EXHIBIT 4.6
[GRAPHIC OMITTED]
DATED [28] November 2005
GRACECHURCH CARD FUNDING (NO. 11) PLC
as Issuer
THE BANK OF NEW YORK
(acting through its London branch)
as Principal Paying Agent and Agent Bank
THE BANK OF NEW YORK
as New York Paying Agent, Custodian, Registrar and Transfer Agent
THE BANK OF NEW YORK
(acting through its London
branch) as Note Trustee
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PAYING AGENCY AND AGENT BANK AGREEMENT
in respect of up to
$[o] Class A Floating Rate Asset-Backed Notes due [o]
$[o] Class B Floating Rate Asset-Backed Notes due [o]
and
$[o] Class C Floating Rate Asset-Backed Notes due [o]
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CONTENTS
CLAUSE PAGE
1. Interpretation..........................................................2
2. Appointment Of The Agents...............................................3
3. The Notes...............................................................4
4. Transfers Of Notes......................................................6
5. Replacement Note Certificates...........................................7
6. Payments To The New York Paying Agent...................................7
7. Payments To Noteholders.................................................8
8. Custody Arrangements...................................................11
9. Miscellaneous Duties Of The Agents.....................................13
10. Fees And Expenses......................................................15
11. Terms Of Appointment...................................................16
12. Termination Of Appointment.............................................17
13. Non-Petition...........................................................20
14. Time...................................................................20
15. Notices................................................................20
16. Counterparts...........................................................22
17. Governing Law And Jurisdiction.........................................22
18. Contracts (Rights Of Third Parties) Act................................23
Schedule 1 Specified Offices Of The Agents..........................24
Schedule 2 Custody Account Details..................................25
THIS AGREEMENT is made on [28] November 2005
BETWEEN
(1) GRACECHURCH CARD FUNDING (NO. 11) PLC a public limited company
incorporated under the laws of England and Wales with number 5555762
whose registered office is at 1 Churchill Place, London E14 5HP
(hereinafter called the "ISSUER");
(2) THE BANK OF NEW YORK a New York banking corporation acting through its
London branch at 48th Floor, One Canada Square, London E14 5AL as
principal paying agent and as agent bank (in such respective capacities
hereafter the "PRINCIPAL PAYING AGENT" or the "AGENT BANK");
(3) THE BANK OF NEW YORK a New York banking corporation acting through its
office at 101 Barclay Street, New York, New York USA 10286 as paying
agent, custodian and registrar in such respective capacities hereafter
(the "NEW YORK PAYING AGENT", the "CUSTODIAN" and the "REGISTRAR") (the
Principal Paying Agent and the New York Paying Agent together hereinafter
the "PAYING AGENTS") and, in the event that Individual Notes Certificates
are issued, as transfer agent (the "TRANSFER AGENT" respectively); and
(4) THE BANK OF NEW YORK a New York banking corporation acting through its
London branch at 48th Floor, One Canada Square, London E14 5AL (in its
capacity as note trustee hereinafter called the "NOTE TRUSTEE", which
expression shall include such company and all other persons for the time
being acting as the trustee or trustees under the Trust Deed).
WHEREAS
(A) The Issuer has pursuant to a resolution of its board of directors passed
on [o] November 2005 duly authorised the issue by the Issuer of $[o]
Class A Asset-Backed Floating Rate Notes due [o] (the "CLASS A NOTES"),
$[o] Class B Asset-Backed Floating Rate Notes due [o] (the "CLASS B
NOTES") and $[o] Class C Asset-Backed Floating Rate Notes due [o] (the
"CLASS C NOTES" and together with the Class A Notes and the Class B
Notes, the "Notes").
(B) The Notes will initially be represented in registered form in an
Authorised Denomination and will be sold in a public offering in the
United States.
(C) The Notes of each class will be represented by one or more global note
certificates in registered form (the "GLOBAL NOTE CERTIFICATES") and will
be deposited with, and registered in the name of Cede & Co., a nominee
for The Depository Trust Company (the "DTC") and will be deposited with
the depository of the DTC on or about the Closing Date.
(D) The Notes will be subject to and constituted by a trust deed of even date
herewith (the "TRUST DEED") between the Issuer and the Note Trustee.
(E) Beneficial interests in the Global Note Certificates will only be
exchangeable for individual note certificates (the "INDIVIDUAL NOTE
CERTIFICATES" and together with the
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Global Note Certificates, the "NOTE CERTIFICATES") in the limited
circumstances specified in the Trust Deed and such Global Note
Certificates.
(F) The Issuer, the Agents, the Agent Bank, the Custodian and the Note
Trustee wish to record certain arrangements which they have made in
relation to the Notes.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement (and the recitals):
"AGENTS" means the Paying Agents, the Registrar, the Custodian, the Agent
Bank and the Transfer Agent and "AGENT" means any of them;
"AUTHORISED DENOMINATION" means, with respect to the Class A Notes, the
Class B Notes and the Class C Notes, $100,000;
"DUE DATE" means the due date for any payment in respect of the Notes;
"INTEREST AMOUNT", "INTEREST DETERMINATION DATE", "INTEREST PAYMENT
DATE", "Interest Period" and "RATE OF INTEREST" have the respective
meanings ascribed thereto in the Note Conditions;
"NOTE CONDITIONS" means the Terms and Conditions applicable to the Notes
in the form or substantially in the form set out in the Seventh Schedule
of the Trust Deed, as the same may from time to time be modified in
accordance with the terms of the Trust Deed and any reference in this
Agreement to a particular numbered Note Condition shall be construed
accordingly;
"REGISTER" means the register maintained by the Registrar in accordance
with Clause 4.1;
"SEC" means the United States Securities and Exchange Commission;
"SECURITIES ACT" means the United States Securities Act 1933, as amended;
"SPECIFIED OFFICE" means, in relation to any Agent, the office specified
against the name of the relevant Agent in the Schedule or such other
office in the same city as such office as such Agent may specify by
notice to the Issuer, the Note Trustee and (in the case of a Paying Agent
other than the Principal Paying Agent) the Principal Paying Agent; and
"TRANSFER AGENT" means the Bank of New York and any transfer agent
appointed in relation to the Individual Note Certificates.
1.2 CURRENCY
1.2.1 "[GBP]" and "STERLING" denote the lawful currency for the time
being of the United Kingdom of Great Britain and Northern Ireland.
1.2.2 "$" and "DOLLARS" denote the lawful currency for the time being of
the United States of America.
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1.3 CLAUSES AND SCHEDULES
Any reference in this Agreement to a Clause or a Schedule is, unless
otherwise stated, to a clause hereof or a schedule hereto.
