be credited
on each Distribution Date falling during the Rapid Amortisation
Period or the Regulated Amortisation Period with the amount paid
by the Receivables Trustee to the MTN Issuer on such date in
reduction of the Class A1 Investor Interest;
(k) (if applicable) the Class A2 Principal Ledger will be credited
on each Distribution Date falling during the Rapid Amortisation
Period or the Regulated Amortisation Period with the amount paid
by the Receivables Trustee to the MTN Issuer on such date in
reduction of the Class A2 Investor Interest;
(l) the Class B Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables Trustee
to the MTN Issuer on such date in reduction of the Class B
Investor Interest;
(m) (if applicable) the Class B Principal Ledger will be credited on
each Distribution Date falling during the Rapid Amortisation
Period or the Regulated Amortisation Period with the amount paid
by the Receivables Trustee to the MTN Issuer on such date in
reduction of the Class B Investor Interest;
(n) the Class C Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables Trustee
to the MTN Issuer on such date in reduction of the Class C
Investor Interest;
(o) (if applicable) the Class C Principal Ledger will be credited on
each Distribution Date falling during the Rapid Amortisation
Period with the amount paid by the Receivables Trustee to the
MTN Issuer on such date in reduction of the Class C Investor
Interest; and
(p) the Additional Funds Ledger will be credited on each
Distribution Date with the Assigned Excess Spread and the
Deferred Subscription Price Amount (to the extent available).
3A.4 The amounts credited to the Class A1 Coupon Ledger, the Class A2 Coupon
Ledger, the Class B Coupon Ledger, the Class C Coupon Ledger and the
Additional Funds Ledger on each Distribution Date shall constitute
respectively, "Class A1 Available Funds", "Class A2 Available Funds",
"Class B Available Funds", "Class C Available Funds" and "Additional
Available Funds".
- 24 -
3B APPLICATION OF MONIES PRE-ENFORCEMENT
3B.1 On each Interest Payment Date:
(a) Class A1 Available Funds on such date will be applied in making
the following payments, in the amounts calculated by the Cash
Manager to be required, in the following order of priority (in
each case if and to the extent that payments of a higher
priority have been made in full):
(i) first, to pay when due a pro rata proportion (based upon
the proportion that Class A1 Investor Interest bears to
the Class A Investor Interest) of the MTN Issuer Cost
Amounts (such amount to be paid to the parties to whom
the relevant cost amounts are owed);
(ii) second, to pay all amounts of interest (other than
Further Interest) payable in respect of Class A1 (such
amount to be paid to or to the order of the Noteholder
in respect of Series 05-1);
(iii) third, to pay all amounts of Deferred Interest (if any)
payable in respect of Class A1 (such amount to be paid
to or to the order of the Noteholder in respect of
Series 05-1);
(iv) fourth, to pay all amounts of Additional Interest (if
any) payable in respect of Class A1 (such amount to be
paid to or to the order of the Noteholder in respect of
Series 05-1);
(v) fifth, an amount equal to a pro rata proportion (based
upon the proportion that Class A1 Investor Interest
bears to the Class A Investor Interest) of the Monthly
Loan Expenses Amount plus, on the Series 05-1
Termination Date, an amount equal to the principal
calculated as payable in accordance with the Expenses
Loan Agreement will be deposited in the Series 05-1
Expenses Loan Account;
(vi) sixth, an amount equal to a pro rata proportion (based
upon the proportion that Class A1 Investor Interest
bears to the Class A Investor Interest) of 1/2 of the
Series 05-1 Extra Amount will be paid to the MTN Issuer;
(vii) seventh, an amount equal to a pro rata proportion (based
upon the proportion that Class A1 Investor Interest
bears to the Class A Investor Interest) of 1/2 of the
Series 05-1 Extra Amount will be deposited in the Series
05-1 Issuer Account;
(viii) eighth, to pay pro rata and pari passu (in the
proportion that the Class A1 Servicing Fee and the Class
A1 Trust Cash Management Fee bear respectively to the
aggregate of the Class A1 Servicing Fee and the Class A1
Trust Cash Management Fee on such Interest Payment Date)
the Class A1 Servicing Fee and the Class A1 Trust Cash
Management Fee due in respect of the preceding Monthly
Period to the extent not paid directly to the Servicer
and the Trust Cash Manager out of amounts allocated to
the
- 25 -
MTN Issuer by the Receivables Trustee on the preceding
Transfer Date; and
(ix) ninth, in payment to the MTN Issuer;
(b) Class A2 Available Funds on such date will be applied in making
the following payments, in the amounts calculated by the Cash
Manager to be required, in the following order of priority (in
each case if and to the extent that payments of a higher
priority have been made in full):
(i) first, to pay when due a pro rata proportion (based upon
