EXHIBIT 4.20
CLIFFORD CLIFFORD CHANCE LLP
CHANCE
[__________] 2008
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PLEDGE AGREEMENT
IN RESPECT OF
SECURITIES HELD IN EUROCLEAR
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GRACECHURCH CARD PROGRAMME FUNDING LIMITED
AS PLEDGOR
AND
THE BANK OF NEW YORK
AS PLEDGEE
CONTENTS
CLAUSE PAGE
1. DEFINITIONS.............................................................1
2. COVENANT TO PAY - SOLIDARITE ACTIVE.....................................2
3. PLEDGE..................................................................2
4. PERFECTION OF THE PLEDGE................................................2
5. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS............................3
6. SCOPE OF THE PLEDGE.....................................................3
7. DISCHARGE OF THE PLEDGE.................................................4
8. ENFORCEMENT.............................................................4
9. RIGHTS CUMULATIVE.......................................................5
10. PLEDGEE'S DUTIES........................................................5
11. EXPENSES................................................................5
12. NOTICES.................................................................5
13. SEVERABILITY............................................................5
14. WAIVER..................................................................5
15. TRANSFERABILITY.........................................................5
16. COMMON TERMS............................................................6
17. APPLICABLE LAW AND JURISDICTION.........................................6
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PLEDGE AGREEMENT
BETWEEN:
1. GRACECHURCH CARD PROGRAMME FUNDING LIMITED, a public limited liability
company incorporated in Jersey, Channel Islands, with company number
98638, with its registered office at 26 New Street, St. Helier, Jersey
(the "PLEDGOR"), and
2. THE BANK OF NEW YORK, a New York banking corporation acting through its
London branch located at 48th Floor, One Canada Square, London E14 5AL,
United Kigndom, in its capacity as Note Trustee (the "PLEDGEE").
WHEREAS:
The pledgor has established a medium term note programme (the "PROGRAMME")
pursuant to which notes may be issued from time to time. The notes are to be
constituted in the manner stated in a trust deed dated [________] 2008 made
between the Pledgor as Issuer and the Pledgee as Note Trustee (the "NOTE TRUST
DEED") and the Series [__] Supplement to the Note Trust Deed dated of even date
herewith between, inter alios the Pledgor and the Pledgee (the "NOTE TRUST DEED
SUPPLEMENT").
It is a condition of the Programme that the Pledgor enter into this Agreement
and grants to the Pledgee a pledge over a portfolio of securities deposited by
the Pledgee in Euroclear, a securities custody and clearing system operated in
Brussels by Euroclear Bank SA/NV ("EUROCLEAR") recognised as a central
depository for the purposes of the Belgian Royal Decree No. 62.
The Pledgee is a participant in Euroclear.
IT HAS BEEN AGREED AS FOLLOWS:
1. DEFINITIONS
Terms defined in the Note Trust Deed and each Note Trust Deed
Supplement shall, unless otherwise defined herein, have the same
meaning herein, and the following terms shall have the meaning
described hereunder, in either case unless the context otherwise
requires:
"COLLATERAL ACCOUNT" means the securities account No. [____________]
held in Euroclear in the name of the Pledgee;
"EUROCLEAR SECURITIES" means the [________] medium term note
certificate[s] issued by Barclaycard Funding PLC, a public limited
company incorporated in England and Wales, and having its registered
office at 1, Churchill Place, London E14 5HP;
"ROYAL DECREE NO. 62" means the co-ordinated Royal Decree No. 62 of 10
November 1967 on the deposit of fungible financial instruments and the
settlement of transactions in respect of these instruments, as amended
from time to time; and
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"SECURED CREDITORS" means the Note Trustee, the Noteholders and the
Swap Counterparty.
2. COVENANT TO PAY - SOLIDARITE ACTIVE
2.1 The Pledgor undertakes to pay to the Pledgee the amount of each of the
Secured Obligations owing to the Secured Creditors on the respective
due date thereof in accordance with the terms thereof. Without
prejudice to the rights of the Secured Creditors, the Pledgee shall
consequently be the obligee of the Pledgor with respect to the Secured
Obligations and shall be entitled in its own name to claim performance
thereof, and there shall be a solidarite active/actieve hoofdelijkheid
between the Pledgee and the Secured Creditors in relation thereto.
However, any payment of a Secured Amount duly made in accordance with
the Transaction Documents to any Secured Creditor to which such Secured
Amount was owed shall also discharge the Pledgor's obligations to the
Pledgee hereunder in respect of such Secured Amount and to the extent
of such payment.
