EXHIBIT 4.3
CONFORMED COPY
BARCLAYCARD FUNDING PLC
as Issuer
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
THE BANK OF NEW YORK, LONDON BRANCH
as Trustee
AND
BARCLAYS BANK PLC
as MTN Cash Manager and Initial Transferor
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SECURITY TRUST DEED AND MTN CASH MANAGEMENT AGREEMENT
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CLIFFORD CHANCE
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CERTAIN SECTIONS OF THIS SECURITY TRUST DEED AND MTN CASH
MANAGEMENT AGREEMENT RELATING TO SECTIONS 310 THROUGH
318(A), INCLUSIVE OF THE TRUST INDENTURE ACT OF 1939:
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TRUST INDENTURE ACT SECTION SECURITY TRUST DEED SECTION
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Section 310(a)(1) 8.4.1
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(a)(2) 8.4.1
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(a)(3) 8.6
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(a)(4) 8.6
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(a)(5) 8.4.1
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(b) 8.4.1
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Section 311(a) 8.2.1(v)
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(b) 8.2.1(v)
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Section 312(a) 9.1.14
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(b) 23.3
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(c) 23.3
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Section 313(a) 8.2.1(u)
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(b) 8.2.1(u)
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(c) 8.2.1(u)
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(d) 8.2.1(u)
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Section 314(a) 9.1.13
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(b) 9.1.16
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(c)(1) 2.2, 9.1.15(b)
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(c)(2) 9.1.15(b)
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(c)(3) 27
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(d) 27
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(e) 17.2
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Section 315(a) 8
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(b) 8
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(c) 8.2.1(w)
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(d) 14.6
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(e) N/A
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Section 316(a) 13 and Schedule 4 and 5
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(b) 3.12
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(c) 13 and Schedule 5
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Section 317(a)(1) 7.2.2
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(a)(2) 12.3.3
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(b) Section 9.12 and 9.13 of the MTN
Agency Agreement
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Section 318(a) 32
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Security Trust Deed and MTN Cash Management Agreement.
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..................................................................2
2. Series Of Notes.................................................................................3
3. Payments On The Notes...........................................................................4
4. Assignment, Floating Charge And Declaration Of Trust............................................7
5. Form And Issue Of Notes And Coupons.............................................................8
6. Establishment Of Issuer Bank Accounts In Respect Of Each Series................................12
7. Enforcement Of Security........................................................................14
8. The Trustee....................................................................................19
9. Covenants By The Issuer And MTN Cash Manager...................................................30
10. Appointment Of The MTN Cash Manager............................................................33
11. Liability Of The MTN Cash Manager..............................................................36
12. MTN Cash Manager Defaults......................................................................39
13. Acknowledgement Regarding Payments.............................................................43
14. Waiver, Authorisation And Determination........................................................43
15. Modification...................................................................................43
16. Noteholder Assumed To Be Couponholder..........................................................44
17. No Notice To Couponholders.....................................................................44
18. Holder Deemed To Be Absolute Owner.............................................................44
19. Euroclear/Cedelbank Confirmations..............................................................45
20. Substitution...................................................................................45
21. Currency Indemnity.............................................................................46
22. Protection Of Right, Title And Interest To Secured Property....................................47
23. Notices........................................................................................47
24. Assignment.....................................................................................48
25. Further Assurances And Undertaking Of Non-Petition.............................................49
26. No Waiver; Cumulative Remedies.................................................................49
27. Release Of Collateral..........................................................................49
28. Counterparts...................................................................................50
29. Third Party Beneficiaries......................................................................50
30. Actions By Noteholders.........................................................................51
31. Merger And Integration.........................................................................51
32. TIA Prevails...................................................................................51
33. Governing Law And Jurisdiction.................................................................51
SCHEDULE 1 FORM OF TEMPORARY GLOBAL NOTES...................................................53
TEMPORARY GLOBAL NOTE.................................................................................54
SCHEDULE 2 FORM OF PERMANENT GLOBAL NOTES...................................................65
PERMANENT GLOBAL NOTE.................................................................................66
SCHEDULE 3 FORM OF DEFINITIVE NOTES.........................................................72
DEFINITIVE NOTE.......................................................................................73
SCHEDULE 4 TERMS AND CONDITIONS OF THE NOTES................................................80
1. Form, Denomination And Title...................................................................81
2. Status Of The Notes And Priority Secured Creditor..............................................82
3. Security And Related Agreements................................................................83
4. Restrictions...................................................................................84
5. Interest And Other Calculations................................................................85
6. Redemption.....................................................................................93
7. Payments.......................................................................................94
8. Taxation.......................................................................................95
9. Events Of Default..............................................................................96
10. Enforcement....................................................................................97
11. Prescription...................................................................................98
12. Replacement Of Notes, Coupons And Talons.......................................................99
13. Meetings Of Noteholders, Modification, Waiver, Authorisation And Substitution..................99
14. Notices.......................................................................................100
15. Governing Law.................................................................................101
SCHEDULE 5 PROVISIONS FOR MEETINGS OF NOTEHOLDERS..........................................102
THIS SECURITY TRUST DEED AND MTN CASH MANAGEMENT AGREEMENT is made as a deed on
the 23rd day of November 1999
BETWEEN:
(1) BARCLAYCARD FUNDING PLC, a company incorporated in England with
registered number 2530163, having its registered office at 54 Lombard
Street, London EC3P 3AH (the "ISSUER");
(2) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey
with registered number 75210, having its registered office at Normandy
House, Grenville Street, St. Helier, Jersey JE2 4UF (the "RECEIVABLES
TRUSTEE");
(3) BARCLAYS BANK PLC, a company incorporated in England having its
registered office at 54 Lombard Street, London EC3P 3AH (acting or in its
capacity as cash manager the "MTN CASH MANAGER" and acting through its
card issuing division, Barclaycard as initial transferor, the "INITIAL
TRANSFEROR"); and
(4) THE BANK OF NEW YORK, a New York banking corporation whose London Branch
is at One Canada Square, Canary Wharf, London E14 5AL, in its capacity as
Trustee (the "TRUSTEE" , which term shall include wherever the context so
admits, such company and all or any other persons or companies for the
time being acting as the Trustee of this Deed for any series)
WHEREAS:
(A) The Initial Transferor is the legal owner of the Receivables (which terms
and other capitalised terms used in these recitals bear the meaning given
to them in Part 1 below).
(B) Pursuant to the terms and subject to the conditions of the RSA, the
Initial Transferor, and any Additional Transferor which accedes to the
RSA, will offer to sell by way of assignment all present and future
Receivables arising on Designated Accounts in the Bank Portfolio to the
Receivables Trustee, to hold on trust for the benefit of, inter alia, the
Issuer, the Initial Transferor, any Additional Transferor and the Excess
Interest Beneficiary, and the Receivables Trustee may accept such offer
and will purchase such Receivables in the manner provided in the RSA.
(C) The Issuer has established a medium term note issuance programme under
which it may authorise the issue of a Series of Notes, as designated in
the relevant MTN Supplement, to finance the granting of an interest in
the Receivables in the Securitised Portfolio by the Receivables Trustee
to the Issuer.
(D) Each Series of Notes will be constituted and secured by, be subject to
and have the benefit of, inter alia, this Deed and the relevant MTN
Supplement to this Deed made between the Issuer, the Trustee and others
to be entered on each occasion on which the Receivables Trustee grants to
the Issuer further interests to Receivables arising on Designated
Accounts in the Bank Portfolio.
(E) The Trustee has agreed to act as trustee for each Series in relation to
which the Issuer appoints it to act as set out in the relevant MTN
Supplement on the terms and subject to
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the conditions contained in this Deed and the conditions of any related
MTN Supplement.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Unless the context requires otherwise, the words and phrases defined in
the MTN Master Definitions Schedule of even date herewith and signed for
the purposes of identification by the parties to this Deed shall have the
same meanings in this Deed (including the recitals).
1.2 PRINCIPLES OF INTERPRETATION
1.2.1 Any accounting terms not defined in the MTN Master Definitions
Schedule shall have the meanings given to them under generally
accepted accounting principles in the United Kingdom. To the
extent that the definitions of accounting terms used in this Deed
are inconsistent with the meanings of such terms under generally
accepted accounting principles in the United Kingdom, the
definitions contained used in this Deed shall prevail.
1.2.2 The agreements, representations and warranties of Barclays Bank
PLC in this Deed and any MTN Supplement in its capacity as Initial
Transferor and MTN Cash Manager shall be deemed to be the
agreements, representations and warranties of Barclays Bank PLC
solely in such capacity for so long as Barclays Bank PLC acts in
such capacity under this Deed.
1.2.3 Any reference in this Deed to a Clause, paragraph, Schedule or
Exhibit is a reference to a clause, paragraph, Schedule and
Exhibit of this Deed unless otherwise specified.
1.2.4 A time of day (including opening or closing of business) shall be
construed as a reference to London time unless specified
otherwise.
1.2.5 Costs, charges, expenses or remuneration shall be deemed to
include any VAT charged or chargeable in respect thereof except
where the context otherwise requires.
1.2.6 All references herein to any provision of any statute shall be
construed so as to include any statutory modification or
re-enactment thereof or any statutory instrument, order or
regulation made thereunder or under such modification or
re-enactment.