1.4 HEADINGS
Headings and sub-headings are for ease of reference only and shall not
affect the construction of this Agreement.
1.5 CONSTRUCTION
All capitalised terms used and not otherwise defined herein shall have
the same meanings as in the Trust Deed.
2. APPOINTMENT OF THE AGENTS
2.1 APPOINTMENT
The Issuer appoints each Agent acting through its Specified Office as its
agent in relation to the Notes for the purposes specified in this
Agreement and in the Note Conditions.
2.2 ACCEPTANCE OF APPOINTMENT BY PAYING AGENTS
Each of the Paying Agents accepts its appointment as agent of the Issuer
in relation to the Notes and shall comply with the provisions of this
Agreement and the Note Conditions.
2.3 ACCEPTANCE OF APPOINTMENT BY AGENT BANK
The Agent Bank accepts its appointment as agent of the Issuer for the
purpose, inter alia, of calculating the Rate of Interest on the Notes in
accordance with the provisions of the Note Conditions and this Agreement.
2.4 ACCEPTANCE OF APPOINTMENT BY CUSTODIAN
The Custodian accepts its appointment as agent of the Issuer for the
purpose, inter alia, of holding the Series 05-4 MTN and performing the
tasks set out in Clause 8, in accordance with the provisions of this
Agreement.
2.5 ACCEPTANCE OF APPOINTMENT BY REGISTRAR
The Registrar accepts its appointment as agent of the Issuer for the
purpose, inter alia, of establishing and maintaining the Register, all in
accordance with the provisions of the Note Conditions and this Agreement.
2.6 TRANSFER AGENT
The Transfer Agent accepts its appointment as agent of the Issuer for the
purpose of enabling certain transfers in connection with any Individual
Note Certificates issued by the Issuer, in accordance with the provisions
of the Note Conditions and this Agreement.
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3. THE NOTES
3.1 GLOBAL NOTE CERTIFICATES
Each Global Note Certificate shall:
3.1.1 be in substantially the form set out in the First Schedule of the
Trust Deed in respect of the Class A Notes, in the form set out in
the Second Schedule of the Trust Deed in respect of the Class B
Notes and in the form set out in the Third Schedule of the Trust
Deed in respect of the Class C Notes; and
3.1.2 be executed manually or in facsimile by or on behalf of the Issuer
and authenticated manually by or on behalf of the Registrar upon
receipt of written instruction from the Issuer.
3.2 INDIVIDUAL NOTE CERTIFICATES
Each Individual Note Certificate shall:
3.2.1 be in substantially the form set out in the Fourth Schedule of the
Trust Deed in respect of each Class A Individual Note Certificate,
in the Fifth Schedule of the Trust Deed in respect of each Class B
Individual Note Certificate and in the Sixth Schedule of the Trust
Deed in respect of each Class C Individual Note Certificate;
3.2.2 be security printed in accordance with all applicable legal and
stock exchange requirements;
3.2.3 have a unique certificate number printed thereon;
3.2.4 be executed manually or in facsimile by two Directors of the
Issuer and authenticated by or on behalf of an authorised
signatory of the Registrar; and
3.2.5 otherwise be in accordance with the customary practice of the
international Eurobond market.
3.3 SIGNATURES
Any signature on a Note Certificate on behalf of the Issuer shall be that
of a person who at the date of printing of the Note Certificates is a
Director of the Issuer notwithstanding that at the time of issue of any
of the Note Certificates he may have ceased for any reason to be the
holder of such office.
3.4 AVAILABILITY
3.4.1 GLOBAL NOTE CERTIFICATES
The Global Note Certificates shall be deposited with and
registered in the name of Cede & Co., a nominee for a depository
of the DTC.
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3.4.2 INDIVIDUAL NOTE CERTIFICATES
If the Issuer is required to deliver Individual Note Certificates
pursuant to the terms of the Global Note Certificates, the Issuer
shall arrange for $[o] of Class A Individual Note Certificates,
$[o] of Class B Individual Note Certificates and $[o] of Class C
Individual Note Certificates to be made available to or to the
order of the Registrar by the later of the expiry of 30 days after
the date hereof and the date falling 25 days after the occurrence
of the relevant event as set out in Clause 3.2 of the Trust Deed.
Such Individual Note Certificates will be in registered form each
in an Authorised Denomination. The Individual Note Certificates
will be held to the Issuer's order pending delivery. The Issuer
shall also arrange, on request, for such Individual Note
Certificates as are required to enable the Registrar to perform
its obligations under Clause 4 to be made available to or to the
order of the Registrar from time to time.
3.5 DUTIES OF THE AGENT BANK
3.5.1 On each Quotation Date, the Agent Bank shall establish the Rate of
Interest on the Notes and the Interest Amount (together with any
Additional Interest and/or Deferred Interest) applicable to the
next Interest Period in accordance with the provisions of the
Notes. Further, the Agent Bank shall notify promptly, and in no
event later than the seventh Business Day following each such
Quotation Date, the Issuer, the Note Trustee, the other Agents and
the London Stock Exchange plc (the "LONDON STOCK EXCHANGE") of the
Rate of Interest so established, the Interest Amount payable in
respect of interest for such Interest Period and the Interest
Payment Date in respect of such Interest Period. The Agent Bank's
notification shall also specify the quotations upon which the Rate
of Interest is based.
3.5.2 The Notes, on issue, are expected to be listed on the London Stock
Exchange and registered with the United States Securities and
Exchange Commission. The Issuer will advise the Agent Bank, if
such listing or registration is withdrawn or if the Notes become
listed on any other stock exchange.
3.6 PUBLICATION OF RATE OF INTEREST
It shall be the responsibility of the Agent Bank to cause notice of such
Rate of Interest, Interest Amount and Interest Payment Date to be
published in accordance with Note Condition 5 and Note Condition 14 and
any cost in so doing shall be borne by the Issuer.
3.7 AUTHORITY TO AUTHENTICATE
The Registrar or its designated agent is authorised and instructed by the
Issuer to authenticate such Note Certificates as may be required to be
authenticated hereunder by the signature of any of its officers or any
other person duly authorised for the purpose by the Registrar.
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3.8 DUTIES OF THE REGISTRAR
It shall be a term of the appointment of the Registrar that the Registrar
or its designated agent shall:
3.8.1 hold in safe custody all unauthenticated Note Certificates
delivered to it in accordance with Clause 3.4.2;
3.8.2 ensure that such Note Certificates are authenticated and delivered
only in accordance with the terms hereof, of the Trust Deed and of
the Note Conditions; and
3.8.3 establish and maintain the Register at its Specified Office.