2.2 The Pledgor and the Pledgee acknowledge that the obligations of the
Pledgor under Clause 2.1 are of a commercial (and not civil) nature and
that this Agreement consequently constitutes a commercial pledge.
3. PLEDGE
3.1 The Pledgor hereby pledges the Euroclear Securities to the Pledgee, as
security for the due performance of all obligations (present or future,
actual or contingent) of the Pledgor owing to the Pledgee under Clause
2.1 (the "SECURED LIABILITIES", which terms shall also include the
obligations of the Pledgor under Clauses 10 and 11).
3.2 The Pledgor acknowledges that any monies standing from time to time to
the credit of the Euroclear cash account associated with the Collateral
Account, whether such monies proceed from the sale or repayment of
Euroclear Securities or otherwise, represent a claim against Euroclear
which is owed to the Pledgee exclusively, and that the Pledgor has no
right whatsoever against Euroclear in respect of such monies or claim.
Should, however, the Pledgor have any such right pursuant to mandatory
provisions of Belgian law or otherwise, then the Pledgor hereby pledges
such rights to the Pledgee as security for the Secured Liabilities.
For the avoidance of doubt, the parties confirm that the rights of the
Pledgor against the Pledgee in connection with such monies are subject
to the security created by the Note Trust Deed and the Note Trust Deed
Supplement.
4. PERFECTION OF THE PLEDGE
4.1 The parties acknowledge that the Euroclear Securities shall be subject
to the fungibility regime organised by the Royal Decree No. 62.
4.2 The Pledgor shall arrange, forthwith upon execution hereof, for the
Euroclear Securities to be transferred to the Collateral Account.
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4.3 The Pledgee shall treat the Collateral Account as a special account
specifically opened for the purpose of holding collateral, whether or
not exclusively in the context of this Agreement, and undertakes that
it will not use the Collateral Account for any other purposes.
5. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
5.1 The Pledgor represents, warrants and undertakes to the Pledgee that:
(a) The Pledgor is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation
and not in liquidation, with power to enter into this
Agreement and to exercise its rights and perform its
obligations hereunder and all corporate and other action
required to authorise its execution and performance of this
Agreement has been duly taken.
(b) The Pledgor owns, or will at the time of their being credited
to the Collateral Account own, the Euroclear Securities free
and clear of any encumbrances.
(c) This Agreement does not violate any contractual or other
obligation binding upon the Pledgor.
(d) There is no floating charge (gage sur fonds de commerce / pand
op handelszaak) or similar foreign law security in existence
on the business of the Pledgor other than as specified in the
Note Trust Deed.
5.2 The Pledgor undertakes as follows:
(a) The Pledgor shall not dispose of the Euroclear Securities,
shall not create any other pledge, charge or encumbrance in
respect of the Euroclear Securities (irrespective of whether
ranking behind the pledge created hereby), and shall not
permit the existence of any such pledge, charge or
encumbrance.
(b) The Pledgor shall procure that no executory seizure (saisie
execution/uitvoerend beslag) is made on the Euroclear
Securities, and that any conservatory seizure (saisie
conservatoire/bewarend beslag) thereon is lifted within 30
days of its first being made.
(c) The Pledgor shall cooperate with the Pledgee and sign or cause
to be signed all such further documents and take all such
further action as the Pledgee may from time to time reasonably
request to perfect and protect the pledge of the Euroclear
Securities and to carry out the provisions and purposes of
this Agreement.
6. SCOPE OF THE PLEDGE
6.1 This pledge shall be a continuing security, shall remain in force until
expressly released in accordance with Clause 7.1, and shall in
particular not be discharged by reason of the
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circumstance that there is at any time no Secured Liability currently
owing from the Pledgor to the Pledgee.
6.2 This pledge shall not be discharged by the entry of any Secured
Liabilities into any current account, in which case this pledge shall
secure any provisional or final balance of such current account up to
the amount in which the Secured Liabilities were entered therein.
6.3 The Pledgee may, but shall not be under any obligation, in accordance
with the Note Trust Deed and the Note Trust Deed Supplement, at any
time without discharging or in any way affecting this pledge (a) grant
the Pledgor any time or indulgence, (b) concur in any moratorium of the
Secured Obligation or the Secured Liabilities, (c) amend the terms and
conditions of the Secured Obligations or the Secured Liabilities, (d)
abstain from taking or perfecting any other security and discharge any
other security, (e) abstain from exercising any right or recourse or
from proving or claiming any debt and waive any right or recourse, and
(f) apply any payment received from the Pledgor or for its account
towards obligations of the Pledgor other than the Secured Liabilities
or the Secured Amounts.