the proportion that Class A2 Investor Interest bears to
the Class A Investor Interest) of the MTN Issuer Cost
Amounts (such amount to be paid to the parties to whom
the relevant cost amounts are owed);
(ii) second, to pay all amounts of interest (other than
Further Interest) payable in respect of Class A2 (such
amount to be paid to or to the order of the Noteholder
in respect of Series 05-1);
(iii) third, to pay all amounts of Deferred Interest (if any)
payable in respect of Class A2 (such amount to be paid
to or to the order of the Noteholder in respect of
Series 05-1);
(iv) fourth, to pay all amounts of Additional Interest (if
any) payable in respect of Class A2 (such amount to be
paid to or to the order of the Noteholder in respect of
Series 05-1);
(v) fifth, an amount equal to a pro rata proportion (based
upon the proportion that Class A2 Investor Interest
bears to the Class A Investor Interest) of the Monthly
Loan Expenses Amount plus, on the Series 05-1
Termination Date, an amount equal to the principal
calculated as payable in accordance with the Expenses
Loan Agreement will be deposited in the Series 05-1
Expenses Loan Account;
(vi) sixth, an amount equal to a pro rata proportion (based
upon the proportion that Class A2 Investor Interest
bears to the Class A Investor Interest) of 1/2 of the
Series 05-1 Extra Amount will be paid to the MTN Issuer;
(vii) seventh, an amount equal to a pro rata proportion (based
upon the proportion that Class A2 Investor Interest
bears to the Class A Investor Interest) of 1/2 of the
Series 05-1 Extra Amount will be deposited in the Series
05-1 Issuer Account;
(viii) eighth, to pay pro rata and pari passu (in the
proportion that the Class A2 Servicing Fee and the Class
A2 Trust Cash Management Fee bear respectively to the
aggregate of the Class A2 Servicing Fee and the Class A2
Trust Cash Management Fee on such Interest Payment Date)
the Class A2 Servicing Fee and the Class A2 Trust Cash
Management Fee due in respect of the preceding Monthly
Period to the extent not paid directly to
- 26 -
the Servicer and the Trust Cash Manager out of amounts
allocated to the MTN Issuer by the Receivables Trustee
on the preceding Transfer Date; and
(ix) ninth, in payment to the MTN Issuer;
(c) Class B Available Funds on such date will be applied in making
the following payments, in the amounts calculated by the Cash
Manager to be required, in the following order of priority (in
each case if and to the extent that payments and provisions of a
higher priority have been paid in full):
(i) first, to pay all amounts of interest (other than
Further Interest) payable in respect of Class B (such
amount to be paid to or to the order of the Noteholder
in respect of Series 05-1);
(ii) second, to pay all amounts of Deferred Interest (if any)
payable in respect of Class B (such amount to be paid to
or to the order of the Noteholder in respect of Series
05-1);
(iii) third, to pay all amounts of Additional Interest (if
any) payable in respect of Class B (such amount to be
paid to or to the order of the Noteholder in respect of
Series 05-1);
(iv) fourth, pro rata, to pay the Class B Servicing Fee and
the Class B Trust Cash Management Fee due in respect of
the preceding Monthly Period to the extent not paid
directly to the Servicer and the Trust Cash Manager out
of amounts allocated to the MTN Issuer by the
Receivables Trustee on the preceding Transfer Date;
(v) fifth, in payment to the MTN Issuer;
(d) Class C Available Funds on such date will be applied in making
the following payments, in the amounts calculated by the Cash
Manager to be required, in the following order of priority (in
each case if and to the extent that payments and provisions of a
higher priority have been paid in full);
(i) first, to pay all amounts of interest (other than
Further Interest) payable in respect of Class C (such
amount to be paid to or to the order of the Noteholder
in respect of Series 05-1);
(ii) second, to pay all amounts of Deferred Interest (if any)
payable in respect of Class C (such amount to be paid to
or to the order of the Noteholder in respect of Series
05-1);
(iii) third to pay all amounts of Additional Interest (if any)
payable in respect of Class C (such amount to be paid to
or to the order of the Noteholder in respect of Series
05-1);
- 27 -
(iv) fourth, pro rata, to pay the Class C Servicing Fee and
the Class C Trust Cash Management Fee due in respect of
the preceding Monthly Period to the extent not paid
directly to the Servicer and the Trust Cash Manager out
of amounts allocated to the MTN Issuer by the
Receivables Trustee on the preceding Transfer Date; and
(v) fifth, in payment to the MTN Issuer;
(e) Additional Available Funds (if any) on such date will be applied
in and towards firstly payment of Further Interest (if any),
secondly Excess Entitlement Consideration (if any) and then
repayment of any principal due for repayment thereunder on such
date.