4. TRANSFERS OF NOTES
4.1 MAINTENANCE OF THE REGISTER
The Registrar shall maintain the Register in relation to the Notes, which
shall be kept at its Specified Office and be made available by the
Registrar to the Issuer, the Note Trustee and the other Agents for
inspection and for the taking of copies or extracts therefrom at all
reasonable times. The Register shall show the aggregate principal amount,
serial numbers and dates of issue of each Note Certificate, the names and
addresses of the initial holders thereof and the dates of all transfers
to, and the names and addresses of, all subsequent holders thereof, all
cancellations of Note Certificates and all replacements of Note
Certificates.
4.2 REGISTRATION OF TRANSFERS IN THE REGISTER
The Registrar shall receive requests for the transfer of Notes in
accordance with the Note Conditions and the Regulations and shall make
the necessary entries in the Register.
4.3 TRANSFER AGENTS TO RECEIVE REQUESTS FOR TRANSFERS OF NOTES
Each Transfer Agent appointed in respect of the Notes in definitive form
shall receive requests for the transfer of Notes in accordance with the
Note Conditions and the Regulations and assist, if required, in the issue
of new Individual Note Certificates to give effect to such transfers and,
in particular, upon any such request being duly made, shall promptly
notify the Registrar of:
4.3.1 the aggregate principal amount of the Notes in definitive form to
be transferred;
4.3.2 the name(s) and addresses to be entered on the Register of the
holder(s) of the new Individual Note Certificates to be issued in
order to give effect to such transfer; and
4.3.3 the place and manner of delivery of the new Individual Note
Certificates to be delivered in respect of such transfer,
and shall forward the Individual Note Certificates relating to the Notes
to be transferred (with the relevant form(s) of transfer duly completed)
to the Registrar with such notification.
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5. REPLACEMENT NOTE CERTIFICATES
5.1 DELIVERY OF REPLACEMENTS
The Registrar shall, upon and in accordance with the instructions of the
Issuer (which instructions may, without limitation, include such terms as
to the payment of expenses and as to evidence, security and indemnity as
the Issuer, the Principal Paying Agent and the Registrar may reasonably
require), complete, authenticate and deliver a Note Certificate as a
replacement for any Note Certificate which has been mutilated or defaced
or which is alleged to have been destroyed, stolen or lost; provided,
however, the Registrar shall not deliver any Note Certificate as a
replacement for any Note Certificate which has been mutilated or defaced
otherwise than against surrender of the same.
5.2 REPLACEMENTS TO BE NUMBERED
Each replacement Note Certificate delivered hereunder shall bear a unique
serial number.
5.3 CANCELLATION AND DESTRUCTION
The Registrar shall cancel and destroy each mutilated or defaced Note
Certificate surrendered to it and in respect of which a replacement has
been delivered.
5.4 NOTIFICATION
The Registrar shall notify the Issuer of the delivery by it in accordance
herewith of any replacement Note Certificate, specifying the serial
number thereof and the serial number (if any and if known) of the Note
Certificate which it replaces and confirming (if such be the case) that
the Note Certificate which it replaces has been cancelled or destroyed
and the Registrar shall as promptly as is practicable, enter such details
in the Register.
6. PAYMENTS TO THE NEW YORK PAYING AGENT
6.1 ISSUER TO PAY NEW YORK PAYING AGENT
In order to provide for the payment of interest and principal in respect
of the Notes as the same becomes due and payable, the Issuer shall pay to
the New York Paying Agent or otherwise cause it to receive on or before
the date on which such payment becomes due, an amount which is equal to
the amount of principal or interest then falling due in respect of the
Notes on such date.
6.2 MANNER AND TIME OF PAYMENT
Each amount payable by the Issuer under Clause 6.1 shall be paid
unconditionally by credit transfer in Dollars in immediately available,
freely transferable cleared funds not later than 10.00 a.m. (New York
time) on the relevant day to such account with such bank in New York as
the New York Paying Agent has by notice to the Issuer and the Note
Trustee specified for the purpose. The Issuer shall, before 2.00 p.m.
(New York time) on the second Business Day before the due date of each
payment by it under Clause 6.1, notify the New York Paying Agent by
tested telex or authenticated SWIFT message (or such other method as
shall be agreed) of its irrevocable payment instructions to such bank in
New York through which such payment to the New York Paying Agent is to be
made.
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6.3 EXCLUSION OF LIENS AND INTEREST
The Agents shall not:
6.3.1 exercise any lien, right of set-off or similar claim in respect of
monies received by the New York Paying Agent in connection with
its activities hereunder;
6.3.2 be liable to any person for interest thereon; and
6.3.3 be obliged to hold any funds received by it hereunder in a
segregated account or accounts.
6.4 APPLICATION BY NEW YORK PAYING AGENT
The New York Paying Agent shall apply (or direct or cause application of)
each amount paid to it hereunder in accordance with Clauses 7.1 and 7.2
in respect of the Note Certificates (if any) and shall not be obliged to
repay any such amount other than as provided herein or unless the claim
for the relevant payment becomes void under the Note Conditions in which
event it shall repay to the Issuer such portion of such amount as relates
to such payment by paying the same by credit transfer in to such account
with such bank as the Issuer has by notice to the New York Paying Agent
specified for the purpose.
6.5 FAILURE TO NOTIFY PAYMENT INSTRUCTIONS
If the New York Paying Agent has not, by 4.30 p.m. (New York Time) on the
second Business Day before the due date of any payment to it under Clause
6.1, received notification of the relevant irrevocable payment
instructions referred to in Clause 6.2 it shall forthwith notify the
Principal Paying Agent, the Note Trustee and the Issuer. If the New York
Paying Agent subsequently receives notification of such payment
instructions, it shall forthwith notify the Principal Paying Agent, the
Note Trustee and the Issuer.
6.6 NOTIFICATION OF PARTIAL REDEMPTIONS
In the event there is to be any partial redemption of the Notes pursuant
to Note Condition 6 on any Interest Payment Date, the Issuer shall give
each of the Principal Paying Agent and the New York Paying Agent five
Business Days notice of the amount of the Principal Amount Outstanding of
each Note to be redeemed on such Interest Payment Date.
