Exhibit 4.10
Draft: 5 September 2005
TEMPORARY GLOBAL NOTE CERTIFICATE
ISIN: [_] Common Code: [_]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE AND NOTE CERTIFICATE PROGRAMME
TEMPORARY GLOBAL NOTE CERTIFICATE
REPRESENTING UP TO
(pound)[_]
FLOATING RATE ASSET BACKED NOTE CERTIFICATES DUE 2008
This global note is a Temporary Global Note Certificate without interest coupons
issued in respect of an issue of an aggregate principal amount of (pound)[_] of
Floating Rate Asset Backed Notes due 2008 (the "NOTE CERTIFICATE") by
Barclaycard Funding PLC (the "MTN ISSUER").
The MTN Issuer for value received promises, all in accordance with the terms and
conditions set out in the applicable Series 05-2 Supplement ("TERMS AND
CONDITIONS") and the Principal Trust Deed (as defined below) to pay to the
bearer upon presentation or, as the case may be, surrender hereof in respect of
each Note Certificate for the time being from time to time represented hereby,
on the maturity date specified in the Terms and Conditions or on such earlier
date as any such Note Certificate may become due and payable in accordance with
the Terms and Conditions, the Principal Amount on such dates as may be specified
in the Terms and Conditions or, if any such Note Certificate shall become due
and payable on any other date, the Principal Amount and, in respect of each such
Note Certificate, to pay interest and all other amounts as may be payable
pursuant to the Terms and Conditions all subject to and in accordance therewith.
Except as specified herein, the bearer of this Temporary Global Note Certificate
is entitled to the benefit of the Terms and Conditions and of the same
obligations on the part of the MTN Issuer as if such bearer were the bearer of
the Note Certificates represented hereby and to the benefit of those provisions
of the Terms and Conditions (and the obligations on the part of the MTN Issuer
contained therein) applicable specifically to Temporary Global Note Certificate,
and all payments under and to the bearer of this Temporary Global Note
Certificate shall be valid and effective to satisfy and discharge the
corresponding Liabilities of the MTN Issuer in respect of the Note Certificates.
This Temporary Global Note Certificate is issued pursuant to a security trust
deed and MTN cash management deed dated 23 November 1999 (the "PRINCIPAL TRUST
DEED") together with the supplemental trust deed in respect of Series 05-2 dated
20 September 2005 (the "SERIES 05-2
SUPPLEMENT" and, together with the Principal Trust Deed, the "TRUST DEED") and
made between the MTN Issuer and The Bank of New York, London Branch as trustee
(the "TRUSTEE" which expression includes any person or corporation from time to
time appointed as trustee). Words and expressions defined expressly or by
reference in the Terms and Conditions and the Trust Deed shall have the same
meanings in this Temporary Global Note Certificate.
On or after the expiry of 40 days after the date of issue of this Temporary
Global Note Certificate (the "EXCHANGE DATE"), this Temporary Global Note
Certificate shall be exchangeable in whole or in part for a Permanent Global
Note or, in the circumstances set out in the Series 05-2 Supplement for
Definitive Note. An exchange for a Permanent Global Note or, as the case may be,
Definitive Note will be made only on or after the Exchange Date (specified in
the Series 05-2 Supplement) and upon presentation or, as the case may be,
surrender of this Temporary Global Note Certificate to the Principal Paying
Agent at its specified office and upon and to the extent of delivery to the
Principal Paying Agent of a certificate or certificates issued by Euroclear Bank
S.A./N.V. as operator of the Euroclear System ("EUROCLEAR") or Clearstream,
Luxembourg or by any other relevant clearing system and dated not earlier than
the Exchange Date in substantially the form set out in Annex I hereto or, as the
case may be, in the form that is customarily issued in such circumstances by
such other clearing system. Any Definitive Note will be made available for
collection by the persons entitled thereto at the specified office of the
Principal Paying Agent.
The MTN Issuer undertakes to procure that the relevant Permanent Global Note and
Definitive Note will be duly issued in accordance with the Terms and Conditions,
the provisions hereof and of the Trust Deed.
The bearer of this Temporary Global Note Certificate shall not (unless, upon due
presentation of this Temporary Global Note Certificate for exchange (in whole or
in part) for a Permanent Global Note or for delivery of Definitive Note, such
exchange or delivery is improperly withheld or refused and such withholding or
refusal is continuing at the relevant payment date) be entitled to receive any
payment in respect of the Note Certificates represented by this Temporary Global
Note Certificate which falls due on or after the Exchange Date or be entitled to
exercise any option on a date after the Exchange Date.