3B.2 Amounts credited to the Class A1 Principal Ledger, the Class A2
Principal Ledger, the Class B Principal Ledger and the Class C Principal
Ledger on the Scheduled Redemption Date or, if applicable, each
Distribution Date falling during the Rapid Amortisation Period or, as
the case may be, the Regulated Amortisation Period, shall be applied on
such dates in and towards redemption of the Notes;
3B.3 All Ledgers shall be reset to zero at the close of business on each
Interest Payment Date.
3C APPLICATION OF MONIES POST-ENFORCEMENT
3C.1 Notwithstanding the security rights created by this MTN Supplement but
subject always to the provisions of Article 8(6)(b) of the Jersey
Security Interests Law in respect of the Jersey Security Interest, the
Trustee and each of the Secured Creditors hereby agrees, and the MTN
Issuer concurs, that from the time of the giving of an Enforcement
Notice, (a) no amount may be withdrawn from the Series 05-1
Distribution Account except to the extent that it is applied in
accordance with the order of priorities set out in Clause 3C.3 or as
otherwise permitted by the provisions of this MTN Supplement or any
other Relevant Documents in respect of Series 05-1 that are applicable
after the giving of an Enforcement Notice.
3C.2 Notwithstanding the security rights created by this MTN Supplement, but
subject always to the provisions of Article 8(6)(b) of the Jersey
Security Interests Law in respect of the Jersey Security Interest, the
Trustee and each of the Secured Creditors hereby agrees, and the MTN
Issuer concurs, that any monies whatsoever recovered by each of them or
on their behalf whether by the Trustee or otherwise after the giving of
an Enforcement Notice, shall be paid to the Trustee (and pending such
payment shall be held on trust for the Trustee) for application in
accordance with the order of priorities set out in Clause 3C.3 (in each
case only if and to the extent that payments of higher priority have
been made in full).
3C.3 The order of the priorities referred to in Clauses 3C.1 and 3C.2 is as
follows:
(i) FIRSTLY, in no order of priority inter se but pro rata to the
respective amounts then due, to pay remuneration then due to any
receiver appointed pursuant to this MTN Supplement or the
Trustee and all amounts due in respect of legal fees
- 28 -
and other costs, charges, liabilities, expenses, losses,
damages, proceedings, claims and demands then incurred by the
Trustee under and in respect of the Relevant Documents in
respect of Series 05-1 and in enforcing the security created by
or pursuant to this MTN Supplement or in perfecting title to the
Security, together with interest thereon as provided in any such
document;
(ii) SECONDLY, (to the extent not covered by (a) above) in payment or
satisfaction of costs, charges, liabilities, expenses, losses,
damages, proceedings, claims and demands of the Trustee under
the Security Trust Deed and MTN Cash Management Agreement and
this MTN Supplement; and
(iii) THIRDLY, in or towards payment pari passu and rateably of all
principal, premium (if any) and interest then due and unpaid in
respect of the Note Certificates (other than Further Interest);
(ii) FOURTHLY, in or towards payment of any sums due from (or
required to be provided for by) the MTN Issuer to meet its
liabilities to any taxation authority (including in respect of
corporation tax to the Inland Revenue);
(iii) FIFTHLY in or towards payment of any sums due to third parties
under obligations incurred in the course of the MTN Issuer's
business;
(iv) SIXTHLY in or towards payment of any dividends due and unpaid to
shareholders of the MTN Issuer; and
(v) SEVENTHLY, to pay all amounts of Further Interest (if any);
(vi) EIGHTHLY, to pay all amounts of Excess Entitlement Consideration
(if any);
(vii) NINTHLY in payment of the balance (if any) to the liquidator of
the MTN Issuer.
Without prejudice to the above, if the Trustee holds any monies which represent
principal and interest in respect of any Note which has become void or in
respect of which claims have been prescribed under Condition 10, the Trustee
will hold such monies on the above trusts.
