Exhibit 4.3
CONFORMED COPY
BARCLAYCARD FUNDING PLC
as Issuer
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
THE BANK OF NEW YORK, LONDON BRANCH
as Trustee
AND
BARCLAYS BANK PLC
as MTN Cash Manager and Initial Transferor
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SECURITY TRUST DEED AND MTN CASH MANAGEMENT AGREEMENT
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CLIFFORD CHANCE
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..........................................2
2. Series Of Notes.........................................................3
3. Payments On The Notes...................................................4
4. Assignment, Floating Charge And Declaration Of Trust....................7
5. Form And Issue Of Notes And Coupons.....................................9
6. Establishment Of Issuer Bank Accounts In Respect Of Each Series........12
7. Enforcement Of Security................................................14
8. The Trustee............................................................19
9. Covenants By The Issuer And MTN Cash Manager...........................30
10. Appointment Of The MTN Cash Manager....................................33
11. Liability Of The MTN Cash Manager......................................36
12. MTN Cash Manager Defaults..............................................39
13. Acknowledgement Regarding Payments.....................................43
14. Waiver, Authorisation And Determination................................43
15. Modification...........................................................43
16. Noteholder Assumed To Be Couponholder..................................44
17. No Notice To Couponholders.............................................44
18. Holder Deemed To Be Absolute Owner.....................................44
19. Euroclear/Cedelbank Confirmations......................................45
20. Substitution...........................................................45
21. Currency Indemnity.....................................................46
22. Protection Of Right, Title And Interest To Secured Property............47
23. Notices................................................................47
24. Assignment.............................................................48
25. Further Assurances And Undertaking Of Non-Petition.....................49
26. No Waiver; Cumulative Remedies.........................................49
27. Release Of Collateral..................................................49
28. Counterparts...........................................................50
29. Third Party Beneficiaries..............................................50
30. Actions By Noteholders.................................................51
31. Merger And Integration.................................................51
32. TIA Prevails...........................................................51
33. Governing Law And Jurisdiction.........................................51
SCHEDULE 1 FORM OF TEMPORARY GLOBAL NOTES...........................53
TEMPORARY GLOBAL NOTE.........................................................54
SCHEDULE 2 FORM OF PERMANENT GLOBAL NOTES...........................65
PERMANENT GLOBAL NOTE.........................................................66
SCHEDULE 3 FORM OF DEFINITIVE NOTES.................................72
DEFINITIVE NOTE .........................................................73
SCHEDULE 4 TERMS AND CONDITIONS OF THE NOTES........................80
1. Form, Denomination And Title...........................................81
2. Status Of The Notes And Priority Secured Creditor......................82
3. Security And Related Agreements........................................83
4. Restrictions...........................................................84
5. Interest And Other Calculations........................................85
6. Redemption.............................................................93
7. Payments...............................................................94
8. Taxation...............................................................95
9. Events Of Default......................................................96
10. Enforcement............................................................97
11. Prescription...........................................................98
12. Replacement Of Notes, Coupons And Talons...............................99
13. Meetings Of Noteholders, Modification, Waiver, Authorisation
And Substitution.....................................................99
14. Notices...............................................................100
15. Governing Law.........................................................101
SCHEDULE 5 PROVISIONS FOR MEETINGS OF NOTEHOLDERS..................102
THIS SECURITY TRUST DEED AND MTN CASH MANAGEMENT AGREEMENT is made as a deed on
the 23rd day of November 1999
BETWEEN:
(1) BARCLAYCARD FUNDING PLC, a company incorporated in England with
registered number 2530163, having its registered office at 54 Lombard
Street, London EC3P 3AH (the "ISSUER");
(2) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated
in Jersey with registered number 75210, having its registered office at
Normandy House, Grenville Street, St. Helier, Jersey JE2 4UF (the
"RECEIVABLES TRUSTEE");
(3) BARCLAYS BANK PLC, a company incorporated in England having its
registered office at 54 Lombard Street, London EC3P 3AH (acting or in
its capacity as cash manager the "MTN CASH MANAGER" and acting through
its card issuing division, Barclaycard as initial transferor, the
"INITIAL TRANSFEROR"); and
(4) THE BANK OF NEW YORK, a New York banking corporation whose London
Branch is at One Canada Square, Canary Wharf, 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 Initial Transferor is the legal owner of the Receivables
(which terms and other capitalised terms used in these recitals bear the
meaning given to them in Part 1 below).
(B) Pursuant to the terms and subject to the conditions of the RSA,
the Initial Transferor, and any Additional Transferor which accedes to
the RSA, will offer to sell by way of assignment all present and future
Receivables arising on Designated Accounts in the Bank Portfolio to the
Receivables Trustee, to hold on trust for the benefit of, inter alia,
the Issuer, the Initial Transferor, any Additional Transferor and the
Excess Interest Beneficiary, and the Receivables Trustee may accept such
offer and will purchase such Receivables in the manner provided in the
RSA.
(C) The Issuer has established a medium term note issuance programme
under which it may authorise the issue of a Series of Notes, as
designated in the relevant MTN Supplement, to finance the granting of an
interest in the Receivables in the Securitised Portfolio by the
Receivables Trustee to the Issuer.
(D) Each Series of Notes will be constituted and secured by, be
subject to and have the benefit of, inter alia, this Deed and the
relevant MTN Supplement to this Deed made between the Issuer, the
Trustee and others to be entered on each occasion on which the
Receivables Trustee grants to the Issuer further interests to
Receivables arising on Designated Accounts in the Bank Portfolio.
(E) The Trustee has agreed to act as trustee for each Series in
relation to which the Issuer appoints it to act as set out in the
relevant MTN Supplement on the terms and subject to the conditions
contained in this Deed and the conditions of any related MTN Supplement.
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NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Unless the context requires otherwise, the words and phrases defined in
the MTN Master Definitions Schedule of even date herewith and signed for
the purposes of identification by the parties to this Deed shall have
the same meanings in this Deed (including the recitals).
1.2 PRINCIPLES OF INTERPRETATION
1.2.1 Any accounting terms not defined in the MTN Master
Definitions Schedule shall have the meanings given to them under
generally accepted accounting principles in the United Kingdom.
To the extent that the definitions of accounting terms used in
this Deed are inconsistent with the meanings of such terms under
generally accepted accounting principles in the United Kingdom,
the definitions contained used in this Deed shall prevail.
1.2.2 The agreements, representations and warranties of Barclays
Bank PLC in this Deed and any MTN Supplement in its capacity as
Initial Transferor and MTN Cash Manager shall be deemed to be
the agreements, representations and warranties of Barclays Bank
PLC solely in such capacity for so long as Barclays Bank PLC
acts in such capacity under this Deed.
1.2.3 Any reference in this Deed to a Clause, paragraph, Schedule
or Exhibit is a reference to a clause, paragraph, Schedule and
Exhibit of this Deed unless otherwise specified.
1.2.4 A time of day (including opening or closing of business)
shall be construed as a reference to London time unless
specified otherwise.
1.2.5 Costs, charges, expenses or remuneration shall be deemed to
include any VAT charged or chargeable in respect thereof except
where the context otherwise requires.
1.2.6 All references herein to any provision of any statute shall
be construed so as to include any statutory modification or
re-enactment thereof or any statutory instrument, order or
regulation made thereunder or under such modification or
re-enactment.
1.2.7 Save where the contrary is indicated, any reference in this
Deed or any MTN Supplement or any other agreement or document
shall be construed as a reference to this Deed or such MTN
Supplement or such other agreement or document, as the case may
be, as the same may have been, or may from time to time be,
amended, varied, novated or supplemented.
1.2.8 Words denoting the masculine gender shall include the
feminine gender also; words denoting persons only shall include
companies, corporations and
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partnerships; and words importing the singular member only shall
include the plural and in each case, vice-versa.
1.2.9 Whenever this Deed refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of
this Deed. All other TIA terms used in this Deed that are
defined by the TIA, defined in the TIA by reference to another
statute or defined by SEC rule have the meanings assigned to
them.
2. SERIES OF NOTES
2.1 ISSUE OF NOTES
The Issuer may from time to time (but subject always to Clauses 5.1 to
5.3 and the provisions of this Deed), create and issue new Series of
Notes upon such terms as to ranking, interest, conversion, redemption
and otherwise as the Issuer may determine at the time of issue of such
Series. The Notes in any Series may differ as to interest rates and
maturity and each such type of Note will comprise a Class. A Series may
therefore comprise a number of Classes which may be subordinated to one
or more other classes of Notes of that Series. Each Series of Notes
shall be secured on, and only on, such Secured Property as may be
specified in the MTN Supplement in relation to such Notes, with recourse
limited to such Secured Property. The aggregate principal amount of our
Notes outstanding from time to time may not exceed the Issuer Limit.
2.2 CONDITIONS PRECEDENT
Any Notes which are to be created and issued pursuant to the provisions
of Clause 2.1 shall be constituted on the execution of the relevant MTN
Supplement in respect of such Notes by the Issuer and the Trustee (which
shall be evidence of the consent of the Trustee to the creation of such
Notes). The Issuer shall deliver such MTN Supplement to the Trustee
(duly stamped or denoted with any applicable stamp duties or other
documentation taxes) containing such provisions (whether or not
corresponding to any of the provisions contained in this Deed) as the
Trustee may require.
Each MTN Supplement shall be accompanied by:
2.2.1 a certificate signed by any one director of the Issuer
certifying that no Event of Default has occurred;
2.2.2 legal opinions (in form and substance satisfactory to the
Trustee) from legal advisers of recognised standing in such
jurisdictions as may be reasonably required by the Trustee; and
2.2.3 such other documents as the Trustee may reasonably require
(including, without limitation, a Supplementary Security
Document).
2.3 PAYMENTS IN THE RELEVANT CURRENCY
All payments in respect of, under and in connection with this Deed shall
be made to the relevant Noteholders in the relevant currency specified
in the terms applicable to the relevant Series.
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2.4 EACH SERIES TO BE SEPARATE
The Notes of each Series shall form a separate Series and accordingly,
save where specifically provided in this Deed, each covenant and
representation provided by the Issuer in favour of the Trustee and all
other rights, Liabilities and obligations of the Issuer under this Deed
shall apply separately to the Notes of each Series issued by the Issuer.
Accordingly, the provisions hereof shall, in relation to any Series, be
read independently and the expression "TRUSTEE" shall be construed as a
reference to the Trustee of such Series, the expression "NOTES" shall be
construed as a reference to the Notes of such Series, the expression
"NOTEHOLDERS" shall be construed as a reference to the Noteholders of
such Series, the expression "SECURED CREDITOR" shall be construed as a
reference to the Secured Creditors of such Series so that each Series
shall be constituted as a separate security trust and that, unless
otherwise expressly provided, events affecting one Series shall not
affect another Series.
2.5 ALLOCATION OF COSTS
The provisions in this Deed concerning costs, expenses, fees,
remuneration and other financial obligations (whether arising under
indemnities or otherwise) shall apply separately to each Series in
respect of the costs, expenses, fees, remuneration and financial
obligations which arise in respect of such Series (and, for the
avoidance of doubt, the Secured Property in respect thereof). No such
amount incurred in respect of any Series will, save as specifically
provided herein, be deducted from any amount payable to the Secured
Creditors in respect of any other Series, nor will any such amount be in
any way charged to any other such Secured Creditors. The provisions of
this Deed shall be read accordingly.
2.6 RELATED AGREEMENTS
In relation to each Series, if specified in the Applicable Supplement,
the Issuer may enter into one or more Swap Agreements or other Related
Agreements with a Counterparty and/or guarantor, under which the Issuer
will make payments to such Counterparty and the Counterparty will make
payments to the Issuer as specified in such Swap Agreement or other
Related Agreement. Each swap transaction or other form of hedging
transaction evidenced by a Swap Agreement and other Related Agreement
will terminate on the date specified in the Applicable Supplement,
unless terminated earlier in accordance with its terms.
3. PAYMENTS ON THE NOTES
3.1 COVENANT TO PAY
The Issuer shall, on any date when the Notes of any Series, or any of
them, become due to be redeemed in whole or in part in accordance with
their Conditions, unconditionally pay or procure to be paid to or to the
order of or for the account of the Trustee, the amount then becoming due
on that date in respect of the Notes of each Class of such Series and
shall (subject to the terms of such Series until such payment (after as
well as before any judgment or other order of a competent court)
unconditionally pay to or to the order of or for the account of the
Trustee in respect of such 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:
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3.1.1 the Issuer shall only be obliged to pay such Principal
Amount and interest, Deferred Interest and Additional Interest,
if any, to the extent set out in this Deed and the related MTN
Supplement, in respect of such Series;
3.1.2 every payment of a Principal Amount or interest, 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
3.1.3 in the case of any payment in respect of Notes of such a
Series made after the due date or subsequent to an Event of
Default in respect of such Series, payment shall not be deemed
to have been made until the full amount due in accordance with
the terms thereof has been received by the Principal Paying
Agent or the Trustee in respect of such Series and notice to
that effect has been duly given to the relevant Noteholder of
such Series in accordance with such terms.
The Trustee will hold the benefit of this covenant in relation to each
Series on trust for itself and the Holders of that Series according to
their respective interests.
3.2 PAYMENTS TO SECURED CREDITORS
The Issuer shall pay to the Trustee all amounts due to the Secured
Creditors of a Series in accordance with the terms and conditions of the
relevant Series Documents PROVIDED, HOWEVER, that payment of any sum due
to a Secured Creditor of such Series made to such Secured Creditor
shall, to that extent, satisfy such obligation. This covenant shall only
have effect each time obligations are owed to Secured Creditors when the
Trustee shall hold the benefit of this covenant in relation to each
Series on trust for itself and each Secured Creditor of such Series
according to their respective interests.
3.3 DUTIES AND TAXES
The Issuer will indemnify (with recourse limited to the proceeds of the
Secured Property relating to the applicable Series) the Trustee and the
Secured Creditors relating to such Series (each an "INDEMNIFIED PARTY")
from and against all stamp duty, issue, registration, documentary and
other similar taxes paid by any such Indemnified Party in any
jurisdiction or jurisdictions in connection with any action taken by
such Indemnified Party to enforce the obligations of the Issuer under
this Deed in respect of such Series. The Issuer is empowered and
authorised hereunder to make any filings on its own behalf and any
filings relating to the Security Trust in respect of any tax matters
that are deemed necessary or desirable in connection with this Deed or
any MTN Supplement.
3.4 COVENANT OF COMPLIANCE
The Issuer covenants with the Trustee separately in respect of each
Series that it will comply with, perform and observe all the provisions
of this Deed relating to such Series which are expressed to be binding
on it in respect of such Series. The Conditions set out in Schedule 4
shall be binding on the Issuer and each Secured Creditor of each Series,
save as otherwise supplemented by the MTN Supplement for such Series.
The Trustee shall be entitled to enforce the obligations of the Issuer
under the Series Documents in respect of a Series as if the same were
set out and contained in this Deed.
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3.5 MEETING OF NOTEHOLDERS
The provisions contained in the Fifth Schedule shall have effect in the
same manner as if herein set forth.
3.6 ONLY TRUSTEE TO ACT
For any Series, only the Trustee, at its discretion and without further
notice, may pursue the remedies available under the general law or under
this Deed to enforce the rights under this Deed of the Secured Creditors
relating to such Series. No Secured Creditor relating to such Series
shall be entitled to proceed directly against the Issuer or the assets
of the Issuer to enforce the performance of any of the provisions of
these presents or the other Series Documents (if any) relating to such
Series unless the Trustee having become bound as aforesaid to take
proceedings fails or neglects to do so within a reasonable period of
time and such failure or neglect is continuing.
3.7 NON-PETITION; LIMITED RECOURSE
The Trustee and Secured Creditors of any Series shall have recourse only
to the Secured Property in respect of such Series and, once such Secured
Property has been realised, shall not be entitled to take any further
steps against the Issuer to recover any sum still unpaid, and all claims
and all rights to claim against the Issuer in respect of each such sum
unpaid shall be extinguished. In particular, no Secured Creditor in
respect of any Series nor the Trustee on their behalf may (at any time,
whether prior to or after the realisation of the Secured Property)
institute against, or join any person in instituting against the Issuer
any bankruptcy, winding up, re-organisation, arrangement,
administration, insolvency or liquidation proceeding (except for the
appointment of a receiver and manager pursuant to the terms of these
presents in relation to such Series) or other proceeding under any
similar law nor shall any of them have any claim in respect of any such
sums over or in respect of any assets of the Issuer which comprise
Secured Property for any other Series.
3.8 APPLICATION OF MONIES
For each Series, all monies received by the Trustee pursuant to this
Deed and the MTN Supplement relating to such Series shall, despite any
appropriation of all or part of them by the Issuer, be held by the
Trustee upon trust to apply in the manner and order of priority set out
in such MTN Supplement.
3.9 APPLICATION OF FUNDS IN RESPECT OF VOID SERIES
Without prejudice to the other provisions of this Clause, if the Trustee
holds any moneys which represent principal, premium or interest in
respect of the Notes in relation to any Series which have become void
under their terms, the Trustee shall (subject to payment or provision
for the payment or satisfaction of all amounts (howsoever arising)
payable under Clause 8.8 to the Trustee and/or any attorney, manager,
agent, delegate, receiver or other person appointed by it under this
Deed in respect of such Series and subject to any claims of any Secured
Creditors of such Series) pay the same to the Issuer (without prejudice
to, or liability in respect of, any question as to how such payment to
the Issuer shall be dealt with as between the Issuer and any other
person).
3.10 APPORTIONMENT OF LIABILITIES BETWEEN SERIES
In the event that the Trustee takes any action to enforce the Security
in respect of more than one Series and is unable to apportion to a
particular Series any Liabilities incurred
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by it, the Trustee shall apportion such Liabilities to each of the
Series in respect of which such Liabilities were incurred in the
proportion which the aggregate Principal Amount Outstanding in respect
of each such Series bears to the aggregate Principal Amount Outstanding
of all such Series (as at the date such Liabilities occurred) in respect
of which such Liabilities were incurred as a whole.
3.11 PAYMENTS
Any payment to be made in respect of any Series by the Issuer or the
Trustee may be made in accordance with the terms of such Series, and any
payments so made shall be a good discharge pro tanto to the Issuer or,
as the case may be, the Trustee.
3.12 NO IMPAIRMENT WITHOUT NOTEHOLDER CONSENT
Notwithstanding any other provision of this Trust Deed, the right of any
Noteholder to receive payment of principal and interest on the Note, on
or after the respective due dates expressed in the Note, or to bring
suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the
Noteholder.
4. ASSIGNMENT, FLOATING CHARGE AND DECLARATION OF TRUST
The Issuer with full title guarantee and as continuing security for all
the moneys and other Liabilities payable or owing by the Issuer under
this Deed hereby assigns absolutely by way of first fixed security to
the Trustee all of the Issuer's right, title, and interest in and to,
and the entire benefit of, the Programme Dealer Agreement and charges to
the Trustee, by way of first floating charge, the whole of its
undertaking and assets to the extent that such undertaking and assets
are not effectively encumbered by the security created by or pursuant to
any MTN Supplement or any Supplementary Security Document executed in
relation to any Series and the Trustee shall hold the property so
assigned or charged in this Clause 4.1 on trust for itself and the
Secured Creditors of all Series, provided that such security may only be
enforced and the floating charge shall crystallise in accordance with
the provisions of Clause 6.
4.1 ADDITIONAL SECURITY
Additional security in respect of each Series or (provided that the
Trustee consents to the same) in respect of any transaction entered into
by the Issuer relating to or connected with any arrangement for the
issue of any Series of Notes shall be created in accordance with this
Deed, by the MTN Supplement relating to such Series and Supplementary
Security Document (if any) as may be required.
4.2 APPLICATION OF CLAUSE 4 TO MTN SUPPLEMENTS
The following provisions of this Clause 4 shall apply to the security
created in Clause 3.1 and to the Security in relation to each Series,
except as may be otherwise specified in such MTN Supplement or
Supplementary Security Document.
4.3 RIGHTS OF SECURED CREDITORS
Each Secured Creditor (other than the Trustee) will belong to one of the
categories of Secured Creditor set out below for the purposes of this
Deed. The entitlement of any Secured Creditor to the relevant Secured
Property for a given Series of Notes, unless
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otherwise specified herein, shall be specified in the relevant MTN
Supplement. The categories of Secured Creditor (other than the Trustee)
are as follows:
(a) NOTEHOLDER
The beneficial entitlement of each Noteholder (and where there
are Classes, any Noteholder holding one of the Classes in that
Series) to a security interest in the Secured Property in
relation to that Series shall be specified in the related MTN
Supplement and shall be expressed to constitute or form part of
that Series.
(b) ENHANCEMENT PROVIDER
If the related MTN Supplement specifies that an Enhancement
Provider is to be a Secured Creditor of the Secured Property in
relation to that Series, the beneficial entitlement of such
Enhancement Provider to a security interest in the relevant
Secured Property shall be specified in the related MTN
Supplement and shall be expressed to constitute or form part of
that related Series.
(c) OTHER SECURED CREDITORS
If the related MTN Supplement specifies that any other party is
to be a Secured Creditor of the Secured Property in relation to
such Series, the beneficial entitlement of such additional
Secured Creditor to a security interest in the relevant Secured
Property shall be specified in the related MTN Supplement.
5. FORM AND ISSUE OF NOTES AND COUPONS
5.1 GLOBAL NOTES
The Notes of each Series will initially be represented by a Temporary
Global Note without Coupons, or Talons in, or substantially in, the form
set out in Schedule 1. Interests in a Temporary Global Note will, after
the date which is 40 days after the completion of the distribution of
all of the Notes of the relevant Series (as determined by the Dealer)
upon certification as a non-US beneficial ownership in the form set out
in the Temporary Global Note, be exchangeable, in whole or in party, for
interests in a Permanent Global Note in, or substantially in, the form
set out in Schedule 2, or, if so specified in the MTN Supplement in
respect of such Series, for Definitive Notes having, if so specified,
Coupons attached as described in the Temporary Global Note. The
Permanent Global Note in respect of any Series will be exchangeable for
Definitive Notes having, if so specified in the MTN Supplement in
respect of such Series, Coupons as described in such Permanent Global
Note.
5.2 DEFINITIVE NOTES
Each Permanent Global Note shall be exchangeable in whole but not in
part for the corresponding Definitive Notes described below if:
5.2.1 any Note of the relevant Series becomes immediately redeemable
following the occurrence of an Event of Default in relation
thereto; or
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5.2.2 Euroclear or Cedelbank 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
5.2.3 if so specified in the MTN Supplement, at the option of the
Noteholder, and upon Noteholder's request. In the case of
Clauses 5.2.1 and 5.2.2, the Issuer shall bear the cost and
expense and, in the case of Clause 5.2.3, the Noteholder making
such request shall bear the cost and expense.
On or after any Exchange Date (as defined below), the bearer of a
Permanent Global Note may surrender it to or to the order of the
Principal Paying Agent. In exchange for a Permanent Global Note, the
Issuer will deliver or procure the delivery of, an equal aggregate
principal amount of duly executed and authenticated Definitive Notes
corresponding thereto (in the case of Definitive Notes, having attached
to them all Coupons in respect of interest which has not already been
paid on such Permanent Global Note and where required, a Talon),
security printed in accordance with any applicable legal and Stock
Exchange requirements in, or substantially in, the form set out in this
Deed. On exchange in full of the Permanent Global Note, such Permanent
Global Note will be cancelled.
"EXCHANGE DATE" means a date, other than a Saturday or Sunday, falling
not less than 40 days after than on which the notice requiring exchange
is given and on which banks are open for business London, Brussels and
Luxembourg.
Each Note shall be issued in respect of a Series in the denomination(s)
specified in the MTN Supplement relating to such Series (serially
numbered) with Coupons (and, where appropriate, a Talon) attached. Title
to such Notes, Coupons, and Talons shall pass by delivery.
5.3 SIGNING OF GLOBAL NOTES
The Global Notes shall be signed manually or in facsimile by:
5.3.1 any one director of the Issuer; or
5.3.2 any other person duly authorised by the Issuer on behalf of
the Issuer, and shall be authenticated by signature manually be
or on behalf of the Principal Paying Agent. Each such Global
Note so executed and authenticated shall be a binding and valid
obligation of the Issuer. The Issuer may adopt and use the
signature of any person who, at the date of signing a Global
Note is an authorised signatory for such purpose of the Issuer,
notwithstanding that such person may for any reason (including
death) have ceased to be such an authorised signatory at the
time of the creation and issue of the relevant Global Note.
5.4 THE DEFINITIVE NOTES
The Definitive Notes of each Series (if any) shall be signed manually or
a facsimile by one director of the Issuer and (unless otherwise
specified in the relevant MTN Supplement) shall be authenticated by or
on behalf of the Principal Paying Agent. The Issuer may use the
facsimile signature of any person who at the date such signature is
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affixed is a director of the Issuer notwithstanding that at the time of
issue of any of the Notes he may have ceased for any reason to be the
holder of such office. The Notes so executed and authenticated, and the
Coupons and Talons, upon execution and authentication of the relevant
Notes, shall be binding and valid obligation of the Issuer. The Coupons
and Talons shall not be signed. Execution in facsimile of any Notes
shall be binding upon the Issuer in the same manner as if such Notes
were signed manually by such signatories.
5.5 ISSUE OF NOTES
5.5.1 An issue of Notes may only be made by the Issuer in
accordance with this Deed and the terms of the relevant MTN
Supplement and in any event with the consent of the Initial
Transferor and any Additional Transferor (such consent to be
evidenced by the execution of the relevant MTN Supplement by the
Transferor and such Additional Transferor as set out in this
Clause 5.5); and
5.5.2 On any Closing Date, the Issuer shall authenticate and
deliver the appropriate Notes to the Common Depository. The
Issuer shall not so authenticate and deliver and the Common
Depository shall not accept the Notes unless the following
documents have been received by the Trustee:
(i) a MTN Supplement in respect of the Series of
Notes to be issued satisfying the criteria set out in
Clause 5.6 executed by each of the parties thereto
(including the Transferor, any Additional Transferor and
the Issuer) and specifying the Principal Terms of such
Series and the supplements, amendments and variations to
this Deed as a consequence thereof;
(ii) any applicable Enhancement, as specified in such
Note Supplement;
(iii) the agreement, if any, pursuant to which the
Enhancement Provider agrees to provide its Enhancement,
if any;
(iv) a Solvency Certificate, signed by a duly an
authorised signatory and dated the Closing Date, from
each of the Initial Transferor and any Additional
Transferor and the Issuer;
(v) each other document set out in the relevant MTN
Signing and Closing Agenda.