1.2.7 Save where the contrary is indicated, any reference in this Deed
or any MTN Supplement or any other agreement or document shall be
construed as a reference to this Deed or such MTN Supplement or
such other agreement or document, as the case may be, as the same
may have been, or may from time to time be, amended, varied,
novated or supplemented.
1.2.8 Words denoting the masculine gender shall include the feminine
gender also; words denoting persons only shall include companies,
corporations and
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partnerships; and words importing the singular member only shall
include the plural and in each case, vice-versa.
1.2.9 Whenever this Deed refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Deed. All
other TIA terms used in this Deed that are defined by the TIA,
defined in the TIA by reference to another statute or defined by
SEC rule have the meanings assigned to them.
2. SERIES OF NOTES
2.1 ISSUE OF NOTES
The Issuer may from time to time (but subject always to Clauses 5.1 to
5.3 and the provisions of this Deed), create and issue new Series of
Notes upon such terms as to ranking, interest, conversion, redemption and
otherwise as the Issuer may determine at the time of issue of such
Series. The Notes in any Series may differ as to interest rates and
maturity and each such type of Note will comprise a Class. A Series may
therefore comprise a number of Classes which may be subordinated to one
or more other classes of Notes of that Series. Each Series of Notes shall
be secured on, and only on, such Secured Property as may be specified in
the MTN Supplement in relation to such Notes, with recourse limited to
such Secured Property. The aggregate principal amount of our Notes
outstanding from time to time may not exceed the Issuer Limit.
2.2 CONDITIONS PRECEDENT
Any Notes which are to be created and issued pursuant to the provisions
of Clause 2.1 shall be constituted on the execution of the relevant MTN
Supplement in respect of such Notes by the Issuer and the Trustee (which
shall be evidence of the consent of the Trustee to the creation of such
Notes). The Issuer shall deliver such MTN Supplement to the Trustee (duly
stamped or denoted with any applicable stamp duties or other
documentation taxes) containing such provisions (whether or not
corresponding to any of the provisions contained in this Deed) as the
Trustee may require.
Each MTN Supplement shall be accompanied by:
2.2.1 a certificate signed by any one director of the Issuer certifying
that no Event of Default has occurred;
2.2.2 legal opinions (in form and substance satisfactory to the Trustee)
from legal advisers of recognised standing in such jurisdictions
as may be reasonably required by the Trustee; and
2.2.3 such other documents as the Trustee may reasonably require
(including, without limitation, a Supplementary Security
Document).
2.3 PAYMENTS IN THE RELEVANT CURRENCY
All payments in respect of, under and in connection with this Deed shall
be made to the relevant Noteholders in the relevant currency specified in
the terms applicable to the relevant Series.
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2.4 EACH SERIES TO BE SEPARATE
The Notes of each Series shall form a separate Series and accordingly,
save where specifically provided in this Deed, each covenant and
representation provided by the Issuer in favour of the Trustee and all
other rights, Liabilities and obligations of the Issuer under this Deed
shall apply separately to the Notes of each Series issued by the Issuer.
Accordingly, the provisions hereof shall, in relation to any Series, be
read independently and the expression "TRUSTEE" shall be construed as a
reference to the Trustee of such Series, the expression "NOTES" shall be
construed as a reference to the Notes of such Series, the expression
"NOTEHOLDERS" shall be construed as a reference to the Noteholders of
such Series, the expression "SECURED CREDITOR" shall be construed as a
reference to the Secured Creditors of such Series so that each Series
shall be constituted as a separate security trust and that, unless
otherwise expressly provided, events affecting one Series shall not
affect another Series.
2.5 ALLOCATION OF COSTS
The provisions in this Deed concerning costs, expenses, fees,
remuneration and other financial obligations (whether arising under
indemnities or otherwise) shall apply separately to each Series in
respect of the costs, expenses, fees, remuneration and financial
obligations which arise in respect of such Series (and, for the avoidance
of doubt, the Secured Property in respect thereof). No such amount
incurred in respect of any Series will, save as specifically provided
herein, be deducted from any amount payable to the Secured Creditors in
respect of any other Series, nor will any such amount be in any way
charged to any other such Secured Creditors. The provisions of this Deed
shall be read accordingly.
2.6 RELATED AGREEMENTS
In relation to each Series, if specified in the Applicable Supplement,
the Issuer may enter into one or more Swap Agreements or other Related
Agreements with a Counterparty and/or guarantor, under which the Issuer
will make payments to such Counterparty and the Counterparty will make
payments to the Issuer as specified in such Swap Agreement or other
Related Agreement. Each swap transaction or other form of hedging
transaction evidenced by a Swap Agreement and other Related Agreement
will terminate on the date specified in the Applicable Supplement, unless
terminated earlier in accordance with its terms.
3. PAYMENTS ON THE NOTES
3.1 COVENANT TO PAY
The Issuer shall, on any date when the Notes of any Series, or any of
them, become due to be redeemed in whole or in part in accordance with
their Conditions, unconditionally pay or procure to be paid to or to the
order of or for the account of the Trustee, the amount then becoming due
on that date in respect of the Notes of each Class of such Series and
shall (subject to the terms of such Series until such payment (after as
well as before any judgment or other order of a competent court)
unconditionally pay to or to the order of or for the account of the
Trustee in respect of such specified in the relevant MTN Supplement) of
the Notes of such Series then outstanding at the rate or rates set out
in, or calculated from time to time in accordance with, the terms thereof
and on the dates provided for in such terms, provided that:
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3.1.1 the Issuer shall only be obliged to pay such Principal Amount and
interest, Deferred Interest and Additional Interest, if any, to
the extent set out in this Deed and the related MTN Supplement, in
respect of such Series;
3.1.2 every payment of a Principal Amount or interest, Deferred Interest
and Additional Interest, if any, in respect of Notes of such
Series made to or to the order or for the account of the Principal
Paying Agent as provided in the Agency Agreement shall, to such
extent, satisfy such obligation except to the extent that there is
failure in the subsequent payment thereof to the relevant
Noteholders of such Series under the terms of the relevant Series;
and
3.1.3 in the case of any payment in respect of Notes of such a Series
made after the due date or subsequent to an Event of Default in
respect of such Series, payment shall not be deemed to have been
made until the full amount due in accordance with the terms
thereof has been received by the Principal Paying Agent or the
Trustee in respect of such Series and notice to that effect has
been duly given to the relevant Noteholder of such Series in
accordance with such terms.
The Trustee will hold the benefit of this covenant in relation to each
Series on trust for itself and the Holders of that Series according to
their respective interests.
3.2 PAYMENTS TO SECURED CREDITORS
The Issuer shall pay to the Trustee all amounts due to the Secured
Creditors of a Series in accordance with the terms and conditions of the
relevant Series Documents PROVIDED, HOWEVER, that payment of any sum due
to a Secured Creditor of such Series made to such Secured Creditor shall,
to that extent, satisfy such obligation. This covenant shall only have
effect each time obligations are owed to Secured Creditors when the
Trustee shall hold the benefit of this covenant in relation to each
Series on trust for itself and each Secured Creditor of such Series
according to their respective interests.
3.3 DUTIES AND TAXES
The Issuer will indemnify (with recourse limited to the proceeds of the
Secured Property relating to the applicable Series) the Trustee and the
Secured Creditors relating to such Series (each an "INDEMNIFIED PARTY")
from and against all stamp duty, issue, registration, documentary and
other similar taxes paid by any such Indemnified Party in any
jurisdiction or jurisdictions in connection with any action taken by such
Indemnified Party to enforce the obligations of the Issuer under this
Deed in respect of such Series. The Issuer is empowered and authorised
hereunder to make any filings on its own behalf and any filings relating
to the Security Trust in respect of any tax matters that are deemed
necessary or desirable in connection with this Deed or any MTN
Supplement.
3.4 COVENANT OF COMPLIANCE
The Issuer covenants with the Trustee separately in respect of each
Series that it will comply with, perform and observe all the provisions
of this Deed relating to such Series which are expressed to be binding on
it in respect of such Series. The Conditions set out in Schedule 4 shall
be binding on the Issuer and each Secured Creditor of each Series, save
as otherwise supplemented by the MTN Supplement for such Series. The
Trustee shall be entitled to enforce the obligations of the Issuer under
the Series Documents in respect of a Series as if the same were set out
and contained in this Deed.
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3.5 MEETING OF NOTEHOLDERS
The provisions contained in the Fifth Schedule shall have effect in the
same manner as if herein set forth.
3.6 ONLY TRUSTEE TO ACT
For any Series, only the Trustee, at its discretion and without further
notice, may pursue the remedies available under the general law or under
this Deed to enforce the rights under this Deed of the Secured Creditors
relating to such Series. No Secured Creditor relating to such Series
shall be entitled to proceed directly against the Issuer or the assets of
the Issuer to enforce the performance of any of the provisions of these
presents or the other Series Documents (if any) relating to such Series
unless the Trustee having become bound as aforesaid to take proceedings
fails or neglects to do so within a reasonable period of time and such
failure or neglect is continuing.