3C.4 Clause 18.1 of the Security Trust Deed shall be supplemented by the
addition of the following wording to be inserted in line 2 after the
words "applicable laws)":
"except for the purposes of payments in respect thereof, the right to
which shall be vested, as against the MTN Issuer, the Trustee and the
Agents, solely in the bearer thereof".
- 29 -
EXHIBIT A
PART 1
FORM OF TEMPORARY GLOBAL NOTE CERTIFICATE
TEMPORARY GLOBAL NOTE CERTIFICATE
ISIN: XS0220670953 Common Code: 022067095
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE AND NOTE CERTIFICATE PROGRAMME
TEMPORARY GLOBAL NOTE CERTIFICATE
REPRESENTING UP TO
(pound)[o]
FLOATING RATE ASSET BACKED NOTE CERTIFICATES DUE 2008
This global note is a Temporary Global Note Certificate without interest coupons
issued in respect of an issue of an aggregate principal amount of (pound)[o] of
Floating Rate Asset Backed Notes due 2008 (the "NOTE CERTIFICATE") by
Barclaycard Funding PLC (the "MTN ISSUER").
The MTN Issuer for value received promises, all in accordance with the terms and
conditions set out in the applicable Series 05-1 Supplement ("TERMS AND
CONDITIONS") and the Principal Trust Deed (as defined below) to pay to the
bearer upon presentation or, as the case may be, surrender hereof in respect of
each Note Certificate for the time being from time to time represented hereby,
on the maturity date specified in the Terms and Conditions or on such earlier
date as any such Note Certificate may become due and payable in accordance with
the Terms and Conditions, the Principal Amount on such dates as may be specified
in the Terms and Conditions or, if any such Note Certificate shall become due
and payable on any other date, the Principal Amount and, in respect of each such
Note Certificate, to pay interest and all other amounts as may be payable
pursuant to the Terms and Conditions all subject to and in accordance therewith.
Except as specified herein, the bearer of this Temporary Global Note Certificate
is entitled to the benefit of the Terms and Conditions and of the same
obligations on the part of the MTN Issuer as if such bearer were the bearer of
the Note Certificates represented hereby and to the benefit of those provisions
of the Terms and Conditions (and the obligations on the part of the
- 30 -
MTN Issuer contained therein) applicable specifically to Temporary Global Note
Certificate, and all payments under and to the bearer of this Temporary Global
Note Certificate shall be valid and effective to satisfy and discharge the
corresponding Liabilities of the MTN Issuer in respect of the Note Certificates.
This Temporary Global Note Certificate is issued pursuant to a security trust
deed and MTN cash management deed dated 23 November 1999 (the "PRINCIPAL TRUST
DEED") together with the supplemental trust deed in respect of Series 05-1 dated
[o] June 2005 (the "SERIES 05-1 SUPPLEMENT" and, together with the Principal
Trust Deed, the "TRUST DEED") and made between the MTN Issuer and The Bank of
New York, London Branch as trustee (the "TRUSTEE" which expression includes any
person or corporation from time to time appointed as trustee). Words and
expressions defined expressly or by reference in the Terms and Conditions and
the Trust Deed shall have the same meanings in this Temporary Global Note
Certificate.
On or after the expiry of 40 days after the date of issue of this Temporary
Global Note Certificate (the "EXCHANGE DATE"), this Temporary Global Note
Certificate shall be exchangeable in whole or in part for a Permanent Global
Note or, in the circumstances set out in the Series 05-1 Supplement for
Definitive Note. An exchange for a Permanent Global Note or, as the case may be,
Definitive Note will be made only on or after the Exchange Date (specified in
the Series 05-1 Supplement) and upon presentation or, as the case may be,
surrender of this Temporary Global Note Certificate to the Principal Paying
Agent at its specified office and upon and to the extent of delivery to the
Principal Paying Agent of a certificate or certificates issued by Euroclear Bank
S.A./N.V. as operator of the Euroclear System ("EUROCLEAR") or Clearstream,
Luxembourg or by any other relevant clearing system and dated not earlier than
the Exchange Date in substantially the form set out in Annex I hereto or, as the
case may be, in the form that is customarily issued in such circumstances by
such other clearing system. Any Definitive Note will be made available for
collection by the persons entitled thereto at the specified office of the
Principal Paying Agent.
The MTN Issuer undertakes to procure that the relevant Permanent Global Note and
Definitive Note will be duly issued in accordance with the Terms and Conditions,
the provisions hereof and of the Trust Deed.