5.6 MTN SUPPLEMENTS
5.6.1 An MTN Supplement shall be executed in order to effect each
issuance of a Series of Notes and to secure the relevant Secured
Property relating to such Notes, which shall:
(a) be executed by the Transferor, the Receivables
Trustee, the Trustee and the Issuer;
(b) set out the consent of the Transferor to such issue of
Notes which shall be deemed to be given by its execution
of the Note Supplement;
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(c) constitute, after the issuance of the relevant Series of
Notes, a supplement by the Issuer and the Trustee to
this Deed which shall thereafter be read and construed
as supplemented, amended and varied by such Note
Supplement;
(d) specify the name and category of each Noteholder of the
relevant Series (and Class of the relevant Notes, if
applicable) and, if there is more than one Class in a
Series, the rights and priorities of each Class
vis-a-vis the other Classes constituting the new Series;
(e) set out the principal terms of such Series (all such
terms the "PRINCIPAL TERMS") which shall include,
without limitation, the following:
(i) the Principal Amount Outstanding of the Notes
upon issue for such Series;
(ii) the Secured Property for such Series;
(iii) the Closing Date;
(iv) the names of any accounts to be used by such
Series and the terms governing the operation of
any such accounts and use of moneys therein;
(v) any additional Secured Creditors;
(vi) the terms of any Enhancement with respect to
such Series, and the Enhancement Provider, if
applicable;
(vii) the terms governing any deposit into any account
provided for such Series; and
(viii) any other relevant terms of such Series.
5.6.2 The Issuer shall, without any requirement to obtain the consent
of the Secured Creditors of any other Series, arrange for a MTN
Supplement to be executed in accordance with Clause 5.5.1
Provided, however, that such MTN Supplement shall not be
executed unless each of the Issuer and the Trustee are of the
opinion that the execution of such MTN Supplement and the issue
of the Notes of the related Series will not be materially
prejudicial to the rights, benefits and interests of the Secured
Creditors of any other Series.
5.6.3 The Issuer shall be entitled to assume that the execution of the
Note Supplement and the issue of the Notes of the related Series
will not be materially prejudicial to the rights, benefits and
interests of the Secured Creditors of any other Series and in
particular will not be materially prejudicial to the timing and
distribution of payments to such other Secured Creditors of such
Series if it receives written confirmation from:
11
(a) each relevant Rating Agency that the issue of Notes of
the relevant Series will not result in such Rating
Agency reducing or withdrawing its then current rating
on any outstanding Associated Debt for any other Series;
(b) an investment banking firm or commercial bank recognised
in the United Kingdom in the form of a Director's
Certificate to that effect PROVIDED, HOWEVER, that such
confirmation shall be required only if on the relevant
Closing Date there is one or more Series and any of the
outstanding Associated Debt of the Noteholders within
such Series is not currently rated by a Rating Agency.
Such written confirmation shall be conclusive evidence for the
purposes of Clause 5.5.2 that the rights, benefits and
interests of the Secured Creditors of any other Series have
not been materially prejudiced.
5.6.4 By its execution of a MTN Supplement, each Secured Creditor
consents and confirms that the security trust for the benefit of
the relevant Secured Creditor under this Deed, any MTN
Supplement and any Supplemental Security Document may be
supplemented, amended and varied from time to time in accordance
with the terms of this Deed and any such additional MTN
Supplement and any such Supplemental Security Document.
6. ESTABLISHMENT OF ISSUER BANK ACCOUNTS IN RESPECT OF EACH SERIES
6.1 SERIES DISTRIBUTION ACCOUNT
6.1.1 The Issuer will, in respect of each Series, with the consent (as
evidenced by the execution of this Deed and each relevant MTN
Supplement) of the Trustee, open a Series Distribution Account,
such account to be operated and maintained by the Issuer in
accordance with the provisions of this Deed and the relevant MTN
Supplement.
6.1.2 The Issuer at all times shall maintain accurate records
reflecting each transaction in each Series Distribution Account
and in any ledger relating thereto.
6.2 ADDITIONAL ISSUER ACCOUNTS
6.2.1 The Issuer may, with the consent of the Trustee, from time to
time open Additional Issuer Accounts (in its name or to be
designated as opened on trust for the Issuer if opened for the
benefit of the Issuer by the Trustee) at the Operating Bank or
at any other Qualified Institution as specified in any Note
Supplement, PROVIDED, THAT, such Additional Issuer Accounts
shall be charged to the Trustee on trust for itself and the
other Secured Creditors of the Series to which such Additional
Issuer Account relates.
6.2.2 The Issuer at all times shall maintain accurate records
reflecting each transaction in any Additional Issuer Account and
in any ledger relating thereto.
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6.3 REPLACEMENT OF OPERATING BANK
If at any time the existing Operating Bank ceases to be a Qualified
Institution, the Operating Bank shall under the terms of the MTN Bank
Agreement notify the Issuer and the Trustee and the Issuer or, after the
security has become enforceable, the Trustee, as the case may be, shall
within 10 Business Days of being notified establish a new Issuer Account
in respect of each Issuer Account then established at the existing
Operating Bank meeting the conditions specified with respect to each
such Issuer Account with a Qualified Institution which shall become the
new Operating Bank, and shall transfer any cash or any investments
standing to the credit of each existing Issuer Account to the relevant
new Issuer Accounts. If the Issuer shall fail to establish the new
Issuer Accounts as required by this Clause 6.3, the Trustee shall be
entitled to establish the Issuer Accounts itself and to make such
transfers on behalf of the Issuer and the Trustee is hereby authorised
and empowered (upon such failure by the Issuer) for such purpose to
execute and deliver on behalf of the Issuer, as its attorney, all
documents, records and other instruments upon the failure of the Issuer
to execute or deliver such documents, records or instruments, and to do
and to accomplish all other acts or things necessary or appropriate to
effect such establishment and transfers.
6.4 POWERS OF INVESTMENT
6.4.1 Subject to the terms of the relevant MTN Supplement, the Issuer
shall have no power of investment.
6.4.2 The Issuer and the Trustee acknowledge that subject to the
obligations of the Issuer to allocate or distribute funds in
accordance with this Deed and any MTN Supplement, the Security
Trustee may give (and the Security Trustee agrees to give) the
Issuer instructions consistent with the terms of this Deed and
any MTN Supplement with regard to undertaking investments in
accordance with the provisions of this Deed.
6.5 APPLICATION OF MONIES IN ADDITIONAL ISSUER ACCOUNTS
Amounts deposited in Additional Issuer Accounts shall be applied in
accordance with the provisions of any related MTN Supplement and Clause
6.4.
6.6 PAYMENTS - CURRENCY OF ACCOUNT AND PAYMENT METHOD
6.6.1 Sterling is the currency of account and payment for each and
every sum at any time due from any Person hereunder, PROVIDED,
HOWEVER, that:
(a) each payment in respect of costs shall be made in the
currency in which the same were incurred; and
(b) each payment which is expressed herein to be payable in
another currency shall be made in that other currency.
6.6.2 On each date upon which this Deed or any MTN Supplement hereto
requires an amount to be paid by or on behalf of the Receivables
Trustee to the Issuer, the Receivables Trustee shall, save as
expressly provided otherwise herein, make the same available to
the Issuer by payment in Sterling and in same day funds to such
account and bank in London as the Issuer shall have specified in
writing
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for this purpose no later than midday on the day that such
amount becomes payable.
7. ENFORCEMENT OF SECURITY
7.1 EFFECT OF AN ENFORCEMENT NOTICE
7.1.1 If, at any time while any of the Secured Obligations in respect
of a Series remain outstanding, an Insolvency Event occurs then
the Trustee shall, by written notice to the Issuer (an
"ENFORCEMENT NOTICE") declare all of the Notes in respect of all
Series to be immediately repayable and the security created
pursuant to Clause 4 and each MTN Supplement and Supplementary
Security Document to become enforceable, the floating charge
created pursuant to Clause 4 will crystallise as of the date of
such notice and the Trustee shall appoint an administrative
receiver.
7.1.2 Unless directed by a court of competent jurisdiction to do so or
unless each of the Rating Agencies confirms that to do so would
result in a downgrade or withdrawal of its then current rating
of any outstanding Associated Debt in respect of the relevant
Series in respect of which the Secured Property has become
enforceable, the Trustee shall after the Security over the
relevant Secured Property has become enforceable if directed by
written resolution signed by Noteholders holding Notes of more
than 662/3 per cent. of the Principal Amount Outstanding in
respect of such Series as of the preceding Determination Date
or, where applicable, the Priority Secured Creditor of such
Series, appoint a Receiver of the Secured Property Provided that
the Trustee shall not appoint more than one Receiver of the
Secured Property in relation to those Series the Security in
respect of which has, at any time, become enforceable.
7.1.3 The exclusion of any part of the Secured Property of any Series
from the appointment of the Receiver shall not preclude the
Trustee from subsequently extending his appointment (or that of
the Receiver replacing him) to that part.
7.1.4 Upon receipt of notice of a petition to a court of competent
jurisdiction for an administration order to be made on
application by a creditor or creditors of the Issuer, the
Trustee shall forthwith appoint a Receiver or Receivers (being,
for the avoidance of doubt, an administrative receiver or
similar officer falling within the definition of "administrative
receiver" under Section 29(2) of the Insolvency Act 1986) of the
whole of the Secured Property in relation to all Series
outstanding and the floating charge created pursuant to Clause
4.
7.1.5 The appointment of any Receiver shall include a direction in
relation to those Series in respect of which the Security has
not become enforceable to continue all the existing contracts in
relation to such Series and carry on the existing business of
the Issuer in relation to such Series.
7.2 ENFORCEMENT INSTRUCTIONS TO TRUSTEE AND DISCRETION OF TRUSTEE
7.2.1 The Trustee and any Receiver shall only be required to take any
action to enforce or protect the Security in relation to a
Series and act pursuant thereto if
14
instructed to do so by a written resolution signed by
Noteholders holding Notes of more than 662/3 per cent. of the
Principal Amount Outstanding of such Series as of the preceding
Determination Date or, where applicable, the Priority Secured
Creditor of such Series and may refrain from exercising any
right, power or discretion vested in it by these presents unless
and until instructed by a written resolution signed by
Noteholders holding Notes of more than two-thirds of the
Principal Amount Outstanding of such Series as of the preceding
Determination Date as to whether or not any such right, power or
discretion is to be exercised and as to the manner in which it
should be exercised.
7.2.2 Notwithstanding the foregoing, at any time after the Notes, or
any of them, shall have become due and repayable in accordance
with the Conditions and shall not have been repaid (including,
without limitation, following a default in payment of principal
or interest thereunder), but subject to the provisions of Note
Condition 10, the Trustee may at its discretion and without
further notice, recover judgment in its own name and as trustee
of an express trust against the Issuer for the whole amount of
principal and interest remaining unpaid and take such other
steps and/or institute such proceedings as it may think fit
against, or in relation to, the Issuer and/or such steps as it
may think fit to enforce the security created in favour of the
Trustee by, and contained in this Deed and MTN Supplement and to
enforce its obligations under this Deed and such MTN Supplement
including, without limitation, to enforce repayment of the Notes
together with accrued interest and any other moneys payable
pursuant to this Deed and such MTN Supplement, provided that the
Note Trustee shall be bound by the terms of this Deed and the
relevant MTN Supplement in determining the priority in which any
moneys received by it shall be applied.
7.3 POWERS OF A RECEIVER
If the Trustee appoints a Receiver or administrative receiver pursuant
to Clause 7.1, the following provisions shall have effect in relation
thereto:
7.3.1 such appointment may be made either before or after the Trustee
has taken possession of any Secured Property relating to any
Series;
7.3.2 such Receiver may be vested by the Trustee with such powers and
discretions as the Trustee has and may think expedient and may,
subject as provided in Clause 7.1, (i) sell or concur in the
sale all or any of the Secured Property, or assign or release
all or any of the Secured Property, or (ii) continue the
business of the Issuer as a going concern with respect to the
Secured Property, in each case without restriction and on such
terms and for such consideration (if any) as he may think fit
and may carry any such transaction into effect by conveying,
transferring and delivering in the name or on behalf of the
Issuer or otherwise;
7.3.3 such Receiver shall in the exercise of his powers, authorities
and discretions conform to regulations from time to time made by
the Trustee;
7.3.4 the Trustee may from time to time fix the remuneration of such
Receiver and direct payment thereof out of moneys accruing to
him in the exercise of his powers as such; provided, however,
that such remuneration shall only be
15
payable from such sums as are realised in respect of those
Series the Secured Property in respect of which are the subject
of the appointment of such Receiver;
7.3.5 the Trustee may from time to time and at any time require any
such Receiver to give security for the due performance of his
duties as Receiver and may fix the nature and amount of the
security to be so given but the Trustee shall not be bound in
any case to require any such security;
7.3.6 save insofar as otherwise directed by the Trustee, all moneys in
respect of any Series from time to time received by such
Receiver shall be paid over forthwith to the Trustee to be held
by it in accordance with the provisions of Clauses 6.1 to 6.3 as
amended by the relevant Note Supplement;
7.3.7 every such Receiver shall be the agent of the Issuer for all
purposes and the Issuer alone shall be responsible for his acts,
defaults and misconduct, and the Trustee and the Secured
Creditors of any Series shall not incur any liability therefor
or by reason of its or their making or consenting to the
appointment of a person as a Receiver under these presents; and
7.3.8 none of the Trustee and the Secured Creditors of any Series
shall be in any way responsible for any misconduct or negligence
on the part of any such Receiver.
7.4 POWER OF SALE
Notwithstanding any other provision of this Deed, the Notes of any
Series shall be deemed for the purposes of Section 101 of the Law of
Property Act 1925 to have become due within the meaning of that Section
and the power of sale and other powers conferred on mortgagees by the
Law of Property Act 1925 as varied or extended by these presents
including the power to appoint a Receiver shall arise immediately on
execution of the relevant MTN Supplement.
7.5 PROCEEDS OF ENFORCEMENT HELD ON TRUST
For each Series, all moneys received by the Trustee in respect of the
Security or the Secured Property relating to such Series shall be held
by the Trustee upon trust to apply the same as provided in the relevant
MTN Supplement.
7.6 FURTHER ASSURANCE
For each Series, the Issuer shall execute and do all such assurances,
acts and things as the Trustee may reasonably require (including,
without limitation, the giving of notices of assignment and the
effecting of filings or registrations in any jurisdiction) for
perfecting or protecting the Security and from time to time and at any
time after the Security or any part thereof has become enforceable shall
execute and do all such assurances, acts and things as the Trustee may
reasonably require for facilitating the realisation of, or enforcement
of rights in respect of, all or any of the Secured Property relating to
such Series and the exercise of all powers, authorities and discretions
vested in the Trustee or in any Receiver of all or any of the Secured
Property relating to such Series. For the purposes of this Clause 7.6, a
certificate in writing signed by the Trustee to the effect that any
particular assurance act or thing required by it is reasonably required
shall be conclusive evidence of the fact.
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7.7 TRUSTEE'S POWER TO BORROW
For each Series, the Trustee may raise and borrow money on the security
of all or any of the Secured Property relating to such Series for the
purpose of defraying any Liabilities paid or incurred by it in relation
to these presents relating to such Series or in the exercise of any of
the powers contained in these presents relating to such Series. The
Trustee may raise and borrow such money at such rate of interest and
generally on such terms and conditions as it shall think fit and may
secure the repayment of the money so raised or borrowed with interest on
the same by mortgaging or otherwise charging all or any of the Secured
Property relating to such Series in such manner and form as the Trustee
may think fit (which mortgage or other charge may rank in priority to,
pari passu with or after the Security) and for such purposes may execute
and do all such assurances and things as it may think fit and no person
lending any such money shall be concerned to enquire as to the propriety
or purpose of the exercise of any power of the Trustee or to see to the
application of any money so raised or borrowed.
7.8 EXTENT OF TRUSTEE'S LIABILITY
For each Series, the Trustee shall not, nor shall any Receiver appointed
as aforesaid nor any attorney, agent or delegate of the Trustee by
reason of taking possession of all or any of the Secured Property
relating to such Series or any other reason whatsoever and whether as
mortgagee in possession or on any other basis whatsoever be liable to
account for anything except actual receipts or be liable for any loss or
damage arising from realisation of, or enforcement of rights in respect
of, all or any of the Secured Property relating to such Series or any
other property, assets, rights or undertakings of whatsoever nature
(including but not limited to any other Secured Property) whether or not
owned by the Issuer or any other person or in which the Issuer or such
other person has an interest, from any act, default or omission in
relation to all or any of the Secured Property relating to such Series
or any other property, assets, rights or undertakings of whatsoever
nature (including but not limited to any other Secured Property) whether
or not owned by the Issuer or any other person or in which the Issuer or
such other person has an interest, or from any exercise or non-exercise
by it of any power, authority or discretion conferred upon it in
relation to all or any of the Secured Property relating to such Series
or any other property, assets, rights or undertakings of whatsoever
nature (including but not limited to any other Secured Property) whether
or not owned by the Issuer or any other person or in which the Issuer or
such other person has an interest, by or pursuant to these presents
relating to such Series or otherwise.
7.9 POWERS IN ADDITION TO STATUTE
For each Series, the powers conferred by this Deed in relation to all or
any of the Secured Property in respect of such Series on the Trustee or
on any Receiver of all or any of the Secured Property shall be in
addition to and not in substitution for the powers conferred on
mortgagees or receivers under the Law of Property Act 1925 and the
Insolvency Act 1986 and where there is any ambiguity or conflict between
the powers contained in such Act and those conferred by these presents
the terms of these presents shall prevail.
7.10 DUTY OF ENQUIRY
For each Series, no person dealing with the Trustee or with any Receiver
of all or any of the Secured Property in respect of such Series
appointed by the Trustee shall be
17
concerned to enquire whether any event has happened upon which any of
the powers, authorities and discretions conferred by or pursuant to
these presents in relation to such Secured Property in respect of such
Series or any other Secured Property or any other property, assets or
undertaking are or may be exercisable by the Trustee or by any such
Receiver or otherwise as to the propriety or regularity of acts
purporting or intended to be in exercise of any such powers, authorities
or discretions and all the protections to purchasers contained in
Sections 104 and 107 of the Law of Property Act 1925 shall apply to any
person purchasing from or dealing with the Trustee or any such Receiver
in like manner as if the statutory powers of sale and of appointing a
Receiver in relation to such Secured Property in respect of such Series
or any other Secured Property or any other property, assets or
undertaking had not been varied or extended by these presents.
7.11 RELEASE OF SECURITY
Upon proof being given to the satisfaction of the Trustee that the
Issuer is under no further actual or contingent liability, present or
future, under these presents in respect of any Series, the Trustee shall
at the written request and cost of the Issuer execute and do all such
deeds, acts and things as may be necessary to reassign and release the
Secured Property in respect of such Series from the Security and the
trust contained in these presents.
7.12 CONTINUING SECURITY
The Security constituted by these presents is continuing security for
the performance of the Secured Obligations notwithstanding any
intermediate payment in respect of the Secured Obligations and shall be
in addition to any other security, rights or remedies which the Trustee
may have.
7.13 POWER OF ATTORNEY AND FURTHER ASSURANCE
7.13.1 The Issuer hereby further covenants with and undertakes to the
Trustee that it will from time to time upon demand pursuant to
an Enforcement Notice execute, at its own cost, any document or
do any act or thing which the Trustee or the Receiver may
specify with a view to after service of an Enforcement Notice,
facilitating the exercise, or the proposed exercise, of any of
their powers.
7.13.2 Subject to the provisions of Clause 6.5 for the purpose of
securing the interest of the Trustee and the Secured Creditors
in and to the Secured Property and the performance of its
obligations to the Trustee and the Secured Creditors, whether
under or pursuant to this Deed or in relation to the Secured
Property, the Issuer irrevocably for value and by way of
security appoints the Trustee and every Receiver to be its
attorney (with full power to appoint substitutes or to
sub-delegate, including power to authorise the person so
appointed to make further appointments) on behalf of the Issuer
and in its name or otherwise, to execute any document or do any
act or thing which the Trustee or such Receiver (or such
substitute or delegate) may, in its or his absolute discretion,
properly consider appropriate in connection with the exercise of
any of the rights or powers of the Trustee or the Receiver under
or pursuant to this Deed or any Related Document PROVIDED,
HOWEVER, that the appointment comprised in this
18
Clause 7.13.2 shall not entitle any person to act as attorney of
the Issuer until such time as Insolvency Event has occurred.
7.13.3 The Issuer hereby ratifies and confirms and agrees to ratify and
confirm whatever any such attorney shall lawfully do or purport
to do in the exercise or purported exercise of all or any of the
powers, authorities and discretions referred to in this Clause
7.13 investment by the Trustee
8. THE TRUSTEE
8.1 DUTIES OF THE TRUSTEE
8.1.1 The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Deed to the extent
required or permitted under and in compliance with applicable
law and regulations.
8.1.2 The Trustee shall consent to the operation of the Issuer
Accounts for each Series by the Issuer and the MTN Cash Manager
in accordance with the provisions of this Deed and any MTN
Supplement.
8.1.3 After any Security has become enforceable, the Trustee shall, if
it has actual knowledge of the same, act promptly to exercise
its rights under any bank mandate relating to a Issuer Account
in respect of which it is a beneficiary of a trust declared over
such account to prevent monies representing Secured Property
being paid from such Issuer Account to a bank account which is
not a Issuer Account and which was overdrawn at the close of
business on the preceding Business Day (unless the Trustee shall
have received evidence satisfactory to it that such overdraft
has been satisfied). The Trustee shall cease to exercise such
rights at such time as the relevant bank account ceases to be
overdrawn.
8.1.4 The Trustee shall maintain proper books of account in respect of
its duties as trustee of the Secured Property in respect of each
Series and shall maintain records of all assets held by it and
all payments made by it in such capacity.
8.1.5 The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of any Secured Creditor in respect
of a Series relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust, discretion or power conferred upon the
Trustee in relation to such Secured Creditor, under this Deed or
any Series Document.
8.1.6 The Trustee shall not be charged with knowledge of any failure
by the MTN Cash Manager referred to in Clause 12.1 unless the
Trustee receives written notice of such failure from the MTN
Cash Manager or any Secured Creditor adversely affected thereby.
8.1.7 The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it believes that the repayment of such
funds or adequate indemnity against such risk or liability is
not assured to
19
it to its reasonable satisfaction, and none of the provisions
contained in this Deed or any Series Document shall in any event
require the Trustee to perform, or be responsible for the manner
of the performance of, any of the obligations of the MTN Cash
Manager under this Deed or the Servicer under the Beneficiaries
Servicing Agreement.
8.1.8 Except for actions expressly authorised herein or in any MTN
Supplement, the Trustee shall take no action to impair the
interests of the Secured Creditors in relation to their
beneficial interest in a security interest in the relevant
Secured Property relating to such Series, now existing or
hereafter created or to impair the value of their beneficial
interest in a security interest in the relevant Secured Property
in respect of such Series now existing or hereafter created.
8.1.9 Other than as expressly contemplated in this Deed or any Series
Document, the Trustee shall have no power to deal with Secured
Property in relation to any Series.
8.1.10 In relation to its obligations set forth in Clause 7.1, the
Trustee shall not be obliged to act accordingly unless:
(i) it has actual knowledge of an Event of Default; or
(ii) it satisfies itself that an Event of Default has
occurred,
provided that the Trustee shall not act in accordance with such
obligations if to do so is in breach of any of its obligations
in law or under the Series Documents.
8.2 CERTAIN MATTERS AFFECTING THE TRUSTEE
8.2.1 Except as otherwise provided in this Deed (and, except as
expressly provided in this Clause 8.2, in lieu of the provisions
contained in section 315(a) of the TIA):
(a) the Trustee may call for, and shall not be bound to
make, any investigation into the fact of matters stated
in, and shall be protected in acting, or in refraining
from acting in accordance with any resolution,
Director's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion,
report, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and
to have been signed or presented to it pursuant to this
Deed or any Series Document by the proper party or
parties whether or not the same shall subsequently be
found not to have been duly authorised or not to be
authentic;
(b) the Trustee may rely on any Opinion of Counsel addressed
to it, and any such Opinion of Counsel shall be full and
complete authorisation and protection in respect of any
action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of
Counsel;
(c) the Trustee shall be entitled to assume, for the
purposes of exercising any power, trust, authority, duty
or discretion under or in relation to any Series
20
Document that such exercise will not adversely affect
the beneficial interest of the Secured Creditors in a
security interest in respect of the Secured Property of
the relevant Series 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;
(d) the Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith
and believed by it to be authorised or within the
discretion or rights or powers conferred upon it by this
Deed or any Series Document;
(e) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either
directly or by or through agents or attorneys or a
custodian;
(f) the Trustee shall not be required to make any initial or
periodic examination of any documents or records related
to the Designated Accounts in respect of the Securitised
Portfolio or the Receivables in respect of such
Designated Accounts for the purpose of establishing the
presence or absence of defects, the compliance by
Initial Transferor or any Additional Transferor with its
representations and warranties or for any other purpose;
(g) the Trustee shall not be responsible for obtaining or
maintaining any rating awarded by any Rating Agency or
any other person in respect of any Associated Debt;
(h) the Trustee shall not be responsible for failing to
request, require or receive any legal opinion relating
to any MTN Supplement or for checking or commenting upon
the content of any legal opinion;
(i) the Trustee, is entitled to assume no Event of Default
has occurred unless it has actual knowledge to the
contrary;
(j) if the Trustee, in the exercise of its functions,
requires to be satisfied or to have information as to
any fact or the expediency of any act, it may call for a
Director's Certificate of the Issuer, the Initial
Transferor, any Additional Transferor, the Servicer or
the MTN Cash Manager as to any matter reasonably
believed by the Trustee to be within their knowledge and
the Trustee need not call for further evidence and will
not be responsible for any loss occasioned by acting on
such certificate;
(k) the Trustee will not be responsible for having acted in
good faith on a written communication received by it
from a proper person and believed by it to be genuine
whether or not the same later proved not to have been
issued with due authority or to be authentic;
(l) any consent or approval given by the Trustee for the
purposes of these presents may be given on such terms
and subject to such conditions (if
21
any) as the Trustee thinks fit and notwithstanding
anything to the contrary contained in these presents may
be given retrospectively;
(m) the Trustee shall not (unless and to the extent ordered
so to do by a court of competent jurisdiction) be
required to disclose to a Secured Creditor or any other
beneficiary of the trusts created by this Deed any
information (including, without limitation, information
of a confidential financial or price-sensitive nature)
made available to the Trustee by the Issuer, Receivables
Trustee, the Initial Transferor, any Additional
Transferor, the Servicer, the Trust Cash Manager or the
MTN Cash Manager or any other person in connection with
the trusts created by this Deed and no Secured Creditor
or any other beneficiary of such trusts shall be
entitled to take any action to obtain from the Trustee
any such information;
(n) if the Trustee performs the functions of MTN Cash
Manager it shall be entitled to retain for its own
benefit of all fees and remuneration (calculated and
allocated in accordance with the provisions of the
relevant MTN Supplement) which it is paid for performing
such functions;
(o) the Trustee shall not be liable to account for any fees,
commissions, profits or remuneration of any kind it may
receive if it assumes any role in relation to the
Initial Transferor, any Additional Transferor, the MTN
Cash Manager, the Issuer or any securities or debts
issued by or outstanding of them and the Trustee may
acquire and dispose of securities issued by any of them
without being liable to account as aforesaid other than
for the wilful misconduct or gross negligence of the
Trustee, its employees or agents in connection with such
acquisition or disposal.