3.7 NON-PETITION; LIMITED RECOURSE
The Trustee and Secured Creditors of any Series shall have recourse only
to the Secured Property in respect of such Series and, once such Secured
Property has been realised, shall not be entitled to take any further
steps against the Issuer to recover any sum still unpaid, and all claims
and all rights to claim against the Issuer in respect of each such sum
unpaid shall be extinguished. In particular, no Secured Creditor in
respect of any Series nor the Trustee on their behalf may (at any time,
whether prior to or after the realisation of the Secured Property)
institute against, or join any person in instituting against the Issuer
any bankruptcy, winding up, re-organisation, arrangement, administration,
insolvency or liquidation proceeding (except for the appointment of a
receiver and manager pursuant to the terms of these presents in relation
to such Series) or other proceeding under any similar law nor shall any
of them have any claim in respect of any such sums over or in respect of
any assets of the Issuer which comprise Secured Property for any other
Series.
3.8 APPLICATION OF MONIES
For each Series, all monies received by the Trustee pursuant to this Deed
and the MTN Supplement relating to such Series shall, despite any
appropriation of all or part of them by the Issuer, be held by the
Trustee upon trust to apply in the manner and order of priority set out
in such MTN Supplement.
3.9 APPLICATION OF FUNDS IN RESPECT OF VOID SERIES
Without prejudice to the other provisions of this Clause, if the Trustee
holds any moneys which represent principal, premium or interest in
respect of the Notes in relation to any Series which have become void
under their terms, the Trustee shall (subject to payment or provision for
the payment or satisfaction of all amounts (howsoever arising) payable
under Clause 8.8 to the Trustee and/or any attorney, manager, agent,
delegate, receiver or other person appointed by it under this Deed in
respect of such Series and subject to any claims of any Secured Creditors
of such Series) pay the same to the Issuer (without prejudice to, or
liability in respect of, any question as to how such payment to the
Issuer shall be dealt with as between the Issuer and any other person).
3.10 APPORTIONMENT OF LIABILITIES BETWEEN SERIES
In the event that the Trustee takes any action to enforce the Security in
respect of more than one Series and is unable to apportion to a
particular Series any Liabilities incurred
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by it, the Trustee shall apportion such Liabilities to each of the Series
in respect of which such Liabilities were incurred in the proportion
which the aggregate Principal Amount Outstanding in respect of each such
Series bears to the aggregate Principal Amount Outstanding of all such
Series (as at the date such Liabilities occurred) in respect of which
such Liabilities were incurred as a whole.
3.11 PAYMENTS
Any payment to be made in respect of any Series by the Issuer or the
Trustee may be made in accordance with the terms of such Series, and any
payments so made shall be a good discharge pro tanto to the Issuer or, as
the case may be, the Trustee.
3.12 NO IMPAIRMENT WITHOUT NOTEHOLDER CONSENT
Notwithstanding any other provision of this Trust Deed, the right of any
Noteholder to receive payment of principal and interest on the Note, on
or after the respective due dates expressed in the Note, or to bring suit
for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the
Noteholder.
4. ASSIGNMENT, FLOATING CHARGE AND DECLARATION OF TRUST
The Issuer with full title guarantee and as continuing security for all
the moneys and other Liabilities payable or owing by the Issuer under
this Deed hereby assigns absolutely by way of first fixed security to the
Trustee all of the Issuer's right, title, and interest in and to, and the
entire benefit of, the Programme Dealer Agreement and charges to the
Trustee, by way of first floating charge, the whole of its undertaking
and assets to the extent that such undertaking and assets are not
effectively encumbered by the security created by or pursuant to any MTN
Supplement or any Supplementary Security Document executed in relation to
any Series and the Trustee shall hold the property so assigned or charged
in this Clause 4.1 on trust for itself and the Secured Creditors of all
Series, provided that such security may only be enforced and the floating
charge shall crystallise in accordance with the provisions of Clause 6.
4.1 ADDITIONAL SECURITY
Additional security in respect of each Series or (provided that the
Trustee consents to the same) in respect of any transaction entered into
by the Issuer relating to or connected with any arrangement for the issue
of any Series of Notes shall be created in accordance with this Deed, by
the MTN Supplement relating to such Series and Supplementary Security
Document (if any) as may be required.
4.2 APPLICATION OF CLAUSE 4 TO MTN SUPPLEMENTS
The following provisions of this Clause 4 shall apply to the security
created in Clause 3.1 and to the Security in relation to each Series,
except as may be otherwise specified in such MTN Supplement or
Supplementary Security Document.
4.3 RIGHTS OF SECURED CREDITORS
Each Secured Creditor (other than the Trustee) will belong to one of the
categories of Secured Creditor set out below for the purposes of this
Deed. The entitlement of any Secured Creditor to the relevant Secured
Property for a given Series of Notes, unless
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otherwise specified herein, shall be specified in the relevant MTN
Supplement. The categories of Secured Creditor (other than the Trustee)
are as follows:
(a) NOTEHOLDER
The beneficial entitlement of each Noteholder (and where there are
Classes, any Noteholder holding one of the Classes in that Series)
to a security interest in the Secured Property in relation to that
Series shall be specified in the related MTN Supplement and shall
be expressed to constitute or form part of that Series.
(b) ENHANCEMENT PROVIDER
If the related MTN Supplement specifies that an Enhancement
Provider is to be a Secured Creditor of the Secured Property in
relation to that Series, the beneficial entitlement of such
Enhancement Provider to a security interest in the relevant
Secured Property shall be specified in the related MTN Supplement
and shall be expressed to constitute or form part of that related
Series.
(c) OTHER SECURED CREDITORS
If the related MTN Supplement specifies that any other party is to
be a Secured Creditor of the Secured Property in relation to such
Series, the beneficial entitlement of such additional Secured
Creditor to a security interest in the relevant Secured Property
shall be specified in the related MTN Supplement.
5. FORM AND ISSUE OF NOTES AND COUPONS
5.1 GLOBAL NOTES
The Notes of each Series will initially be represented by a Temporary
Global Note without Coupons, or Talons in, or substantially in, the form
set out in Schedule 1. Interests in a Temporary Global Note will, after
the date which is 40 days after the completion of the distribution of all
of the Notes of the relevant Series (as determined by the Dealer) upon
certification as a non-US beneficial ownership in the form set out in the
Temporary Global Note, be exchangeable, in whole or in party, for
interests in a Permanent Global Note in, or substantially in, the form
set out in Schedule 2, or, if so specified in the MTN Supplement in
respect of such Series, for Definitive Notes having, if so specified,
Coupons attached as described in the Temporary Global Note. The Permanent
Global Note in respect of any Series will be exchangeable for Definitive
Notes having, if so specified in the MTN Supplement in respect of such
Series, Coupons as described in such Permanent Global Note.
5.2 DEFINITIVE NOTES
Each Permanent Global Note shall be exchangeable in whole but not in part
for the corresponding Definitive Notes described below if:
5.2.1 any Note of the relevant Series becomes immediately redeemable
following the occurrence of an Event of Default in relation
thereto; or
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5.2.2 Euroclear or Cedelbank or any other relevant clearing system is
closed for business for a continuous period of 14 days (other than
by reason of legal holidays) or announces an intention to cease
business permanently or in fact does so; or
5.2.3 if so specified in the MTN Supplement, at the option of the
Noteholder, and upon Noteholder's request. In the case of Clauses
5.2.1 and 5.2.2, the Issuer shall bear the cost and expense and,
in the case of Clause 5.2.3, the Noteholder making such request
shall bear the cost and expense.
On or after any Exchange Date (as defined below), the bearer of a
Permanent Global Note may surrender it to or to the order of the
Principal Paying Agent. In exchange for a Permanent Global Note, the
Issuer will deliver or procure the delivery of, an equal aggregate
principal amount of duly executed and authenticated Definitive Notes
corresponding thereto (in the case of Definitive Notes, having attached
to them all Coupons in respect of interest which has not already been
paid on such Permanent Global Note and where required, a Talon), security
printed in accordance with any applicable legal and Stock Exchange
requirements in, or substantially in, the form set out in this Deed. On
exchange in full of the Permanent Global Note, such Permanent Global Note
will be cancelled.
"EXCHANGE DATE" means a date, other than a Saturday or Sunday, falling
not less than 40 days after than on which the notice requiring exchange
is given and on which banks are open for business London, Brussels and
Luxembourg.
Each Note shall be issued in respect of a Series in the denomination(s)
specified in the MTN Supplement relating to such Series (serially
numbered) with Coupons (and, where appropriate, a Talon) attached. Title
to such Notes, Coupons, and Talons shall pass by delivery.
5.3 SIGNING OF GLOBAL NOTES
The Global Notes shall be signed manually or in facsimile by:
5.3.1 any one director of the Issuer; or
5.3.2 any other person duly authorised by the Issuer on behalf of the
Issuer, and shall be authenticated by signature manually be or on
behalf of the Principal Paying Agent. Each such Global Note so
executed and authenticated shall be a binding and valid obligation
of the Issuer. The Issuer may adopt and use the signature of any
person who, at the date of signing a Global Note is an authorised
signatory for such purpose of the Issuer, notwithstanding that
such person may for any reason (including death) have ceased to be
such an authorised signatory at the time of the creation and issue
of the relevant Global Note.
5.4 THE DEFINITIVE NOTES
The Definitive Notes of each Series (if any) shall be signed manually or
a facsimile by one director of the Issuer and (unless otherwise specified
in the relevant MTN Supplement) shall be authenticated by or on behalf of
the Principal Paying Agent. The Issuer may use the facsimile signature of
any person who at the date such signature is
9
affixed is a director of the Issuer notwithstanding that at the time of
issue of any of the Notes he may have ceased for any reason to be the
holder of such office. The Notes so executed and authenticated, and the
Coupons and Talons, upon execution and authentication of the relevant
Notes, shall be binding and valid obligation of the Issuer. The Coupons
and Talons shall not be signed. Execution in facsimile of any Notes shall
be binding upon the Issuer in the same manner as if such Notes were
signed manually by such signatories.