The bearer of this Temporary Global Note Certificate shall not (unless, upon due
presentation of this Temporary Global Note Certificate for exchange (in whole or
in part) for a Permanent Global Note or for delivery of Definitive Note, such
exchange or delivery is improperly withheld or refused and such withholding or
refusal is continuing at the relevant payment date) be entitled to receive any
payment in respect of the Note Certificates represented by this Temporary Global
Note Certificate which falls due on or after the Exchange Date or be entitled to
exercise any option on a date after the Exchange Date.
Payments of interest otherwise falling due before the Exchange Date will be made
only upon presentation of this Temporary Global Note Certificate at the
specified office of any of the Paying Agents outside the United States and upon
and to the extent of delivery to the relevant Paying Agent of a certificate or
certificates issued by Euroclear or Clearstream, Luxembourg or by any other
relevant clearing system and dated not earlier than the relevant interest
payment
- 31 -
date in substantially the form set out in Annex II hereto or, as the
case may be, in the form that is customarily issued in such circumstances by
such other clearing system.
On any occasion on which a payment of principal is made in respect of this
Temporary Global Note Certificate or on which this Temporary Global Note
Certificate is exchanged in whole or in part as aforesaid or on which Note
Certificate represented by this Temporary Global Note Certificate are to be
cancelled, the MTN Issuer shall procure that (i) the aggregate principal amount
of the Note Certificates in respect of which such payment is made (or, in the
case of a partial payment, the corresponding part thereof) or which are
delivered in definitive form or which are to be exchanged for a permanent global
instrument or which are to be cancelled and (ii) the remaining principal amount
of this Temporary Global Note Certificate (which shall be the previous principal
amount hereof less the amount referred to at (i) above) are noted on the
Schedule hereto, whereupon the principal amount of this Temporary Global Note
Certificate shall for all purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Note
Certificates represented by this Temporary Global Note Certificate, the MTN
Issuer shall procure that the appropriate notations are made on the Schedule
hereto.
The obligations of the MTN Issuer in respect of this Temporary Global Note
Certificate are limited recourse in nature, as more particularly set out in the
Terms and Conditions and the Trust Deed. In addition the bearer of this
Temporary Global Note Certificate and, inter alios, the Trustee are restricted
in the proceedings which they may take against the MTN Issuer to enforce their
rights hereunder and under the Trust Deed, as more particularly set out in the
Terms and Conditions and the Trust Deed.
This Temporary Global Note Certificate is governed by, and shall be construed in
accordance with, English law.
The MTN Issuer irrevocably agrees for the benefit of the bearer that the courts
of England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in connection
with these presents (respectively, "Proceedings" and "Disputes") and, for such
purposes, irrevocably submits to the jurisdiction of such courts. The MTN Issuer
irrevocably waives any objection which it might now or hereafter have to the
courts of England being nominated as the forum to hear and determine any
Proceedings and to settle any Disputes and agrees not to claim that any such
court is not a convenient or appropriate forum.
This Temporary Global Note Certificate shall not be valid for any purpose until
authenticated for and on behalf of The Bank of New York, London Branch as Issue
Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the MTN Issuer.
- 32 -
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTE CERTIFICATES, EXCHANGE FOR PERMANENT
GLOBAL NOTE CERTIFICATE, EXERCISE OF OPTIONS AND
CANCELLATION OF NOTE CERTIFICATES
==============================================================================================================================
Date of Amount of Amount of Aggregate Aggregate Aggregate Aggregate Remaining Authorised
payment, interest then principal principal principal principal principal principal signature by
delivery, paid then paid amount of amount of amount of amount in amount of or on behalf
exchange, Definitive Note this Note respect of this of the
exercise of Certificates Temporary Certificate which option Temporary Principal
option (and then delivered Global Note then is exercised Global Note Paying Agent
date upon Certificate cancelled Certificate
which then
exercise is exchanged for
effective) or the Permanent
cancellation Global Note
Certificate
- ------------------------------------------------------------------------------------------------------------------------------
==============================================================================================================================
- 33 -
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
ISSUED in London on [o] June 2005
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK as Issue Agent without
recourse, warranty or liability
By:[manual signature]
(duly authorised)
- 34 -
ANNEX I
[Form of certificate to be given in relation to exchanges of this Temporary
Global Note for the Permanent Global Note Certificates or Definitive Note
Certificates:]
BARCLAYCARD FUNDING PLC
(pound)[o] FLOATING RATE ASSET BACKED NOTE CERTIFICATE
(the "NOTE CERTIFICATE")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Agency Agreement as of the date hereof, [ ] principal amount of
the above-captioned Note Certificate (i) is owned by persons that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
persons"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(iv) ("financial institutions")) purchasing for their own
account or for resale, or (b) acquired the Note Certificates through and are
holding through on the date hereof (as such terms "acquired through" and
"holding through" are described in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6)) foreign branches of United States financial institutions
(and in either case (a) or (b), each such United States financial institution
has agreed, on its own behalf or through its agent, that we may advise the MTN
Issuer or the MTN Issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and to the further effect that United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Note Certificates for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as at the date hereof.