(p) unless specified otherwise in a MTN Supplement, the
Trustee shall have regard only to the interests of the
Noteholders in respect of any Series and not to the
interests of any other Secured Creditor in respect of
any Series and shall have no duties to any Secured
Creditor other than the Noteholders other than to pay to
them any monies it holds on trust for them in respect of
any Series;
(q) the Trustee shall have regard to the interest of the
Noteholders in respect of any Series as a Class and not
to their individual interests and save that if there is
in the opinion of the Trustee a conflict between the
interests of Noteholders in respect of any Series it
shall have regard only to the interests of the Class
ranking most senior in such Series and shall not be
liable to other Noteholders in such Series for doing so;
(r) whenever it considers it expedient in the interests of
the Noteholders in respect of any Series, the Trustee
may, in the conduct of its trust business, instead of
acting personally, employ and pay an agent selected by
it, whether or not a lawyer or other professional
person, to transact or conduct, or concur in transacting
or conducting, any business and to do or concur in doing
all acts required to be done by the Trustee (including
the receipt and payment of money). If the Trustee
exercises reasonable care
22
in selecting such agent, it shall not be responsible to
anyone for any wilful misconduct or omission by any such
agent so employed by it or be bound to supervise the
proceedings or acts of any such agent;
(s) whenever it considers it expedient in the interests of
the Noteholders in respect of any Series, the Trustee
may delegate to any person on any terms (including power
to sub-delegate) all or any of its functions. If the
Trustee exercises reasonable care in selecting such
delegate, it shall not have any obligation to supervise
such delegate or be responsible for any loss, liability,
costs, claim, action, demand or expense incurred by
reason of any wilful misconduct or gross negligence of
any such delegate or sub-delegate;
(t) the Trustee shall be entitled to call for, and rely on,
a Director's Certificate from the Initial Transferor,
any Additional Transferor or any Noteholder in respect
of any Series as to whether such Noteholder has
Associated Debt outstanding;
(u) if required by TIA Section 313(a), within 60 days after
November 15 of any year, commencing the November 15
following the date of this Deed, the Trustee shall
deliver to each Noteholder a brief report dated as of
such November 15 that complies with TIA Section 313(a).
The Trustee also shall comply with TIA Section 313(b),
(c) and (d).
Reports delivered pursuant to this Clause 8.2(u) shall
be sent as provided in Clause 23.
(v) the Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA
Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the
extent indicated therein. The provisions of TIA Section
311 shall apply to the Issuer as the obligor of the
Notes; and
(w) notwithstanding any additional duties imposed on the
Trustee under the Trustees Act 1925 or otherwise, if an
Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers and use the
same degree of care and skill in their exercise as a
prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
8.3 TRUSTEE NOT LIABLE FOR VALIDITY OR SUFFICIENCY
The Trustee makes no representations as to the validity or sufficiency
of this Deed or any Series Document or of the beneficial entitlement of
the Secured Creditors of any Series to a security interest in the
Secured Property in respect of such Series (other than the
authentication of the relevant Notes) or of any Receivable in respect of
Designated Accounts in the Securitised Portfolio or Related Document.
The Trustee has no responsibility for the validity, value, sufficiency
or enforceability of the security over the Secured Property.
23
8.4 RESIGNATION OR REMOVAL OF THE TRUSTEE
8.4.1 This Deed shall always have a Trustee which shall be eligible to
act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The
Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual
report of condition. If the Trustee has or shall acquire any
"conflicting interest" within the meaning of TIA Section 310(b),
the Trustee and the Issuer shall comply with the provisions of
TIA Section 310(b); Provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any Deed or
Deeds under which other securities or certificates of interest
or participation in other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Clause 8.4.1, the Trustee shall resign promptly in the manner
and with the effect specified in Clauses 8.4.2 to 8.4.5.
8.4.2 The Trustee, subject to clause 8.4.5 below, may at any time
resign and be discharged from its obligations and duties hereby
created by giving written notice thereof to the Issuer. Upon
receiving such notice of resignation, the Issuer shall be vested
with the power to appoint a successor Trustee and shall promptly
appoint such successor Trustee as detailed in Clause 8.5 by
written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so
appointed and have accepted within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor Trustee.
8.4.3 If at any time the Trustee shall be legally unable to act, or
shall be adjudged insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then the Issuer may, but shall not be required to,
remove the Trustee and promptly appoint a successor Trustee as
detailed in Clause 8.5 by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
8.4.4 The Secured Creditors of all Series may at any time by direction
signed by all the Secured Creditors in writing addressed to the
Trustee remove the Trustee and shall do so by giving written
notice thereof to the Trustee. Upon such notice of removal being
given; the Issuer shall be vested with the power to appoint a
successor Trustee and shall promptly appoint such successor
Trustee as detailed in Clause 8.5 by written instrument, in
duplicate, one copy of which instrument shall be delivered to
the Trustee being removed and one copy to the successor Trustee.
8.4.5 Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this
Clause 8.4 shall not become effective until:
24
(a) acceptance of appointment by the successor Trustee as
provided in Clause 8.5 hereof (and any liability of the
Trustee arising hereunder shall survive such appointment
of a successor Trustee); and
(b) confirmation has been received from each Rating Agency
that the appointment of the successor Trustee will not
result in such Rating Agency reducing or withdrawing its
then current rating on any outstanding Associated Debt.
8.5 SUCCESSOR TRUSTEE
8.5.1 Any successor Trustee appointed as provided in Clause 8.4 hereof
shall execute, acknowledge and deliver to the Issuer and to its
predecessor Trustee an instrument accepting such appointment
hereunder and the transfer of the interests of the predecessor
Trustee in the Secured Property in respect of each Series to
such successor Trustee, and thereupon the resignation or removal
of the predecessor Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance,
shall become fully vested with such interests in the Secured
Property in respect of each Series and all the rights, powers,
duties and obligations of its predecessor hereunder, with the
like effect as if originally named as Trustee herein. The
predecessor Trustee shall deliver to the successor Trustee all
documents and statements held by it hereunder, and the parties
to this Deed and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may
reasonably be required by the successor Trustee for fully and
certainly vesting and confirming in the successor Trustee all
such interests in Secured Property in respect of all Series and
such rights, powers, duties and obligations.
8.5.2 Upon acceptance of appointment by a successor Trustee as
provided in this Clause 8.5, such successor Trustee shall give
notice of such succession hereunder to all Secured Creditors of
each Series.
8.6 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE
8.6.1 Notwithstanding any other provisions of this Deed, at any time,
for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Secured Property in
respect of any Series may at the time be located, the Trustee
shall have the power and may execute and deliver all instruments
to appoint one or more Persons to act as a co-Trustee or
co-Trustees, or separate Trustee or separate Trustees, with
respect to all or any part of the Secured Property in respect of
any Series, and to vest in such Person or Persons, in such
capacity and for the benefit of the Secured Creditors of the
relevant Series, such title to the Secured Property in respect
of any Series or any part thereof, and, subject to the other
provisions of this Clause 8.6, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or
desirable. No notice to Secured Creditors of the relevant Series
of the appointment of any co-Trustee or separate Trustee shall
be required under Clause 8.5 hereof.
8.6.2 Every separate Trustee and co-Trustee shall, to the extent
permitted by law, be appointed and act subject to the following
provisions and conditions:
25
(a) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such
separate Trustee or co-Trustee jointly (it being
understood that such separate Trustee or co-Trustee is
not authorised to act separately without the Trustee
joining in such act), except to the extent that under
any laws of any jurisdiction in which any particular act
or acts are to be performed (whether as Trustee
hereunder or as successor to the Trustee hereunder), the
Trustee shall be incompetent or unqualified to perform
such act or acts, in which circumstances such rights,
powers, duties and obligations (including the holding of
title to the Secured Property in respect of any Series
or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate
Trustee or co-Trustee, but solely at the direction of
the Trustee;
(b) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee
hereunder; and
(c) the Trustee may at any time accept the resignation of or
remove any separate Trustee or co-Trustee Provided that
upon such resignation or removal, all title to any
Secured Property, powers, duties, obligations, rights
and trusts previously vested in such separate Trustee or
co-securitising trustee shall immediately revert to the
Trustee.
8.6.3 Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate
Trustees and co-Trustees, as effectively as if given to each of
them. Every instrument appointing any separate Trustee or
co-Trustee shall refer to this Deed and the conditions of
Clauses 8.1 to 8.15. Each separate Trustee and co-Trustee, upon
its acceptance of the trusts conferred, shall be vested with the
rights, trusts, powers, duties and obligations specified in its
instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the
provisions of this Deed, specifically including every provision
of this Deed relating to the conduct of, affecting the liability
of, or affording protection to, the Trustee. Every such
instrument shall be filed with the Trustee and a copy thereof
given to the MTN Cash Manager.
8.6.4 Any separate Trustee or co-Trustee may at any time constitute
the Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful
act under or in respect to this Deed or any Series Document on
its behalf and in its name. If any separate Trustee or
co-Trustee shall die, become incapable of acting, resign or be
removed, all of its rights, trusts, powers, duties and
obligations shall vest in and be exercised by the Trustee, to
the extent permitted by law, without the appointment of a new or
successor trustee.
8.7 SUPPLEMENT TO TRUSTEE ACT 1925
The rights, powers, duties and obligations conferred or imposed upon the
Trustee by this Deed shall, unless otherwise specified herein or in any
MTN Supplement, be
26
supplemental to any rights, powers, duties and obligations conferred or
imposed upon the Trustee under the law generally and in particular the
Trustee Act 1925 and, except as expressly provided in this Clause 8, be
in lieu of the provisions contained in section 315(a) of the TIA.
8.8 COSTS AND EXPENSES OF THE ISSUER AND REMUNERATION, COSTS AND EXPENSES OF
THE TRUSTEE
8.8.1 As full reimbursement for any costs and expenses incurred by it
in connection with its activities in respect of (i) a particular
Series, the Issuer shall be entitled to utilise Secured Property
in respect of each Series allocated to the Secured Creditors for
the relevant Series to meet such costs and expenses attributable
solely to a particular Series with respect to each Monthly
Period, solely to the extent of Secured Property allocable with
respect thereto as provided in this Deed and any MTN Supplement,
on the related Distribution Date for such Series (each such cost
and expense, a "SERIES ISSUER PAYMENT" (which shall include all
sums due to the Trustee under Clause 8.8.2 to 8.8.6)) and, (ii)
all Series, the Issuer shall be entitled to use Secured Property
in respect of all Series allocated to the Secured Creditors for
each Series to meet such costs and expenses attributable to all
Series with respect to each Monthly Period, solely to the extent
of Secured Property allocable with respect thereto as provided
in this Deed and any MTN Supplement, on the related Distribution
Date for each Series (the aggregate of costs and expenses
payable on a Distribution Date for all Series, the "AGGREGATE
ISSUER PAYMENT AMOUNT"). The amount of any reimbursement for its
activities as Issuer will be determined in accordance with the
relevant MTN Supplement for each Series. For the avoidance of
any doubt, the amounts due to the Trustee under Clauses 8.8.2 to
8.8.5 shall be considered expenses of the Issuer and (i) will be
allocated to a particular Series Issuer Payment with reference
to the particular Series the Trustee is owed an amount in
respect of, and (ii) will be exclusive of VAT thereon, if
applicable and any such VAT will be payable in addition thereto.
8.8.2 So long as any Secured Obligation in respect of any Series is
outstanding, the Issuer shall pay to the Trustee, on each
Distribution Date, to the extent of and from the Secured
Property in respect of the relevant Series as remuneration for
its services as Trustee such sum on such dates in each case as
they may from time to time agree. Such remuneration shall accrue
from day to day from the date of this Deed.
8.8.3 If an Event of Default, or MTN Cash Manager Default shall have
occurred or if the Trustee finds it expedient or necessary or is
requested by the Issuer to undertake duties that they both agree
to be of an exceptional nature or otherwise outside the scope of
the Trustee's normal duties under this Deed, the Issuer shall
pay to the extent of and from the Secured Property in respect of
any Series, on each Distribution Date, to the Trustee such
additional remuneration as they may agree or, failing agreement
as to any of the matters in this Clause 8.8.3 (or as to such
sums referred to in Clause 8.8.2 above), as determined by an
investment bank (acting as an expert) selected by the Trustee
and approved by the Issuer or, failing such approval, nominated
by the President for the time being of The Law Society of
England and Wales. The expenses involved in such nomination and
27
such investment bank's fee shall be borne by the Issuer. The
determination of such investment bank shall be conclusive and
binding on the Issuer, the Trustee and the Secured Creditors.
8.8.4 The Issuer shall also, on demand by the Trustee, pay or
discharge to the extent of and from the Secured Property in
respect of any Series, to the Trustee all costs, charges,
liabilities and expenses properly incurred by the Trustee in the
preparation and execution of this Deed and the performance of
its functions under this Deed including, but not limited to,
reasonable legal and travelling expenses and any stamp,
documentary or other taxes or duties paid by the Trustee in
connection with any legal proceedings properly brought or
contemplated by the Trustee against the Issuer or any other
party to enforce any provision of this Deed or other Series
Document.
8.8.5 The Issuer shall indemnify the Trustee to the extent of and from
the Secured Property in respect of any Series, in respect of all
liabilities and expenses properly incurred by it or by anyone
appointed by it or to whom any of its functions may be delegated
by it in the proper performance of its functions and against any
loss, liability, cost, claim, action, demand or expense
(including, but not limited to, all reasonable costs, charges
and expenses paid or incurred in disputing or defending any of
the foregoing) that any of them may incur or that may be made
against any of them arising out of or in relation to or in
connection with, its appointment or the proper exercise of its
functions.
8.8.6 Clauses 8.8.4 and 8.8.5 shall continue in full force and effect
as regards the Trustee even if it no longer is Trustee.
8.8.7 Without prejudice to the right of indemnity by law given to
trustees and subject to the provisions of Section 192 of the
Companies Act 1985, the Trustee as permitted and every receiver,
attorney, manager, agent, or other person appointed by the
Trustee hereunder in relation to each Series shall be entitled
to be indemnified to the extent of and from the Secured Property
(in respect of any Series) for all liabilities and expenses
properly incurred by them in the execution or purported
execution of the trusts hereof or of any powers, authorities or
discretions properly vested in them pursuant to these presents
and against all actions, proceedings, cost, claims, and demands
in respect of any matters or things done or omitted in any way
related to the Secured Property, and the Trustee may retain any
part of any moneys arising from the trusts hereof all sums
necessary to effect such indemnity and also the remuneration of
the Trustee hereinbefore provided and the Trustee shall have a
lien on such Secured Property to the extent of the sum thereof
for all moneys payable to it under this Clause or otherwise
howsoever.
8.9 GENERAL PROVISIONS IN FAVOUR OF THE TRUSTEE AS REGARDING THE SECURED
PROPERTY IN RESPECT OF EACH SERIES
The Trustee shall accept without investigation, requisition or objection
such right and title as the Issuer may have to any of the Secured
Property in respect of any Series or in respect of any assets over which
it shall have been granted a security interest in respect
28
of or in relation to these presents and shall not be bound or concerned
to examine or enquire into or be liable for any defect or failure in the
right or title of the Issuer to all or any of the Secured Property in
respect of any Series or in respect of any assets over which it shall
have been granted a security interest in respect of or in relation to
these presents, whether such defect or failure was known to the Trustee
or might have been discovered upon examination or enquiry and whether
capable of remedy or not.
8.10 INSURANCE
The Trustee shall not be under any obligation to insure nor to procure
the insurance of all or any of the Secured Property in respect of any
Series or in respect of any assets over which it shall have been granted
a security interest in respect of or in relation to these presents or to
require any other person to maintain any such insurance.
8.11 PRE-ENFORCEMENT APPLICATION OF FUNDS
Until such time as the Security in relation to any Series becomes
enforceable the moneys standing to the credit of any account comprised
in the Secured Property in respect of such Series shall be dealt with in
accordance with the provisions this Deed and the Trustee shall not be
responsible in such circumstances or at any other time for any loss
occasioned thereby by depreciation in value.
8.12 INCREASED COSTS
The Trustee shall have no responsibility whatsoever to the Issuer or any
Secured Creditor with respect to any Series as regards any deficiency
which might arise because the Trustee is subject to any tax in respect
of all or any of the Secured Property relating to such Series or in
respect of any assets over which it shall have been granted a security
interest in respect of or in relation to these presents, the income
therefrom or the proceeds thereof.
8.13 NO OBLIGATION OF ENQUIRY
The Trustee shall not be responsible for investigating, monitoring or
supervising the observance or performance by any person of their
obligations in respect of the Secured Property in respect of any Series
or otherwise.
8.14 DEFECTS IN SECURITY
The Trustee shall not be liable for any failure, omission or defect in
perfecting, protecting or further assuring the Secured Property in
respect of any Series or in respect of any assets over which it shall
have been granted a security interest in respect of or in relation to
this Deed including (without prejudice to the generality of the
foregoing) any failure, omission or defect in registering or filing or
procuring registration or filing of or otherwise protecting or
perfecting the Secured Property in respect of any Series or in respect
of any assets over which it shall have been granted a security interest
in respect of or in relation to this Deed or the priority thereof or the
right or title of any person in or to the assets comprised therein by
registering under any applicable registration laws in any territory any
notice or other entry prescribed by or pursuant to the provisions of any
such laws.
8.15 STANDARD OF CARE
If the Trustee, any agent thereof or other person to whom some of the
Trustee's functions are delegated hereunder fails to show the degree of
care and diligence required of it as a
29
trustee (due regard being given to the provisions hereof conferring on
it duties, powers and discretions), nothing in this Deed shall relieve
or indemnify it from or against any liability that would otherwise
attach to it in respect of any negligence, default, breach of duty or
breach of trust of which it may be guilty.
8.16 STANDARD OF PROOF
Should the Trustee take legal or other proceedings against the Issuer to
enforce any of the provisions of the Notes, or any of them or this Deed
proof therein that, as regards any Note, the Issuer has made default in
paying any principal or interest due in respect of such Note shall
(unless the contrary be proved) be sufficient evidence that the Issuer
has made the like default as regards all other Notes in respect of which
the relevant payment is then due and payable. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Noteholders
allowed in any judicial proceedings relating to the Issuer, its auditors
or its property.
8.17 TRUSTEE'S LIABILITY
Nothing in this Deed contained shall in any case in which the Trustee
has failed to show the degree of care and diligence required of it as
trustee having regard to the provisions of this Deed conferring on it
any powers, authorities or discretions exempt the Trustee from or
indemnify it against any liability for breach of trust or any liability
which by virtue of any rule of law would otherwise attach to it in
respect of any negligence, default, breach of duty or breach of trust of
which it may be guilty in relation to its duties under this Deed.
9. COVENANTS BY THE ISSUER AND MTN CASH MANAGER
9.1 COVENANTS
The Issuer and the MTN Cash Manager, in respect of each Series, hereby
covenant with the Trustee that, until (i) no further sums are
outstanding in respect of any Secured Obligation issued by the Issuer;
(ii) the Issuer has fulfilled and discharged all of the Secured
Obligations in respect of each Series; and (iii) this Deed is terminated
as between the Issuer and all the other parties, they shall in relation
to their respective obligations under any Series:
9.1.1 in the case of the Issuer, at all times carry on and conduct its
affairs in a proper and efficient manner;
9.1.2 in the case of the Issuer at all times keep proper books of
account and allow the Trustee and any person appointed by it, to
whom the Issuer or the Initial Transferor has no reasonable
objection, access to the books of account of the Issuer at all
reasonable times during normal business hours and to discuss the
same with a nominated officer of the Issuer and in the event
that audited financial accounts of the Issuer are produced, to
provide a copy thereof to the Trustee in relation to each
Series;
9.1.3 give notice in writing to the Trustee and the Noteholders in
respect of such Series forthwith upon becoming aware of the
occurrence of a Series Pay Out Event in relation to such Series
and without waiting for the Trustee to take any action;
30
9.1.4 in the case of the Issuer, so far as permitted by law, at all
times give to the Trustee such information and afford the
Trustee such facilities as it may require for the purpose of
discharging the duties, powers, trusts, authorities and
discretions vested in it by this Deed or by operation of law;
9.1.5 in the case of the Issuer, unless specified otherwise in the
relevant MTN Supplement, not to make or consent to any
amendment, variation or termination to any Series Document in
respect of any Series or any Secured Property in respect of such
Series without the prior written consent of the Trustee, such
consent not to be unreasonably withheld or delayed;
9.1.6 in the case of the Issuer not, without the prior written consent
of the Trustee, give any guarantee or indemnity (other than as
contemplated by the Series Documents);
9.1.7 ensure that each Series or all other transactions to be effected
hereunder shall comply with all applicable laws and regulations
of any governmental or other regulatory authority of England for
the purposes of any relevant MTN and relevant Series Documents
and that all necessary consents and approvals of, and
registrations and filings with, any such authority in connection
therewith are obtained and maintained in full force and effect
and copies thereof are supplied promptly to the Trustee;
9.1.8 the Issuer shall promptly after the date hereof give notice to
each relevant Person of the Security granted to the Trustee
hereunder and shall procure that each such Person acknowledges
the same. In addition to the foregoing, in the case of the
Issuer that the Issuer shall from time to time deliver, and
assist the Trustee in delivering, any other notices in relation
to any Security as the Trustee may reasonably request;
9.1.9 in the case of the Issuer, at all times maintain its residence
in the United Kingdom for the purposes of United Kingdom
taxation;
9.1.10 in the case of the Issuer, at all times use its best efforts to
minimise taxes and any other costs arising in connection with
its activities;
9.1.11 in the case of the Issuer, maintain a register of mortgages and
charges in accordance with English law and regulations and
forthwith upon the issue of a Series enter in such register, and
register in any other jurisdiction where such registrations may
be required, any and all mortgages or charges created by the MTN
Supplement constituting and securing the Notes of such Series
and, forthwith upon execution of any further instruments or
documents pursuant thereto creating or purporting to create or
to perfect or to protect any security interest by the Issuer,
enter in such register, and register in any other jurisdiction
where such registration may be required, details of such
instrument or document;
31
9.1.12 in the case of the Issuer not to 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 or any
sub-trust thereof.
9.1.13 in the case of the Issuer, file with the Trustee copies of the
annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) which the Issuer
is required to file with the SEC pursuant to Section 13 or 15(d)
of the United States Securities Exchange Act of 1934 within 15
days after it files them with the SEC. The Issuer also shall
comply with the other provisions of TIA ss. 314(a);
9.1.14 the Issuer shall furnish or cause to be furnished to the Trustee
on June 30 and December 31 of each year, commencing June 30,
2000, and at such other times as the Trustee may request in
writing, all information in the possession or control of the
Issuer, or of its paying agents, as to the names and addresses
of the Noteholders, and requiring the Trustee to preserve, in as
current a form as is reasonably practicable, all such
information so furnished to it or received by it in the capacity
of paying agent;
9.1.15 (a) upon any application, demand or request by the
Issuer to the Trustee to take any action under any of
the provisions of this Trust Deed (other than the
issuance of Notes) and upon request of the Trustee, the
Issuer shall furnish to the Trustee an Officers'
Certificate and Opinion of Counsel complying with the
provision of Section 314 of the Trust Indenture Act;
(b) each certificate or opinion provided for in this Trust
Deed and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in
this Trust Deed shall include (i) a statement that the
person making such certificate or opinion has read such
condition or covenant; (ii) a brief statement as to the
nature and scope of the examination or investigation
upon which the statements or opinions contained in such
certificate or opinion are based; (iii) a statement
that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not
such condition or covenant has been complied with; and
(iv) a statement as to whether or not the opinion of
such person, such condition or covenant has been
complied with; and
9.1.16 Promptly after the execution and delivery of this Trust Deed and
each supplement hereto, the Issuer will furnish to Trustee an
Opinion of Counsel stating that in the opinion of such counsel,
appropriate steps have been taken to protect the title of the
Trustee to the Secured Property and reciting the details of such
action, or stating that in the opinion of such counsel no such
action is necessary; and the Issuer shall furnish to the
Trustee, not more than three (3) months after the anniversary of
each calendar year, commencing with calendar year 2001, an
Opinion of Counsel stating either that, in the opinion of such
32
Counsel, (i) such action has been taken as is necessary for the
proper protection of the title of the Trustee to the Secured
Property and reciting the details of such action or (ii) no such
action is necessary for any of such purposes.
The Trustee shall not be responsible for ensuring that the Issuer
complies with its obligations to send the notices referred to in Clauses
9.1.3 and 9.1.5 above to each such Secured Creditor or Noteholder (as
the case may be).
9.2 STATEMENT AS TO COMPLIANCE
The Issuer will deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement signed by the principal executive
officer of the Issuer, stating that
9.2.1 a review of the activities of the Issuer during such year and of
performance under this Trust Deed has been made under his or her
supervision and
9.2.2 to the best of his or her knowledge, based on such review, the
Issuer has fulfilled all its obligations under this Trust Deed
throughout such year, or, if there has been a default in the
fulfilment of any such obligation, specifying each such default
known to him or her and the nature and status thereof.
10. APPOINTMENT OF THE MTN CASH MANAGER
10.1 The Issuer with the consent of the Trustee hereby appoints Barclays Bank
PLC (and Barclays Bank PLC agrees to act) as the MTN Cash Manager for
the Issuer under this Deed and any MTN Supplement. By its execution of
an MTN Supplement in relation to a Series each Secured Creditor in
respect thereof and the Trustee consents to Barclays acting as MTN Cash
Manager in relation to such Series.
10.2 DUTIES OF THE MTN CASH MANAGER
10.2.1 The MTN Cash Manager shall service and administer the relevant
Issuer Accounts in respect of each Series and shall make the
calculations in respect of allocations and collect payments due
in respect of the amounts due to the Noteholders in accordance
with its customary and usual procedures and shall have full
power and authority, acting alone or through any party properly
designated by it hereunder, to do any and all things in
connection with such cash management which it may deem necessary
or desirable. The MTN Cash Manager shall follow such
instructions in regard to the exercise of its power and
authority as the Issuer may from time to time direct until it
receives notice from the Trustee that the security over the
Secured Property has become enforceable and thereafter will
follow such instructions as the Trustee may give it.
10.2.2 Without limiting the generality of the foregoing, the MTN Cash
Manager is hereby obliged, authorised and empowered (unless such
power and authority is revoked by the Issuer or the Trustee on
account of the occurrence of an MTN Cash Manager Default
pursuant to Clause 11.1):
(a) to make withdrawals from any Issuer Account as set forth
in this Deed or the relevant MTN Supplement;
33
(b) to instruct the Issuer to make withdrawals and payments,
from the Issuer Accounts, in accordance with such
instructions as set forth in this Deed and any MTN
Supplement;
(c) to instruct the Issuer in writing, as set forth in this
Deed or any MTN Supplement;
(d) to execute and deliver, in the name of the Issuer, where
appropriate, any and all instruments of satisfaction or
cancellation, or of partial or full release or
discharge, and all other comparable instruments, with
respect to the cash administration services hereunder or
in respect of any Series under an MTN Supplement and to
the extent permitted under and in compliance with
applicable law and regulations, to provide reasonable
assistance to the Issuer, to allow the Issuer to
commence enforcement proceedings with respect to
delinquent payments in respect of any Series; and
(e) to make any filing, reports, notices, applications,
registrations with, and to seek any consents or
authorisations from any relevant securities or other
authority as may be necessary to comply with any
securities or reporting requirements or other
Requirement of Law (whether in relation to the
Noteholders of a particular Series or the Issuer).