Payments of interest otherwise falling due before the Exchange Date will be made
only upon presentation of this Temporary Global Note Certificate at the
specified office of any of the Paying Agents outside the United States and upon
and to the extent of delivery to the relevant Paying Agent of a certificate or
certificates issued by Euroclear or Clearstream, Luxembourg or by any other
relevant clearing system and dated not earlier than the relevant interest
payment date in substantially the form set out in Annex II hereto or, as the
case may be, in the form that is customarily issued in such circumstances by
such other clearing system.
On any occasion on which a payment of principal is made in respect of this
Temporary Global Note Certificate or on which this Temporary Global Note
Certificate is exchanged in whole or in part as aforesaid or on which Note
Certificate represented by this Temporary Global Note Certificate are to be
cancelled, the MTN Issuer shall procure that (i) the aggregate principal amount
of the Note Certificates in respect of which such payment is made (or, in the
case of a partial payment, the corresponding part thereof) or which are
delivered in definitive form or which are to be exchanged for a permanent global
instrument or which are to be cancelled and
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(ii) the remaining principal amount of this Temporary Global Note Certificate
(which shall be the previous principal amount hereof less the amount referred to
at (i) above) are noted on the Schedule hereto, whereupon the principal amount
of this Temporary Global Note Certificate shall for all purposes be as most
recently so noted.
On each occasion on which an option is exercised in respect of any Note
Certificates represented by this Temporary Global Note Certificate, the MTN
Issuer shall procure that the appropriate notations are made on the Schedule
hereto.
The obligations of the MTN Issuer in respect of this Temporary Global Note
Certificate are limited recourse in nature, as more particularly set out in the
Terms and Conditions and the Trust Deed. In addition the bearer of this
Temporary Global Note Certificate and, inter alios, the Trustee are restricted
in the proceedings which they may take against the MTN Issuer to enforce their
rights hereunder and under the Trust Deed, as more particularly set out in the
Terms and Conditions and the Trust Deed.
This Temporary Global Note Certificate is governed by, and shall be construed in
accordance with, English law.
The MTN Issuer irrevocably agrees for the benefit of the bearer that the courts
of England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in connection
with these presents (respectively, "PROCEEDINGS" and "DISPUTES") and, for such
purposes, irrevocably submits to the jurisdiction of such courts. The MTN Issuer
irrevocably waives any objection which it might now or hereafter have to the
courts of England being nominated as the forum to hear and determine any
Proceedings and to settle any Disputes and agrees not to claim that any such
court is not a convenient or appropriate forum.
This Temporary Global Note Certificate shall not be valid for any purpose until
authenticated for and on behalf of The Bank of New York, London Branch as Issue
Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the MTN Issuer.
3
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTE CERTIFICATES, EXCHANGE FOR PERMANENT
GLOBAL NOTE CERTIFICATE, EXERCISE OF OPTIONS AND CANCELLATION OF
NOTE CERTIFICATES
==============================================================================================================================
Date of Amount of Amount of Aggregate Aggregate Aggregate Aggregate Remaining Authorised
payment, interest then principal principal principal principal principal principal signature by
delivery, paid then paid amount of amount of amount of amount in amount of or on behalf
exchange, Definitive Note this Note respect of this of the
exercise of Certificates Temporary Certificate which option Temporary Principal
option (and then delivered Global Note then is exercised Global Note Paying Agent
date upon Certificate cancelled Certificate
which then
exercise is exchanged for
effective) or the Permanent
cancellation Global Note
Certificate
- ------------------------------------------------------------------------------------------------------------------------------
==============================================================================================================================
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BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
ISSUED in London on 20 September 2005
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK
as Issue Agent without
recourse, warranty or liability
By:[manual signature]
(duly authorised)
5
ANNEX I
[Form of certificate to be given in relation to exchanges of this Temporary
Global Note for the Permanent Global Note Certificates or
Definitive Note Certificates:]
BARCLAYCARD FUNDING PLC
(POUND)[_] FLOATING RATE ASSET BACKED NOTE CERTIFICATE
(the "NOTE CERTIFICATE")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "MEMBER ORGANISATIONS") substantially to the effect
set forth in the Agency Agreement as of the date hereof, [ ] principal amount of
the above-captioned Note Certificate (i) is owned by persons that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("UNITED STATES
PERSONS"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(iv) ("FINANCIAL INSTITUTIONS")) purchasing for their own
account or for resale, or (b) acquired the Note Certificates through and are
holding through on the date hereof (as such terms "acquired through" and
"holding through" are described in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6)) foreign branches of United States financial institutions
(and in either case (a) or (b), each such United States financial institution
has agreed, on its own behalf or through its agent, that we may advise the MTN
Issuer or the MTN Issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institutions for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and to the further effect that United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Note Certificates for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as at the date hereof.
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
6
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorise
you to produce this certification to any interested party in such proceedings.