- 35 -
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date:[ ]1
[Euroclear Bank S.A./N.V. as operator of the Euroclear System/Clearstream,
Luxembourg]
By:[authorised signature]
1To be dated not earlier than the Exchange Date.
- 36 -
ANNEX II
[Form of certificate to be given in relation to payments of
interest falling due before the Exchange Date:]
BARCLAYCARD FUNDING PLC
(pound)[o] Floating Rate Asset Backed Note Certificate
(the "Note Certificate")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Issue and Paying Agency Agreement as of the date hereof, [ ]
principal amount of the above-captioned Note Certificates (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) is owned by United States persons that (a) are
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(iv) ("financial institutions"))
purchasing for their own account or for resale, or (b) acquired the Note
Certificates through and are holding through on the date hereof (as such terms
"acquired through" and "holding through" are described in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United States
financial institutions (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the MTN Issuer or the MTN Issuer's agent that it will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Note Certificates for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of the Note Certificates set forth
above that, except as set out below, we have received in writing, by tested
telex or by electronic transmission, from our Member Organisations entitled to a
portion of such principal amount, certifications with respect of such portion,
substantially to the effect set forth in the Temporary Global Note Certificate
representing the Note Certificates.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
- 37 -
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as at the date hereof.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date:[ ]1
[Euroclear Bank S.A./N.V. as operator of the Euroclear System/Clearstream,
Luxembourg]
By:[authorised signature]
1To be dated not earlier than the relevant interest payment date.
- 38 -
ANNEX III
[Form of accountholder's certification referred to in
the preceding certificate:]
BARCLAYCARD FUNDING PLC
(pound)[o] Floating Rate Asset Backed Note Certificate
(the "Note Certificate")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Note Certificate held by you for our account (i) are owned
by persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to the United States Federal income taxation regardless of its source
("United States persons"), (ii) are owned by United States person(s) that (a)
are foreign branches of a United States financial institution (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(iv)) ("financial institutions")
purchasing for their own account or for resale, or (b) acquired the Note
Certificates through and are holding through on the date hereof (as such terms
"acquired through" and "holding through" are described in U.S. Treasury
Regulations Section 1.163-5(c) (2)(i) (D)(6)) foreign branches of United States
financial institutions (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise the MTN Issuer or the MTN Issuer's agent that it will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Note
Certificates is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this is
further to certify that such financial institution has not acquired the Note
Certificates for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Note Certificates are of the category contemplated in Section
230.903(b)(3) of Regulation S under the Securities Act of 1933 (the "Act") then
this is also to certify that, as except as set forth below, the Note
Certificates are beneficially owned by (a) non-U.S. person(s) or (b) U.S.
person(s) who purchased the Note Certificates in transactions which did not
require registration under the Act. As used in this paragraph, the term "U.S.
person" has the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Note Certificates
held by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
- 39 -
This certification excepts and does not relate to [ ] of such interest in the
above Note Certificate in respect of which we are not able to certify and as to
which we understand exchange and delivery of definitive Note Certificate (or, if
relevant, exercise of any rights or collection of any interest) cannot be made
until we do so certify.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date:[ ]1
[Accountholder] as (or as agent for) the beneficial owner of the Note
Certificates.
By:[authorised signature]
1To be dated not earlier than fifteen days before the Exchange Date or, as the
case may be the relevant interest payment date.
- 40 -
PART 2
FORM OF PERMANENT GLOBAL NOTE CERTIFICATE
PERMANENT GLOBAL NOTE CERTIFICATE
ISIN: XS0220670953 Common Code: 022067095
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
Barclaycard Asset Backed Medium Term Note and Note Certificate Programme
PERMANENT GLOBAL NOTE CERTIFICATE
representing up to
(pound)[o]
Floating Rate Asset Backed Note Certificates due 2008
This global instrument is a Permanent Global Note Certificate with interest
coupons issued in respect of an issue of an aggregate principal amount of
(pound)[o] of Floating Rate Asset Backed Note Certificates due 2008 (the "Note
Certificate") by Barclaycard Funding PLC
(the "MTN Issuer").