10.3 ISSUER'S ACKNOWLEDGEMENT OF INSTRUCTIONS FROM THE MTN CASH MANAGER
The Issuer agrees that it shall promptly follow the instructions of the
MTN Cash Manager to withdraw funds from any Issuer Account and to take
any action required under any Enhancement in respect of a Series at such
time as required under this Deed and any MTN Supplement. The Issuer
shall execute at the MTN Cash Manager's written request such documents
acceptable to the Issuer and the Trustee as may be reasonably necessary
or appropriate to enable the MTN Cash Manager to carry out its cash
administration duties hereunder.
10.4 MTN CASH MANAGER'S ADMINISTRATION
The MTN Cash Manager shall not be obliged to use separate cash
administration procedures, offices, employees or accounts in respect of
any Series from the procedures, offices, employees and accounts used by
the MTN Cash Manager in connection with other cash administration;
10.5 PROFESSIONAL INDEMNITY INSURANCE
The MTN Cash Manager shall maintain insurance coverage against losses
through wrongdoing of its officers and employees who are involved in the
cash administration of the Issuer covering such actions and in such
amounts as the MTN Cash Manager believes to be reasonable from time to
time.
10.6 MTN CASH MANAGER COMPENSATION
As full compensation for its cash administration activities hereunder
and as reimbursement for any expense incurred by it in connection
therewith, the MTN Cash Manager shall be entitled to receive the amount
as specified in the relevant MTN Supplement (solely to the extent of
payments received and allocated with respect thereto
34
as provided in this Deed and in any MTN Supplement) an MTN Cash Manager
fee (the "MTN CASH MANAGER FEE") with respect to each Monthly Period,
payable in accordance with the relevant MTN Supplement.
10.7 REPRESENTATIONS AND WARRANTIES OF THE MTN CASH MANAGER
Barclays, as initial MTN Cash Manager, hereby makes, and any successor
MTN Cash Manager by its appointment hereunder shall make (with such
modifications as the Trustee deems appropriate acting reasonably to
Clause 10.7.1 to reflect the successor MTN Cash Manager's organisation)
the following representations and warranties on which the Issuer has
relied in appointing Barclays Bank PLC as the initial MTN Cash Manager
and, whenever appropriate, any other successor MTN Cash Manager.
10.7.1 ORGANISATION It is a company duly incorporated under the laws of
England with full corporate power, authority and legal right to
own its assets and conduct its business as such assets are
presently owned and its business as presently conducted and with
power to enter into the [Series Documents] and to exercise its
rights and perform its obligations thereunder and all corporate
and other action required to authorise its execution of each
Series Document and its performance of its obligations
thereunder has been duly taken.
10.7.2 DUE AUTHORISATION All acts, conditions and things required to be
done, fulfilled and performed in order (i) to enable it lawfully
to enter into, exercise its rights under and perform and comply
with the obligations expressed to be assumed by it in each
Series Document, (ii) to ensure that the obligations expressed
to be assumed by it in each Series Document are legal, valid and
binding on it and (iii) to make each Series Document and each
such assignment admissible in evidence in England have been
done, fulfilled and performed save for the payment of stamp duty
in the United Kingdom in respect of any such assignment under
any applicable law.
10.7.3 NO VIOLATION The execution and delivery of each Series Document
by the MTN Cash Manager and the exercise of its rights and the
performance of its obligations thereunder will not conflict with
or violate any Requirement of Law.
10.7.4 BINDING OBLIGATION The obligations expressly to be assumed by it
in each Series Document are legal and valid obligations binding
on it and enforceable against it in accordance with its terms,
except (a) as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of the rights of creditors generally
and the rights of creditors of authorised institutions under the
Banking Act 1987 in particular, and (b) as such enforceability
may be limited by the effect of the general principles of
equity.
10.7.5 NO PROCEEDINGS There are no proceedings or investigations
pending or, to the best of its knowledge threatened against it
before any court, regulatory body, arbitral tribunal or public
or administrative body or agency (i) asserting the invalidity of
any Series Document; (ii) seeking to prevent the entering into
of any of the transactions contemplated by any Series Document;
(iii) seeking any determination or ruling that, in the
reasonable opinion of the MTN Cash
35
Manager, would materially and adversely affect the performance
by it of its obligations under any Series Document; or (iv)
seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of any Series
Document.
10.7.6 NO CONFLICT The execution and delivery of each Series Document
and the exercise by the MTN Cash Manager of its rights and the
performance of its obligations thereunder will not conflict
with, result in any breach of the material terms and provisions
of, or constitute (with or without notice or lapse of time or
both) a default under, any agreement, indenture, contract,
mortgage, trust deed or other instrument to which it is a party
or by which it or any of its assets is otherwise bound.
10.8 COMPLIANCE WITH REQUIREMENTS OF LAW
The MTN Cash Manager shall duly satisfy all obligations on its part to
be fulfilled under or in connection with its cash administration duties
hereunder and under any MTN Supplement, will maintain in effect all
qualifications required under Requirements of Law in order to fulfil its
cash administration duties hereunder and under any MTN Supplement and
will comply in all material respects with all other Requirements of Law
in connection with its cash administration duties hereunder and under
any MTN Supplement the failure to comply with which would have a
Material Adverse Effect on the interests of any Secured Creditor of any
Series or any Material Adverse Effect on the interests of any
Enhancement Provider in respect of any Series.
11. LIABILITY OF THE MTN CASH MANAGER
The MTN Cash Manager shall be liable in accordance with this Deed only
to the extent of the obligations specifically undertaken by the MTN Cash
Manager in such capacity herein.
11.1 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF, THE MTN
CASH MANAGER The MTN Cash Manager shall not consolidate with or merge
into any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, unless:
11.1.1 the corporation formed by such consolidation or into which the
MTN Cash Manager is merged or the Person which acquires by
conveyance or transfer the properties and assets of the MTN Cash
Manager substantially as an entirety, shall expressly assume, by
an agreement supplemental hereto, executed and delivered to the
Issuer in form satisfactory to the Issuer, and the Trustee the
performance of the obligations of the MTN Cash Manager hereunder
(to the extent that any right, covenant or obligation of the MTN
Cash Manager, as applicable hereunder, is inapplicable to the
successor entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as would
apply, to the extent practicable, to such successor entity);
11.1.2 the MTN Cash Manager shall have delivered to the Issuer:
(a) an Director's Certificate that such consolidation,
merger, conveyance or transfer and such supplemental
agreement comply with this Clause 11.1
36
and that all conditions precedent herein provided for
relating to such transaction have been complied with;
and
(b) an Opinion of Counsel that such supplemental agreement
is legal, valid, binding and enforceable with respect to
the MTN Cash Manager;
11.1.3 the MTN Cash Manager shall have delivered notice to the Trustee
and to each Rating Agency of such consolidation, merger,
conveyance or transfer.
11.2 LIMITATION ON LIABILITY OF THE MTN CASH MANAGER AND OTHERS
11.2.1 The directors, officers, employees or agents of the MTN Cash
Manager shall not be under any liability, with respect to any
Series, to the Issuer, the Trustee, any Enhancement Provider,
the Secured Creditors, or any other Person hereunder or pursuant
to any document delivered hereunder, it being expressly
understood that all such liability is expressly waived and
released by each such party as a condition of, and as
consideration for, the execution of this Deed and any MTN
Supplement PROVIDED, HOWEVER, that this provision shall not
protect the directors, officers, employees and agents of the MTN
Cash Manager against any liability which would otherwise be
imposed by reason of fraud, wilful default, bad faith or gross
negligence in the performance of duties or by reason of its
reckless disregard of its obligations and duties hereunder or
under any MTN Supplement.
11.2.2 Except as provided in Clause 11.4 with respect to the Issuer and
the Trustee and its agents, the MTN Cash Manager shall not be
under any liability, in respect of any Series, to the Issuer,
the Trustee and its agents, the Secured Creditors or any other
Person for any action in its capacity as MTN Cash Manager
pursuant to this Deed or any MTN Supplement PROVIDED, HOWEVER,
that this provision shall not protect the MTN Cash Manager
against any liability which would otherwise be imposed by reason
of fraud, wilful default, bad faith or gross negligence in the
performance of duties or by reason of its reckless disregard of
its obligations and duties hereunder or under any MTN
Supplement.
11.2.3 The MTN Cash Manager may rely in good faith on any document of
any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder.
11.2.4 The MTN Cash Manager shall not be under any obligation to appear
in, prosecute or defend any legal action which is not incidental
to its duties pursuant to this Deed which in its reasonable
opinion may involve it in any expense or liability.
11.3 MTN CASH MANAGER INDEMNIFICATION OF THE ISSUER AND THE TRUSTEE The MTN
Cash Manager shall indemnify and hold harmless the Issuer and the
Trustee and its agents, from and against any reasonable loss, liability,
expense, damage or injury suffered or sustained by reason of any fraud,
wilful default, bad faith or gross negligence in the performance of
duties or by reason of the MTN Cash Manager's reckless disregard of its
obligations and duties hereunder or under any MTN Supplement pursuant to
this Deed or any MTN Supplement, including, but not limited to any
judgement, award,
37
settlement, reasonable legal fees and other costs or expenses incurred
in connection with the defence of any actual or threatened action,
proceeding or claim PROVIDED, HOWEVER, that the MTN Cash Manager shall
not:
11.3.1 indemnify the Trustee if such acts, omissions or alleged acts or
omissions constitute or are caused by fraud, negligence, or
wilful misconduct by the Trustee or its agents;
11.3.2 indemnify the Issuer or any Secured Creditors, in respect of any
Series, for any liabilities, costs or expenses of the Issuer
with respect to any action taken by the Trustee at the request
of any Secured Creditor of any Series;
11.3.3 indemnify the Issuer, the Trustee any Secured Creditor, in
respect of any Series, as to any losses, claims or damages
arising as a result of default by the Receivables Trustee, the
Transferor in its capacity as Transferor, the Servicer in its
capacity as Servicer or an Obligor; and
11.3.4 indemnify the Issuer, the Trustee or the Secured Creditors, in
respect of any Series, for any Liability of the Issuer, the
Trustee or the Secured Creditors arising under any Tax law (or
any interest or penalties with respect thereto or arising from a
failure to comply therewith) required to be paid by the Issuer,
the Trustee or the Secured Creditors, in respect of any Series,
in connection herewith to any taxing authority.
Any such indemnification shall be payable by the MTN Cash Manager itself
and not be payable by the Issuer. The provision of this indemnity shall
run directly to and be enforceable by an injured party subject to the
limitations hereof.
11.4 THE MTN CASH MANAGER NOT TO RESIGN
The MTN Cash Manager shall not resign, with respect to any Series, from
the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no
longer permissible under applicable law and (ii) there is no reasonable
action which the MTN Cash Manager could take to make the performance of
its duties hereunder permissible under applicable law. Any such
determination permitting the resignation of the MTN Cash Manager shall
be evidenced as to sub-paragraph (i) above by an Opinion of Counsel and
as to sub-paragraph (ii) by an Officer's Certificate, each to such
effect delivered to the Secured Creditors of each Series and the Trustee
(by delivery to the Trustee). No such resignation shall become effective
until a successor MTN Cash Manager shall have assumed the
responsibilities and obligations of the MTN Cash Manager in accordance
with Clause 11.3 hereof.
11.5 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING CASH
ADMINISTRATION
The MTN Cash Manager shall provide to the Issuer and the Trustee access
to the documentation regarding the cash administration in respect of
each Series in such cases where the Issuer or the Trustee is required in
connection with the enforcement of the rights of any Secured Creditor of
any Series, or by any Series Document or any Requirement of Law to
review such documentation, such access being afforded without charge but
only (i) upon reasonable request, (ii) during normal business hours,
(iii) subject to the MTN Cash Manager's normal security and
confidentiality procedures and
38
(iv) at offices in the United Kingdom designated by the MTN Cash
Manager. Nothing in this Clause 11.5 shall derogate from the obligation
of the Transferor, the Issuer, the Trustee, any Secured Creditor of any
Series or the MTN Cash Manager to observe any Requirement of Law
prohibiting disclosure of information regarding the Obligors and the
failure of the MTN Cash Manager to provide access as provided in this
Clause 11.5 as a result of such obligations shall not constitute a
breach of this Clause 11.5.
11.6 DELEGATION OF DUTIES
In the ordinary course of business, the MTN Cash Manager may at any time
delegate any duties hereunder to any Person who agrees to conduct such
duties in accordance with this Deed and the terms of each MTN
Supplement. Any such delegations shall not relieve the MTN Cash Manager
of its liabilities and responsibility with respect to such duties, and
shall not constitute a resignation within the meaning of Clause 11.4
hereof. If any such delegation is to a party other than an Affiliate of
Barclays Bank PLC, notification thereof shall be given to each Rating
Agency rating any Associated Debt and the Trustee.
12. MTN CASH MANAGER DEFAULTS
If any one of the following events (each a "MTN CASH MANAGER DEFAULT")
shall occur and be continuing:
12.1.1 any failure by the MTN Cash Manager to make any payment,
transfer or deposit or to give instructions or notice to the
Issuer, as the case may be, pursuant to an agreed schedule of
calculations and allocations or to instruct the Issuer to make
any required drawing, withdrawal or payment for any Series on or
before the date occurring five Business Days after the date such
payment, transfer, deposit, withdrawal or drawing or such
instruction or notice is required to be made or given, as the
case may be, under the terms of this Deed or any Series
Document;
12.1.2 failure on the part of the MTN Cash Manager duly to observe or
perform in any respect any other covenants or agreements of the
MTN Cash Manager set forth in this Deed or any Series Document
which has a Material Adverse Effect on the interests of any
Secured Creditor of any Series and which continues unremedied
for a period of 60 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have
been given to the MTN Cash Manager by the Issuer or the Trustee,
or to the MTN Cash Manager, the Issuer and the Trustee by a
Noteholder or Noteholders representing in aggregate not less
than 50 per cent. of the Principal Amount Outstanding of any
Class of Notes of a Series adversely affected thereby and
continues to have a Material Adverse Effect on the interests of
such Noteholder or Noteholders affected for such period;
12.1.3 delegation by the MTN Cash Manager of its duties under this Deed
to any other entity, except as permitted by Clause 11.6;
12.1.4 any relevant representation, warranty or certification made by
the MTN Cash Manager in this Deed or in any certificate
delivered pursuant hereto proves to have been incorrect when
made, which has a Material Adverse Effect on the interests of
the Noteholder of any Series and continues to be incorrect in
any
39
material respect for a period of 60 days after the date on which
written notice of such failure, requiring the same to be
remedied, shall have been given to the MTN Cash Manager by the
Issuer or the Trustee or to the MTN Cash Manager, the Issuer and
the Trustee by a Noteholder or Noteholders representing in
aggregate not less than 50 per cent. of the Principal Amount
Principal Amount Outstanding of any Class of Notes of a Series
affected thereby and continues to have a Material Adverse Effect
on the interests of such Noteholder or Noteholders affected for
such period;
12.1.5 the MTN Cash Manager shall consent to or take any corporate
action relating to the appointment of a receiver, administrator,
administrative receiver, liquidator, trustee or similar officer
of it or relating to all or substantially all of its revenues
and assets or an order of the court is made for its winding-up,
dissolution, administration or re-organisation and such order
shall have remained in force undischarged or unstayed for a
period of 60 days or a receiver, administrator, administrative
receiver, liquidator, trustee or similar officer of it or
relating to all of its revenues and assets is legally and
validly appointed;
12.1.6 a duly authorised officer of the MTN Cash Manager shall admit in
writing that the MTN Cash Manager is unable to pay its debts as
they fall due within the meaning of Section 123(1) of the
Insolvency Act 1986 or the MTN Cash Manager makes a general
assignment for the benefit of or a composition with its
creditors or voluntarily suspends payment of its obligations
with a view to the general readjustment or rescheduling of its
indebtedness;
then so long as such MTN Cash Manager Default shall not have been
remedied (or in the case of an MTN Cash Manager Default under Clause
12.1.7, the Servicer Default has not been remedied in accordance with
the Receivables Trust Deed and Servicing Agreement), either the Issuer
or the Trustee at the direction of the Noteholders representing in
aggregate not less than 662/3 per cent. of the aggregate Principal
Amount Outstanding of any Class of Notes of a Series adversely affected
by such MTN Cash Manager Default or, where applicable, the Priority
Secured Creditor of such Series, by notice then given in writing to the
MTN Cash Manager (a "MTN CASH MANAGER TERMINATION NOTICE"), may
terminate all of the rights and obligations of the MTN Cash Manager as
MTN Cash Manager under this Agreement.
Notwithstanding the foregoing, a delay in or failure of performance
referred to in paragraph (a) above for the stated period of five
Business Days or under Clause 12.1.2 or 12.1.4 for the stated period of
60 Business Days, shall not constitute an MTN Cash Manager Default if
such delay or failure could not have been prevented by the exercise of
reasonable diligence by the MTN Cash Manager and such delay or failure
was caused by an act of God, acts of declared or undeclared war, public
disorder, rebellion, riot or sabotage, epidemics, landslides, lightning,
fire, hurricanes, tornadoes, earthquakes, nuclear disasters or
meltdowns, floods, power cuts or similar causes. The preceding sentence
shall not relieve the MTN Cash Manager from using its best efforts to
perform its obligations in a timely manner in accordance with the terms
of this Deed and any relevant agreement and the MTN Cash Manager shall
provide the Issuer, the Trustee, any Enhancement Provider of any Series
and each Noteholder of any Series with a Director's
40
Certificate of the MTN Cash Manager giving prompt notice of such failure
or delay by it, together with a description of the cause of such failure
or delay and its efforts so to perform its obligations.
12.2 EFFECT OF MTN CASH MANAGER TERMINATION NOTICE
12.2.1 After receipt by the MTN Cash Manager of an MTN Cash Manager
Termination Notice pursuant to Clause 12.1, and on the date that
the MTN Cash Manager receives notification from the Issuer that
a successor MTN Cash Manager has been appointed by the Issuer
pursuant to Clause 12.3, all authority and power of the MTN Cash
Manager under this Deed shall pass to and be vested in a
successor MTN Cash Manager and, without limitation, the Issuer
is hereby appointed, authorised and empowered (upon the failure
of the MTN Cash Manager to co-operate in a timely manner) in
order to secure the performance of the MTN Cash Manager in so
doing to execute and deliver, on behalf of the MTN Cash Manager,
as its attorney, all documents, records and other instruments
upon the failure of the MTN Cash Manager to execute or deliver
such documents, records or instruments, and to do and accomplish
all other acts or things necessary or appropriate to effect the
purposes of such transfer of cash management rights and
obligations;
12.2.2 The MTN Cash Manager agrees to use all reasonable efforts and
co-operate with the Issuer, the Trustee and such successor MTN
Cash Manager in effecting the termination of the
responsibilities and rights of the MTN Cash Manager to conduct
servicing hereunder including, without limitation, the transfer
to such successor MTN Cash Manager of all authority of the MTN
Cash Manager to perform cash administration in respect of each
Series provided for under this Deed.
12.2.3 The MTN Cash Manager shall promptly transfer its electronic
records or electronic copies thereof relating to cash
administration in respect of each Series to the successor MTN
Cash Manager in such electronic form as the successor MTN Cash
Manager may reasonably request and shall promptly transfer to
the successor MTN Cash Manager all other records, correspondence
and documents necessary for the continued cash administration in
respect of each Series in the manner and at such times as the
successor MTN Cash Manager shall reasonably request.
12.2.4 To the extent that compliance with this Clause 12.2 shall
require the MTN Cash Manager to disclose to the successor MTN
Cash Manager information of any kind which the MTN Cash Manager
reasonably deems to be confidential, the successor MTN Cash
Manager shall be required to enter into such customary licensing
and confidentiality agreements as the MTN Cash Manager shall
deem reasonably necessary to protect its interests.
12.2.5 The MTN Cash Manager shall, on the date of any servicing
transfer, transfer all of its rights and obligations under any
Enhancement in respect of any Series with respect to any Secured
Creditors to the successor MTN Cash Manager.
41
12.2.6 Upon the termination of the appointment of the MTN Cash Manager
pursuant to this Clause 12.2, any amounts in respect of each
Series and any other amounts belonging to the Issuer in the
possession of the MTN Cash Manager (or coming into the
possession of the MTN Cash Manager at any time thereafter) shall
be held on trust by the MTN Cash Manager for and to the order of
the Issuer.
12.3 ISSUER TO ACT; APPOINTMENT OF SUCCESSOR
12.3.1 On and after the receipt by the MTN Cash Manager of an MTN Cash
Manager Termination Notice pursuant to Clause 12.1, the MTN Cash
Manager shall continue to perform all servicing functions under
this Deed until the date specified in the MTN Cash Manager
Termination Notice or otherwise specified by the Issuer in
writing or, if no such date is specified in such MTN Cash
Manager Termination Notice or otherwise specified by the Issuer,
until a date mutually agreed upon by the MTN Cash Manager and
Issuer. The Issuer shall notify each Rating Agency then rating
any Associated Debt of such removal of the MTN Cash Manager. The
Issuer shall, as promptly as possible after the giving of an MTN
Cash Manager Termination Notice, appoint a successor MTN Cash
Manager which shall be an Eligible MTN Cash Manager and shall
accept its appointment by a written assumption in a form
acceptable to the Issuer and the Trustee.
12.3.2 Upon its appointment, the successor MTN Cash Manager shall be
the successor in all respects to the MTN Cash Manager with
respect to servicing functions under this Deed and shall be
subject to all the responsibilities, duties and liabilities
relating thereto placed on the MTN Cash Manager by the terms and
provisions hereof, and all references in this Deed to the MTN
Cash Manager shall be deemed to refer to the successor MTN Cash
Manager. Any successor MTN Cash Manager, by its acceptance of
its appointment, will automatically agree to be bound by the
terms and provisions of each agreement relating to Enhancement
for any Series.
12.3.3 In connection with such appointment and assumption, the Issuer
shall be entitled to such compensation, or may make such
arrangements for the compensation of the successor MTN Cash
Manager out of Collections in respect of the Securitised
Portfolio, as it and such successor MTN Cash Manager shall agree
PROVIDED, HOWEVER, that no such compensation shall be in excess
of the MTN Cash Manager Fee permitted to the MTN Cash Manager
pursuant to Clause 10.6.
12.4 NOTIFICATION OF MTN CASH MANAGER DEFAULT
Immediately upon becoming aware of any MTN Cash Manager Default, the MTN
Cash Manager shall give prompt written notice thereof to the Issuer, the
Trustee, each Secured Creditor in respect of any Series, each Rating
Agency then rating any Associated Debt and any Enhancement Provider in
respect of any Series. Upon any termination of the appointment of the
MTN Cash Manager or appointment of a successor MTN Cash Manager pursuant
to Clauses 10.1 to 10.4 the Issuer shall give prompt written notice
thereof to the Trustee and the Principal Paying Agent.
42
12.5 WAIVER OF PAST DEFAULTS
The Noteholders representing in aggregate not less than two-thirds of
the Principal Amount Outstanding of a Class of Notes of a Series
adversely affected by any default by the MTN Cash Manager may waive in
writing (with a copy to the Trustee) any default by the MTN Cash Manager
in the performance of its obligations hereunder or in any Series
Document and its consequences, except a default in the failure to make
any required deposits or payments of interest or principal relating to
such Series pursuant to Clause 12.1. Upon any such waiver of a past
default, such default shall be deemed not to have occurred. No such
waiver shall extend to any subsequent or other default or impair any
right consequent thereon except to the extent expressly so waived. Any
such waiver will bind the Trustee
13. ACKNOWLEDGEMENT REGARDING PAYMENTS
Each of the Issuer, the Trustee, the Receivables Trustee and the
Transferor acknowledge and confirm that the Receivables Trustee shall
apply any amounts due from the Issuer to the Receivables Trustee in
respect of a Series in or towards satisfaction of any amounts then due
to the Issuer from it in respect of any Trust Property of that Series.
14. WAIVER, AUTHORISATION AND DETERMINATION
The Trustee may without prejudice to its rights in respect of any
subsequent breach, condition event, or act at any time, but only if an
insofar as in its opinion the interests of the Secured Creditors (in
relation to which it is Trustee) will not be materially prejudiced
thereby, waive or authorise any breach or proposed breach by the Issuer
of any of the covenants or provisions contained in this Deed in relation
to such Series or determine that any Event of Default or Potential Event
of Default in relation to such Series shall not be treated as an Event
of Default or, as the case may be, Potential Event of Default in
relation to such Series for the purposes of this Deed in relation to
such Series, provided that the Trustee shall not exercise any powers
conferred on it by this Clause in contravention of any express request
given by the Priority Secured Creditor but so that no such request shall
affect any waiver, authorisation or determination previously given or
made. Any such waiver, authorisation or determination may be given or
made on such terms and subject to such conditions as may seem fit and
proper to the Trustee, shall be binding on the Secured Creditors of such
Series and, if (but only if) the Trustee so requires, shall be notified
by the Issuer to the relevant Secured Creditors of such Series in
accordance with the terms of the relevant Notes as soon as practicable
thereafter. The provisions of this Clause 14 shall be in lieu of section
316(a)(1)(B) of the TIA and section 316(a)(1)(B) of the TIA is hereby
expressly excluded from this Deed and the Notes, as permitted by the
TIA.
15. MODIFICATION
15.1 The Trustee may, without the consent of the Secured Creditors of any
Series,
15.1.1 at any time and from time to time concur with the Issuer in
making any modification to this Deed (other than the definition
of "EXTRAORDINARY RESOLUTION" in paragraph 21 and the terms of
paragraph 5 of Schedule 5) or any of the other Series Documents
which in the opinion of the Trustee it is proper to make,
provided that the Trustee is of the opinion that such
modification will not
43
be materially prejudicial to the interests of the Secured
Creditors of any Series (in relation to which it is Trustee); or
15.1.2 to this Deed or any of the other Series Documents if in the
opinion of the Trustee such modification is of a formal, minor
or technical nature or to correct a manifest error.
Any such modification may be made on such terms and subject to such
conditions as may seem fit and proper to the Trustee, shall be binding
upon the Noteholders of such Series and any other Secured Creditor
relating to such Series and, unless the Trustee agrees otherwise, shall
be notified by the Issuer to the relevant Noteholders in accordance with
the terms of the relevant Notes as soon as practicable thereafter.
15.2 In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Issuer or by any affiliate of the Issuer shall be
disregarded, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes which the Trustee knows are so owned shall be
disregarded.
16. NOTEHOLDER ASSUMED TO BE COUPONHOLDER
Wherever in this Deed any Trustee is required or entitled to exercise a
power, trust, authority or discretion under this Deed in relation to any
Series, except as ordered by a court of competent jurisdiction or as
required by applicable law, the Trustee shall, notwithstanding that it
may have express notice to the contrary, assume that each Noteholder in
respect of such Series is the holder of all Coupons and Talons relating
to such Note.