5.5 ISSUE OF NOTES
5.5.1 An issue of Notes may only be made by the Issuer in accordance
with this Deed and the terms of the relevant MTN Supplement and in
any event with the consent of the Initial Transferor and any
Additional Transferor (such consent to be evidenced by the
execution of the relevant MTN Supplement by the Transferor and
such Additional Transferor as set out in this Clause 5.5); and
5.5.2 On any Closing Date, the Issuer shall authenticate and deliver the
appropriate Notes to the Common Depository. The Issuer shall not
so authenticate and deliver and the Common Depository shall not
accept the Notes unless the following documents have been received
by the Trustee:
(i) a MTN Supplement in respect of the Series of Notes to be
issued satisfying the criteria set out in Clause 5.6
executed by each of the parties thereto (including the
Transferor, any Additional Transferor and the Issuer) and
specifying the Principal Terms of such Series and the
supplements, amendments and variations to this Deed as a
consequence thereof;
(ii) any applicable Enhancement, as specified in such Note
Supplement;
(iii) the agreement, if any, pursuant to which the Enhancement
Provider agrees to provide its Enhancement, if any;
(iv) a Solvency Certificate, signed by a duly an authorised
signatory and dated the Closing Date, from each of the
Initial Transferor and any Additional Transferor and the
Issuer;
(v) each other document set out in the relevant MTN Signing and
Closing Agenda.
5.6 MTN SUPPLEMENTS
5.6.1 An MTN Supplement shall be executed in order to effect each
issuance of a Series of Notes and to secure the relevant Secured
Property relating to such Notes, which shall:
(a) be executed by the Transferor, the Receivables Trustee, the
Trustee and the Issuer;
(b) set out the consent of the Transferor to such issue of
Notes which shall be deemed to be given by its execution of
the Note Supplement;
10
(c) constitute, after the issuance of the relevant Series of
Notes, a supplement by the Issuer and the Trustee to this
Deed which shall thereafter be read and construed as
supplemented, amended and varied by such Note Supplement;
(d) specify the name and category of each Noteholder of the
relevant Series (and Class of the relevant Notes, if
applicable) and, if there is more than one Class in a
Series, the rights and priorities of each Class vis-a-vis
the other Classes constituting the new Series;
(e) set out the principal terms of such Series (all such terms
the "PRINCIPAL TERMS") which shall include, without
limitation, the following:
(i) the Principal Amount Outstanding of the Notes upon
issue for such Series;
(ii) the Secured Property for such Series;
(iii) the Closing Date;
(iv) the names of any accounts to be used by such Series
and the terms governing the operation of any such
accounts and use of moneys therein;
(v) any additional Secured Creditors;
(vi) the terms of any Enhancement with respect to such
Series, and the Enhancement Provider, if applicable;
(vii) the terms governing any deposit into any account
provided for such Series; and
(viii) any other relevant terms of such Series.
5.6.2 The Issuer shall, without any requirement to obtain the
consent of the Secured Creditors of any other Series,
arrange for a MTN Supplement to be executed in accordance
with Clause 5.5.1 Provided, however, that such MTN
Supplement shall not be executed unless each of the Issuer
and the Trustee are of the opinion that the execution of
such MTN Supplement and the issue of the Notes of the
related Series will not be materially prejudicial to the
rights, benefits and interests of the Secured Creditors of
any other Series.
5.6.3 The Issuer shall be entitled to assume that the execution
of the Note Supplement and the issue of the Notes of the
related Series will not be materially prejudicial to the
rights, benefits and interests of the Secured Creditors of
any other Series and in particular will not be materially
prejudicial to the timing and distribution of payments to
such other Secured Creditors of such Series if it receives
written confirmation from:
11
(a) each relevant Rating Agency that the issue of Notes
of the relevant Series will not result in such
Rating Agency reducing or withdrawing its then
current rating on any outstanding Associated Debt
for any other Series;
(b) an investment banking firm or commercial bank
recognised in the United Kingdom in the form of a
Director's Certificate to that effect PROVIDED,
HOWEVER, that such confirmation shall be required
only if on the relevant Closing Date there is one or
more Series and any of the outstanding Associated
Debt of the Noteholders within such Series is not
currently rated by a Rating Agency.
Such written confirmation shall be conclusive evidence for
the purposes of Clause 5.5.2 that the rights, benefits and
interests of the Secured Creditors of any other Series have
not been materially prejudiced.
5.6.4 By its execution of a MTN Supplement, each Secured Creditor
consents and confirms that the security trust for the
benefit of the relevant Secured Creditor under this Deed,
any MTN Supplement and any Supplemental Security Document
may be supplemented, amended and varied from time to time
in accordance with the terms of this Deed and any such
additional MTN Supplement and any such Supplemental
Security Document.
6. ESTABLISHMENT OF ISSUER BANK ACCOUNTS IN RESPECT OF EACH SERIES
6.1 SERIES DISTRIBUTION ACCOUNT
6.1.1 The Issuer will, in respect of each Series, with the consent (as
evidenced by the execution of this Deed and each relevant MTN
Supplement) of the Trustee, open a Series Distribution Account,
such account to be operated and maintained by the Issuer in
accordance with the provisions of this Deed and the relevant MTN
Supplement.
6.1.2 The Issuer at all times shall maintain accurate records reflecting
each transaction in each Series Distribution Account and in any
ledger relating thereto.
6.2 ADDITIONAL ISSUER ACCOUNTS
6.2.1 The Issuer may, with the consent of the Trustee, from time to time
open Additional Issuer Accounts (in its name or to be designated
as opened on trust for the Issuer if opened for the benefit of the
Issuer by the Trustee) at the Operating Bank or at any other
Qualified Institution as specified in any Note Supplement,
PROVIDED, THAT, such Additional Issuer Accounts shall be charged
to the Trustee on trust for itself and the other Secured Creditors
of the Series to which such Additional Issuer Account relates.
6.2.2 The Issuer at all times shall maintain accurate records reflecting
each transaction in any Additional Issuer Account and in any
ledger relating thereto.
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6.3 REPLACEMENT OF OPERATING BANK
If at any time the existing Operating Bank ceases to be a Qualified
Institution, the Operating Bank shall under the terms of the MTN Bank
Agreement notify the Issuer and the Trustee and the Issuer or, after the
security has become enforceable, the Trustee, as the case may be, shall
within 10 Business Days of being notified establish a new Issuer Account
in respect of each Issuer Account then established at the existing
Operating Bank meeting the conditions specified with respect to each such
Issuer Account with a Qualified Institution which shall become the new
Operating Bank, and shall transfer any cash or any investments standing
to the credit of each existing Issuer Account to the relevant new Issuer
Accounts. If the Issuer shall fail to establish the new Issuer Accounts
as required by this Clause 6.3, the Trustee shall be entitled to
establish the Issuer Accounts itself and to make such transfers on behalf
of the Issuer and the Trustee is hereby authorised and empowered (upon
such failure by the Issuer) for such purpose to execute and deliver on
behalf of the Issuer, as its attorney, all documents, records and other
instruments upon the failure of the Issuer to execute or deliver such
documents, records or instruments, and to do and to accomplish all other
acts or things necessary or appropriate to effect such establishment and
transfers.
6.4 POWERS OF INVESTMENT
6.4.1 Subject to the terms of the relevant MTN Supplement, the Issuer
shall have no power of investment.
6.4.2 The Issuer and the Trustee acknowledge that subject to the
obligations of the Issuer to allocate or distribute funds in
accordance with this Deed and any MTN Supplement, the Security
Trustee may give (and the Security Trustee agrees to give) the
Issuer instructions consistent with the terms of this Deed and any
MTN Supplement with regard to undertaking investments in
accordance with the provisions of this Deed.
6.5 APPLICATION OF MONIES IN ADDITIONAL ISSUER ACCOUNTS
Amounts deposited in Additional Issuer Accounts shall be applied in
accordance with the provisions of any related MTN Supplement and Clause
6.4.
6.6 PAYMENTS - CURRENCY OF ACCOUNT AND PAYMENT METHOD
6.6.1 Sterling is the currency of account and payment for each and every
sum at any time due from any Person hereunder, PROVIDED, HOWEVER,
that:
(a) each payment in respect of costs shall be made in the
currency in which the same were incurred; and
(b) each payment which is expressed herein to be payable in
another currency shall be made in that other currency.
6.6.2 On each date upon which this Deed or any MTN Supplement hereto
requires an amount to be paid by or on behalf of the Receivables
Trustee to the Issuer, the Receivables Trustee shall, save as
expressly provided otherwise herein, make the same available to
the Issuer by payment in Sterling and in same day funds to such
account and bank in London as the Issuer shall have specified in
writing
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for this purpose no later than midday on the day that such amount
becomes payable.