The MTN Issuer for value received promises, all in accordance with the terms and
conditions set out in the Series 05-1 Supplement ("Terms and Conditions") and
the Trust Deed (as defined below) to pay to the bearer upon presentation or, as
the case may be, surrender hereof in respect of each Note Certificate for the
time being from time to time represented hereby, on the maturity date specified
in the Terms and Conditions or on such earlier date as any such Note Certificate
may become due and payable in accordance with the Terms and Conditions, the
Principal Amount on such dates as may be specified in the Terms and Conditions
or, if any such Note Certificate shall become due and payable on any other date,
the Principal Amount and, in respect of each such Note Certificate, to pay
interest and all other amounts as may be payable pursuant to the Terms and
Conditions, all subject to and in accordance therewith.
Except as specified herein, the bearer of this Permanent Global Note Certificate
is entitled to the benefit of the Terms and Conditions and of the same
obligations on the part of the MTN Issuer as if such bearer were the bearer of
the Note Certificates represented hereby and to the benefit of those Terms and
Conditions (and the obligations on the part of the MTN Issuer contained therein)
applicable specifically to Permanent Global Note Certificate, and all payments
under and to the bearer of this Permanent Global Note Certificate shall be valid
and effective to satisfy and discharge the corresponding Liabilities of the MTN
Issuer in respect of the Note Certificates.
- 41 -
This Permanent Global Note Certificate is issued pursuant to a security trust
deed dated 23 November 1999 (the "Principal Trust Deed") and the supplement
thereto in respect of Series 05-1 (the "Series 05-1 Supplement" and together
with the Security Trust Deed, the "Trust Deed") and made between the MTN Issuer
and The Bank of New York, London Branch as trustee (the "Trustee" which
expression includes any person or corporation appointed from time to time as
trustee). Words and expressions defined expressly or by reference in the Terms
and Conditions and the Trust Deed shall have the same meanings in this Permanent
Global Note Certificate.
This Permanent Global Note Certificate will be exchanged in whole but not in
part for Definitive Note Certificate if (a) any Note Certificate of the relevant
Series becomes immediately redeemable following the occurrence of an Event of
Default in relation thereto (b) Euroclear Bank S.A./N.V. as operator of the
Euroclear System or Clearstream, Luxembourg, or any other relevant clearing
system is closed for business for a continuous period of 14 days (other than by
reason of legal holidays) or announces an intention to cease business
permanently or in fact does so; or (c) if so specified in the Trust Deed, upon
the request of a Holder of a beneficial interest in this Permanent Global Note
Certificate. In the case of (a) and (b), the MTN Issuer shall bear the entire
cost and expense and, in the case of (c) the Holder making such request shall
bear the entire cost and expense. In order to exercise the option contained in
paragraph (c) of the preceding sentence, the bearer hereof must, at the request
of the Holder making such request, not less than forty-five days before the date
upon which the delivery of such Definitive Note Certificate is required, deposit
this Permanent Global Note Certificate with the Principal Paying Agent at its
specified office with the form of exchange notice endorsed hereon duly
completed. Any Definitive Note Certificate will be made available for collection
by the persons entitled thereto at the specified office of the Principal Paying
Agent.
The MTN Issuer undertakes to procure that the relevant Definitive Note
Certificate will be duly issued in accordance with the Terms and Conditions, the
provisions hereof and of the Trust Deed.
On any occasion on which a payment of interest is made in respect of this
Permanent Global Note Certificate, the MTN Issuer shall procure that the same is
noted on the Schedule hereto.
On any occasion on which a payment of principal is made in respect of this
Permanent Global Note Certificate or on which this Permanent Global Note
Certificate is exchanged as aforesaid or on which any Note Certificate
represented by this Permanent Global Note Certificate are to be cancelled the
MTN Issuer shall procure that (i) the aggregate principal amount of the Note
Certificates in respect of which such payment is made (or, in the case of a
partial payment, the corresponding part thereof) or which are delivered in
definitive form or which are to be cancelled and (ii) the remaining principal
amount of this Permanent Global Note Certificate (which shall be the previous
principal amount hereof less the amount referred to at (i) above) are noted on
the Schedule hereto, whereupon the principal amount of this Permanent Global
Note Certificate shall for all purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Note
Certificate represented by this Permanent Global Note Certificate, the MTN
Issuer shall procure that the appropriate notations are made on the Schedule
hereto.