7. PAYMENTS TO NOTEHOLDERS
7.1 PAYMENTS BY NEW YORK PAYING AGENT
The New York Paying Agent acting through its Specified Office in New York
shall make payments of interest and principal in respect of the Notes in
accordance with the Note Conditions (and, in the case of the Note
Certificates, the terms thereof) provided, however, that:
7.1.1 the New York Paying Agent shall not be obliged (but shall be
entitled) to make payments of interest or principal in respect of
the Notes:
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(a) if it has not received the full amount of any payment due
to it under Clause 6.1; or
(b) if it has given notice in accordance with Clause 6.5 that
the relevant irrevocable payment instructions have not been
received, unless it has subsequently received such payment
instructions;
7.1.2 the Registrar shall cancel each Note Certificate against surrender
of which it has made full payment and shall, if necessary, deliver
each Note Certificate so cancelled by it to or to the order of the
Registrar; and
7.1.3 the New York Paying Agent shall notify the Note Trustee forthwith
in the event that it does not, on or before the due date for any
payment of principal or interest in respect of any of the Notes,
receive unconditionally the full amount in Dollars and/or there
are not sufficient funds in Dollars available to the New York
Paying Agent to discharge the amount of the monies payable thereon
in accordance with the Note Conditions and/or the provisions of
the Trust Deed on such due date.
7.2 PAYMENTS IN RESPECT OF NOTE CERTIFICATES
7.2.1 The Registrar will notify the New York Paying Agent, not later
than five Business Days after each day that falls on the fifteenth
day before an Interest Payment Date ("Record Date"), whether any
Noteholder has elected to receive payments by transfer to a bank
account and, if so, the relevant details of such bank account. For
those Noteholders who have chosen not to receive payments by
transfer to a bank account, the Registrar will notify the New York
Paying Agent of the address of such Noteholder appearing in the
Register to which cheques should be posted.
GE>
7.2.2 The New York Paying Agent shall make or shall procure payments of
interest and principal in respect of the Note Certificates in
accordance with the Note Conditions by mailing a U.S. dollar
cheque drawn on a bank in New York respectively to the address of
the Noteholder appearing in the Register on the Record Date or, if
the Noteholder has elected to do so, by transfer to a U.S. dollar
account (as the case may be).
7.3 EXCLUSION OF LIENS AND COMMISSIONS
The New York Paying Agent shall not exercise any lien, right of set-off
or similar claim against any person to whom it makes any payment under
Clause 7.1 in respect thereof, nor shall any commission or expense be
charged by it to any such person in respect thereof.
7.4 APPROPRIATION BY NEW YORK PAYING AGENT
If the New York Paying Agent makes any payment in accordance with Clause
7.1, it shall be entitled to appropriate for its own account out of the
funds received by it under Clause 6.1 an amount equal to the amount so
paid by it.
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7.5 REIMBURSEMENT BY ISSUER
If the New York Paying Agent makes a payment in respect of the Notes at a
time at which the New York Paying Agent has not received the full amount
of the relevant payment due to it from the Issuer under Clause 6.1, the
Issuer shall from time to time on demand pay to the New York Paying
Agent:
7.5.1 the amount so paid out by the New York Paying Agent and not so
reimbursed to it; and
7.5.2 interest on such amount from the date on which the New York Paying
Agent made such payment until the date of reimbursement of such
amount,
provided, however, that any payment made under Clause 7.5.1 above shall
satisfy pro tanto the Issuer's obligations under Clause 6.1.
7.6 PARTIAL PAYMENTS
If at any time and for any reason the New York Paying Agent makes a
partial payment in respect of any Note the Registrar shall annotate the
Register with such details. In addition, if, on any due date for payment,
less than the full amount of any principal or interest is paid in respect
of the Notes, the Registrar will note on the Register a memorandum of the
amount and date of any payment then made and, if the Global Note
Certificate or any Individual Note Certificate is presented for payment
in accordance with the Note Conditions and no payment is then made, the
date of presentation of the Global Note Certificate or (as the case may
be) such Individual Note Certificate.
7.7 AGENTS TO ACT FOR NOTE TRUSTEE
At any time after an Event of Default in respect of the Notes shall have
occurred or at any time after Individual Note Certificates have not been
issued when so required in accordance with the terms of the Trust Deed or
the Note Trustee shall have received any money which it proposes to pay
under Clause 8 of the Trust Deed to the Noteholders or the Notes shall
otherwise have become due and repayable:
7.7.1 the Paying Agents and the Registrar shall, if so required by
notice in writing given by the Note Trustee to the Issuer, the
Paying Agents, and the Registrar:
(a) thereafter act as Paying Agents or Registrar, as the case
may be, of the Note Trustee in relation to payments in
respect of the Notes to be made by or on behalf of the Note
Trustee under the terms of the Trust Deed on the terms
mutatis mutandis contained herein (save that the Note
Trustee's liability under any provisions herein contained
for the indemnification of any Paying Agent or the
Registrar shall be limited to the amount for the time being
held by the Note Trustee on the trusts of the Trust Deed
which is available to be applied by the Note Trustee for
such purpose) and thereafter hold all Note Certificates and
all sums, documents and records held by them in their
capacities as Principal Paying Agent, Paying Agent or
Registrar (as the case may be) in respect of the Notes on
behalf of the Note Trustee; and/or
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(b) deliver up all Note Certificates and all sums, documents
and records held by them in respect of the Notes to the
Note Trustee or as the Note Trustee shall direct in such
notice,
provided that such notice shall be deemed not to apply to any
document or record which the Principal Paying Agent or (as the
case may be) the relevant Agent is obliged not to release by any
applicable law or regulation; and/or
7.7.2 the Agent Bank shall, if so required by notice in writing given by
the Note Trustee to the Agent Bank and until such appointment is
terminated by the Note Trustee by notice in writing:
(a) thereafter act as Agent Bank of the Note Trustee in
relation to calculations and other related functions to be
made or performed by, or on behalf of, the Note Trustee
under the terms of the Trust Deed mutatis mutandis on the
terms contained herein (save that the Note Trustee's
liability under any provision hereof for the
indemnification of the Agent Bank shall be limited to the
amounts for the time being held by the Note Trustee in
respect of principal and interest on the Notes on the
trusts of the Trust Deed which are available to be applied
by the Note Trustee for such purposes) and thereafter to
hold on behalf of the Note Trustee all documents and
records held by it in respect of principal and interest on
the Notes; and/or
(b) deliver up all documents and records held by it in respect
of principal and interest on the Notes to the Note Trustee
or as the Note Trustee shall direct in such notice,
provided that such notice shall be deemed not to apply to any
document or record which the Agent Bank and Custodian is obliged
to retain or not to release by any applicable law or regulation.
8. CUSTODY ARRANGEMENTS
8.1 CUSTODY ACCOUNTS
8.1.1 The Custodian shall maintain a securities custody account in
respect of the Series 05-4 MTN, the details of which shall be set
out in Schedule 2 (the "CUSTODY SECURITIES ACCOUNT").