17. NO NOTICE TO COUPONHOLDERS
Neither the Trustee nor the Issuer shall be required to give any notice
to the Couponholders or Talonholders of any Series for any purpose under
this Deed and the relevant Couponholders and Talonholders shall be
deemed for all purposes to have notice of the contents of any notice
given to Noteholders in accordance with the Conditions.
18. HOLDER DEEMED TO BE ABSOLUTE OWNER
18.1 The Issuer, the Trustee and any Paying Agent may (to the fullest extent
permitted by applicable laws) deem and treat:
18.1.1 the holder of any Definitive Note and the holder of any Coupon
or Talon as the absolute owner of such Note, Coupon or Talon, as
the case may be, for all purposes (whether or not such Note,
Coupon or Talon is overdue and notwithstanding any notice of
ownership or writing thereon or any notice of previous loss or
theft thereof), and none of the Issuer, the Trustee or any
Paying Agent shall be affected by any notice to the contrary;
and
18.1.2 so long as any Note is represented in global form, the person
for the time being shown in the records of Euroclear or
Cedelbank as the holder of such Note and none of the Issuer, the
Trustee or any Paying Agent shall be affected by any notice to
the contrary.
44
18.2 All payments made to any such person shall be valid and, to the
extent of the sums so paid, effective to satisfy and discharge the
liability for the monies payable upon such Note or Coupon.
19. EUROCLEAR/CEDELBANK CONFIRMATIONS
The Issuer and the Trustee may call for and shall be at liberty to
accept and place full reliance on as sufficient evidence thereof a
certificate or letter of confirmation signed on behalf of Euroclear or
Cedelbank (or any other clearing system approved in writing by the
Trustee in which Notes may for the time being be held) or any form of
record made by either or any of them to the effect that at any
particular time or throughout any particular period any particular
person is, was or will be shown in its records as entitled to a
particular interest in any global note representing Notes.
20. SUBSTITUTION
20.1 SUBSTITUTION
The Trustee may, without the consent of the Noteholders, agree with the
Issuer to the substitution in place of the Issuer or any previous
Substituted Issuer (as defined below) as the principal debtor in respect
of the Notes of any other body corporate (the "SUBSTITUTED ISSUER")
provided that:
20.1.1 a trust deed or an indenture is executed or some other form of
undertaking is given by the Substituted Issuer to the Trustee in
form and manner satisfactory to the Trustee to be bound by the
terms of this Deed and by the Conditions (with any consequential
amendments which the Trustee may reasonably consider or deem to
be appropriate) as fully as if the Substituted Issuer had been a
party to this Deed and named herein and in the Notes as the
principal debtor in respect of the Notes in place of the Issuer;
20.1.2 the Substituted Issuer becomes a party to the relevant Series
Documents or to equivalent documents acceptable to the Trustee;
20.1.3 if a director of the Substituted Issuer certifies that the
Substituted Issuer will be solvent immediately after the time at
which the said substitution is to be effected, the Trustee shall
not have regard to the financial condition, profits or prospects
of the Substituted Issuer or compare the same with those of the
Issuer (or any other Substituted Issuer substituted under this
Clause);
20.1.4 the Trustee is satisfied that the relevant transaction is not
materially prejudicial to the interest of the Noteholders;
20.1.5 confirmation is received from the rating agencies appointed in
relation to any Related Beneficiary Debt issued in respect of
such Series that the ratings assigned to such Related
Beneficiary Debt will not be withdrawn or reduced as a result of
the substitution;
20.1.6 the Trustee shall be satisfied (by means of legal opinions in
form and substance satisfactory to it or otherwise) that (i) all
necessary governmental and regulatory approvals and consents
necessary for, or in connection with, the assumption by the
Substituted Issuer of liability as principal debtor in respect
of, and of its
45
obligations under, this Deed and (ii) such approvals and
consents are at the time of substitution in full force and
effect; and
20.1.7 the Issuer or, as the case may be, the previous Substituted
Issuer and the Substituted Issuer shall execute such other
deeds, documents and instruments (if any) and make such
representations and warranties and provide such other
documentation (particularly, but not limited to, with regard to
any applicable bankruptcy law) as the Trustee may require in
order to be satisfied that such substitution is fully effective
and comply with such other requirements in the interests of the
Noteholders as the Trustee may direct.
20.2 CHANGE OF LAW
In connection with any proposed substitution of the Issuer or, as the
case may be, any previous Substituted Issuer, the Trustee, may, without
the consent of the Noteholders, agree to a change of the law from time
to time governing the Notes and/or this Deed and/or the Paying Agency
and Agent Bank Agreement provided that such change of law, in the
opinion of the Trustee, would not be materially prejudicial to the
interests of the Noteholders.
21. CURRENCY INDEMNITY
In relation to each Series, the Issuer shall indemnify the Trustee and
the Secured Creditors in respect of such Series and keep them
indemnified against;
21.1.1 any Liability incurred by any of them arising from the
non-payment by the Issuer of any amount due to the Trustee, the
Secured Creditors of such Series or any other beneficiary of the
trusts under this Deed in respect of such Series by reason of
any variation in the rates of exchange between those used for
the purposes of calculating the amount due under a judgment or
order in respect thereof and those prevailing at the date of
actual payment by the Issuer;
21.1.2 any deficiency arising or resulting from any variation in rates
of exchange between (a) the date as of which the local currency
equivalent of the amounts due or contingently due under this
Deed (other than this Clause) is calculated for the purposes of
any bankruptcy, insolvency or liquidation of the Issuer and (b)
the final date for ascertaining the amount of the claims in such
bankruptcy, insolvency or liquidation; the amount of such
deficiency shall be deemed not to be reduced by any variation in
rates of exchange occurring between the said final date and the
date of any distribution of assets in connection with any such
bankruptcy, insolvency or liquidation; and
21.1.3 the above indemnity shall constitute an obligation of the issuer
separate and independent from its obligations under the other
provisions of this Deed and shall apply irrespective of any
indulgence granted by the Trustee, the Secured Creditors in
respect of such Series from time to time and shall continue in
full force and effect notwithstanding the judgment or filing of
any proof or proofs in any bankruptcy, insolvency or liquidation
of the issuer for a liquidated sum or sums in respect of amounts
due under this Deed (other than this Clause). Any such
deficiency as aforesaid shall be deemed to constitute a loss
suffered
46
by the Secured Creditors in respect of such Series and no proof
or evidence of any actual loss shall be required by the Issuer
or its liquidator or liquidators.
22. PROTECTION OF RIGHT, TITLE AND INTEREST TO SECURED PROPERTY
22.1 DOCUMENTS OF TITLE
The MTN Cash Manager shall cause this Deed, all amendments hereto and/or
the RSA and any other necessary documents relating to the right, title
and interest to the Secured Property for any Series to be promptly
recorded, registered and filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and
interest of the Secured Creditors for any Series or the Issuer, as the
case may be, hereunder to all property comprising the Secured Property
for any Series. The MTN Cash Manager shall deliver to the Issuer office
copies of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such recording,
registration or filing. Barclaycard shall co-operate fully with the MTN
Cash Manager in connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfil the intent
of this Clause 22.11.
22.2 NOTICE OF CHANGE OF ADDRESS
The MTN Cash Manager will give the Issuer prompt written notice of any
relocation of any office from which it services Secured Property in
respect of any Portfolio assigned or purported to be assigned to the
Issuer or keeps records concerning such Secured Property or of its
principal executive office.
23. NOTICES
23.1.1 Unless otherwise stated herein, each communication or notice to
be made hereunder shall be made in writing and may be made by
telex, telefax or letter.
23.1.2 Any communication, notice or document to be made or delivered by
any one person to another pursuant to this Deed shall (unless
that other person has 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 telex)
when dispatched and the appropriate answerback or identification
symbol received by the sender or (in the case of any
communications 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 or telex communication made
by one party to another shall be made to that other person at
the telefax or telex number notified to such party by that other
person from time to time;
(a) in the case of the Initial Transferor, to Barclaycard,
1234 Pavilion Drive, Northampton NN4 7SG, Attention:
Timothy Gaffney, facsimile number: 01604 256 822;
47
(b) in the case of the Issuer, to 200 Aldersgate Street,
London EC1A 4JJ, Attention: Company Secretary, facsimile
number: 0207 600 5555;
(c) in the case of the MTN Cash Manager, to 54 Lombard
Street, London EC3P 3AH Attention: Relationship Manager
City Markets Team, facsimile number: 0207 699 3131;
(d) in the case of the Receivables Trustee, Normandy House,
Grenville Street, St. Helier, Jersey JE2 4UF, facsimile
number: 01534 814 815;
(e) in the case of the Trustee, to Operations Department,
One Canada Square, London E14 5AL, facsimile number:
0207 893 6259;
(f) in the case of the Principal Paying Agent, to Operations
Department, One Canada Square, London E14 5AL, facsimile
number: 0207 893 6259;
(g) in the case of any Secured Creditor (other than an
Noteholder) for a Series, the address, if any, specified
in the MTN Supplement relating to such Series; and
(h) in the case of the Rating Agency for Associated Debt in
respect of a particular Series, the address, if any,
specified in the MTN Supplement relating to such Series.
23.2 SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of
this Deed 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
Deed and shall in no way affect the validity or enforceability of the
other provisions of this Deed or of the rights of the Secured Creditors
of any Series.
23.3 COMMUNICATIONS BY NOTEHOLDERS WITH OTHER NOTEHOLDERS
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Deed or the Notes.
The Issuer, the Trustee, and anyone else shall have the protection of
TIA Section 312(c).
23.4 NOTICES TO NOTEHOLDERS
Any notice or communication mailed to Noteholders hereunder shall be
transmitted by mail to such other Noteholders as have, within the two
years preceding such transmission, filed their names and addresses with
the Trustee for that purpose.
24. ASSIGNMENT
Notwithstanding anything to the contrary contained herein, except as
provided in Clause 11.2, the benefit of the Security Trust Deed and Cash
Management Agreement may not be assigned by the MTN Cash Manager without
the prior consent of Noteholders representing in aggregate not less than
662/3 per cent. of the Principal Amount Outstanding of each Class of
Notes in each Series or, where applicable, the Priority Secured Creditor
of such Series,.
48
25. FURTHER ASSURANCES AND UNDERTAKING OF NON-PETITION
25.1 FURTHER ASSURANCES
The Initial Transferor, the Trustee and the MTN Cash Manager agree to do
and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the Issuer
more fully to effect the purposes of this Deed and each MTN Supplement.
25.2 UNDERTAKING OF NON-PETITION
Barclays Bank PLC as Initial Transferor and initial MTN Cash Manager,
hereby undertakes (and any successor MTN Cash Manager shall, by its
appointment under this Deed, also undertake) to the Issuer and the
Trustee for itself and as trustee for each Secured Creditor that it will
not take any corporate action or other steps or legal proceedings for
the winding up, dissolution or re-organisation of, or for the
appointment of a receiver, administrator, administrative receiver,
trustee, liquidator, sequestrator or similar officer of any Secured
Creditor (unless a Secured Creditor of a Series specifies otherwise in
the MTN Supplement in respect of that Series), the Issuer or any or all
of the revenues and assets of any of them nor participate in any ex
parte proceedings nor seek to enforce any judgement against any such
Persons.
26. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, in respect of any
Series, on the part of the Issuer, the Trustee, any Enhancement Provider
or any Secured Creditor, 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.
27. RELEASE OF COLLATERAL
Except to the extent expressly provided in this Clause 27, the Trustee
shall release property from the lien of the Deed of Charge only upon
receipt of an Issuer Request accompanied by an Officers' Certificate, an
Opinion of Counsel and Independent Certificates in accordance with TIA
ss.ss.314(c) and 314(d)(1) or an Opinion of Counsel in lieu of such
Independent Certificates to the effect that the TIA does not require any
such Independent Certificates.
Prior to the release of any property or securities subject to the lien
of the Deed of Charge, the Issuer shall, in addition to any obligation
imposed in this Clause 27 or elsewhere in this Trust Deed, furnish to
the Trustee an Officers' Certificate certifying or stating the opinion
of each person signing such certificate as to the fair value to the
Issuer of the property or securities to be so released. The officers so
certifying may consult with, and may conclusively rely upon a
certificate as to the fair value of such property provided to such
officers by an internationally recognized financial institution with
expertise in such matters.
Whenever the Issuer is required to furnish to the Trustee an Officers'
Certificate certifying or stating the opinion of any signer thereof as
to the matters described in
49
the preceding paragraph, the Issuer shall also deliver to the Trustee an
Independent Certificate as to the same matters, if the fair value to the
Issuer of the property to be so released and of all other such property
made the basis of any such release since the commencement of the then
current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to this Clause 27, is 10% or more of the Outstanding
Amount of the Notes, but such a certificate need not be furnished with
respect to any property so released if the fair value thereof to the
Issuer as set forth in the related Officers' Certificate is less than
$25,000 or less than one percent of the Outstanding Amount of the Notes.
Whenever any property is to be released from the lien of the Deed of
Charge, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each Person
signing such certificate that in the opinion of such person the proposed
release will not impair the security under this Indenture in
contravention of the provisions hereof.
Notwithstanding anything to the contrary contained herein, the Issuer
may (A) collect, liquidate, sell or otherwise dispose of Receivables as
and to the extent permitted or required by the Transaction Documents,
(B) make cash payments out of the Designated Accounts as and to the
extent permitted or required by the Transaction Documents and (C) take
any other action not inconsistent with the TIA.
28. COUNTERPARTS
This Deed may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same instrument.
29. THIRD PARTY BENEFICIARIES
29.1.1 This Deed will inure to the benefit of and be binding upon the
parties hereto, in respect of any Series, the Secured Creditors,
any additional Secured Creditors named therein, and their
respective successors and permitted assigns as Secured Creditors
and beneficiaries of the Secured Property in respect of a
relevant Series;
29.1.2 To the extent specified in any related MTN Supplement, third
parties, including any Enhancement Provider, if any, that is not
a Secured Creditor of the Secured Property of a Series, may by
execution of such MTN Supplement, as a matter of contract only,
be entitled to the benefit of the provisions of this Deed as if
such third parties were Secured Creditors hereunder and the
rights of such third parties so provided shall enure to the
benefit of such third parties and be binding upon the parties
hereto and the Secured Creditors of the Secured Property in
respect of such Series; and
29.1.3 Except as otherwise provided in this Clause 29 and Clause 11.1
hereof, no other Person will have any right or obligation
hereunder.
50
30. ACTIONS BY NOTEHOLDERS
30.1.1 Wherever in this Deed a provision is made that an action may be
taken or a notice, demand or instruction given by an Noteholder
of a Series, such action, notice or instruction may be taken or
given by any Noteholder of such Series, unless such provision
requires a specific aggregate percentage of the Principal Amount
Outstanding of a Class in any Series.
30.1.2 Any request, demand, authorisation, direction, notice, consent,
waiver or other act by an Noteholder of a Series shall bind each
and every successor of such Noteholder.
31. MERGER AND INTEGRATION
Except as specifically stated otherwise herein, this Deed sets forth the
entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by
this Deed. This Deed may not be modified, amended, waived or
supplemented except as provided herein.
32. TIA PREVAILS
If any provision of this Deed limits, qualifies or conflicts with
another provision which is required to be included in this Deed by the
TIA, the required provision shall prevail.
33. GOVERNING LAW AND JURISDICTION
33.1 GOVERNING LAW
This Deed (and the Security Trust constituted hereby) shall be governed
by, and construed in accordance with the laws of England.
33.2 JURISDICTION
33.2.1 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 Deed, and for such purposes,
irrevocably submit to the exclusive jurisdiction of such courts.
33.2.2 Each of the parties hereto 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 suit,
action or proceeding, and to settle any disputes, which may
arise out of or in connection with this Deed and agrees not to
claim that any such court is not a convenient or appropriate
forum.
33.2.3 Each party hereto (if it is not incorporated in England)
irrevocably appoints the person specified against its name on
the execution pages hereto (or, in the case of a successor
Receivables Trustee the document appointing such successor
Receivables Trustee) 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 Deed
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
51
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).
IN WITNESS WHEREOF, the Trustee, the MTN Cash Manager and the Initial
Transferor, the Receivables Trustee and the Issuer have caused this agreement to
be duly executed and delivered by their duly authorised representatives as a
deed on the day and year first above written.
52
SCHEDULE 1
FORM OF TEMPORARY GLOBAL NOTES
53
TEMPORARY GLOBAL NOTE
Series Number:[ ] Serial Number: [ ]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
TEMPORARY GLOBAL NOTE
REPRESENTING UP TO
(POUND)[O]
FLOATING RATE ASSET BACKED CLASS [O] NOTE DUE [O]
This global note is a Temporary Global Note without interest coupons issued in
respect of an issue of an aggregate principal amount of (pound)[o] of Floating
Rate Asset Backed Class [o] Note due [o] (the "NOTES") by Barclaycard Funding
PLC (the "ISSUER").
The Issuer for value received promises, all in accordance with the terms and
conditions set out in the applicable Series 99-1 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 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 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 shall become due and payable on any other
date, the Principal Amount and, in respect of each such Note, 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 is entitled
to the benefit of the Terms and Conditions and of the same obligations on the
part of the Issuer as if such bearer were the bearer of the Notes represented
hereby and to the benefit of those provisions of the Terms and Conditions (and
the obligations on the part of the Issuer contained therein) applicable
specifically to Temporary Global Notes, and all payments under and to the bearer
of this Temporary Global Note shall be valid and effective to satisfy and
discharge the corresponding Liabilities of the Issuer in respect of the Notes.
This Temporary Global Note 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 [o] (the "SERIES
[O] SUPPLEMENT" and, together with the Principal Trust Deed, the "TRUST DEED")
and made between the Issuer and The Bank of New
54
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.
On or after the expiry of 40 days after the date of issue of this Temporary
Global Note (the "Exchange Date"), this Temporary Global Note shall be
exchangeable in whole or in part for a Permanent Global Note or, in the
circumstances set out in the Series 99-1 Supplement for Definitive Notes. An
exchange for a Permanent Global Note or, as the case may be, Definitive Notes
will be made only on or after the Exchange Date (specified in the Series 99-1
Supplement) and upon presentation or, as the case may be, surrender of this
Temporary Global Note 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 Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("EUROCLEAR") or Cedelbank
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 Notes will be made available for collection by
the persons entitled thereto at the specified office of the Principal Paying
Agent.
The Issuer undertakes to procure that the relevant Permanent Global Note and
Definitive Notes 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 shall not (unless, upon due
presentation of this Temporary Global Note for exchange (in whole or in part)
for a Permanent Global Note or for delivery of Definitive Notes, 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 Notes represented by this Temporary Global Note 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 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 Cedelbank or by any other relevant clearing system and dated not
earlier than the relevant interest payment date in substantially the form set
out in Annex II hereto or, as the case may be, in the form that is customarily
issued in such circumstances by such other clearing system.
On any occasion on which a payment of principal is made in respect of this
Temporary Global Note or on which this Temporary Global Note is exchanged in
whole or in part as aforesaid or on which Notes represented by this Temporary
Global Note are to be cancelled, the Issuer shall procure that (i) the aggregate
principal amount of the Notes 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 (which shall be the previous principal amount
hereof less the amount referred to at (i)
55
above) are noted on the Schedule hereto, whereupon the principal amount of this
Temporary Global Note shall for all purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Notes
represented by this Temporary Global Note, the Issuer shall procure that the
appropriate notations are made on the Schedule hereto.
The obligations of the Issuer in respect of this Temporary Global Note 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 and, inter alios, the Trustee are restricted in the proceedings which they
may take against the 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 is governed by, and shall be construed in accordance
with, English law.
The 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 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 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 Issuer.
56
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTES, EXCHANGE FOR PERMANENT GLOBAL NOTE,
EXERCISE OF OPTIONS AND CANCELLATION OF NOTES
==============================================================================================================================
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 Notes then respect of this of the
exercise of Certificates Temporary cancelled which option Temporary Principal
option (and then delivered Global Note is exercised Global Note Paying Agent
date upon then
which exchanged for
exercise is the Permanent
effective) or Global Note
cancellation
- ------------------------------------------------------------------------------------------------------------------------------
==============================================================================================================================
57
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
ISSUED in London on [o] 1999
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK
as Issue Agent without recourse,
warranty or liability
By:[manual signature]
(duly authorised)
58
ANNEX I
[Form of certificate to be given in relation to exchanges of this Temporary
Global Note for the Permanent Global Note or Definitive Notes:]
BARCLAYCARD FUNDING PLC
(POUND)[O] FLOATING RATE ASSET BACKED CLASS [O] NOTES
(the "NOTES")
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 Notes (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("UNITED STATES PERSONS"), (ii) is
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) ("FINANCIAL INSTITUTIONS")) purchasing for their own account
or for resale, or (b) acquired the Notes 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 Issuer or the 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 Notes 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.
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
59
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
[Morgan Guaranty Trust Company of New York, Brussels office, as Operator of the
Euroclear System/Cedelbank]
By:[authorised signature]
- --------------------------------------------------------------------------------
1To be dated not earlier than the Exchange Date.
60
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 CLASS [O] NOTES
(the "NOTES")
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 Notes (i) is owned by persons that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("UNITED STATES
PERSONS"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) ("FINANCIAL INSTITUTIONS")) purchasing for their own
account or for resale, or (b) acquired the Notes 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 Issuer or the 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 Notes 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 Notes 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 representing
the Notes.
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
61
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:[ ]2
[Morgan Guaranty Trust Company of New York, Brussels office, as Operator of the
Euroclear System/Cedelbank]
By:[authorised signature]
- --------------------------------------------------------------------------------
2To be dated not earlier than the relevant interest payment date.
62
ANNEX III
[Form of accountholder's certification referred to
in the preceding certificate:]
BARCLAYCARD FUNDING PLC
(POUND)[O] FLOATING RATE ASSET BACKED CLASS [O] NOTES
(the "NOTES")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Notes held by you for our account (i) are owned by persons
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
the United States Federal income taxation regardless of its source ("UNITED
STATES PERSONS"), (ii) are owned by United States person(s) that (a) are foreign
branches of a United States financial institution (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("FINANCIAL INSTITUTIONS") purchasing for
their own account or for resale, or (b) acquired the Notes 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 Issuer
or the 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 Notes 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 Notes 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 Notes 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 Notes are beneficially owned by
(a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Notes 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 Notes 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.
This certification excepts and does not relate to [ ] of such interest in the
above Notes in respect of which we are not able to certify and as to which we
understand exchange and delivery
63
of definitive Notes (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:[ ]3
[ACCOUNTHOLDER] AS (OR AS AGENT FOR) THE BENEFICIAL OWNER OF THE NOTES.
By:[authorised signature]
- --------------------------------------------------------------------------------
3To be dated not earlier than fifteen days before the Exchange Date or, as the
case may be the relevant interest payment date.
64
SCHEDULE 2
FORM OF PERMANENT GLOBAL NOTES
65
PERMANENT GLOBAL NOTE
Series Number:[ ] Serial Number: [ ]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
PERMANENT GLOBAL NOTE
representing up to
(pound)[o]
FLOATING RATE ASSET BACKED CLASS [O] NOTE DUE NOVEMBER 2002
This global instrument is a Permanent Global Note with interest coupons issued
in respect of an issue of an aggregate principal amount of (pound)[o] of
Floating Rate Asset Backed Class [o] Notes due November [o] (the "NOTES") by
BARCLAYCARD FUNDING PLC (the "Issuer").
The Issuer for value received promises, all in accordance with the terms and
conditions set out in the Series 99-1 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 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 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
shall become due and payable on any other date, the Principal Amount and, in
respect of each such Note, 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 is entitled
to the benefit of the Terms and Conditions and of the same obligations on the
part of the Issuer as if such bearer were the bearer of the Notes represented
hereby and to the benefit of those Terms and Conditions (and the obligations on
the part of the Issuer contained therein) applicable specifically to Permanent
Global Notes, and all payments under and to the bearer of this Permanent Global
Note shall be valid and effective to satisfy and discharge the corresponding
Liabilities of the Issuer in respect of the Notes.
This Permanent Global Note is issued pursuant to a security trust deed dated 23
November 1999 (the "PRINCIPAL TRUST DEED") and the supplement thereto in respect
of Series [o] (the "Series [o] Supplement" and together with the Security Trust
Deed, the "TRUST DEED") and made between the Issuer and The Bank of New York,
London Branch as trustee (the "TRUSTEE" which
66
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.
This Permanent Global Note will be exchanged in whole but not in part for
Definitive Notes if (a) any Note of the relevant Series becomes immediately
redeemable following the occurrence of an Event of Default in relation thereto
(b) Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System or Cedelbank, 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. In the case of
(a) and (b), the 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 Notes is required, deposit this Permanent Global Note with
the Principal Paying Agent at its specified office with the form of exchange
notice endorsed hereon duly completed. Any Definitive Notes will be made
available for collection by the persons entitled thereto at the specified office
of the Principal Paying Agent.
The Issuer undertakes to procure that the relevant Definitive Notes 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, the 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 or on which this Permanent Global Note is exchanged as
aforesaid or on which any Notes represented by this Permanent Global Note are to
be cancelled the Issuer shall procure that (i) the aggregate principal amount of
the Notes 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 (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 shall for all
purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Notes
represented by this Permanent Global Note, the Issuer shall procure that the
appropriate notations are made on the Schedule hereto.
Insofar as the Temporary Global Note by which the Notes were initially
represented has been exchanged in part only for this Permanent Global Note and
is then to be further exchanged as to the remaining principal amount or part
thereof for this Permanent Global Note, then upon presentation of this Permanent
Global Note to the Principal Paying Agent at its specified office and to the
extent that the aggregate principal amount of such Temporary Global Note is then
reduced by reason of such further exchange, the Issuer shall procure that (i)
the aggregate principal amount of the Notes in respect of which such further
exchange is then made and (ii) the new principal amount of this Permanent Global
Note (which shall be the previous principal
67
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
shall for all purposes be as most recently noted.
The obligations of the Issuer in respect of this Permanent Global Note 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 and, inter alios, the Trustee are restricted in the proceedings which they
may take against the 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 is governed by, and shall be construed in accordance
with, English law.
The 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 (respectively, "PROCEEDINGS" and "DISPUTES")
and, for such purposes, irrevocably submits to the jurisdiction of such courts.
The 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 shall not be valid for any purpose until
authenticated for and on behalf of Barclays Capital as Issue Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the Issuer.
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
68
ISSUED in London as of [o]
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK as Issue Agent
without recourse, warranty or liability
By:[manual signature]
(duly authorised)
69
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTE CERTIFICATES, FURTHER EXCHANGES OF THE
TEMPORARY GLOBAL NOTE, EXERCISE OF OPTIONS AND CANCELLATION OF NOTES
================================================================================================================================
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 Notes then further respect of this behalf of
Note, exercise of Note cancelled exchanges which Permanent the
option (and date Certificates of option is Global Principal
upon which then Temporary exercised Note Paying Agent
exercise is delivered Global Note
effective) or
cancellation
================================================================================================================================
================================================================================================================================
70
EXCHANGE NOTICE
.............................., being the bearer of this Permanent Global Note at
the time of its deposit with the Principal Paying Agent at its specified office
for the purposes of the Notes, hereby exercises the option set out above to have
this Permanent Global Note exchanged in whole for Definitive Notes in aggregate
principal amount of [ __] and directs that such Definitive Notes be made
available for collection by it from the Principal Paying Agent's specified
office.