7. ENFORCEMENT OF SECURITY
7.1 EFFECT OF AN ENFORCEMENT NOTICE
7.1.1 If, at any time while any of the Secured Obligations in respect of
a Series remain outstanding, an Insolvency Event occurs then the
Trustee shall, by written notice to the Issuer (an "ENFORCEMENT
NOTICE") declare all of the Notes in respect of all Series to be
immediately repayable and the security created pursuant to Clause
4 and each MTN Supplement and Supplementary Security Document to
become enforceable, the floating charge created pursuant to Clause
4 will crystallise as of the date of such notice and the Trustee
shall appoint an administrative receiver.
7.1.2 Unless directed by a court of competent jurisdiction to do so or
unless each of the Rating Agencies confirms that to do so would
result in a downgrade or withdrawal of its then current rating of
any outstanding Associated Debt in respect of the relevant Series
in respect of which the Secured Property has become enforceable,
the Trustee shall after the Security over the relevant Secured
Property has become enforceable if directed by written resolution
signed by Noteholders holding Notes of more than 66(2)/3 per cent.
of the Principal Amount Outstanding in respect of such Series as
of the preceding Determination Date or, where applicable, the
Priority Secured Creditor of such Series, appoint a Receiver of
the Secured Property Provided that the Trustee shall not appoint
more than one Receiver of the Secured Property in relation to
those Series the Security in respect of which has, at any time,
become enforceable.
7.1.3 The exclusion of any part of the Secured Property of any Series
from the appointment of the Receiver shall not preclude the
Trustee from subsequently extending his appointment (or that of
the Receiver replacing him) to that part.
7.1.4 Upon receipt of notice of a petition to a court of competent
jurisdiction for an administration order to be made on application
by a creditor or creditors of the Issuer, the Trustee shall
forthwith appoint a Receiver or Receivers (being, for the
avoidance of doubt, an administrative receiver or similar officer
falling within the definition of "administrative receiver" under
Section 29(2) of the Insolvency Act 1986) of the whole of the
Secured Property in relation to all Series outstanding and the
floating charge created pursuant to Clause 4.
7.1.5 The appointment of any Receiver shall include a direction in
relation to those Series in respect of which the Security has not
become enforceable to continue all the existing contracts in
relation to such Series and carry on the existing business of the
Issuer in relation to such Series.
7.2 ENFORCEMENT INSTRUCTIONS TO TRUSTEE AND DISCRETION OF TRUSTEE
7.2.1 The Trustee and any Receiver shall only be required to take any
action to enforce or protect the Security in relation to a Series
and act pursuant thereto if
14
instructed to do so by a written resolution signed by Noteholders
holding Notes of more than 66(2)/3 per cent. of the Principal
Amount Outstanding of such Series as of the preceding
Determination Date or, where applicable, the Priority Secured
Creditor of such Series and may refrain from exercising any right,
power or discretion vested in it by these presents unless and
until instructed by a written resolution signed by Noteholders
holding Notes of more than two-thirds of the Principal Amount
Outstanding of such Series as of the preceding Determination Date
as to whether or not any such right, power or discretion is to be
exercised and as to the manner in which it should be exercised.
7.2.2 Notwithstanding the foregoing, at any time after the Notes, or any
of them, shall have become due and repayable in accordance with
the Conditions and shall not have been repaid (including, without
limitation, following a default in payment of principal or
interest thereunder), but subject to the provisions of Note
Condition 10, the Trustee may at its discretion and without
further notice, recover judgment in its own name and as trustee of
an express trust against the Issuer for the whole amount of
principal and interest remaining unpaid and take such other steps
and/or institute such proceedings as it may think fit against, or
in relation to, the Issuer and/or such steps as it may think fit
to enforce the security created in favour of the Trustee by, and
contained in this Deed and MTN Supplement and to enforce its
obligations under this Deed and such MTN Supplement including,
without limitation, to enforce repayment of the Notes together
with accrued interest and any other moneys payable pursuant to
this Deed and such MTN Supplement, provided that the Note Trustee
shall be bound by the terms of this Deed and the relevant MTN
Supplement in determining the priority in which any moneys
received by it shall be applied.
7.3 POWERS OF A RECEIVER
If the Trustee appoints a Receiver or administrative receiver pursuant to
Clause 7.1, the following provisions shall have effect in relation
thereto:
7.3.1 such appointment may be made either before or after the Trustee
has taken possession of any Secured Property relating to any
Series;
7.3.2 such Receiver may be vested by the Trustee with such powers and
discretions as the Trustee has and may think expedient and may,
subject as provided in Clause 7.1, (i) sell or concur in the sale
all or any of the Secured Property, or assign or release all or
any of the Secured Property, or (ii) continue the business of the
Issuer as a going concern with respect to the Secured Property, in
each case without restriction and on such terms and for such
consideration (if any) as he may think fit and may carry any such
transaction into effect by conveying, transferring and delivering
in the name or on behalf of the Issuer or otherwise;
7.3.3 such Receiver shall in the exercise of his powers, authorities and
discretions conform to regulations from time to time made by the
Trustee;
7.3.4 the Trustee may from time to time fix the remuneration of such
Receiver and direct payment thereof out of moneys accruing to him
in the exercise of his powers as such; provided, however, that
such remuneration shall only be
15
payable from such sums as are realised in respect of those Series
the Secured Property in respect of which are the subject of the
appointment of such Receiver;
7.3.5 the Trustee may from time to time and at any time require any such
Receiver to give security for the due performance of his duties as
Receiver and may fix the nature and amount of the security to be
so given but the Trustee shall not be bound in any case to require
any such security;
7.3.6 save insofar as otherwise directed by the Trustee, all moneys in
respect of any Series from time to time received by such Receiver
shall be paid over forthwith to the Trustee to be held by it in
accordance with the provisions of Clauses 6.1 to 6.3 as amended by
the relevant Note Supplement;
7.3.7 every such Receiver shall be the agent of the Issuer for all
purposes and the Issuer alone shall be responsible for his acts,
defaults and misconduct, and the Trustee and the Secured Creditors
of any Series shall not incur any liability therefor or by reason
of its or their making or consenting to the appointment of a
person as a Receiver under these presents; and
7.3.8 none of the Trustee and the Secured Creditors of any Series shall
be in any way responsible for any misconduct or negligence on the
part of any such Receiver.
7.4 POWER OF SALE
Notwithstanding any other provision of this Deed, the Notes of any Series
shall be deemed for the purposes of Section 101 of the Law of Property
Act 1925 to have become due within the meaning of that Section and the
power of sale and other powers conferred on mortgagees by the Law of
Property Act 1925 as varied or extended by these presents including the
power to appoint a Receiver shall arise immediately on execution of the
relevant MTN Supplement.
7.5 PROCEEDS OF ENFORCEMENT HELD ON TRUST
For each Series, all moneys received by the Trustee in respect of the
Security or the Secured Property relating to such Series shall be held by
the Trustee upon trust to apply the same as provided in the relevant MTN
Supplement.
7.6 FURTHER ASSURANCE
For each Series, the Issuer shall execute and do all such assurances,
acts and things as the Trustee may reasonably require (including, without
limitation, the giving of notices of assignment and the effecting of
filings or registrations in any jurisdiction) for perfecting or
protecting the Security and from time to time and at any time after the
Security or any part thereof has become enforceable shall execute and do
all such assurances, acts and things as the Trustee may reasonably
require for facilitating the realisation of, or enforcement of rights in
respect of, all or any of the Secured Property relating to such Series
and the exercise of all powers, authorities and discretions vested in the
Trustee or in any Receiver of all or any of the Secured Property relating
to such Series. For the purposes of this Clause 7.6, a certificate in
writing signed by the Trustee to the effect that any particular assurance
act or thing required by it is reasonably required shall be conclusive
evidence of the fact.
16
7.7 TRUSTEE'S POWER TO BORROW
For each Series, the Trustee may raise and borrow money on the security
of all or any of the Secured Property relating to such Series for the
purpose of defraying any Liabilities paid or incurred by it in relation
to these presents relating to such Series or in the exercise of any of
the powers contained in these presents relating to such Series. The
Trustee may raise and borrow such money at such rate of interest and
generally on such terms and conditions as it shall think fit and may
secure the repayment of the money so raised or borrowed with interest on
the same by mortgaging or otherwise charging all or any of the Secured
Property relating to such Series in such manner and form as the Trustee
may think fit (which mortgage or other charge may rank in priority to,
pari passu with or after the Security) and for such purposes may execute
and do all such assurances and things as it may think fit and no person
lending any such money shall be concerned to enquire as to the propriety
or purpose of the exercise of any power of the Trustee or to see to the
application of any money so raised or borrowed.
7.8 EXTENT OF TRUSTEE'S LIABILITY
For each Series, the Trustee shall not, nor shall any Receiver appointed
as aforesaid nor any attorney, agent or delegate of the Trustee by reason
of taking possession of all or any of the Secured Property relating to
such Series or any other reason whatsoever and whether as mortgagee in
possession or on any other basis whatsoever be liable to account for
anything except actual receipts or be liable for any loss or damage
arising from realisation of, or enforcement of rights in respect of, all
or any of the Secured Property relating to such Series or any other
property, assets, rights or undertakings of whatsoever nature (including
but not limited to any other Secured Property) whether or not owned by
the Issuer or any other person or in which the Issuer or such other
person has an interest, from any act, default or omission in relation to
all or any of the Secured Property relating to such Series or any other
property, assets, rights or undertakings of whatsoever nature (including
but not limited to any other Secured Property) whether or not owned by
the Issuer or any other person or in which the Issuer or such other
person has an interest, or from any exercise or non-exercise by it of any
power, authority or discretion conferred upon it in relation to all or
any of the Secured Property relating to such Series or any other
property, assets, rights or undertakings of whatsoever nature (including
but not limited to any other Secured Property) whether or not owned by
the Issuer or any other person or in which the Issuer or such other
person has an interest, by or pursuant to these presents relating to such
Series or otherwise.