7. DISCHARGE OF THE PLEDGE
7.1 This pledge shall be discharged by, and only by, the express release
thereof granted by the Pledgee in accordance with the terms of the Note
Trust Deed.
7.2 The Pledgee shall grant an express release of this pledge, without
delay upon demand of the Pledgor, as soon as all Secured Liabilities
shall have been finally discharged and there is no possibility of any
further Secured Liability coming into existence. Forthwith upon such
release being granted, the Pledgee shall transfer the Euroclear
Securities to such Euroclear account as the Pledgor may designate.
7.3 Any release of this pledge shall be null and void and without effect if
any payment received by any Secured Creditor or the Pledgee and applied
towards satisfaction of all or part of the Secured Obligations or the
Secured Liabilities (a) is avoided or declared invalid as against the
creditors of the maker of such payment, or (b) becomes repayable by
such Secured Creditor or the Pledgee to a third party, or (c) proves
not to have been effectively received by such Secured Creditor or the
Pledgee.
8. ENFORCEMENT
The Pledgee shall be entitled to enforce the security created by this
Agreement in accordance with the procedure set out in article 8, ss.1
of the Law of 15 December 2004 on Financial Collateral, ie pursuant to
the rules of Belgian law and without the need of a prior authorization
from the Belgian courts. Such enforcement may take place at any time
upon or after the occurrence of an event of default, howsoever
described, in connection with the Secured Liabilities and as long as
such event of default shall be continuing.
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9. RIGHTS CUMULATIVE
The rights of the Pledgee hereunder are cumulative with all its rights
under the Note Trust Deed and all other Series [__] Documents in
respect of the Notes.
10. PLEDGEE'S DUTIES
The Pledgee shall not be liable for any acts or omissions including,
without limitation, acts or omissions with respect to the Euroclear
Securities, except in case of gross negligence or wilful misconduct.
The Pledgee shall not be under any obligation to take any steps
necessary to preserve any rights in the Euroclear Securities against
any other parties, but may do so at its option, and all expenses
incurred in connection therewith shall be for the account of the
Pledgor. If any such expenses are borne by the Pledgee, the Pledgor
shall on first demand reimburse the Pledgee therefor, and this
reimbursement obligation shall be part of the Secured Liabilities.
11. EXPENSES
All expenses and duties in connection with this Agreement, in
particular with regard to the establishment and perfection of this
pledge, its enforcement and the granting of any release, shall be borne
by the Pledgor. If any such expenses or duties are borne by the
Pledgee, the Pledgor shall on first demand reimburse the Pledgee
therefor, and this reimbursement obligation shall be part of the
Secured Liabilities.
12. NOTICES
Any notice in connection herewith shall be made in accordance with the
provisions of the Note Trust Deed.
13. SEVERABILITY
The invalidity or unenforceability of any provisions hereof shall not
affect the validity or enforceability of this Agreement or of any other
provision hereof.
14. WAIVER
No failure on the part of the Pledgee to exercise, or delay on its part
in exercising, any right shall operate as a waiver thereof, nor shall
any single or partial exercise by the Pledgee of any right preclude any
further or other exercise of such right or the exercise by the Pledgee
of any other right.
15. TRANSFERABILITY
The benefit of this pledge, the covenant to pay under Clause 2.1 and
this Agreement generally shall pass automatically to any successor
trustee or co-trustee appointed in accordance with Clauses 16.2 and
16.3 of the Note Trust Deed. Such successor trustee
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or as the case may be co-trustee shall henceforth be regarded as a
Pledgee for all purposes of this Agreement.
16. COMMON TERMS
Clauses 8 (Non petition and limited recourse) and 10 (Obligations as
corporate obligations) of Part A (General Legal Provisions) of Schedule
2 (Common Terms) of the Issuing Entity Master Framework Agreement
referred to in the Note Trust Deed shall apply to and be binding on the
parties to this Pledge Agreement as if set out in full in this Pledge
Agreement.
17. APPLICABLE LAW AND JURISDICTION
This Agreement shall be governed by Belgian law. The Pledgor agrees for
the benefit of the Pledgee that any dispute in connection with this
Agreement shall be subject to the exclusive jurisdiction of the courts
of Brussels, without prejudice however to the rights of the Pledgee to
take legal action before any other court of competent jurisdiction. For
the purposes of any legal action in connection with this Agreement, the
Pledgor elects domicile at the offices of Mr Patrick Verhamme, bailiff
at Boulevard des Invalides 131, Box 1, 1160 Brussels and undertakes at
all times to maintain an elected domicile in Brussels.
Made in two originals on [__________] 2008.
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
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name: name:
title: title:
THE BANK OF NEW YORK
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name: name:
title: title:
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