8.1.2 The Custodian shall maintain the cash proceeds of the Series 05-4
MTN in a cash custody account the details of which will be set out
in Schedule 2 (the "CUSTODY CASH ACCOUNT") which the Custodian
will credit with income received pursuant to Clause 8.2 and debit
with payments made pursuant to Clause 8.3.
8.1.3 The Custodian shall accept for safekeeping and deposit to the
credit of the Custody Securities Account the Series 05-4 MTN which
may from time to time be delivered to it for such purpose.
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8.1.4 At all times while the Series 05-4 MTN is credited to the Custody
Securities Account, the Custodian shall deal with the Series 05-4
MTN or book entry interests in accordance with the terms of this
Agreement and the Deed of Charge.
8.2 INCOME FROM THE SERIES 05-4 MTN
The Custodian shall, on behalf of the Issuer, endeavour to collect any
income from the Series 05-4 MTN and may execute ownership and other
certificates and affidavits for all fiscal and tax purposes from time to
time required in connection with the collection of such income and pay
any taxes which it is required to pay in connection therewith. For the
avoidance of doubt, nothing in this Clause shall make the Custodian
liable for any failure of any other person to pay or remit any sum
referred to herein.
8.3 PAYMENTS
The Custodian may from time to time pay from the Custody Cash Account to
the relevant party all sums due to that party under the terms of the
relevant Document. The Custodian shall only be bound to make payments
pursuant to this clause to the extent that it is satisfied that it has
received funds in accordance with Clause 8.2 hereof.
8.4 EXCHANGE OF SERIES 05-4 MTNS
The Custodian is hereby authorised without further instruction to present
and surrender, or procure the presentation and surrender of, the Series
05-4 MTN which is under the direct control of the Custodian on maturity
to the issuer thereof or (as the case may be) the appropriate paying
agent on each date on which such presentation is required in order to
receive payment in respect thereof.
8.5 DOCUMENTS NECESSARY FOR CUSTODY
Subject as herein provided, the Custodian may execute as agent for the
Issuer all declarations, affidavits and certificates of ownership now or
hereafter required in respect of the Series 05-4 MTN held in the Custody
Securities Account; PROVIDED THAT, prior to the occurrence of Event of
Default, the Custodian shall not under any circumstances execute any
declaration, affidavit or certificate which might be construed to mean or
imply that it is the ultimate beneficial owner of the Series 05-4 MTN or
that it is acting in any capacity other than as Custodian of the Series
05-4 MTN.
8.6 APPOINTMENT OF SUB-CUSTODIANS
Notwithstanding the provisions of Clause 11 and subject to receipt of an
opinion of legal counsel that such appointment will not give rise to any
adverse tax consequences, the Custodian may, having given the Issuer and
each relevant Rating Agency at least ten Business Days' prior written
notice, appoint any financial institution with an office in any
jurisdiction other than the United Kingdom (including any reputable
financial institution in the same group as the Custodian) to act as
sub-custodian (a "SUB-CUSTODIAN") of the Series 05-4 MTN located in that
jurisdiction on substantially the same terms as the Agreement (except
that there shall be no equivalent to this Clause 8.6). The Custodian
shall not at any time be liable to the Issuer or any other person for the
proper safekeeping
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of the Series 05-4 MTN and the due performance of the obligations assumed
by any Sub-Custodian but the Custodian accepts the same level of
responsibility for any nominee company controlled by the Custodian or by
any of its affiliated companies as it accepts for itself.
8.6.1 The Custodian may change the appointment of a Sub-Custodian in any
jurisdiction having given at least ten Business Days' prior
written notice to the Issuer, the Note Trustee and each relevant
Rating Agency.
8.6.2 The Custodian hereby warns the Issuer that in relation to the
Series 05-4 MTN held by the Custodian pursuant to this Clause 8 or
any Sub-Custodian outside the United Kingdom, there may be
settlement, legal and regulatory requirements in the relevant
overseas jurisdictions which are different from those applying in
New York, and different practices for separate identification of
such Series 05-4 MTNs.
9. MISCELLANEOUS DUTIES OF THE AGENTS
9.1 MAINTENANCE OF RECORDS
Each of the Agents shall maintain records of all documents received by it
in connection with its duties hereunder and shall make such records
available for inspection at all reasonable times by the Issuer, the Note
Trustee and the other Agents and, in particular the Registrar shall (a)
maintain a record of all Note Certificates delivered hereunder and of
their redemption, payment, cancellation, mutilation, defacement, alleged
destruction, theft, loss and replacement; (b) make such records available
for inspection at all reasonable times by the Issuer, the Note Trustee
and the other Agents; and (c) give to the Note Trustee and the other
Agents such further information with regard to its activities hereunder
as may reasonably be required of them for the proper carrying out of
their respective duties.
9.2 CANCELLATION
The Issuer may from time to time deliver to, or to the order of, the
Registrar Note Certificates for cancellation whereupon the Registrar
shall cancel the same and shall make the corresponding entries in the
Register.
9.3 NOTES IN ISSUE
As soon as practicable (or in any event within three months) after each
date for the payment of principal or interest in relation to the Notes,
after each date on which Note Certificates are cancelled in accordance
with Clause 9.2 and after the date on which the Notes fall due for
redemption in accordance with the Note Conditions, the Registrar shall
notify the Issuer, the other Paying Agents and the Note Trustee (on the
basis of the information available to it) of the number of any Note
Certificates against surrender of which payment in full has been made and
of the number of any Note Certificates (and the names and addresses of
the holders thereof) which have not yet been surrendered for payment and
the details of all Notes redeemed and cancelled.
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9.4 FORWARDING OF COMMUNICATIONS
The Principal Paying Agent shall promptly forward to the Issuer, the Note
Trustee and the New York Paying Agent a copy of any notice or
communication addressed to the Issuer by any Noteholder which is received
by the Principal Paying Agent. The New York Paying Agent or Registrar
shall promptly notify the Principal Paying Agent in the event that it
receives any such notice or communication and promptly forward such
notice or communication to the Principal Paying Agent.
9.5 PUBLICATION OF NOTICES
The Registrar shall, upon and in accordance with the instructions, and at
the expense, of the Issuer but not otherwise, arrange for the publication
in accordance with Note Condition 14 of any notice which is to be given
to the Noteholders and shall promptly supply two copies thereof to the
Note Trustee and a copy thereof to each other Agent.