7.9 POWERS IN ADDITION TO STATUTE
For each Series, the powers conferred by this Deed in relation to all or
any of the Secured Property in respect of such Series on the Trustee or
on any Receiver of all or any of the Secured Property shall be in
addition to and not in substitution for the powers conferred on
mortgagees or receivers under the Law of Property Act 1925 and the
Insolvency Act 1986 and where there is any ambiguity or conflict between
the powers contained in such Act and those conferred by these presents
the terms of these presents shall prevail.
7.10 DUTY OF ENQUIRY
For each Series, no person dealing with the Trustee or with any Receiver
of all or any of the Secured Property in respect of such Series appointed
by the Trustee shall be
17
concerned to enquire whether any event has happened upon which any of the
powers, authorities and discretions conferred by or pursuant to these
presents in relation to such Secured Property in respect of such Series
or any other Secured Property or any other property, assets or
undertaking are or may be exercisable by the Trustee or by any such
Receiver or otherwise as to the propriety or regularity of acts
purporting or intended to be in exercise of any such powers, authorities
or discretions and all the protections to purchasers contained in
Sections 104 and 107 of the Law of Property Act 1925 shall apply to any
person purchasing from or dealing with the Trustee or any such Receiver
in like manner as if the statutory powers of sale and of appointing a
Receiver in relation to such Secured Property in respect of such Series
or any other Secured Property or any other property, assets or
undertaking had not been varied or extended by these presents.
7.11 RELEASE OF SECURITY
Upon proof being given to the satisfaction of the Trustee that the Issuer
is under no further actual or contingent liability, present or future,
under these presents in respect of any Series, the Trustee shall at the
written request and cost of the Issuer execute and do all such deeds,
acts and things as may be necessary to reassign and release the Secured
Property in respect of such Series from the Security and the trust
contained in these presents.
7.12 CONTINUING SECURITY
The Security constituted by these presents is continuing security for the
performance of the Secured Obligations notwithstanding any intermediate
payment in respect of the Secured Obligations and shall be in addition to
any other security, rights or remedies which the Trustee may have.
7.13 POWER OF ATTORNEY AND FURTHER ASSURANCE
7.13.1 The Issuer hereby further covenants with and undertakes to the
Trustee that it will from time to time upon demand pursuant to an
Enforcement Notice execute, at its own cost, any document or do
any act or thing which the Trustee or the Receiver may specify
with a view to after service of an Enforcement Notice,
facilitating the exercise, or the proposed exercise, of any of
their powers.
7.13.2 Subject to the provisions of Clause 6.5 for the purpose of
securing the interest of the Trustee and the Secured Creditors in
and to the Secured Property and the performance of its obligations
to the Trustee and the Secured Creditors, whether under or
pursuant to this Deed or in relation to the Secured Property, the
Issuer irrevocably for value and by way of security appoints the
Trustee and every Receiver to be its attorney (with full power to
appoint substitutes or to sub-delegate, including power to
authorise the person so appointed to make further appointments) on
behalf of the Issuer and in its name or otherwise, to execute any
document or do any act or thing which the Trustee or such Receiver
(or such substitute or delegate) may, in its or his absolute
discretion, properly consider appropriate in connection with the
exercise of any of the rights or powers of the Trustee or the
Receiver under or pursuant to this Deed or any Related Document
PROVIDED, HOWEVER, that the appointment comprised in this
18
Clause 7.13.2 shall not entitle any person to act as attorney of
the Issuer until such time as Insolvency Event has occurred.
7.13.3 The Issuer hereby ratifies and confirms and agrees to ratify and
confirm whatever any such attorney shall lawfully do or purport to
do in the exercise or purported exercise of all or any of the
powers, authorities and discretions referred to in this Clause
7.13 investment by the Trustee
8. THE TRUSTEE
8.1 DUTIES OF THE TRUSTEE
8.1.1 The Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Deed to the extent required
or permitted under and in compliance with applicable law and
regulations.
8.1.2 The Trustee shall consent to the operation of the Issuer Accounts
for each Series by the Issuer and the MTN Cash Manager in
accordance with the provisions of this Deed and any MTN
Supplement.
8.1.3 After any Security has become enforceable, the Trustee shall, if
it has actual knowledge of the same, act promptly to exercise its
rights under any bank mandate relating to a Issuer Account in
respect of which it is a beneficiary of a trust declared over such
account to prevent monies representing Secured Property being paid
from such Issuer Account to a bank account which is not a Issuer
Account and which was overdrawn at the close of business on the
preceding Business Day (unless the Trustee shall have received
evidence satisfactory to it that such overdraft has been
satisfied). The Trustee shall cease to exercise such rights at
such time as the relevant bank account ceases to be overdrawn.
8.1.4 The Trustee shall maintain proper books of account in respect of
its duties as trustee of the Secured Property in respect of each
Series and shall maintain records of all assets held by it and all
payments made by it in such capacity.
8.1.5 The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance
with the direction of any Secured Creditor in respect of a Series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust, discretion or power conferred upon the Trustee in
relation to such Secured Creditor, under this Deed or any Series
Document.
8.1.6 The Trustee shall not be charged with knowledge of any failure by
the MTN Cash Manager referred to in Clause 12.1 unless the Trustee
receives written notice of such failure from the MTN Cash Manager
or any Secured Creditor adversely affected thereby.
8.1.7 The Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights
or powers, if it believes that the repayment of such funds or
adequate indemnity against such risk or liability is not assured
to
19
it to its reasonable satisfaction, and none of the provisions
contained in this Deed or any Series Document shall in any event
require the Trustee to perform, or be responsible for the manner
of the performance of, any of the obligations of the MTN Cash
Manager under this Deed or the Servicer under the Beneficiaries
Servicing Agreement.
8.1.8 Except for actions expressly authorised herein or in any MTN
Supplement, the Trustee shall take no action to impair the
interests of the Secured Creditors in relation to their beneficial
interest in a security interest in the relevant Secured Property
relating to such Series, now existing or hereafter created or to
impair the value of their beneficial interest in a security
interest in the relevant Secured Property in respect of such
Series now existing or hereafter created.
8.1.9 Other than as expressly contemplated in this Deed or any Series
Document, the Trustee shall have no power to deal with Secured
Property in relation to any Series.
8.1.10 In relation to its obligations set forth in Clause 7.1, the
Trustee shall not be obliged to act accordingly unless:
(i) it has actual knowledge of an Event of Default; or
(ii) it satisfies itself that an Event of Default has occurred,
provided that the Trustee shall not act in accordance with such
obligations if to do so is in breach of any of its obligations in
law or under the Series Documents.
8.2 CERTAIN MATTERS AFFECTING THE TRUSTEE
8.2.1 Except as otherwise provided in this Deed (and, except as
expressly provided in this Clause 8.2, in lieu of the provisions
contained in section 315(a) of the TIA):
(a) the Trustee may call for, and shall not be bound to make,
any investigation into the fact of matters stated in, and
shall be protected in acting, or in refraining from acting
in accordance with any resolution, Director's Certificate,
certificate of auditors or any other certificate,
statement, instrument, opinion, report, request, consent,
order, appraisal, bond or other paper or document believed
by it to be genuine and to have been signed or presented to
it pursuant to this Deed or any Series Document by the
proper party or parties whether or not the same shall
subsequently be found not to have been duly authorised or
not to be authentic;
(b) the Trustee may rely on any Opinion of Counsel addressed to
it, and any such Opinion of Counsel shall be full and
complete authorisation and protection in respect of any
action taken or suffered or omitted by it hereunder in good
faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall be entitled to assume, for the purposes
of exercising any power, trust, authority, duty or
discretion under or in relation to any Series
20
Document that such exercise will not adversely affect the
beneficial interest of the Secured Creditors in a security
interest in respect of the Secured Property of the relevant
Series if each Rating Agency has given written confirmation
that such Rating Agency would not reduce or withdraw its
then current rating of any outstanding Associated Debt in
respect of the relevant Series as a result of such
exercise;
(d) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed
by it to be authorised or within the discretion or rights
or powers conferred upon it by this Deed or any Series
Document;
(e) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly
or by or through agents or attorneys or a custodian;
(f) the Trustee shall not be required to make any initial or
periodic examination of any documents or records related to
the Designated Accounts in respect of the Securitised
Portfolio or the Receivables in respect of such Designated
Accounts for the purpose of establishing the presence or
absence of defects, the compliance by Initial Transferor or
any Additional Transferor with its representations and
warranties or for any other purpose;
(g) the Trustee shall not be responsible for obtaining or
maintaining any rating awarded by any Rating Agency or any
other person in respect of any Associated Debt;
(h) the Trustee shall not be responsible for failing to
request, require or receive any legal opinion relating to
any MTN Supplement or for checking or commenting upon the
content of any legal opinion;
(i) the Trustee, is entitled to assume no Event of Default has
occurred unless it has actual knowledge to the contrary;
(j) if the Trustee, in the exercise of its functions, requires
to be satisfied or to have information as to any fact or
the expediency of any act, it may call for a Director's
Certificate of the Issuer, the Initial Transferor, any
Additional Transferor, the Servicer or the MTN Cash Manager
as to any matter reasonably believed by the Trustee to be
within their knowledge and the Trustee need not call for
further evidence and will not be responsible for any loss
occasioned by acting on such certificate;
(k) the Trustee will not be responsible for having acted in
good faith on a written communication received by it from a
proper person and believed by it to be genuine whether or
not the same later proved not to have been issued with due
authority or to be authentic;
(l) any consent or approval given by the Trustee for the
purposes of these presents may be given on such terms and
subject to such conditions (if
21
any) as the Trustee thinks fit and notwithstanding anything
to the contrary contained in these presents may be given
retrospectively;
(m) the Trustee shall not (unless and to the extent ordered so
to do by a court of competent jurisdiction) be required to
disclose to a Secured Creditor or any other beneficiary of
the trusts created by this Deed any information (including,
without limitation, information of a confidential financial
or price-sensitive nature) made available to the Trustee by
the Issuer, Receivables Trustee, the Initial Transferor,
any Additional Transferor, the Servicer, the Trust Cash
Manager or the MTN Cash Manager or any other person in
connection with the trusts created by this Deed and no
Secured Creditor or any other beneficiary of such trusts
shall be entitled to take any action to obtain from the
Trustee any such information;
(n) if the Trustee performs the functions of MTN Cash Manager
it shall be entitled to retain for its own benefit of all
fees and remuneration (calculated and allocated in
accordance with the provisions of the relevant MTN
Supplement) which it is paid for performing such functions;
(o) the Trustee shall not be liable to account for any fees,
commissions, profits or remuneration of any kind it may
receive if it assumes any role in relation to the Initial
Transferor, any Additional Transferor, the MTN Cash
Manager, the Issuer or any securities or debts issued by or
outstanding of them and the Trustee may acquire and dispose
of securities issued by any of them without being liable to
account as aforesaid other than for the wilful misconduct
or gross negligence of the Trustee, its employees or agents
in connection with such acquisition or disposal.