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Insofar as the Temporary Global Note Certificate by which the Note Certificates
were initially represented has been exchanged in part only for this Permanent
Global Note Certificate and is then to be further exchanged as to the remaining
principal amount or part thereof for this Permanent Global Note Certificate,
then upon presentation of this Permanent Global Note Certificate to the
Principal Paying Agent at its specified office and to the extent that the
aggregate principal amount of such Temporary Global Note Certificate is then
reduced by reason of such further exchange, the MTN Issuer shall procure that
(i) the aggregate principal amount of the Note Certificates in respect of which
such further exchange is then made and (ii) the new principal amount of this
Permanent Global Note Certificate (which shall be the previous principal amount
hereof plus the amount referred to at (i) above) are noted on the Schedule
hereto, whereupon the principal amount of this Permanent Global Note Certificate
shall for all purposes be as most recently noted.
The obligations of the MTN Issuer in respect of this Permanent Global Note
Certificate are limited recourse in nature, as more particularly set out in the
Terms and Conditions and the Trust Deed. In addition, the bearer of this
Permanent Global Note Certificate and, inter alios, the Trustee are restricted
in the proceedings which they may take against the MTN Issuer to enforce their
rights hereunder and under the Trust Deed, as more particularly described in the
Terms and Conditions and the Trust Deed.
This Permanent Global Note Certificate is governed by, and shall be construed in
accordance with, English law.
The MTN Issuer irrevocably agrees for the benefit of the bearer that the courts
of England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in connection
with this Permanent Global Note Certificate (respectively, "Proceedings" and
"Disputes") and, for such purposes, irrevocably submits to the jurisdiction of
such courts. The MTN Issuer irrevocably waives any objection which it might now
or hereafter have to the courts of England being nominated as the forum to hear
and determine any Proceedings and to settle any Disputes and agrees not to claim
that any such court is not a convenient or appropriate forum.
This Permanent Global Note Certificate shall not be valid for any purpose until
authenticated for and on behalf of The Bank of New York, London Branch, as Issue
Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the MTN Issuer.
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
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ISSUED in London as of [o] June 2005
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK as Issue Agent
without recourse, warranty or liability
By:[manual signature]
(duly authorised)
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THE SCHEDULE
Payments, Delivery of Definitive Note Certificates, Further Exchanges of the
Temporary Global Note Certificate, Exercise of Options
and Cancellation of Note Certificates
===================== =========== ============ ============= ============= ============= ============= =========== =============
Date of payment, Amount of Amount of Aggregate Aggregate Aggregate Aggregate Current Authorised
delivery, further interest principal principal principal principal principal principal signature
exchange of then paid then paid amount of amount of amount of amount in amount of by or on
Temporary Global Definitive Note further respect of this behalf of
Note Certificate, Note Certificate exchanges which Permanent the
exercise of option Certificates then of option is Global Principal
(and date upon then cancelled Temporary exercised Note Paying Agent
which exercise is delivered Global Note Certificate
effective) or Certificate cancellation
===================== =========== ============ ============= ============= ============= ============= =========== =============
===================== =========== ============ ============= ============= ============= ============= =========== =============
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EXCHANGE NOTICE
.............................., being the bearer of this Permanent Global Note
Certificate at the time of its deposit with the Principal Paying Agent at its
specified office for the purposes of the Note Certificates, hereby exercises the
option set out above to have this Permanent Global Note exchanged in whole for
Definitive Note Certificates in aggregate principal amount of [ ] and directs
that such Definitive Note Certificates be made available for collection by it
from the Principal Paying Agent's specified office.
By: ...........................................
(duly authorised)
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MTN Issuer
EXECUTED as a Deed by )
BARCLAYCARD FUNDING PLC )
by its duly authorised attorney in the presence of: )
Initial Transferor
EXECUTED as a Deed by )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
in the presence of:
)
Trustee
EXECUTED as a Deed by )
THE BANK OF NEW YORK )
acting by its duly authorised )
attorney in the presence of
Receivables Trustee
EXECUTED as a Deed by )
GRACECHURCH RECEIVABLES )
TRUSTEE LIMITED )
acting by its duly authorised signatory )
Process Agent
Clifford Chance Secretaries Limited
10 Upper Bank Street E14 5JJ
MTN Cash Manager
EXECUTED as a Deed by )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
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