9.6 DESTRUCTION
The Registrar may destroy each Note Certificate delivered to or cancelled
by it in accordance with Clause 9.2, in which case it shall promptly
furnish the Issuer and the Note Trustee with a certificate as to such
destruction and specifying the reason for such destruction and the
certificate or serial numbers of the Note Certificates so destroyed.
9.7 FORMS OF PROXY AND BLOCK VOTING INSTRUCTIONS
The Registrar shall, at the request of any Noteholder in accordance with
the Trust Deed, make available uncompleted and unexecuted forms of proxy
and issue block voting instructions in a form and manner which comply
with the provisions of the Eighth Schedule of the Trust Deed. The
Registrar shall keep a full record of completed and executed forms of
proxy received by it and will give to the Issuer, not less than
twenty-four hours before the time appointed for any meeting or adjourned
meeting, full particulars of all duly completed forms of proxy received
by it in respect of such meeting or adjourned meeting.
9.8 ADDITIONAL DUTIES
The Registrar shall carry out such other acts as may reasonably be
necessary to give effect to the relevant Note Conditions, this Agreement
and the Regulations. In carrying out its functions the Registrar shall
act in accordance with the terms of this Agreement, the Regulations and
the relevant Note Conditions.
9.9 REGULATIONS FOR THE DUTIES OF THE TRANSFER AGENTS AND THE REGISTRAR
The Issuer may, from time to time, with the approval of the Principal
Paying Agent, the Transfer Agents, the Registrar and the Note Trustee
(such approval in no case to be unreasonably withheld) promulgate
reasonable regulations concerning the carrying out of their respective
duties and the forms and evidence to be proved (the "REGULATIONS").
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9.10 NOTIFICATION OF THE PRINCIPAL AMOUNT OUTSTANDING
The Registrar shall, on the third Business Day prior to each due date for
payment in respect of the Notes, notify the Principal Paying Agent of the
aggregate Principal Amount Outstanding of Notes evidenced by Individual
Note Certificates.
9.11 COPY DOCUMENTS AVAILABLE FOR INSPECTION
The Registrar shall make copies of this Agreement, the Trust Deed and the
Regulations available for inspection at its Specified Office at all
reasonable times.
9.12 PROCEEDS HELD ON TRUST
Each Paying Agent shall hold in trust for the benefit of Noteholders or
the Note Trustee all money held by such Paying Agent for the payment of
principal or interest on the Notes.
9.13 NOTICE OF DEFAULT
Each Paying Agent shall give the Note Trustee notice of any default by
the Issuer in the making of any payment of principal or interest on the
Notes.
10. FEES AND EXPENSES
10.1 FEES
The Issuer shall pay to the New York Paying Agent for its own account and
for the account of the Agents such fees as may have been agreed between
the Issuer and the relevant Agent in respect of the services of the
Agents hereunder (plus any applicable VAT).
10.2 FRONT-END EXPENSES
The Issuer shall after receipt of an account of such expenses reimburse
the New York Paying Agent for its own account and for the account of the
Agents for all reasonable out-of-pocket expenses properly incurred by
them in the negotiation, preparation and execution of this Agreement and
for its own account for all reasonable out-of-pocket expenses (including,
without limitation, legal fees and any publication, advertising,
communication, courier, postage and other out-of-pocket expenses)
properly incurred in connection with its services hereunder (plus any
applicable VAT). The New York Paying Agent will be responsible for
distributing the remuneration of the Agents and the relevant expenses of
Agents and the Issuer shall not be responsible for the apportionment of
such payments between the Paying Agents, the Registrar and the Agent
Bank.
10.3 TAXES AND EXPENSES OCCASIONED BY DEFAULT
The Issuer shall pay all stamp, registration and other similar taxes and
duties (including any interest and penalties thereon or in connection
therewith) which are payable upon or in connection with the execution and
delivery of this Agreement and shall indemnify each Agent against any
claim, demand, action, liability, damages, cost, loss or expense
(including, without limitation, legal fees and any applicable VAT) which
it incurs as a
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result or arising out of or in relation to any failure to pay or delay in
paying any of the same.
11. TERMS OF APPOINTMENT
11.1 RIGHTS AND POWERS
Each Paying Agent, any Transfer Agent, Custodian or Registrar and, in
relation to sub-clauses 11.1.2 and 11.1.3, the Agent Bank, may, in
connection with its services hereunder:
11.1.1 except as ordered by a court of competent jurisdiction or as
required by law (whether or not the relevant Note shall be overdue
and notwithstanding any notice to the contrary or writing shown
thereon or any notice of previous loss or theft or of trust or
other interest therein) be entitled to treat the person registered
in the Register as the absolute owner of such Note for all
purposes and make payments thereon accordingly PROVIDED THAT where
the Registrar has notified the Issuer of the presentation or
surrender of any Note in accordance with Clause 7.1.2, it shall
not make payment thereon until so instructed by the Issuer;
11.1.2 rely upon the terms of any notice, communication or other document
believed by it to be genuine;
11.1.3 engage, at the expense of the Issuer (pursuant to Clause 10.2),
the advice or services of any lawyers or other experts (being an
appointee who shall have been appointed by the Note Trustee after
prior consultation by the Note Trustee with the Issuer and after
consideration in good faith by the Note Trustee of any
representations made by the Issuer concerning the proposed
appointee except where, in the opinion of the Note Trustee, such
consultation and consideration was not practicable) whose advice
or services it considers necessary and rely upon any advice so
obtained (and such Agent shall be protected and shall incur no
liability as against the Issuer in respect of any action taken, or
suffered to be taken, in accordance with such advice except to the
extent that such liability arises out of any breach of contract or
trust, bad faith, misconduct or negligence on the part of any such
Agent or its officers, directors or employees);
11.1.4 assume that the terms of each Note Certificate as issued are
correct;
11.1.5 refer any question relating to the ownership of any Note or the
adequacy or sufficiency of any evidence supplied in connection
with the replacement, transfer or exchange of any Note Certificate
to the Issuer for determination by the Issuer and conclusively
rely upon any determination so made; and
11.1.6 whenever in the administration of this Agreement it shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, in the absence of bad
faith or negligence on its part, accept a certificate signed by
any person duly authorised on behalf of the Issuer as to any fact
or matter prima facie within the knowledge of the Issuer as
sufficient evidence thereof.
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11.2 EXTENT OF DUTIES
Each Agent shall only be obliged to perform the duties set out herein and
such other duties as are necessarily incidental thereto. No Agent shall
(i) be under any fiduciary duty towards any person other than the Issuer
or, to the extent provided for in Clauses 7.7, 9.1 and 9.3, the Note
Trustee, (ii) (except to the extent that such liability arises out of any
gross misconduct or negligence on the part of any such Agent or its
officers, directors or employees) be responsible for or liable in respect
of any act or omission of any other person including, without limitation,
any other Agent or (iii) be under any obligation towards any person other
than the Issuer, the other Agents and the Note Trustee.