(p) unless specified otherwise in a MTN Supplement, the Trustee
shall have regard only to the interests of the Noteholders
in respect of any Series and not to the interests of any
other Secured Creditor in respect of any Series and shall
have no duties to any Secured Creditor other than the
Noteholders other than to pay to them any monies it holds
on trust for them in respect of any Series;
(q) the Trustee shall have regard to the interest of the
Noteholders in respect of any Series as a Class and not to
their individual interests and save that if there is in the
opinion of the Trustee a conflict between the interests of
Noteholders in respect of any Series it shall have regard
only to the interests of the Class ranking most senior in
such Series and shall not be liable to other Noteholders in
such Series for doing so;
(r) whenever it considers it expedient in the interests of the
Noteholders in respect of any Series, the Trustee may, in
the conduct of its trust business, instead of acting
personally, employ and pay an agent selected by it, whether
or not a lawyer or other professional person, to transact
or conduct, or concur in transacting or conducting, any
business and to do or concur in doing all acts required to
be done by the Trustee (including the receipt and payment
of money). If the Trustee exercises reasonable care
22
in selecting such agent, it shall not be responsible to
anyone for any wilful misconduct or omission by any such
agent so employed by it or be bound to supervise the
proceedings or acts of any such agent;
(s) whenever it considers it expedient in the interests of the
Noteholders in respect of any Series, the Trustee may
delegate to any person on any terms (including power to
sub-delegate) all or any of its functions. If the Trustee
exercises reasonable care in selecting such delegate, it
shall not have any obligation to supervise such delegate or
be responsible for any loss, liability, costs, claim,
action, demand or expense incurred by reason of any wilful
misconduct or gross negligence of any such delegate or
sub-delegate;
(t) the Trustee shall be entitled to call for, and rely on, a
Director's Certificate from the Initial Transferor, any
Additional Transferor or any Noteholder in respect of any
Series as to whether such Noteholder has Associated Debt
outstanding;
(u) if required by TIA Section 313(a), within 60 days after
November 15 of any year, commencing the November 15
following the date of this Deed, the Trustee shall deliver
to each Noteholder a brief report dated as of such November
15 that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b), (c) and (d).
Reports delivered pursuant to this Clause 8.2(u) shall be
sent as provided in Clause 23.
(v) the Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent indicated therein. The
provisions of TIA Section 311 shall apply to the Issuer as
the obligor of the Notes; and
(w) notwithstanding any additional duties imposed on the
Trustee under the Trustees Act 1925 or otherwise, if an
Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers and use the
same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
8.3 TRUSTEE NOT LIABLE FOR VALIDITY OR SUFFICIENCY
The Trustee makes no representations as to the validity or sufficiency of
this Deed or any Series Document or of the beneficial entitlement of the
Secured Creditors of any Series to a security interest in the Secured
Property in respect of such Series (other than the authentication of the
relevant Notes) or of any Receivable in respect of Designated Accounts in
the Securitised Portfolio or Related Document. The Trustee has no
responsibility for the validity, value, sufficiency or enforceability of
the security over the Secured Property.
23
8.4 RESIGNATION OR REMOVAL OF THE TRUSTEE
8.4.1 This Deed shall always have a Trustee which shall be eligible to
act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The
Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual
report of condition. If the Trustee has or shall acquire any
"conflicting interest" within the meaning of TIA Section 310(b),
the Trustee and the Issuer shall comply with the provisions of TIA
Section 310(b); Provided, however, that there shall be excluded
from the operation of TIA Section 310(b)(1) any Deed or Deeds
under which other securities or certificates of interest or
participation in other securities of the Issuer are outstanding if
the requirements for such exclusion set forth in TIA Section
310(b)(1) are met. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Clause 8.4.1,
the Trustee shall resign promptly in the manner and with the
effect specified in Clauses 8.4.2 to 8.4.5.
8.4.2 The Trustee, subject to clause 8.4.5 below, may at any time resign
and be discharged from its obligations and duties hereby created
by giving written notice thereof to the Issuer. Upon receiving
such notice of resignation, the Issuer shall be vested with the
power to appoint a successor Trustee and shall promptly appoint
such successor Trustee as detailed in Clause 8.5 by written
instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
Trustee. If no successor Trustee shall have been so appointed and
have accepted within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
8.4.3 If at any time the Trustee shall be legally unable to act, or
shall be adjudged insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then
the Issuer may, but shall not be required to, remove the Trustee
and promptly appoint a successor Trustee as detailed in Clause 8.5
by written instrument, in duplicate, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the
successor trustee.
8.4.4 The Secured Creditors of all Series may at any time by direction
signed by all the Secured Creditors in writing addressed to the
Trustee remove the Trustee and shall do so by giving written
notice thereof to the Trustee. Upon such notice of removal being
given; the Issuer shall be vested with the power to appoint a
successor Trustee and shall promptly appoint such successor
Trustee as detailed in Clause 8.5 by written instrument, in
duplicate, one copy of which instrument shall be delivered to the
Trustee being removed and one copy to the successor Trustee.
8.4.5 Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Clause
8.4 shall not become effective until:
24
(a) acceptance of appointment by the successor Trustee as
provided in Clause 8.5 hereof (and any liability of the
Trustee arising hereunder shall survive such appointment of
a successor Trustee); and
(b) confirmation has been received from each Rating Agency that
the appointment of the successor Trustee will not result in
such Rating Agency reducing or withdrawing its then current
rating on any outstanding Associated Debt.
8.5 SUCCESSOR TRUSTEE
8.5.1 Any successor Trustee appointed as provided in Clause 8.4 hereof
shall execute, acknowledge and deliver to the Issuer and to its
predecessor Trustee an instrument accepting such appointment
hereunder and the transfer of the interests of the predecessor
Trustee in the Secured Property in respect of each Series to such
successor Trustee, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become
fully vested with such interests in the Secured Property in
respect of each Series and all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as
if originally named as Trustee herein. The predecessor Trustee
shall deliver to the successor Trustee all documents and
statements held by it hereunder, and the parties to this Deed and
the predecessor Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required by the
successor Trustee for fully and certainly vesting and confirming
in the successor Trustee all such interests in Secured Property in
respect of all Series and such rights, powers, duties and
obligations.
8.5.2 Upon acceptance of appointment by a successor Trustee as provided
in this Clause 8.5, such successor Trustee shall give notice of
such succession hereunder to all Secured Creditors of each Series.
8.6 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE
8.6.1 Notwithstanding any other provisions of this Deed, at any time,
for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Secured Property in respect
of any Series may at the time be located, the Trustee shall have
the power and may execute and deliver all instruments to appoint
one or more Persons to act as a co-Trustee or co-Trustees, or
separate Trustee or separate Trustees, with respect to all or any
part of the Secured Property in respect of any Series, and to vest
in such Person or Persons, in such capacity and for the benefit of
the Secured Creditors of the relevant Series, such title to the
Secured Property in respect of any Series or any part thereof,
and, subject to the other provisions of this Clause 8.6, such
powers, duties, obligations, rights and trusts as the Trustee may
consider necessary or desirable. No notice to Secured Creditors of
the relevant Series of the appointment of any co-Trustee or
separate Trustee shall be required under Clause 8.5 hereof.