By: ..............................
(duly authorised)
71
SCHEDULE 3
FORM OF DEFINITIVE NOTES
72
DEFINITIVE NOTE
[ON THE FACE OF THE NOTE:]
Series Number:[ ] Serial Number: [ ]
(pound)[Denomination]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
(POUND)[AGGREGATE PRINCIPAL AMOUNT OF TRANCHE]
FLOATING RATE ASSET BACKED CLASS [O] NOTE DUE [O]
BARCLAYCARD FUNDING PLC (the "ISSUER") for value received promises, all in
accordance with the terms and conditions endorsed hereon (the "TERMS AND
CONDITIONS") and the Trust Deed prepared in relation to the Notes to pay to the
bearer upon presentation or, as the case may be, surrender hereof on the
maturity date specified in the Terms and Conditions or on such earlier date as
the same may become payable in accordance therewith the Principal Amount on such
dates as may be specified in the Terms and Conditions or if this Note shall
become due and payable on any other date, the Principal Amount and to pay
interest and all other amounts as may be payable pursuant to the Terms and
Conditions, all subject to and in accordance therewith.
Words and expressions defined in the Terms and Conditions shall have the same
meanings when used on the face of this Note.
Neither this Note nor any of the interest coupons or talons appertaining hereto
shall be valid for any purpose until this Note has been authenticated for and on
behalf of the Issue Agent.
This Note is governed by, and shall be construed in accordance with, English
law.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer or duly authorised attorney on behalf of the Issuer.
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
73
ISSUED in London as of [o]
AUTHENTICATED for and on behalf of
THE BANK OF NE YORK AS Issue Agent
without recourse, warranty or liability
By:[manual signature]
(duly authorised)
74
[On the reverse of the Notes:]
TERMS AND CONDITIONS
[As contemplated in the Prospectus and as amended supplemented or replaced by
the relevant Supplemental Trust Deed]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
One Canada Square
London E14 5AL
United Kingdom
75
COUPON
[On the front of Coupon:]
BARCLAYCARD FUNDING PLC
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
(POUND)[O] FLOATING RATE ASSET BACKED CLASS [O] NOTE
Series No:[ ]
Serial Number of Note: [ ]
Coupon for [set out the amount due] due on Interest Payment Date falling in
[month, year].
Such amount is payable (subject to the Terms and Conditions applicable to the
Note to which this Coupon appertains, which shall be binding on the Noteholder
of this Coupon whether or not it is for the time being attached to such Note)
against surrender of this Coupon at the specified office of the Principal Paying
Agent or any of the Paying Agents set out on the reverse hereof (or any other or
further principal paying agent or paying agents and/or specified offices from
time to time designated for the purpose by notice duly given in accordance with
such Terms and Conditions).
The attention of Couponholders is drawn to Condition 7 of the Terms and
Conditions. The Note to which this Coupon appertains may in certain
circumstances specified in such Terms and Conditions, fall due for redemption
before the due date in relation to this Coupon. In such event the Paying Agent
to which such Note is presented for redemption may determine, in accordance with
the aforesaid Condition 7 that this Coupon is to become void.
76
[On the reverse of each Coupon:]
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
One Canada Square
London E14 5AL
United Kingdom
77
TALON
[On the front of Talon:]
BARCLAYCARD FUNDING PLC
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
(POUND)[O] FLOATING RATE ASSET BACKED CLASS [O] NOTE
Series No:[ ]
Serial Number of Note: [ ]
Talon for further Coupons
After all the Coupons appertaining to the Note to which this Talon appertains
have matured, further Coupons (including, where appropriate, a Talon for further
Coupons) will be issued at the specified office of the Principal Paying Agent or
any of the Paying Agents set out in the reverse hereof (or any other or further
paying agents and/or specified offices from time to time designated by notice
duly given in accordance with the Terms and Conditions applicable to the Note to
which this Talon appertains (which shall be binding on the Holder of this Talon
whether or not it is for the time being attached to such Note)) upon production
and surrender of this Talon upon and subject to such Terms and Conditions.
Under the said Terms and Conditions, such Note may, in certain circumstances,
fall due for redemption before the original due date for exchange of this Talon
and in any such event this Talon shall become void and no exchange shall be made
in respect hereof.
78
[On the reverse of each Talon:]
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
One Canada Square
London E14 5AL
United Kingdom
79
SCHEDULE 4
TERMS AND CONDITIONS OF THE NOTES
The following is the text of the terms and conditions which (subject to
completion and amendment and as supplemented or varied in accordance with the
provisions of the relevant Supplementary Listing Particulars (as defined below)
or Pricing Supplement (as defined below) and, save for the italicised text) will
be endorsed on the Notes in definitive form (if any) issued in exchange for the
Global Note(s) representing each Series of Notes in bearer form. These terms and
conditions will also apply to the Global Notes save as modified by the Global
Notes. Text in italics in these Conditions (save for sub-headings) refers to the
Global Notes alone and will not be endorsed on the Notes in definitive form.
Further information with respect to Notes of each Series will be given in the
relevant Supplementary Listing Particulars or Pricing Supplement which will
provide for those aspects of these terms and conditions which are applicable to
the Notes. References in the terms and conditions to "Notes" are to the Notes of
one Series only, not to all Notes which may be issued under the Programme,
reference to a "Class" are to a Class of Notes. Terms used in the relevant
Supplementary Listing Particulars or Pricing Supplement and not otherwise
defined herein shall have the same meanings where used herein or in the Trust
Deed (as defined below), the absence of any such term indicating that such term
is not applicable to the Notes and references to a matter being "specified"
means as the same may be specified in the relevant Supplementary Listing
Particulars or Pricing Supplement:
The Notes (as defined in Condition 1.1.1) are constituted and secured by a
security trust deed and MTN cash management agreement dated on or about 23
November 1999 (the "PRINCIPAL TRUST DEED") between the Issuer and The Bank of
New York (the "TRUSTEE" which expression shall include all persons for the time
being the trustee or trustees under the Trust Deed referred to below) as
supplemented by a supplemental trust deed (the "SUPPLEMENTAL TRUST DEED") dated
the Issue Date (as defined in Condition 5.8 below) between the Issuer, the
Trustee and the other parties named therein (the Principal Trust Deed and any
Supplemental Trust Deed being referred to herein as the "TRUST DEED").
The Notes will have the benefit (to the extent applicable) of an agency and
agreement dated on or about 23 November 1999 as may be amended or supplemented
from time to time (the "AGENCY AGREEMENT") between the Issuer, the Trustee, The
Bank of New York acting through its London Branch in its capacities as issue
agent (the "ISSUE AGENT" which expression shall include any successor to The
Bank of New York in its capacity as such), acting through the office specified
in the Applicable Supplement (as defined below) as principal paying agent (the
"PRINCIPAL PAYING AGENT", which expression shall include any successor to The
Bank of New York in its capacity as such) and The Bank of New York as Agent Bank
(the "AGENT BANK", which expression shall include any successor to The Bank of
New York in its capacity as such), As used herein, "PRINCIPAL PAYING AGENT",
"ISSUE AGENT" and "AGENT BANK" means, in relation to any Series of Notes, the
person specified in the relevant Pricing Supplement or Supplementary Listing
Particulars as the Principal Paying Agent, the Issue Agent and the Agent Bank
respectively, for such Series.
Certain statements in these terms and conditions (the "CONDITIONS") may be
summaries of the detailed provisions appearing on the face of the Notes (which
expression shall include the body thereof) and in the Principal Trust Deed.
Copies of the Principal Trust Deed and the Agency
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Agreement are available for inspection at the principal office of the Trustee
(presently at One Canada Square, London E14 5AL) and at the specified offices of
the Principal Paying Agent in London. The Holders (as defined in Condition 1
below, and the holders of the coupons (the "COUPONS") (if any) appertaining to
interest bearing Notes in bearer form (the "COUPONHOLDERS", which expression
includes the holder of talons (the "TALONS") (if any) for further coupons
attached to such Notes (the "TALONHOLDERS")) are entitled to the benefit of, are
bound by, and are deemed to have notice of, all the provisions of the Trust Deed
and to have notice of those provisions of the Agency Agreement applicable to
them.
The pricing supplement or, if the Notes are listed on the London Stock Exchange
Limited (the "LONDON STOCK EXCHANGE"), the supplementary listing particulars
relating to the Notes (respectively, the "PRICING SUPPLEMENT" and the
"SUPPLEMENTARY LISTING PARTICULARS", each an "APPLICABLE SUPPLEMENT") will be
endorsed upon or attached to the Notes and will supplement these Conditions and
may specify other terms and conditions which shall, to the extent so specified
or to the extent inconsistent with these Conditions, replace or modify these
Conditions for the purpose of such Notes.
Words and expressions defined in the Trust Deed, the Agency Agreement or the
Master Schedule of Definitions, Interpretation and Construction Clauses (as
amended and supplemented from time to time) signed for the purpose of
identification by, amongst others, the Issuer and the Trustee (the "MASTER
SCHEDULE OF DEFINITIONS") or used in the Applicable Supplement shall have the
same meaning where used in these Conditions unless the context otherwise
requires or unless otherwise stated and provided that, in the event of
inconsistency between the Agency Agreement or the Trust Deed, the Applicable
Supplement and the Master Schedule of Definitions, the definition of the
relevant term shall have the meaning specified in the relevant document ranking
the highest in the following order of priority:
(a) firstly, the Applicable Supplement;
(b) secondly, the Supplemental Trust Deed relevant to the Series in question;
(c) thirdly, the Terms and Conditions;
(d) fourthly, the Principal Trust Deed;
(e) fifthly, the Agency Agreement; and
(f) sixthly, the Master Schedule of Definitions.
1. FORM, DENOMINATION AND TITLE
1.1 FORM AND DENOMINATION
1.1.1 The Notes may be issued in bearer form serially numbered in an
Authorised Denomination (as defined below) or an integral
multiple thereof. "AUTHORISED DENOMINATION" means the currency
and denomination or denominations of such currency or currencies
specified in the Applicable Supplement. References herein to
"NOTES" shall be to Notes, as specified in the Applicable
Supplement Notes of one Authorised Denomination may not be
exchanged for Notes of another Authorised Denomination.
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1.1.2 Interest bearing Notes are issued with Coupons (and, where
appropriate, a Talon) attached. After all the Coupons attached
to, or issued in respect of, any Note which was issued with a
Talon have matured, a coupon sheet comprising further Coupons
(other than Coupons which would be void) and, if applicable, one
further Talon, will be issued against presentation of the
relevant Talon at the specified office of the Principal Paying
Agent in London. "Final Redemption Date" means the date specified
in the Applicable Supplement as the final date on which the
Principal Amount of such Note is due and payable.
1.2 TITLE
Title to Notes, Coupons and Talons (if any) passes by delivery. In these
Conditions, subject as provided below, "HOLDER" means the bearer of any
Note, Coupon or Talon (as the case may be). The Holder of any Note,
Coupon or Talon will (except as otherwise required by law) be treated as
its absolute owner for all purposes (whether or not it is overdue and
regardless of any notice of ownership on the face of such Note) and no
person shall be liable for so treating such Holder. In these Conditions
"NOTEHOLDER" means the bearer of any Note.
1.3 CLASSES OF NOTES COMPRISING A SERIES
A Series of Notes may comprise a number of Classes under which the right
to receive the payment of interest and repayment of principal may be
subordinated to the rights of one or more Classes of Notes within the
same Series.
2. STATUS OF THE NOTES AND PRIORITY SECURED CREDITOR
2.1 UNSUBORDINATED CLASSES OF NOTES
2.1.1 This Condition 2.1 is applicable only in relation to any Class of
Notes which is specified as being Unsubordinated.
2.1.2 In the case of an Unsubordinated Class of Notes, the Notes and
Coupons are secured, limited recourse obligations of the Issuer,
secured in the manner described in Condition 3 and recourse in
respect of which is limited in the manner described in Condition
10 and will rank pari passu without any preference among
themselves.
2.2 SUBORDINATED NOTES
2.2.1 This Condition 2.2 is applicable only in relation to any Class of
Notes which is specified as being Subordinated.
2.2.2 In the case of Subordinated Notes, the subordination provisions
will be set out in full in the Applicable Supplement.
2.3 PRIORITY SECURED CREDITOR
The relevant Supplemental Trust Deed will enable the Trustee to determine
a Priority Secured Creditor (as defined in the Master Schedule of
Definitions), which may be the Noteholders of the most senior ranking
Class of Notes and, for such purpose the Noteholders of the most senior
ranking Class of Notes such Series will be deemed to be a single Secured
Creditor. Such Priority Secured Creditor will enjoy preferential ranking
in the order of priority of payments on enforcement of the relevant
Security or following a Mandatory Redemption (as set out in Condition
6.2), and the Trustee will, where the
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interests of such Priority Secured Creditor conflict with those of the
other Secured Creditors (as defined in Condition 3.1.2), prefer the
interests of such Priority Secured Creditor over that of other Secured
Creditors (and shall not take into account the interests of such other
Secured Creditors). If, following a request as aforesaid and unless the
Trustee has already taken action pursuant to such request which (in its
sole discretion it determines) it would not be practical to reverse, the
identity of the Priority Secured Creditor changes to another Secured
Creditor (as so provided in the definition of Priority Secured Creditor
in the Master Schedule of Definitions), the Trustee shall in its absolute
discretion and without liability therefor be entitled to take into
account the request of such succeeding Priority Secured Creditor, but
shall not be obliged to do so and shall not incur any liability for
determining that it is impractical to take account of the change of
identity of the Priority Secured Creditor.
3. SECURITY AND RELATED AGREEMENTS
3.1 SECURITY AND RELATED AGREEMENTS
3.1.1 In connection with the issue of the Notes or in respect of any
Series, the Issuer may enter into swap transactions or other
hedging agreements or any letters of credit, guarantees or other
credit support or credit enhancement documents or other financial
arrangements (each a "RELATED AGREEMENT") with one or more
counterparties (each a "COUNTERPARTY"). The obligations of a
Counterparty may be guaranteed by a guarantor (the "GUARANTOR").
3.1.2 The obligations of the Issuer to the persons having the benefit
of the Security relating to a Series pursuant to the Supplemental
Trust Deed in respect thereof (the "SECURED CREDITORS") are
secured pursuant to the Supplemental Trust Deed in respect of
such Series by Encumbrances governed by English law and such
further encumbrances as may be required by the Trustee, governed
by the law of any other relevant jurisdiction over the Charged
Assets and/or the Underlying Assets as specified in the
Applicable Supplement.
3.1.3 The Secured Creditors of all Series are also secured pursuant to
the Principal Trust Deed by an assignment of certain contractual
rights of the Issuer and a floating charge over the assets of the
Issuer not otherwise charged or assigned by the Security
Documents or effectively encumbranced by the assignments granted
in the Principal Trust Deed.
3.1.4 The security created by each Supplemental Trust Deed will be
supported by such further security documents as may, from time to
time, be required by the Trustee and as specified in the
Applicable Supplement (each a "SUPPLEMENTARY SECURITY DOCUMENT"
and together with the relevant Supplemental Trust Deed, the
"SECURITY DOCUMENTS") (the "SECURITY").
3.2 APPLICATION OF PROCEEDS
After meeting the Trustee's and any receiver's expenses, liabilities and
remuneration and any other amounts due to the Trustee and such receiver,
and any other expenses payable by the Issuer, the proceeds of the
Security for any Series shall be applied in accordance with the
provisions set out in the relevant Supplemental Trust Deed.
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3.3 SHORTFALL AFTER APPLICATION OF PROCEEDS
If the net proceeds of:
(a) the realisation of the Security for any Series of Notes, having
become enforceable under these Conditions; or
(b) the sale or redemption of the Charged Assets and/or Underlying
Assets in accordance with these Conditions,
are not sufficient to make all payments due in respect of the Notes and
Coupons of such Series and for the Issuer to meet its obligations, if
any, in respect of the termination of any Related Agreement(s) in respect
of that Series, the assets of the Issuer, including, in particular,
assets securing other Series of Notes not related to that Series will not
be available for payment of any shortfall arising therefrom and all
further claims of the Holders (if any) in respect of the first mentioned
Series of Notes will be extinguished. Any such shortfall shall be borne
as specified in the relevant Supplemental Trust Deed. Claims and the
right of any person to claim in respect of any such shortfall remaining
after the application of such net proceeds in accordance with the
relevant Supplemental Trust Deed shall be extinguished and the Holders of
such Series will have no further recourse to the Issuer and failure to
make any payment in respect of any such shortfall shall in no
circumstances constitute an Event of Default (or, if an Event of Default
has already occurred, a further Event of Default) under Condition 9.
4. RESTRICTIONS
So long as any of the Notes remain outstanding (as defined in the
Principal Trust Deed), the Issuer will not, save to the extent permitted
by the Transaction Documents or the Trade Documents, or with the prior
written consent of the Trustee:
(a) engage in any business (other than acquiring and holding the
Charged Assets, issuing the Notes, entering into the Transaction
Documents and the Trade Documents in respect of each Series of
Notes, acquiring and holding other assets similar to the Charged
Assets, issuing further Series of Notes substantially in the form
of the Terms and Conditions set out in Schedule 2 to the
Principal Trust Deed, performing its obligations and exercising
its rights under the Trade Documents and the Transaction
Documents in respect of any Series of Notes and such further
matters as may be reasonably incidental thereto);
(b) have any employees or premises;
(c) declare or pay any dividends or make any distributions in respect
of its share capital, or issue any additional shares;
(d) incur or permit to subsist any indebtedness for borrowed money
whatsoever or give any guarantee or indemnity in respect of any
indebtedness other than issuing further Notes (in accordance with
the Transaction Documents and the Trade Documents), provided that
the Trustee is satisfied that such further Notes are:
(i) secured on assets of the Issuer other than:
(1) the Underlying Assets for any other Series;
(2) any assets other than those described in (i) above
on which any other obligations of the Issuer are
secured; and
(3) the Issuer's share capital; and
(ii) issued on terms in substantially the form contained in
these Terms and Conditions which provide for the
extinguishment of all claims in respect of such further
Notes and obligations after application of the proceeds of
sale or redemption of the Underlying Assets on which such
further Notes and obligations are secured;
(e) sell or otherwise dispose of the Underlying Assets relating to
any Series or any interest therein or agree or purport to do so;
(f) create or permit to exist upon or affect any of the Underlying
Assets relating to any Series, any Encumbrance or any other
security interest whatsoever other than as contemplated by any
Supplemental Trust Deed, or any Supplementary Security Document
executed in relation to such Series;
(g) consolidate or merge with any other person or convey or transfer
its properties or assets to any person;
(h) permit the Trust Deed or any Supplemental Trust Deed executed in
relation to any Series or any guarantee agreements executed in
relation to such Series, or the priority of the Security created
hereby, thereby or pursuant to any Supplemental Security Document
executed in relation to any Series of Notes to be amended,
terminated, postponed or discharged, or permit any person whose
obligations form part of such Security to be released from such
obligations;
(i) release any party to any Related Agreement from any executory
obligation thereunder; or
(j) have any subsidiaries.
The Trustee shall be entitled to rely absolutely on a certificate of a
director of the Issuer in relation to any matter relating to such
restrictions and to accept without liability any such certificate as
sufficient evidence of the relevant fact or matter in question.
5. INTEREST AND OTHER CALCULATIONS
5.1 INTEREST RATE AND ACCRUAL
5.1.1 Each Note bears interest on its Principal Amount (or as otherwise
specified in the Applicable Supplement) from the Interest
Commencement Date at the rate per annum (expressed as a
percentage) equal to the Interest Rate as adjusted by the
applicable Margin (if any), such interest being payable in arrear
(unless
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otherwise specified in the Applicable Supplement) on each
Interest Payment Date (as defined in Condition 5.8).
5.1.2 Interest will cease to accrue on each Note on the due date for
redemption unless, upon due presentation, payment of principal is
improperly withheld or refused, in which event interest will
continue to accrue (as well after as before judgment) at the
Interest Rate as adjusted by the applicable Margin (if any) in
the manner provided in this Condition 5 to the Relevant Date (as
defined in Condition 5.4).
5.2 BUSINESS DAY CONVENTION
If any date referred to in these Conditions which is specified to be
subject to adjustment in accordance with a Business Day Convention would
otherwise fall on a day which is not a Relevant Business Day, then if the
Business Day Convention specified in such Condition is:
5.2.1 the Floating Rate Convention, such date shall be postponed to the
next day which is a Relevant Business Day unless:
(a) it would thereby fall into the next calendar month, in
which event:
(i) such date shall be brought forward to the immediately
preceding Relevant Business Day; and
(ii) each subsequent such date shall be the last Relevant
Business Day of the month in which such date is due
to fall; or
(b) there is no such numerically corresponding day in the
calendar month in which such date is proposed to fall in
which event:
(i) such date will be the last Relevant Business Day of
the month in which such date is due to fall; and
(ii) each subsequent such date shall be the last Relevant
Business Day of the month in which such date is due
to fall;
5.2.2 the Following Business Day Convention, such date shall be
postponed to the next day which is a Relevant Business Day;
5.2.3 the Modified Following Business Day Convention, such date shall
be postponed to the next day which is a Relevant Business Day
unless it would thereby fall into the next calendar month, in
which event such date shall be brought forward to the immediately
preceding Relevant Business Day; or
5.2.4 the Preceding Business Day Convention, such date shall be brought
forward to the immediately preceding Relevant Business Day.
5.3 INTEREST RATE
The Interest Rate for each Interest Period will be determined by the
Agent Bank at or about the Relevant Time on the Interest Determination
Date in respect of such Interest Period in accordance with the following:
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5.3.1 if the Primary Source as specified in the Applicable Supplement
is a Page (as defined in Condition 5.8) , subject as provided
below, the Interest Rate shall be:
(a) the Relevant Rate (where such Relevant Rate on such Page is
a composite quotation or is customarily supplied by one
entity); or
(b) the arithmetic mean of the Relevant Rates of the persons
whose Relevant Rates appear on that Page,
in each case appearing on such Page at the Relevant Time on the
Interest Determination Date and as adjusted by the Margin (if
applicable);
5.3.2 if the Primary Source as specified in the Applicable Supplement
is Reference Banks or if Condition 5.3.1(a) above applies and no
Relevant Rate appears on the Page at the Relevant Time on the
Interest Determination Date or if Condition 5.3.1(b) above
applies and fewer than two Relevant Rates appear on the Page at
the Relevant Time on the Interest Determination Date, subject as
provided below, the Interest Rate shall be the arithmetic mean of
the Relevant Rates which each of the Reference Banks is quoting
to major banks in the Relevant Financial Centre at the Relevant
Time on the Interest Determination Date, as determined by the
Agent Bank and as adjusted by the Margin (if applicable); and
5.3.3 if Condition 5.3.2 above applies and the Agent Bank determines
that fewer than two Reference Banks are so quoting Relevant
Rates, subject as provided below, the Interest Rate shall be the
arithmetic mean of the rates per annum (expressed as a
percentage) which the Agent Bank determines to be the rates
(being the nearest equivalent to the Benchmark in respect of a
Representative Amount of the Relevant Currency) which four
leading banks selected by the Agent Bank in (a) the principal
financial centre of the country of the Relevant Currency (the
"PRINCIPAL FINANCIAL CENTRE") if the Relevant Currency is not
euro, or (b) London if the Relevant Currency is euro, are quoting
at or about the Relevant Time on the date on which such banks
would customarily quote such rates for a period commencing on the
Effective Date for a period equivalent to the Specified Duration
to leading banks carrying on business in Europe and as adjusted
by the Margin (if applicable) or, if the Agent Bank determines
that fewer than two of such banks are so quoting, in (a) the
Principal Financial Centre if the Relevant Currency is not euro,
or (b) London if the Relevant Currency is euro, the Interest Rate
shall be the Interest Rate determined on the previous Interest
Determination Date and as adjusted by the Margin (if applicable).
5.4 MARGIN AND ROUNDING
5.4.1 If any Interest Rate is expressed to be as adjusted by any
Margin, such adjustment shall be made by adding (if a positive
number) or subtracting (if a negative number) the absolute value
of any such Margin specified on the Notes or in the Applicable
Supplement. If such calculation results in a negative figure, the
amount of interest so calculated will be deemed to be zero.
87
5.4.2 For the purposes of any calculations required pursuant to these
Conditions (unless otherwise specified):
(a) all percentages resulting from such calculations will be
rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (with halves being
rounded up);
(b) all figures will be rounded to seven significant figures
(with halves being rounded up); and
(c) all currency amounts which fall due and payable will be
rounded to the nearest unit of such currency (with halves
being rounded up). For these purposes, "UNIT" means, with
respect to any currency other than euro, the lowest amount
of such currency which is available as legal tender in the
country of such currency and, with respect to euro, means
0.01 euro.
5.5 CALCULATIONS
The amount of interest payable in respect of any Note for any period
shall be calculated by multiplying the product of the Interest Rate as
adjusted by the Margin (if applicable) and the Principal Amount
outstanding of such Note on the relevant Interest Payment Date after the
making of any principal repayment on the Notes on such Interest Payment
Date by the Day Count Fraction.
5.6 DETERMINATION AND PUBLICATION OF INTEREST RATES, INTEREST AMOUNTS,
REDEMPTION AMOUNTS AND INSTALMENT AMOUNTS
As soon as practicable after the Relevant Time on each Interest
Determination Date or such other time on such date as the Agent Bank may
be required to calculate any Redemption Amount, obtain any quote or make
any determination or calculation, the Agent Bank will determine the
Interest Rate as adjusted by the Margin (if applicable) and calculate the
amount of interest payable (the "INTEREST AMOUNTS") in respect of each
Authorised Denomination of Notes for the relevant Interest Period,
calculate the Redemption Amount, obtain such quote or make such
determination or calculation, as the case may be, and cause the Interest
Rate as adjusted by the Margin (if any) and the Interest Amounts for each
Interest Period and the relevant Interest Payment Date and, if required
to be calculated, the Redemption Amount to be notified to the Principal
Paying Agent and, if the Notes are listed on a stock exchange and such
exchange so requires, such exchange as soon as possible after their
determination but in no event later than (i) (in case of notification to
such stock exchange) the commencement of the relevant Interest Period, if
determined prior to such time, in the case of an Interest Rate and
Interest Amount, or (ii) in all other cases, the fourth Relevant Business
Day after such determination. The Interest Amounts and the Interest
Payment Date so published may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without notice in the
event of an extension or shortening of the Interest Period. If the Notes
become due and payable under Condition 9, the accrued interest and the
Interest Rate as adjusted by the Margin (if applicable) payable in
respect of the Notes shall nevertheless continue to be calculated as
previously in accordance with this Condition but no publication of the
Interest Rate or the Interest Amount so calculated need be made unless
otherwise required by the Trustee. The determination of each Interest
Rate, Interest Amount and Redemption Amount, the obtaining of each quote
and
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the making of each determination or calculation by the Agent Bank or, as
the case may be, the Trustee pursuant to Condition 5.10, shall (in the
absence of manifest error) be final and binding upon all parties.