11.3 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of a beneficial interest in a
Note and may enter into any transaction (including, without limitation,
any depository, trust or agency transaction) with any holders or owners
of any Notes or with any other party hereto in the same manner as if it
had not been appointed as the agent of the Issuer or the Note Trustee in
relation to the Notes.
11.4 INDEMNITY
The Issuer shall indemnify each Agent against any claim, demand, action,
liability, damages, cost, loss or expense (including, without limitation,
legal fees and any applicable VAT) which it incurs, other than such costs
and expenses as are (i) separately agreed to be reimbursed out of the
fees payable under Clause 10; or (ii) incurred by reason of the relevant
Agent's own negligence or gross misconduct (or that of its directors,
officers or employees).
11.5 AGENT COMMITMENTS
No provisions of this Agreement shall require any Agent to expend its own
funds or assume a financial commitment to a person not party to this
Agreement (other than in the ordinary course of its business) in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers hereunder, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
commitment is not reasonably assured to it and, in particular, no Agent
shall be obliged to incur any expenditure in connection with the
publication of any notices required to be given hereunder unless the
Issuer has given its prior approval.
12. TERMINATION OF APPOINTMENT
12.1 RESIGNATION
Any Agent may resign its appointment upon not less than 60 days' written
notice to the Issuer (with a copy to the Note Trustee and, in the case of
an Agent other than the Principal Paying Agent, to the Principal Paying
Agent) provided, however, that:
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12.1.1 if such resignation would otherwise take effect less than 10 days
before the maturity date of the Notes or any Interest Payment Date
in relation to the Notes, it shall not take effect until the first
day following such maturity date; and
12.1.2 such resignation shall not take effect until a successor (approved
in writing by the Note Trustee) has been duly appointed by the
Issuer and notice of such appointment has been given to the
Noteholders.
12.2 REVOCATION
The Issuer may revoke its appointment of any Agent as its agent in
relation to the Notes by not less than 60 days' notice to such Agent
(with a copy to the Note Trustee and, in the case of an Agent other than
the Principal Paying Agent) provided, however, that in the case of the
Principal Paying Agent, the Agent Bank, the Custodian, the Paying Agent
with its Specified Office in London or the only remaining Paying Agent
with its Specified Office outside the United Kingdom, such revocation
shall not take effect until a successor has been duly appointed with the
prior written consent of the Note Trustee and notice of such appointment
has been given to the Noteholders.
12.3 AUTOMATIC TERMINATION
The appointment of any Agent shall terminate forthwith if:
12.3.1 a secured party takes possession, or a receiver, manager or other
similar officer is appointed, of the whole or any part of the
undertaking, assets and revenues of such Agent;
12.3.2 such Agent admits in writing its insolvency or inability to pay
its debts as they fall due;
12.3.3 an administrator or liquidator of such Agent or the whole or any
part of the undertaking, assets and revenues of such Agent is
appointed (or application for any such appointment is made);
12.3.4 such Agent 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;
12.3.5 an order is made or an effective resolution is passed for the
winding up of such Agent; or
12.3.6 any event occurs which has an analogous effect to any of the
foregoing.
On the occurrence of any of the above the relevant Agent shall forthwith
notify the Issuer and the remaining Agents and the Issuer shall give
notice thereof to the Note Trustee and to the Noteholders in accordance
with Note Condition 14.
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12.4 ADDITIONAL AND SUCCESSOR AGENTS
The Issuer may with the prior written approval of the Note Trustee
appoint additional or successor Paying Agents, a successor Agent Bank or
a successor Registrar provided that such additional or successor Paying
Agent, Agent Bank or Registrar shall execute and deliver to its
predecessor (if any), the Issuer, the Note Trustee and (unless its
predecessor is the Principal Paying Agent) the Principal Paying Agent an
instrument accepting appointment on the terms and conditions of this
Agreement and the Issuer shall forthwith give notice of any such
appointment to the continuing Agents and the Noteholders, whereupon the
Issuer, the continuing Agents and the additional or successor agent shall
acquire and become subject to the same rights and obligations between
themselves as if they then entered into an agreement in the form mutatis
mutandis of this Agreement.
12.5 AGENT MAY APPOINT SUCCESSOR
If any Agent gives notice of its resignation in accordance with Clause
12.1 and by the tenth day before the expiration of such notice a
successor has not been duly appointed, such Agent may itself, following
such consultation with the Issuer as is practicable in the circumstances
and with the prior written approval of the Note Trustee and the Issuer
(provided such failure to appoint was not due to default by the Issuer),
appoint as its successor any reputable and experienced bank or financial
institution and give notice of such appointment to the Issuer, the
remaining Agents and the Noteholders. Such successor shall execute and
deliver to the relevant Agent, the Issuer, the Note Trustee and (unless
the relevant Agent is the Principal Paying Agent) the Principal Paying
Agent an instrument accepting appointment on the terms and conditions of
this Agreement whereupon the Issuer, the remaining Agents and such
successor agent shall acquire and become subject to the same rights and
obligations between themselves as if they had entered into an agreement
in the form mutatis mutandis of this Agreement.
12.6 RESIGNATION AND REVOCATION
Upon any resignation or revocation taking effect under Clause 12.1 or
12.2 or any termination under Clause 12.3, the relevant Agent shall:
12.6.1 without prejudice to any accrued liabilities and obligations, be
released and discharged from any further obligations under this
Agreement (save that it shall remain entitled to the benefit of,
and subject to, Clauses 11.3, 12 and 13);
12.6.2 repay to the Issuer following any resignation taking effect under
Clause 12.1 or any termination under Clause 12.3, such part of any
fee paid to it in accordance with Clause 10.1 as shall relate to
any period thereafter;
12.6.3 in the case of the Registrar, the Principal Paying Agent or the
Agent Bank, deliver to the Issuer and to its successor a copy,
certified as true and up-to-date by an officer of the Registrar,
the Principal Paying Agent or (as the case may be) the Agent Bank,
of the records maintained by it in accordance with Clause 9.1; and
12.6.4 forthwith (upon payment to it of any amount due to it in
accordance with Clause 10 or Clause 11.4) transfer all monies and
papers (including any unissued
- 19 -
Individual Note Certificates held by it hereunder) to its successor in
that capacity and, upon appropriate notice, provide reasonable assistance
to its successor for the discharge by it of its duties and
responsibilities hereunder.