Date:[ ]1
[Euroclear Bank S.A./N.V. as operator of the Euroclear System/Clearstream,
Luxembourg]
By:[authorised signature]
1 To be dated not earlier than the Exchange Date.
7
ANNEX II
[Form of certificate to be given in relation to payments of interest falling
due before the Exchange Date:]
BARCLAYCARD FUNDING PLC
(POUND)[_] FLOATING RATE ASSET BACKED NOTE CERTIFICATE
(the "NOTE CERTIFICATE")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "MEMBER ORGANISATIONS") substantially to the effect
set forth in the Issue and Paying Agency Agreement as of the date hereof, [ ]
principal amount of the above-captioned Note Certificates (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("UNITED STATES PERSONS"), (ii) is owned by United States persons that (a) are
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(iv) ("FINANCIAL INSTITUTIONS"))
purchasing for their own account or for resale, or (b) acquired the Note
Certificates through and are holding through on the date hereof (as such terms
"acquired through" and "holding through" are described in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United States
financial institutions (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the MTN Issuer or the MTN Issuer's agent that it will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Note Certificates for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of the Note Certificates set forth
above that, except as set out below, we have received in writing, by tested
telex or by electronic transmission, from our Member Organisations entitled to a
portion of such principal amount, certifications with respect of such portion,
substantially to the effect set forth in the Temporary Global Note Certificate
representing the Note Certificates.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
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
8
excepted in such certifications and (ii) that as of the date hereof we have not
received any notification from any of our Member Organisations to the effect
that the statements made by such Member Organisations with respect to any
portion of the part submitted herewith for exchange (or, if relevant, exercise
of any rights or collection of any interest) are no longer true and cannot be
relied upon as at the date hereof.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date:[ ]2
[Euroclear Bank S.A./N.V. as operator of the Euroclear System/Clearstream,
Luxembourg]
By:[authorised signature]
2 To be dated not earlier than the relevant interest payment date.
9
ANNEX III
[Form of accountholder's certification referred to in the preceding
certificate:]
BARCLAYCARD FUNDING PLC
(POUND)[_] FLOATING RATE ASSET BACKED NOTE CERTIFICATE
(the "NOTE CERTIFICATE")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Note Certificate held by you for our account (i) are owned
by persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to the United States Federal income taxation regardless of its source
("UNITED STATES PERSONS"), (ii) are owned by United States person(s) that (a)
are foreign branches of a United States financial institution (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(iv)) ("FINANCIAL INSTITUTIONS")
purchasing for their own account or for resale, or (b) acquired the Note
Certificates through and are holding through on the date hereof (as such terms
"acquired through" and "holding through" are described in U.S. Treasury
Regulations Section 1.163-5(c) (2)(i) (D)(6)) foreign branches of United States
financial institutions (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise the MTN Issuer or the MTN Issuer's agent that it will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Note
Certificates is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this is
further to certify that such financial institution has not acquired the Note
Certificates for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Note Certificates are of the category contemplated in Section
230.903(b)(3) of Regulation S under the Securities Act of 1933 (the "ACT") then
this is also to certify that, as except as set forth below, the Note
Certificates are beneficially owned by (a) non-U.S. person(s) or (b) U.S.
person(s) who purchased the Note Certificates in transactions which did not
require registration under the Act. As used in this paragraph, the term "U.S.
person" has the meaning given to it by Regulation S under the Act.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Note Certificates
held by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
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This certification excepts and does not relate to [ ] of such interest in the
above Note Certificate in respect of which we are not able to certify and as to
which we understand exchange and delivery of definitive Note Certificate (or, if
relevant, exercise of any rights or collection of any interest) cannot be made
until we do so certify.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date:[ ]3
[ACCOUNTHOLDER] AS (OR AS AGENT FOR) THE BENEFICIAL OWNER OF THE NOTE
CERTIFICATES.
By:[authorised signature]
3 To be dated not earlier than fifteen days before the Exchange Date or, as the
case may be the relevant interest payment date.
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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 Final Terms (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 Final Terms 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 Final Terms 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 Final Terms:
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 Final Terms 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 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
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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 final terms or, if the Notes are listed on the regulated market of the
London Stock Exchange Limited (the "LONDON STOCK EXCHANGE"), the supplementary
listing particulars relating to the Notes (respectively, the "FINAL TERMS" 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.
1.1.1 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
13
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
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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 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
15
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.
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;
16
(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
17
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 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.
18
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:
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
19
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.
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
20
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 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
21
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:
(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
22
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.
"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
23
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 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
24
(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.
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
25
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 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.
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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.
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
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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.
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
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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
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
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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
(k) 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 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.
(l) 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.
(m) 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
30
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.
(n) 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.
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
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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.
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
32
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 Principal 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
(g) 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.
(h) 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.
(i) 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 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.
33