5.7 INTEREST DEFERRAL
To the extent that the monies which are deposited to the Series
Distribution Account for the relevant Series by the Receivables Trustee
on an Interest Payment Date are insufficient to pay the full amount of
interest on any Class of Notes, payment of the shortfall ("DEFERRED
INTEREST"), which will be borne by each Note of the relevant Class, in a
proportion equal to the proportion that the Principal Amount Outstanding
of the relevant Class of Note bears to the aggregate Principal Amount
Outstanding of all the Notes of the same Class (in each case as
determined on the Interest Payment Date on which such Deferred Interest
arises), will be deferred until the Interest Payment Date thereafter on
which funds are available to the Issuer (by being paid to the Issuer by
the Receivables Trustee on such Interest Payment Date) to pay such
Deferred Interest to the extent of such available funds. Such Deferred
Interest will accrue interest ("ADDITIONAL INTEREST") at the then
applicable Interest Rate as adjusted by any Margin plus an additional
margin of 2 per cent. per annum, and payment of any Additional Interest
will also be deferred until the earlier of the Interest Payment Date
thereafter on which funds are available to the Issuer to pay such
Additional Interest to the extent of such available funds and the Series
Termination Date as specified in the Applicable Supplement.
5.8 DEFINITIONS
In these Conditions, unless the context otherwise requires, the following
defined terms shall have the meanings set out below.
"BENCHMARK" means LIBOR or such other benchmark as may be specified;
"AGENT BANK" means The Bank of New York, London Branch or such other
agent as may be appointed by the Issuer for the purposes of making any
calculations or determination in respect of any Series of Notes;
"CONTROLLED ACCUMULATION PERIOD" means (unless the Regulated Amortisation
Period or the Rapid Amortisation Period has commenced) the period
commencing on the close of business on the date specified in the
Applicable Supplement or such later date as is determined in accordance
with the provisions of the Programme (such later date falling no later
than the date specified in the Applicable Supplement), and ending (for
the purposes of these Conditions) on the first to occur of (a) the
commencement of the Rapid Amortisation Period, (b) the day the Investor
Interest is reduced to zero and (c) the Series Termination Date specified
in the Applicable Supplement.
"DAY COUNT FRACTION" means, in respect of the calculation of an amount of
interest on any Note for any period of time (whether or not constituting
an Interest Period, the "Calculation Period"):
(a) if "ACTUAL/365" or "ACTUAL/ACTUAL" is specified, the actual
number of days in the Calculation Period divided by 365 (or, if
any portion of that Calculation Period falls in a leap year, the
sum of:
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(i) the actual number of days in that portion of the
Calculation Period falling in a leap year divided by 366;
and
(ii) the actual number of days in that portion of the
Calculation Period falling in a non-leap year divided by
365); and
(b) if "ACTUAL/360" is specified, the actual number of days in the
Calculation Period divided by 360.
"EURO" means the lawful currency of the Member States of the European
Union participating in Economic and Monetary Union;
"INTEREST COMMENCEMENT DATE" means the Issue Date or such other date as
may be specified.
"INTEREST DETERMINATION DATE" means, with respect to an Interest Rate and
an Interest Period, the date specified as such or, if none is so
specified, the day falling two Relevant Business Days in London prior to
the first day of such Interest Period (if the specified currency is not
sterling).
"INTEREST PAYMENT DATE" means the date(s) specified as such in the
Applicable Supplement.
"INTEREST PERIOD" means the period specified as such in the Applicable
Supplement Provided, however, that with respect to an Interest Period
that commences during a Revolving Period or Controlled Accumulation
Period and ends during a Rapid Amortisation Period, such Interest Period
will end on the last day of the originally scheduled Interest Period;
"INTEREST RATE" means the rate of interest payable from time to time in
respect of the Note and which is either specified in, or calculated in
accordance with the provisions of, the Applicable Supplement.
"ISSUE DATE" means the date of issue of the Notes.
"MARGIN" means the rate per annum (expressed as a percentage) specified
in the Applicable Supplement.
"PAGE" means such page, section, caption, column or other part of a
particular information service (including, but not limited to, the Reuter
Monitor Money Rates Service ("REUTERS") and the Dow Jones Telerate
Service ("TELERATE")) as may be specified for the purpose of providing a
Relevant Rate, or such other page, section, caption, column or other part
as may replace the same on that information service or on such other
information service, in each case as may be nominated by the person or
organisation providing or sponsoring the information appearing there for
the purpose of displaying rates or prices comparable to that Relevant
Rate.
"PRIMARY SOURCE" means, unless otherwise specified, a Page or Reference
Banks.
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"PRINCIPAL AMOUNT OUTSTANDING" means in relation to a Note or Series, the
original face value thereof less any repayment of principal made to the
holder(s) thereof in respect of such Note or Series.
"RAPID AMORTISATION PERIOD" means the period commencing on the day on
which a Pay-Out Event (not being a Regulated Amortisation Trigger Event)
is deemed to occur pursuant to the provisions of the Applicable
Supplement, and ending (for the purposes of these Conditions) on the
earlier of (i) the day on which the Investor Interest is reduced to zero
and (ii) the Series Termination Date specified in the Applicable
Supplement;
"REDEMPTION AMOUNT" means, unless otherwise specified in the Applicable
Supplement, in relation to a Note or Series, the amount of the original
face value thereof less any repayment of principal made to the Holder(s)
thereof in respect of such Note or Series.
"REFERENCE BANKS" means the institutions specified as such or, if none,
four major banks selected by the Agent Bank in (a) the interbank market
(or, if appropriate, money market) which is most closely connected with
the Benchmark if the Relevant Currency is not euro, or (b) London if the
Relevant Currency is euro.
"REGULATED AMORTISATION PERIOD" means the period commencing on the day on
which a Regulated Amortisation Trigger Event is deemed to occur pursuant
to the terms of the Applicable Supplement and ending (for the purposes of
these Conditions) on the earlier of (i) the day on which the Investor
Interest is reduced to zero and (ii) the Distribution Date falling on the
date specified in the Applicable Supplement.
"RELEVANT BUSINESS DAY" means:
(i) in the case of a specified currency (other than euro) and/or one
or more specified financial centres, a day (other than a Saturday
or a Sunday) on which commercial banks and foreign exchange
markets settle payments in London and in the principal financial
centre for that currency and/or each of the financial centres so
specified; and/or
(ii) in the case of euro, a day on which the TARGET system is
operating.
"RELEVANT CURRENCY" means the currency specified as such or, if none is
specified, the currency in which the Notes are denominated.
"RELEVANT FINANCIAL CENTRE" means, with respect to any Interest Rate to
be determined on an Interest Determination Date, the financial centre as
may be specified as such or, if none is so specified, (a) the financial
centre with which the relevant Benchmark is most closely connected or, if
none is so connected, London, if the Relevant Currency is not euro, or
(b) London if the Relevant Currency is euro.
"RELEVANT RATE" means the Benchmark for a Representative Amount of the
Relevant Currency for a period (if applicable) equal to the Specified
Duration commencing on the Effective Date.
"RELEVANT TIME" means, with respect to any Interest Determination Date,
the local time in the Relevant Financial Centre specified in the
Applicable Supplement or, if none is
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specified, the local time in the Relevant Financial Centre at which it is
customary to determine bid and offered rates in respect of deposits in
the relevant currency in the interbank market in the Relevant Financial
Centre.
"REPRESENTATIVE AMOUNT" means, with respect to any Interest Rate to be
determined on an Interest Determination Date, the amount specified as
such or, if none is specified, an amount that is representative for a
single transaction in the relevant market at the time.
"REVOLVING PERIOD" means the period from and including the Issue Date to,
but not including, the earlier of the date of commencement of (a) the
Controlled Accumulation Period (b) the Regulated Amortisation Period and
(c) the Rapid Amortisation Period.
"SPECIFIED DURATION" means, with respect to any Floating Rate to be
determined on an Interest Determination Date, the duration specified or,
if none is specified, a period of time equal to the relative Interest
Period.
"TARGET SYSTEM" means the Trans-European Automated Real-Time Gross
Settlement Express Transfer system.
5.9 AGENT BANK AND REFERENCE BANKS
The Agent Bank will procure that there shall at all times be four
Reference Banks selected by the Agent Bank with offices in the Relevant
Financial Centre and a Agent Bank if provision is made for them in the
Conditions applicable to this Note and for so long as it is outstanding.
If any Reference Bank (acting through its relevant office) is unable or
unwilling to continue to act as a Reference Bank, then the Agent Bank
will appoint another Reference Bank with an office in the Relevant
Financial Centre to act as such in its place. If the Agent Bank is unable
or unwilling to act as such or if the Agent Bank fails duly to establish
the Interest Rate (as adjusted by any applicable Margin) for any Interest
Period or to calculate the Interest Amounts or any other requirements,
the Issuer will appoint (with the prior written consent of the Trustee) a
successor to act in its place. The Agent Bank may not resign its duties
without a successor having been appointed as aforesaid.
5.10 DETERMINATION OR CALCULATION BY TRUSTEE
If the Agent Bank does not at any time for any reason determine any
Interest Rate (as adjusted by any applicable Margin), Interest Amount,
Redemption Amount or any other amount to be determined or calculated by
it, the Trustee shall determine such Interest Rate (as adjusted by any
applicable Margin), Interest Amount, Instalment Amount or other amount as
aforesaid at such rate or in such amount as in its absolute discretion
(having regard as it shall think fit to the procedures described above,
but subject to the terms of the Trust Deed) it shall deem fair and
reasonable in all the circumstances or, subject as aforesaid, apply the
foregoing provisions of this Condition, with any consequential
amendments, to the extent that, in its sole opinion, it can do so and in
all other respects it shall do so in such manner as it shall, in its
absolute discretion, deem fair and reasonable in the circumstances, and
each such determination or calculation shall be deemed to have been made
by the Principal Paying Agent or the Agent Bank, as the case may be.
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6. REDEMPTION
6.1 SCHEDULED REDEMPTION
Unless the Rapid Amortisation Period or the Regulated Amortisation Period
has earlier commenced each Class of Note will be redeemed on its
Scheduled Redemption Date as specified in the Applicable Supplement. To
the extent that the principal amount which is deposited to the Series
Distribution Account on the Scheduled Redemption Date in reduction of the
class of Investor Interest corresponding to any Class of Note as
specified in the Applicable Supplement (such amount, the "RELEVANT
INVESTOR AMOUNT") is less than the Principal Amount Outstanding on such
Class of Notes on the Scheduled Redemption Date, then that Class of Notes
will be redeemed pro rata to the extent of the Relevant Investor Amount
and the Rapid Amortisation Period will commence with effect from such
Scheduled Redemption Date. On each Interest Payment Date which thereafter
occurs during the Rapid Amortisation Period, such Class of Notes will be
redeemed pro rata to the extent of the principal amount which is
deposited to the Series Distribution Account on such date in reduction of
the corresponding Class of Investor Interest as specified in the
Applicable Supplement until the earlier of (a) such time as the relevant
Class of Notes has been repaid in full and (b) the Series Termination
Date specified in the Applicable Supplement.
6.2 MANDATORY EARLY REDEMPTION
If the Rapid Amortisation Period or the Regulated Amortisation Period
commences in respect of any Class of Notes prior to its Scheduled
Redemption Date as specified in the Applicable Supplement, then on each
Interest Payment Date which thereafter occurs, such Class of Note will be
redeemed pro rata to the extent of the principal amount which is
deposited on such date to the Series Distribution Account in reduction of
the corresponding Class of Investor Interest as specified in the
Applicable Supplement until the earlier of (a) such time as such Class of
Notes has been repaid in full and (b) the Series Termination Date
specified in the Applicable Supplement.
6.3 OPTIONAL REDEMPTION IN FULL
Upon giving not more than 60 nor less than 30 days' notice to the Trustee
and the Noteholders in accordance with Condition 14, the Issuer may
redeem (all but not some only) of the Notes at their then Principal
Amount Outstanding together with any accrued but unpaid interest and any
Deferred Interest and Additional Interest on any Interest Payment Date on
which the aggregate Principal Amount Outstanding of the Notes is less
than 10 per cent. of the aggregate Principal Amount Outstanding on the
issue of the Notes, provided that, prior to the giving of any such
notice, the Issuer shall have provided to the Trustee a certificate
signed by two directors of the Issuer to the effect that it will have the
funds, not subject to the interest of any other person, required to
redeem the Notes as aforesaid and any amounts required under the Trust
Deed to be paid in priority to or pari passu with the Notes then
outstanding. Any certificate given by or on behalf of the Issuer may be
relied upon by the Trustee and shall be conclusive and binding on the
Noteholders.
6.4 FINAL REDEMPTION
If the Notes of any Class have not previously been redeemed in full
pursuant to Condition 6.1 or 6.3 above, such Class of Notes will be
redeemed at their then Principal Amount Outstanding on the Final
Redemption Date specified in the Applicable
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Supplement together with all accrued and unpaid interest, Deferred
Interest and Additional Interest.
7. PAYMENTS
7.1 NOTES
Payments of principal (or, as the case may be, Redemption Amounts) and
interest (or, as the case may be, Interest Amounts) in respect of Notes
will, subject as mentioned below, be made against presentation and
surrender of the relevant, Notes (in the case of all payments of
principal) or Coupons (in the case of interest), as the case may be, at
the specified office of the Principal Paying Agent in London or any
non-UK Paying Agent specified in the Applicable Supplement by a cheque
payable in the currency in which such payment is due drawn on, or, at the
option of the Holders by transfer to an account denominated in that
currency with, a bank in (a) the principal financial centre of the
country of the currency concerned if that currency is not euro, or (b)
the principal financial centre of any Member State of the European
Communities if that currency is euro; provided that in the case of
British pounds sterling, the cheque shall be drawn on a town clearing
branch of a bank in the City of London.
7.2 PAYMENTS SUBJECT TO FISCAL LAWS; PAYMENTS ON GLOBAL NOTES
All payments are subject in all cases to any applicable fiscal or other
laws, regulations and directives, but without prejudice to the provisions
of Condition 9. No commission or expenses shall be charged to the Holders
in respect of such payments.
Payments of principal (or Redemption Amounts) and interest (or Interest
Amounts) in respect of the Notes when represented by a Permanent Global
Note will be made against presentation and surrender or, as the case may
be, presentation of the Permanent Global Note at the specified office of
the Principal Paying Agent in London, or any non-UK Paying Agent
specified in the Applicable Supplement subject in all cases to any fiscal
or other laws, regulations and directives applicable in the place of
payment to the Principal Paying Agent or the bearer of the Permanent
Global Note. A record of each payment so made will be endorsed on the
schedule to the Permanent Global Note by or on behalf of the Principal
Paying Agent which endorsement shall be prima facie evidence that such
payment has been made.
7.3 APPOINTMENT OF THE PRINCIPAL PAYING AGENT, THE ISSUE AGENT AND THE AGENT
BANK
The Agents act solely as agents of the Issuer and do not assume any
obligation or relationship of agency or trust for or with any Holder. The
Issuer reserves the right at any time to vary or terminate the
appointment of any Agent, and to appoint additional or other Agents,
provided that the Issuer will at all times maintain (i) a Principal
Paying Agent which, so long as the Notes are listed on the London Stock
Exchange Limited, shall be London, and (ii) a Agent Bank where the
Conditions so require one.
7.4 UNMATURED COUPONS AND UNEXCHANGED TALONS
7.4.1 Subject to the provisions of the Applicable Supplement, upon the
due date for redemption of any Note, unmatured Coupons relating
to such Note (whether or not attached) shall become void and no
payment shall be made in respect of them.
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7.4.2 Upon the date for redemption of any Note, any unmatured Talon
relating to such Note (whether or not attached) shall become void
and no Coupon shall be delivered in respect of such Talon.
7.4.3 Where any Note, is presented for redemption without all unmatured
Coupons and any unexchanged Talon relating to it, redemption
shall be made only against the provision of such indemnity as the
Issuer may require.
7.5 NON-BUSINESS DAYS
Subject as provided in the Applicable Supplement, if any date for payment
in respect of any Note or Coupon is not a business day, the Holder shall
not be entitled to payment until the next following business day nor to
any interest or other sum in respect of such postponed payment. In this
paragraph, "business day" means a day (other than a Saturday or a Sunday)
on which banks are open for presentation and payment of debt securities
and for dealings in foreign currencies in London and the relevant place
of presentation and in the cities referred to in the definition of
Business Days set out in the Applicable Supplement or on the face of the
Notes:
7.5.1 (in the case of a payment in a currency other than euro) where
payment is to be made by transfer to an account maintained with a
bank in the relevant currency, on which dealings may be carried
on in the relevant currency in the principal financial centre of
the country of such currency; or
7.5.2 (in the case of a payment in euro) a day on which the TARGET
system is operating.
7.6 TALONS
On or after the Interest Payment Date for the final Coupon forming part
of a coupon sheet issued in respect of any Note, the Talon forming part
of such coupon sheet may be surrendered at the specified office of the
Principal Paying Agent in London or any non-UK Paying Agent in exchange
for a further coupon sheet (and if necessary another Talon for a further
coupon sheet) (but excluding any Coupons which may have become void
pursuant to Condition 11).
8. TAXATION
All payments in respect of the Notes or Coupons will be made without
withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatsoever nature unless the Issuer or any
Paying Agent or, where applicable, the Trustee is required by applicable
law to make any payment in respect of the Notes or Coupons subject to any
withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatsoever nature. In that event, the Issuer,
any Paying Agent or the Trustee (as the case may be) shall make such
payment after such withholding or deduction has been made and shall
account to the relevant authorities for the amount so required to be
withheld or deducted. Neither the Issuer, nor any Paying Agent nor the
Trustee will be obliged to make any additional payments to the Holders,
in respect of such withholding or deduction. The Issuer, or any Paying
Agent may require the Holders to provide such certifications and other
documents as required by applicable law in order to qualify for
exemptions from applicable tax laws.
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9. EVENTS OF DEFAULT
9.1 OCCURRENCE OF EVENTS OF DEFAULT
The Trustee at its discretion may, and if so requested by the Priority
Secured Creditor of a Series shall (in each case, provided the Trustee is
secured, indemnified, or both, to its satisfaction) give notice (an
"ENFORCEMENT NOTICE") to the Issuer that the Notes of such Series are,
and they shall accordingly immediately become, due and repayable, at
their Redemption Amount together with accrued interest, Deferred Interest
and Additional Interest, if any, or as otherwise specified in the
Applicable Supplement and the Security constituted by the Trust Deed in
respect of such Series shall thereupon become enforceable (as provided in
the Trust Deed) on the occurrence of any of the following events (each an
"EVENT OF DEFAULT"):
9.1.1 Non-payment: the Issuer fails to pay any amount of principal in
respect of the Notes within 7 days of the due date for payment
thereof or fails to pay any amount of interest in respect of the
Notes within 15 days of the due date for payment thereof; or
9.1.2 Breach of other obligations: the Issuer defaults in the
performance or observance of any of its other obligations under
or in respect of the Notes, the Trust Deed, (other than, in any
such case, any obligation for the payment of any principal or
interest on the Notes) or the Agency Agreement and (except where
such default is incapable of remedy) such default remains
unremedied for 30 days after the Trustee has given written notice
thereof to the Issuer, certifying that such default is, in the
opinion of the Trustee, materially prejudicial to the interests
of the Noteholders; or
9.1.3 Unsatisfied judgment: a judgment or order for the payment of any
amount is rendered against the Issuer and continues unsatisfied
and unstayed for a period of 30 days after the date thereof or,
if later, the date therein specified for payment; or
9.1.4 Security enforced: a secured party and/or encumbrancer takes
possession or a receiver, administrative receiver, administrator,
examiner, manager or other similar officer is appointed, of the
whole or any part of the undertaking, assets and revenues of the
Issuer or a distress or execution is levied; or
9.1.5 Insolvency etc: (i) the Issuer becomes insolvent or is unable to
pay its debts as they fall due, (ii) an administrator or
liquidator of the Issuer or the whole or any part of the
undertaking, assets and revenues of the Issuer is appointed (or
application for any such appointment is made), (iii) the Issuer
takes any action for a readjustment or deferment of any of its
obligations or makes a general assignment or an arrangement or
composition with or for the benefit of its creditors or declares
a moratorium in respect of any of its indebtedness or any
guarantee of indebtedness given by it or (iv) the Issuer ceases
or threatens to cease to carry on all or any substantial part of
its business; or
9.1.6 Winding up etc: an order is made or an effective resolution is
passed for the winding up, liquidation or dissolution of the
Issuer; or
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9.1.7 Failure to take action etc: any action, condition or thing at any
time required to be taken, fulfilled or done in order (i) to
enable the Issuer lawfully to enter into, exercise its rights and
perform and comply with its obligations under and in respect of
the Notes and the Related Documents or (ii) to ensure that those
obligations are legal, valid, binding and enforceable (except as
such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganisation or other similar laws
affecting the enforcement of the rights of creditors generally
and as such enforceability may be limited by the effect of
general principles of equity); or
9.1.8 Unlawfulness: it is or will become unlawful for the Issuer to
perform or comply with any of its obligations under or in respect
of the Notes or the Related Documents; or
9.1.9 Government intervention: (i) all or any substantial part of the
undertaking, assets and revenues of the Issuer is condemned,
seized or otherwise appropriated by any person acting under the
authority of any national, regional or local government or (ii)
the Issuer is prevented by any such person from exercising normal
control over all or any substantial part of its undertaking,
assets and revenues.
9.2 VARIATION OF EVENTS OF DEFAULT
The Events of Default may be varied or amended in respect of any Series
of Notes as set out in the Applicable Supplement.
9.3 REALISATION OF THE UNDERLYING ASSETS UPON REDEMPTION
In the event of the Security constituted under the Trust Deed becoming
enforceable following an acceleration of the Notes of a particular Series
as provided in this Condition 9, the Trustee shall, but in each case
without any liability as to the consequence of such action and without
having regard to the effect of, or being required to account for, such
action to, the Secured Creditors in relation to such Series, have the
right to enforce its rights under the Security Documents, in relation to
the relevant Underlying Assets in relation to such Series only, provided
that the Trustee shall not be required to take any action that would
involve the Trustee in any personal liability or expense unless
previously indemnified and/or secured to its satisfaction.
The provisions of the Trust Deed are expressed to apply separately to
each Series. Accordingly, the occurrence of an Event of Default under one
Series does not per se constitute and nor does it trigger an Event of
Default under any other Series.
10. ENFORCEMENT
(a) Only the Trustee may pursue the remedies available under the
Trust Deed, the Conditions or any of the Transaction Documents or
any of the Trade Documents to enforce the rights of the Secured
Creditors in relation to the Underlying Assets of the relevant
Series. No Secured Creditor of such Series is entitled to proceed
directly against the Issuer or any assets of the Issuer unless
the Trustee, having become bound to proceed in accordance with
the terms of the Principal Trust Deed, any Supplemental Trust
Deed, any Supplementary Security
97
Document executed in relation to the Notes or the Conditions,
fails or neglects to do so within a reasonable period and such
failure or neglect is continuing. However, the Trustee shall not
be bound to take any action to enforce the Security or pursue the
remedies available under the Trust Deed, the Conditions
(including under Condition 9.1) any of the Transaction Documents
or any of the Trade Documents or otherwise take any action unless
it is indemnified and/or secured to its satisfaction and has, if
so required by the Conditions, been requested to do so by the
Priority Secured Creditor in respect of the relevant Series.
(b) After the date falling three months after the Series Termination
Date or, if earlier, realisation of the Security in respect of
such Series which has become enforceable and distribution of the
net proceeds thereof in accordance with Condition 4, neither the
Trustee nor any Secured Creditor in respect of such Series may
take any further steps against the Issuer, or any of its assets
to recover any sums due but unpaid in respect of the Notes or
otherwise and the relevant Related Agreement will provide that
the Counterparty may not take any further steps against the
Issuer, or any of its assets to recover any sums due to it but
unpaid in respect of the relevant Related Agreement in respect of
such Series and all claims and all rights to claim against the
Issuer in respect of each such sum unpaid shall be extinguished.
(c) No Secured Creditor, nor the Trustee on its behalf, may institute
against, or join any person in instituting against the Issuer any
bankruptcy, winding-up, re-organisation, arrangement, insolvency
or liquidation proceeding (except for the appointment of a
receiver and manager pursuant to the terms of the Trust Deed) or
other proceeding under any similar law nor shall any of them have
any claim in respect of any such sums over or in respect of any
assets of the Issuer which are Security for any other Series. The
Secured Creditors accept and agree that the only remedy of the
Trustee against the Issuer of any Series after any of the Notes
in a Series have become due and payable pursuant to Condition 9
is to enforce the Security for the relevant Series pursuant to
the provisions of the Trust Deed and any Supplementary Security
Document executed in relation to such Series.
(d) The net proceeds of enforcement of the Security for the relevant
Series may be insufficient to pay all amounts due to the Secured
Creditors in respect of such Series, in which event claims in
respect of all such amounts will be extinguished.
11. PRESCRIPTION
Claims against the Issuer for payment in respect of the Notes or Coupons
(which, for this purpose, shall not include Talons) shall be prescribed
and become void unless made within ten years (in the case of principal)
or five years (in the case of interest) from the appropriate Relevant
Date in respect thereof.
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12. REPLACEMENT OF NOTES, COUPONS AND TALONS
If any Note, Coupon or Talon is lost, stolen, mutilated, defaced or
destroyed it may be replaced, subject to applicable laws and any relevant
stock exchange requirements, at the specified office of the Principal
Paying Agent or any non-UK Paying Agent specified in the Applicable
Supplement, upon payment by the claimant of the expenses incurred in
connection with such replacement and on such terms as to evidence,
security, indemnity and otherwise as the Issuer may require. Mutilated or
defaced Notes, Coupons or Talons must be surrendered before replacements
will be issued.
13. MEETINGS OF NOTEHOLDERS, MODIFICATION, WAIVER, AUTHORISATION AND
SUBSTITUTION
13.1 MEETINGS OF NOTEHOLDERS
The Principal Trust Deed contains provisions for convening joint and
separate meetings of each Class of Noteholders to consider any matter
affecting their interests, including the sanctioning by an Extraordinary
Resolution of such Noteholders of the relevant Class of any modification
of the Notes of the relevant Class (including these Conditions as they
relate to the Notes of such relevant class) or the provisions of any of
the Transaction Documents or the Trade Documents, Provided that no
modification of certain terms by the Noteholders of any Class including,
inter alia, the maturity date of the Notes of the relevant Class or a
modification which would have the effect of postponing any day for
payment of interest in respect of such Notes, the reduction or
cancellation of the amount of principal or premium payable in respect of
such Notes, the alteration of the Interest Rate in respect of the
currency of payment of such Notes or any alteration of the priority of
redemption of such Notes (any such modification in respect of any such
class of Notes being referred to below as a "BASIC TERMS MODIFICATION")
shall be effective unless such modification is sanctioned by an
Extraordinary Resolution of the Noteholders of the other classes of
Notes.