12.7 MERGER
Any legal entity into which any Agent is merged or converted or any legal
entity resulting from any merger or conversion to which such Agent is a
party shall, to the extent permitted by applicable law, be the successor
to such Agent without any further formality, whereupon the Issuer, the
Note Trustee, the other Agents and such successor shall acquire and
become subject to the same rights and obligations between themselves as
if they had entered into an agreement in the form mutatis mutandis of
this Agreement. Notice of any such merger or conversion shall forthwith
be given by such successor to the Issuer, the Note Trustee and the other
Agents.
13. NON-PETITION
13.1 NON-PETITION
Each of the Paying Agents, the Registrar, the Note Trustee, the Agent
Bank and any Transfer Agent undertakes to the Issuer that until one year
and one day has elapsed since the last day on which the Issuer has
discharged all of its obligations in relation to the Notes, none of them
will petition or commence proceedings for the administration or
winding-up of the Issuer (nor join any person in such proceedings or
commencement of proceedings) nor commence any legal proceedings against
the Issuer.
13.2 LIMITED RECOURSE
Each of the Paying Agents, the Registrar, the Note Trustee, the Agent
Bank and any Transfer Agent shall have recourse only to the Charged
Property subject always to the charges set out in the Deed of Charge and
the priority of payments set out in the Deed of Charge. Upon final
realisation of the Charged Property, none of the Paying Agents, the
Registrar, the Note Trustee, the Agent Bank or such Transfer Agent or any
person acting on its behalf shall be entitled to take any further steps
against the Issuer to recover any sums due to each of the Paying Agents,
the Registrar, the Note Trustee, the Agent Bank and such Transfer Agent
but still unpaid and all claims in respect of such sums due but still
unpaid shall be extinguished.
14. TIME
Any date or period specified herein may be postponed or extended by
mutual agreement among the parties but, as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
15. NOTICES
15.1 Any notice under or in connection with the Agreement shall be in writing
and shall be delivered by hand or sent by first class post, telex,
courier or facsimile transmission to the address or facsimile number
specified below in respect of the relevant party (or to such other
address or facsimile number as may be notified in writing by any party to
the others from time to time):
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15.1.1 in the case of the Issuer, to it at:
Gracechurch Card Funding (No. 11) PLC
1 Churchill Place
London E14 5HP
Fax: 020 7116 7665
Attn: Company Secretary
15.1.2 in the case of the Principal Paying Agent or Agent Bank, to it at:
The Bank of New York
48th Floor
One Canada Square
London E14 5AL
Fax: 020 7964 6061/6399
Attn: Corporate Trust, Global Structured Finance - Europe
15.1.3 in the case of the New York Paying Agent, the Registrar, the
Transfer Agent or Custodian, to it at:
The Bank of New York
One Wall Street
New York
NY 10286 USA
Fax: 001 212 815 5915
Attn: Corp. Trust (21W), Global Structured Finance - Europe
15.1.4 in the case of the Note Trustee, to it at:
The Bank of New York
48th Floor
One Canada Square
London E14 5AL
Fax: 020 7964 6061/6399
Attn: Corporate Trust, Global Structured Finance - Europe
15.2 Every notice or communication sent in accordance with Clause 15.1 shall
be effective as follows:
15.2.1 if sent by letter, courier or fax, upon receipt by the addressee;
and
15.2.2 if sent by telex, upon receipt by the sender of its addressee's
answer back at the end of transmission;
provided, however, that any such notice or communication which would
otherwise take effect on a day which is not a Business Day in the place
of receipt or after 4.00 p.m. on
- 21 -
any such Business Day shall not take effect until 10.00 a.m. on the
immediately succeeding Business Day in the place of receipt.
16. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts each of which, when
executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument
Provided, however, that this Agreement shall have no force or effect
until it is executed by the last party to execute the same and shall be
deemed to have been executed as delivered in the place where such last
party executed this Agreement.
17. GOVERNING LAW AND JURISDICTION
17.1 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law.
17.2 JURISDICTION
Each of the parties hereto agrees for the benefit of the others that the
courts of England shall have jurisdiction to hear and determine any suit,
action or proceedings, and to settle any disputes, which arise out of or
in connection with this Agreement (respectively, "PROCEEDINGS" and
"DISPUTES") and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
17.3 APPROPRIATE FORUM
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 Proceedings and to settle any
Disputes, and agrees not to claim that any such court is not a convenient
or appropriate forum.
17.4 NON-EXCLUSIVITY
The submission to the jurisdiction of the courts of England shall not
(and shall not be construed so as to) limit the right of any party to
take Proceedings in any court of competent jurisdiction, nor shall the
taking of Proceedings in any one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction (whether concurrently or
not) if and to the extent permitted by law.
17.5 POST MATURITY CALL OPTION
Pursuant to a post maturity call option made between Gracechurch Card
(Holdings) Limited and the Note Trustee dated the date hereof the
Principal Paying Agent (upon receipt of the notice referred to therein)
agrees to arrange for the delivery of such notice to the holder of the
Notes and further agrees to make payment of the Exercise Price (as
defined therein) to each Noteholder.
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18. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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SCHEDULE 1
SPECIFIED OFFICES OF THE AGENTS
THE PRINCIPAL PAYING AGENT AND AGENT BANK
The Bank of New York
48th Floor
One Canada Square
London E14 5AL
Fax: 020 7964 6061/6399
Attention: Corporate Trust, Global Structured Finance
THE NEW YORK PAYING AGENT, CUSTODIAN, REGISTRAR AND TRANSFER AGENT
The Bank of New York
101 Barclay Street,
New York, New York,
USA 10286
Fax: 001 212 815 5915
Attention: Corp. Trust (21W), Global Structured Finance - Europe
- 24 -
SCHEDULE 2
CUSTODY ACCOUNT DETAILS
CUSTODY SECURITIES ACCOUNT
Account Bank: The Bank of New York
Account Number: [o]
CUSTODY CASH ACCOUNT
Account Bank: The Bank of New York
Account Number: [o]
- 25 -
ISSUER
Signed by GRACECHURCH CARD FUNDING (NO. 11) PLC )
by SFM Directors Limited )
as Director )
AGENT BANK
THE BANK OF NEW YORK )
(acting through its London branch) )
By: )
)
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK )
(acting through its London branch) )
By: )
)
NEW YORK PAYING AGENT, CUSTODIAN,
REGISTRAR AND TRANSFER AGENT
THE BANK OF NEW YORK )
By: )
)
NOTE TRUSTEE
THE BANK OF NEW YORK )
(acting through its London branch) )
By: )
)