The quorum at any meeting of the Noteholders of any Class of Notes for
passing an Extraordinary Resolution shall be two or more persons holding
or representing a clear majority of the aggregate Principal Amount
Outstanding of the Notes of the relevant Class; Provided however, that,
at any meeting the business of which includes the sanctioning of a Basic
Terms Modification, the necessary quorum for passing an Extraordinary
Resolution shall be two or more persons holding or representing 75 per
cent., or more of the aggregate Principal Amount Outstanding of the Notes
of the relevant Class.
Except in the case of a Basic Terms Modification, an Extraordinary
Resolution of any Subordinated Secured Creditor shall only be effective
if the Trustee is of the opinion that it will not be materially
prejudicial to the interests of the Priority Secured Creditor or (if the
Trustee is not of that opinion) it is sanctioned by an Extraordinary
Resolution of the Priority Secured Creditor. Except in certain
circumstances, the Principal Trust Deed imposes no such limitations on
the powers of the Priority Secured Creditor, the exercise of which will
be binding on each Subordinated Secured Creditor irrespective of the
effect on their interests.
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An Extraordinary Resolution passed at any meeting of the Noteholders of
any Class of Notes shall be binding on all Noteholders of the relevant
class, whether or not they are present at the meeting. The majority
required for an Extraordinary Resolution, including the sanctioning of
the Basic Terms Modification, shall be 75 per cent. of the votes cast on
that Extraordinary Resolution.
13.2 MODIFICATION OR WAIVER
The Trustee may agree, without the consent of the Noteholders, or
Couponholders to (a) any modification (except a Basic Term Modification)
of, or to the waiver or authorisation of any breach or proposed breach
of, the Notes including these Conditions, any Transaction Document or any
other Trade Document, which is not, in the opinion of the Trustee,
materially prejudicial to the interests of the Noteholders the
Couponholders or (b) any modification of the Notes, or Coupons (including
these Conditions), any Transaction Document or any of the Trade
Documents, which in the Trustee's opinion is to correct a manifest error
or is of a formal minor or technical nature. Any such modification,
waiver, authorisation or determination shall be binding on the
Noteholders and the Couponholders and, unless the Trustee agrees
otherwise, any such modification shall be notified to the Noteholders in
accordance with Condition 14 as soon as practicable thereafter.
13.3 SUBSTITUTION AND ADDITION
As more fully set forth in the Principal Trust Deed (and subject to the
conditions and qualifications therein) subject to such amendment of the
Principal Trust Deed and such other conditions as the Trustee may
require, but without the consent of the Noteholders, the Trustee may also
agree to the substitution of any other body corporate in place of the
Issuer as principal debtor under the Principal Trust Deed and the Notes
and in the case of such a substitution or addition the Trustee may agree,
without the consent of the Noteholders, to a change of the law governing
the Notes and/or the Prinicpal Trust Deed provided that such change would
not in the opinion of the Trustee be materially prejudicial to the
interests of the Noteholders. Any such substitution or addition shall be
notified to the Noteholders in accordance with Condition 14 as soon as
practicable thereafter.
14. NOTICES
(a) Notices to the Noteholders shall be deemed to have been duly validly
given if published in a leading English language daily newspaper
published in London (which is expected to be the Financial Times). Any
such notice shall be deemed to have been given on the date of first
publication.
(b) Until such time as any Definitive Notes are issued, there may, so long as
the Global Note(s) is or are held in its or their entirety on behalf of
Euroclear and Cedelbank, be substituted for such publication in such
newspaper the delivery of the relevant notice to Euroclear and Cedelbank
for communication by them to the holders of the Notes. Any such notice
shall be deemed to have been given to the holders of the Notes on the
seventh day after the day on which such notice was given to Euroclear and
Cedelbank.
(c) Any notices specifying an Interest Rate, an Interest Amount, an amount of
Additional Interest or of Deferred Interest, a Redemption Amount or a
Principal Amount
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Outstanding shall be deemed to have been duly given if the information
contained in such notice appears on the relevant page of the Reuters
Screen or such other medium for the electronic display of data as may be
approved by the Trustee and notified to Noteholders (the "RELEVANT
SCREEN"). Any such notice shall be deemed to have been given on the first
date on which such information appeared on the Relevant Screen. If it is
impossible or impracticable to give notice in accordance with this
paragraph, then notice of the matters referred to in this Condition shall
be given in accordance with the preceding paragraph.
Copies of all notices given in accordance with these provisions shall be
sent to the London Stock Exchange Company Announcements Office, Euroclear
and Cedelbank.
15. GOVERNING LAW
15.1 GOVERNING LAW
The Principal Trust Deed, the Supplemental Trust Deed, the Notes, the
Coupons and the Talons (if any) and the Agency Agreement are governed by
and shall be construed in accordance with English law.
15.2 SUBMISSION TO JURISDICTION
The Issuer has, in the Principal Trust Deed, irrevocably agreed for the
benefit of the Secured Creditors that the courts of England shall 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 the
Notes (respectively, "PROCEEDINGS" and "DISPUTES") and, for such
purposes, irrevocably submits to the jurisdiction of such courts.
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SCHEDULE 5
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. A. As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
(i) "VOTING CERTIFICATE" shall mean an English language certificate
issued by a Paying Agent and dated in which it is stated:
(b) that on the date thereof Notes of the relevant class (not
being Notes in respect of which a block voting instruction
has been issued and is outstanding in respect of the
meeting specified in such voting certificate and any such
adjourned meeting) were either deposited with such Paying
Agent or (to the satisfaction of such Paying Agent) were
held to its order or under its control or blocked by a
Depositary holding the same in a manner approved by the
Trustee and that no such Notes will cease to be so
deposited, held or blocked until the first to occur of:
(1) the conclusion of the meeting specified in such
certificate or, if applicable, any such adjourned
meeting; and
(2) the surrender of the certificate to the Paying Agent
who issued the same; and
(c) that until the release of the Notes represented thereby the
bearer thereof is entitled to attend and vote at such
meeting and any such adjourned meeting in respect of the
Notes represented by such certificate;
(ii) "BLOCK VOTING INSTRUCTION" shall mean an English language document
issued by a Paying Agent and dated in which:
(a) it is certified that Notes of the relevant class (not being
Notes in respect of which a voting certificate has been
issued and is outstanding in respect of the meeting
specified in such block voting instruction and any such
adjourned meeting) have been deposited with such Paying
Agent or (to the satisfaction of such Paying Agent) are
held to its order or under its control or blocked by a
Depositary holding the same and that no such Notes will
cease to be so deposited, held or blocked until the first
to occur of:
(1) the conclusion of the meeting specified in such
document or, if applicable, any such adjourned
meeting; and
(2) the surrender to the Paying Agent, not less than 48
hours before the time for which such meeting or any
such adjourned meeting is convened, of the receipt
issued by such Paying Agent in respect of each such
deposited Note which is to be
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released or (as the case may require) the Note or
Notes ceasing with the agreement of the Paying Agent
to be held to its order or under its control or
blocked and the giving of notice by the Paying Agent
to the Issuer in accordance with paragraph 17 below
of the necessary amendment to the block voting
instruction;
(b) it is certified that each holder of such Notes has
instructed such Paying Agent or that Euroclear or Cedelbank
has advised such Paying Agent that the holder of such Notes
has given instructions, that the vote(s) attributable to
the Note(s) so deposited, held or blocked should be cast in
a particular way in relation to the resolution or
resolutions to be put to such meeting or any such adjourned
meeting and that all such instructions are during the
period commencing 48 hours prior to the time for which such
meeting or any such adjourned meeting is convened and
ending at the conclusion or adjournment thereof neither
revocable or capable of amendment;
(c) the total number and the serial numbers of the Notes so
deposited, held or blocked are listed distinguishing with
regard to each such resolution between those in respect of
which instructions have been given as aforesaid that the
votes attributable thereto should be cast in favour of the
resolution and those in respect of which instructions have
been so given that the votes attributable thereto should be
cast against the resolution; and
(d) one or more persons named in such document (each
hereinafter called "PROXY") is or are authorised and
instructed by such Paying Agent to cast the votes
attributable to the Notes so listed in accordance with the
instructions referred to in (c) above as set out in such
document.
(iii) "PRINCIPAL AMOUNT OUTSTANDING" shall mean in relation to a Note on
any date, the principal amount of the Note upon issue less the
aggregate amount of all principal payments in respect of that Note
that have been paid by the Issuer to the Noteholder prior to such
date in accordance with the Conditions.
(iv) "48 HOURS" shall mean a period of 48 hours including all or part
of two days upon which banks are open for business in both the
place where the relevant meeting is to be held and in each of the
places where the Paying Agents have their specified offices
(disregarding for this purpose the day upon which such meeting is
to be held) and such period shall be extended by one or, to the
extent necessary, more periods of 24 hours until there is included
as aforesaid all or part of two days upon which banks are open for
business as aforesaid; and
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(v) "24 HOURS" shall mean a period of 24 hours including all or part
of a day upon which banks are open for business in both the place
where the relevant meeting is to be held and in each of the places
where the Paying Agents have their specified offices (disregarding
for this purpose the day upon which such meeting is to be held)
and such period shall be extended by one or, to the extent
necessary, more periods of 24 hours until there is included as
aforesaid all or part of a day upon which banks are open for
business as aforesaid.
Voting certificates and block voting instructions will only be issued in
respect of Notes blocked in the Noteholder's account with a Depositary in
favour of the Paying Agent or deposited with any Paying Agent (or to the
satisfaction of such Paying Agent held to its order or under its control
as referred to in this paragraph 1) not less than 48 hours before the
time for which the meeting or the poll to which the same relate has been
convened or called and shall be valid for so long as the relevant Notes
continued to be so blocked, deposited or held pursuant to this paragraph
1.
The holder of any voting certificate or the proxies named in any block
voting instruction shall for all purposes in connection with the relevant
meeting or adjourned meeting of Noteholders be deemed to be the holder of
the Notes to which such voting certificate or block voting instruction
relates and the Paying Agent with which such Notes have been deposited or
the person holding the same to the order or under the control of such
Paying Agent or the person holding the same blocked as aforesaid shall be
deemed for such purposes not to be the holder of those Notes.
B. Unless the context otherwise requires or unless otherwise defined in this
Schedule, terms defined in the MTN Master Definitions Schedule (including
the Conditions) shall have the same meaning in this Schedule.
2. The Issuer or the Trustee may at any time and the Issuer shall upon a
requisition in writing signed by the holders of not less than one-tenth
of the Notes of the relevant class for the time being then outstanding,
convene a meeting of the Noteholders of such Class or, and if the Issuer
makes default for a period of seven days in convening such a meeting the
same may be convened by the Trustee or the requisitionists. Whenever the
Issuer is about to convene any such meeting, it shall immediately give
notice in writing to the Trustee of the date, time and place thereof and
the nature of the business to be transacted. Every such meeting shall be
held at such place as the Trustee may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place, day
and hour of meeting shall be given by the Trustee (if the meeting is
convened by the Trustee) or by the Issuer (if the meeting is convened by
the Issuer on its own behalf or upon requisition by the Noteholders
pursuant to paragraph 2) to the relevant Noteholders prior to any meeting
of the relevant Noteholders in the manner provided by Condition 14. Such
notice shall state generally the nature of the business to be transacted
at the meeting thereby convened and (except
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for an Extraordinary Resolution) it shall not be necessary to specify in
such notice the terms of any resolution to be proposed. Such notice shall
include a statement to the effect that Notes may be deposited with Paying
Agents or (to their satisfaction) held to their order or under their
control or blocked by a Depositary holding the same in a manner approved
by the Trustee for the purpose of obtaining voting certificates or
appointing proxies until 48 hours before the time fixed for the meeting
but not thereafter. A copy of the notice shall be sent by post to the
Trustee (unless the meeting is convened by the Trustee) and to the Issuer
(unless the meeting is convened by the Issuer).
4. Some person (who may but need not be a Noteholder or, if applicable, a
Noteholder of the relevant class of Notes) nominated in writing by the
Trustee shall be entitled to take the chair at every such meeting but if
no such nomination is made or if at any meeting the person nominated
shall not be present within fifteen minutes after the time appointed for
holding the meeting the relevant Noteholders present shall choose one of
their number to be Chairman.
5. At any such meeting two or more persons present holding Notes and/or
voting certificates and/or being proxies in respect thereof and holding
or representing in the aggregate not less than one-tenth of the principal
amount of Notes of the relevant class for the time being outstanding,
shall form a quorum for the transaction of business and no business
(other than the choosing of a Chairman) shall be transacted at any
meeting unless the requisite quorum be present at the commencement of
business. The quorum at any such meeting for passing an Extraordinary
Resolution shall (subject as provided below) be two or more persons
present holding Notes or voting certificates in respect thereof or being
proxies or representatives and holding or representing in the aggregate a
clear majority of the aggregate Principal Amount Outstanding of the Notes
of the relevant class for the time being outstanding, provided that at
any meeting the business of which (in relation to the relevant class of
Notes):
(1) includes the sanctioning of a modification of the date of maturity
of the Notes;
(2) would have the effect of modifying any day for payment of interest
on the Notes or the Rate of Interest (as defined in Condition 5.3)
applicable in respect of the Notes or modifying the method of
determining the same;
(3) includes reducing or cancelling (or, in the case of the Notes,
increasing) the amount of principal or the rate of interest
payable in respect of the Notes;
(4) would have the effect of altering the currency of payment of the
Notes;
(5) would have the effect of sanctioning any such scheme or proposal
as is described in paragraph 18(i) below;
(6) would have the effect of altering the majority required to pass an
Extraordinary Resolution or the manner in which such majority is
constituted;
(7) would have the effect of altering the manner or priority of
redemption of the Notes; or
105
(8) would have the effect of altering this proviso or the proviso to
paragraph 6 below,
the quorum shall be two or more persons present holding Notes or voting
certificates or being proxies and holding or representing in the
aggregate not less than seventy-five per cent. of the of the aggregate
Principal Amount Outstanding of the Notes of the relevant class for the
time being outstanding. Such matters shall only be capable of being
effected after having been approved by Extraordinary Resolutions of
Noteholders of each class of Notes outstanding at such time.
6. If within fifteen minutes after the time appointed for any such meeting a
quorum is not present the meeting shall, if convened upon the requisition
of the Noteholders be dissolved. In any other case it shall stand
adjourned to the same day in the next week (or if such day is a public
holiday the next succeeding business day) at the same time and place
(except in the case of a meeting at which an Extraordinary Resolution is
to be proposed in which case it shall stand adjourned for such period
being not less than 14 days nor more than 42 days, and at such place as
may be appointed by the Chairman of the meeting and approved by the
Trustee) and at such adjourned meeting two or more persons present
holding Notes and/or voting certificates and/or being proxies in respect
thereof (whatever the aggregate of the Principal Amount Outstanding of
the Notes of the relevant class so held or represented by them shall
(subject as provided below) form a quorum and shall (subject as provided
below) have power to pass any Extraordinary Resolution or other
resolution and to decide upon all matters which could properly have been
dealt with at the meeting from which the adjournment took place had the
requisite quorum been present. Provided that, subject to proviso (i) to
paragraph 18 below, at any adjourned meeting the business of which
includes any of the matters specified in the proviso to paragraph 5
above, the quorum shall be two or more persons present holding Notes
and/or voting certificates or being proxies in respect thereof and
holding or representing in the aggregate 331/3 per cent. of the aggregate
of the Principal Amount Outstanding of the Notes of the relevant class
then outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall (except in cases where the proviso to
paragraph 6 above shall apply when it shall state the relevant quorum)
state that the persons present holding Notes and/or voting certificates
and/or being proxies in respect thereof at the adjourned meeting
(whatever the aggregate of the Principal Amount Outstanding of the Notes
of the relevant class then outstanding held) will form a quorum if at
least two such persons are present. Subject as aforesaid it shall not be
necessary to give any notice of any adjourned meeting.
8. Every resolution submitted to a meeting shall (subject to paragraph 21)
be decided by a simple majority, in the first instance by a show of
hands, then (subject to paragraph 9) by a poll and in case of equality of
votes the Chairman shall both on a show of hands and on a poll have a
casting vote in addition to the vote or votes (if any) to which he may be
entitled as a Noteholder of the relevant class (in the case of Notes in
definitive form) and/or as a holder of a voting certificate and/or as a
proxy.
106
9. At any meeting, unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the Issuer or by
two or more persons present holding Notes and/or voting certificates
and/or being proxies and holding or representing in the aggregate not
less than one-fiftieth part of the Principal Amount Outstanding of the
Notes of the relevant class then outstanding a declaration by the
Chairman that a resolution has been carried by a particular majority or
lost or not carried by a particular majority shall be conclusive evidence
of that fact without proof of the number or proportion of the votes
recorded in favour or against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded, it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman directs
and the result of such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance of the
meeting for the transaction of any business other than the motion on
which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any such
meeting adjourn the same from time to time and from place to place but no
business shall be transacted at any adjourned meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman or on
any question of adjournment shall be taken at the meeting without
adjournment.
13. The Trustee and the Issuer (through their respective officers, employees,
advisers, agents or other representatives) and their respective financial
and legal advisers should be entitled to attend and speak at any meeting
of the Noteholders. Save as aforesaid [but without prejudice to the
proviso to the definition of "OUTSTANDING" in the Master Definitions
Schedule] no person shall be entitled to attend and speak nor shall any
person be entitled to vote at any meeting of the Noteholders or join with
others in requesting the convening of such a meeting or to exercise the
rights conferred on the Noteholders by Conditions 8 and 13 or, unless he
either produces the Note(s) of which he is the holder or a voting
certificate or is a proxy.
14. Subject as provided in paragraph 13 hereof at any meeting on a show of
hands every person who is present in person and produces a Definitive
Note of the relevant class or a voting certificate or is a proxy shall
have one vote or on a poll every person who is so present shall have one
vote in respect of each (pound)1 in Principal Amount Outstanding of the
Notes of the relevant class so produced or represented by the voting
certificate so produced or in respect of which he is a proxy.
Without prejudice to the obligations of the proxies named in any block
voting instruction any person entitled to more than one vote need not use
all his votes or cast all the votes to which he is entitled in the same
way.
15. The proxies need not be Noteholders.
107
16. Each block voting instruction together (if so required by the Trustee)
with proof satisfactory to the Trustee of its due execution on behalf of
the relevant Paying Agent shall be deposited at such place as the Trustee
shall approve not less than 24 hours before the time appointed for
holding the meeting or adjourned meeting at which the proxies named in
the block voting instruction propose to vote and in default of such
deposit the block voting instruction shall not be treated as valid unless
the Chairman of the meeting decides otherwise before such meeting or
adjourned meeting proceeds to business. A notarially certified copy of
each block voting instruction shall, unless the Trustee otherwise agrees,
be deposited with the Trustee before the commencement of the meeting or
adjourned meeting but the Trustee shall not thereby be obliged to
investigate or be concerned with the validity of or the authority of the
proxies named in any such block voting instruction.
17. Any vote cast in accordance with the terms of a block voting instruction
shall be valid notwithstanding the previous revocation or amendment of
the block voting instruction or of any of the Noteholder's instructions
pursuant to which it was executed, provided that no intimation in writing
of such revocation or amendment shall have been received from the
relevant Paying Agent by the Issuer at its registered office (or such
other place as may have been approved by the Trustee for the purpose) by
the time being 24 hours before the time appointed for holding the meeting
or adjourned meeting at which the block voting instruction is to be used.
18. A meeting of the Noteholders shall, in respect of Notes of the relevant
class only and insofar as it affects Notes of the relevant class, and in
addition to the powers hereinbefore given, have the following powers
exercisable by Extraordinary Resolution (subject to the provisions
relating to quorum contained in paragraphs 5 and 6 above) only, namely:
(a) power to sanction any compromise or arrangement proposed to be
made between the Issuer and the Noteholders;
(b) power to sanction any abrogation, modification (including for the
avoidance of doubt a modification which would have the effect of
increasing the amount of principal or the rate of interest payable
(in respect of the Notes)), compromise or arrangement in respect
of the rights of the Noteholders against the Issuer or against any
of its property or against any other person whether such rights
shall arise under this Deed, any of the Notes or otherwise;
(c) power to assent to any modification of the provisions contained in
this Deed, the Conditions or the Notes which shall be proposed by
the Issuer or the Trustee;
(d) power to give any authority or sanction which under the provisions
of this Deed (including the Conditions) is required to be given by
Extraordinary Resolution;
(e) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or discretions
108
which the Noteholders could themselves exercise by Extraordinary
Resolution;
(f) power to approve of a person to be appointed a trustee and power
to remove any trustee or trustees for the time being of this Deed;
(g) power to discharge or exonerate the Trustee from all liability in
respect of any act or omission for which the Trustee may have
become responsible under this Deed or under the Notes;
(h) power to authorise the Trustee to concur in and execute and do all
such deeds, instruments, acts and things as may be necessary to
carry out and give effect to any Extraordinary Resolution;
(i) power to sanction any such substitution as is referred to in
Condition 13, but without prejudice to the Trustee's powers in
relation thereto or any scheme or proposal for the exchange or
sale of the Notes for, or the conversion of any of the Notes into,
or the cancellation of any of the Notes in consideration of
shares, stock, notes, bonds, debentures, debenture stock and/or
other obligations and/or securities of the Issuer or of any other
company formed or to be formed, or for or into or in consideration
of cash, or partly for or into or in consideration of such shares,
stock, notes, bonds, debenture stock and/or other obligations
and/or securities as aforesaid and partly for or into or in
consideration of cash; and
(j) power to authorise the Trustee or any receiver appointed by it
where it or he shall have entered into possession of the security
to discontinue enforcement of any security constituted by this
Deed and the Deed of Charge either unconditionally or upon any
conditions,
provided that:
(i) no modification involving any of the matters referred to in the
proviso to paragraph 5 above passed by Noteholders who are
Priority Secured Creditors shall be effective unless it is
sanctioned by an Extraordinary Resolution of each Class of
Noteholders who are Subordinated Secured Creditors in respect of
such Series;
(ii) no other Extraordinary Resolution of Noteholders who are
Subordinated Secured Creditors in respect of any Series shall be
effective unless (a) the Trustee is of the opinion that it will
not be materially prejudicial to the interests of the Noteholders
who are Priority Secured Creditors of such Series, or (b) it is
sanctioned by an Extraordinary Resolution of such Priority Secured
Creditors;
19. The following provisions shall apply where outstanding Notes belong to
more than one class:
109
(a) business which in the opinion of the Trustee affects the Notes of
only one class shall be transacted at a separate meeting of the
Noteholders of that class;
(b) business which in the opinion of the Trustee affects the Notes of
more than one class but does not give rise to an actual or
potential conflict of interest between the Noteholders of one
such class and the Noteholders of any other class shall be
transacted either at separate meetings of the Noteholders of each
such class or at a single meeting of the Noteholders of all such
classes as the Trustee shall in its absolute discretion
determine;
(c) business which in the opinion of the Trustee affects the Notes of
more than one class and gives rise to an actual or potential
conflict of interest between the Noteholders of one such class
and the Noteholders of any other such class shall be transacted
at separate meetings of the Noteholders of each such class; and
(d) as may be necessary to give effect to the above provisions, the
preceding paragraphs of this Schedule shall be applied as if
references to the Notes and Noteholders were to the Notes of the
relevant class and to the Noteholders of such Notes.
20. Subject to the provisos to paragraph 18 above, any resolution passed at a
meeting of the Noteholders duly convened and held in accordance with this
Deed shall be binding upon all the Noteholders of the relevant class or
classes (as the case may be) whether present or not present at such
meeting and whether or not voting and any resolution passed at a meeting
of the Priority Secured Creditors of any Series duly convened and held as
aforesaid shall also be binding upon all the Subordinated Secured
Creditors of whatever Class of such Series.
All of the relevant classes of Noteholders shall be bound to give effect
to any such resolutions accordingly and the passing of any such
resolution shall be conclusive evidence that the circumstances justify
the passing thereof. Notice of the result of the voting on any resolution
duly considered by the Noteholders shall be published (at the cost of the
Issuer) in accordance with Condition 14 by the Issuer within 14 days of
such result being known, provided that the non-publication of such notice
shall not invalidate such resolution.
21. The expression "EXTRAORDINARY RESOLUTION" when used in this Deed means a
resolution passed at a meeting of the Noteholders duly convened and held
in accordance with the provisions herein contained by a majority
consisting of seventy-five per cent. of the persons voting thereat upon a
show of hands or if a poll be duly demanded then by a majority consisting
of not less than seventy-five per cent. of the votes given on such poll.
22. Minutes of all resolutions and proceedings at every such meeting as
aforesaid shall be made and duly entered in books to be from time to time
provided for that purpose by the Issuer and any such Minutes as aforesaid
if purporting to be signed by the Chairman of the meeting at which such
resolutions were passed or proceedings had shall be conclusive evidence
of the matters therein contained and until the contrary is proved
110
every such meeting in respect of the proceedings of which Minutes have
been made shall be deemed to have been duly held and convened and all
resolutions passed or proceedings had thereat to have been duly passed or
had.
23. Where appropriate, subject to the provisions of the Security Trust Deed
and the relevant Conditions, joint meetings of different classes of
Noteholders or of Noteholders of different Series may be held to consider
the same resolution and/or, as the case may be, the same Extraordinary
Resolution and the provisions of this Schedule shall apply mutatis
mutandis thereto.
24. Subject to all other provisions contained in this Deed the Trustee may
without the consent of the Issuer or the Noteholders prescribe such
further resolutions regarding the requisitioning and/or the holding of
meetings of Noteholders and attendance and voting thereat as the Trustee
may in its sole discretion think fit.
References herein to a "RESOLUTION DULY PASSED AT A MEETING OF THE NOTEHOLDERS"
shall include, where the context permits, a resolution in writing signed by or
on behalf of all Noteholders of the relevant class who for the time being are
entitled to receive notice of a meeting in accordance with the provisions herein
contained. Such resolution in writing may be contained in one document or in
several documents in like form each signed by or on behalf of one or more of
such Noteholders.
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ISSUER
Executed as a deed by )
BARCLAYCARD FUNDING PLC ) /s/ D. ROGER FINNEY
acting by two directors ) /s/ PETER S. CROOK
in the presence of: )
/s/ GINA HARTNETT
MTN CASH MANAGER AND INITIAL TRANSFEROR
Executed as a deed by )
BARCLAYS BANK PLC ) /s/ MARK WINTER
acting by its duly authorised attorney )
in the presence of: )
/s/ GINA HARTNETT
TRUSTEE
Executed as a deed by )
THE BANK OF NEW YORK ) /s/ MICHAEL HELLMUTH
acting by its duly authorised )
attorney in the presence of )
/s/ GINA HARTNETT
RECEIVABLES TRUSTEE
Executed as a deed by )
GRACECHURCH RECEIVABLES )
TRUSTEE LIMITED ) /s/ PETER S. CROOK
acting by two directors/a director and ) /s/ RICHARD GERWAT
the secretary in the presence of: )
/s/ GINA HARTNETT
/s/ SHANE HOLLYWOOD