8.6.2 Every separate Trustee and co-Trustee shall, to the extent
permitted by law, be appointed and act subject to the following
provisions and conditions:
25
(a) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate
Trustee or co-Trustee jointly (it being understood that
such separate Trustee or co-Trustee is not authorised to
act separately without the Trustee joining in such act),
except to the extent that under any laws of any
jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to
the Trustee hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which
circumstances such rights, powers, duties and obligations
(including the holding of title to the Secured Property in
respect of any Series or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by
such separate Trustee or co-Trustee, but solely at the
direction of the Trustee;
(b) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(c) the Trustee may at any time accept the resignation of or
remove any separate Trustee or co-Trustee Provided that
upon such resignation or removal, all title to any Secured
Property, powers, duties, obligations, rights and trusts
previously vested in such separate Trustee or
co-securitising trustee shall immediately revert to the
Trustee.
8.6.3 Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then
separate Trustees and co-Trustees, as effectively as if
given to each of them. Every instrument appointing any
separate Trustee or co-Trustee shall refer to this Deed and
the conditions of Clauses 8.1 to 8.15. Each separate
Trustee and co-Trustee, upon its acceptance of the trusts
conferred, shall be vested with the rights, trusts, powers,
duties and obligations specified in its instrument of
appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions
of this Deed, specifically including every provision of
this Deed relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee.
Every such instrument shall be filed with the Trustee and a
copy thereof given to the MTN Cash Manager.
8.6.4 Any separate Trustee or co-Trustee may at any time
constitute the Trustee as its agent or attorney-in-fact
with full power and authority, to the extent not prohibited
by law, to do any lawful act under or in respect to this
Deed or any Series Document on its behalf and in its name.
If any separate Trustee or co-Trustee shall die, become
incapable of acting, resign or be removed, all of its
rights, trusts, powers, duties and obligations shall vest
in and be exercised by the Trustee, to the extent permitted
by law, without the appointment of a new or successor
trustee.
8.7 SUPPLEMENT TO TRUSTEE ACT 1925
The rights, powers, duties and obligations conferred or imposed upon the
Trustee by this Deed shall, unless otherwise specified herein or in any
MTN Supplement, be
26
supplemental to any rights, powers, duties and obligations conferred or
imposed upon the Trustee under the law generally and in particular the
Trustee Act 1925 and, except as expressly provided in this Clause 8, be
in lieu of the provisions contained in section 315(a) of the TIA.
8.8 COSTS AND EXPENSES OF THE ISSUER AND REMUNERATION, COSTS AND EXPENSES OF
THE TRUSTEE
8.8.1 As full reimbursement for any costs and expenses incurred by it in
connection with its activities in respect of (i) a particular
Series, the Issuer shall be entitled to utilise Secured Property
in respect of each Series allocated to the Secured Creditors for
the relevant Series to meet such costs and expenses attributable
solely to a particular Series with respect to each Monthly Period,
solely to the extent of Secured Property allocable with respect
thereto as provided in this Deed and any MTN Supplement, on the
related Distribution Date for such Series (each such cost and
expense, a "SERIES ISSUER PAYMENT" (which shall include all sums
due to the Trustee under Clause 8.8.2 to 8.8.6)) and, (ii) all
Series, the Issuer shall be entitled to use Secured Property in
respect of all Series allocated to the Secured Creditors for each
Series to meet such costs and expenses attributable to all Series
with respect to each Monthly Period, solely to the extent of
Secured Property allocable with respect thereto as provided in
this Deed and any MTN Supplement, on the related Distribution Date
for each Series (the aggregate of costs and expenses payable on a
Distribution Date for all Series, the "AGGREGATE ISSUER PAYMENT
AMOUNT"). The amount of any reimbursement for its activities as
Issuer will be determined in accordance with the relevant MTN
Supplement for each Series. For the avoidance of any doubt, the
amounts due to the Trustee under Clauses 8.8.2 to 8.8.5 shall be
considered expenses of the Issuer and (i) will be allocated to a
particular Series Issuer Payment with reference to the particular
Series the Trustee is owed an amount in respect of, and (ii) will
be exclusive of VAT thereon, if applicable and any such VAT will
be payable in addition thereto.
8.8.2 So long as any Secured Obligation in respect of any Series is
outstanding, the Issuer shall pay to the Trustee, on each
Distribution Date, to the extent of and from the Secured Property
in respect of the relevant Series as remuneration for its services
as Trustee such sum on such dates in each case as they may from
time to time agree. Such remuneration shall accrue from day to day
from the date of this Deed.
8.8.3 If an Event of Default, or MTN Cash Manager Default shall have
occurred or if the Trustee finds it expedient or necessary or is
requested by the Issuer to undertake duties that they both agree
to be of an exceptional nature or otherwise outside the scope of
the Trustee's normal duties under this Deed, the Issuer shall pay
to the extent of and from the Secured Property in respect of any
Series, on each Distribution Date, to the Trustee such additional
remuneration as they may agree or, failing agreement as to any of
the matters in this Clause 8.8.3 (or as to such sums referred to
in Clause 8.8.2 above), as determined by an investment bank
(acting as an expert) selected by the Trustee and approved by the
Issuer or, failing such approval, nominated by the President for
the time being of The Law Society of England and Wales. The
expenses involved in such nomination and
27
such investment bank's fee shall be borne by the Issuer. The
determination of such investment bank shall be conclusive and
binding on the Issuer, the Trustee and the Secured Creditors.
8.8.4 The Issuer shall also, on demand by the Trustee, pay or discharge
to the extent of and from the Secured Property in respect of any
Series, to the Trustee all costs, charges, liabilities and
expenses properly incurred by the Trustee in the preparation and
execution of this Deed and the performance of its functions under
this Deed including, but not limited to, reasonable legal and
travelling expenses and any stamp, documentary or other taxes or
duties paid by the Trustee in connection with any legal
proceedings properly brought or contemplated by the Trustee
against the Issuer or any other party to enforce any provision of
this Deed or other Series Document.
8.8.5 The Issuer shall indemnify the Trustee to the extent of and from
the Secured Property in respect of any Series, in respect of all
liabilities and expenses properly incurred by it or by anyone
appointed by it or to whom any of its functions may be delegated
by it in the proper performance of its functions and against any
loss, liability, cost, claim, action, demand or expense
(including, but not limited to, all reasonable costs, charges and
expenses paid or incurred in disputing or defending any of the
foregoing) that any of them may incur or that may be made against
any of them arising out of or in relation to or in connection
with, its appointment or the proper exercise of its functions.
8.8.6 Clauses 8.8.4 and 8.8.5 shall continue in full force and effect as
regards the Trustee even if it no longer is Trustee.
8.8.7 Without prejudice to the right of indemnity by law given to
trustees and subject to the provisions of Section 192 of the
Companies Act 1985, the Trustee as permitted and every receiver,
attorney, manager, agent, or other person appointed by the Trustee
hereunder in relation to each Series shall be entitled to be
indemnified to the extent of and from the Secured Property (in
respect of any Series) for all liabilities and expenses properly
incurred by them in the execution or purported execution of the
trusts hereof or of any powers, authorities or discretions
properly vested in them pursuant to these presents and against all
actions, proceedings, cost, claims, and demands in respect of any
matters or things done or omitted in any way related to the
Secured Property, and the Trustee may retain any part of any
moneys arising from the trusts hereof all sums necessary to effect
such indemnity and also the remuneration of the Trustee
hereinbefore provided and the Trustee shall have a lien on such
Secured Property to the extent of the sum thereof for all moneys
payable to it under this Clause or otherwise howsoever.
8.9 GENERAL PROVISIONS IN FAVOUR OF THE TRUSTEE AS REGARDING THE SECURED
PROPERTY IN RESPECT OF EACH SERIES
The Trustee shall accept without investigation, requisition or objection
such right and title as the Issuer may have to any of the Secured
Property in respect of any Series or in respect of any assets over which
it shall have been granted a security interest in respect
28
of or in relation to these presents and shall not be bound or concerned
to examine or enquire into or be liable for any defect or failure in the
right or title of the Issuer to all or any of the Secured Property in
respect of any Series or in respect of any assets over which it shall
have been granted a security interest in respect of or in relation to
these presents, whether such defect or failure was known to the Trustee
or might have been discovered upon examination or enquiry and whether
capable of remedy or not.
8.10 INSURANCE
The Trustee shall not be under any obligation to insure nor to procure
the insurance of all or any of the Secured Property in respect of any
Series or in respect of any assets over which it shall have been granted
a security interest in respect of or in relation to these presents or to
require any other person to maintain any such insurance.
8.11 PRE-ENFORCEMENT APPLICATION OF FUNDS
Until such time as the Security in relation to any Series becomes
enforceable the moneys standing to the credit of any account comprised in
the Secured Property in respect of such Series shall be dealt with in
accordance with the provisions this Deed and the Trustee shall not be
responsible in such circumstances or at any other time for any loss
occasioned thereby by depreciation in value.
8.12 INCREASED COSTS
The Trustee shall have no responsibility whatsoever to the Issuer or any
Secured Creditor with respect to any Series as regards any deficiency
which might arise because the Trustee is subject to any tax in respect of
all or any of the Secured Property relating to such Series or in respect
of any assets over which it shall have been granted a security interest
in respect of or in relation to these presents, the income therefrom or
the proceeds thereof.
8.13 NO OBLIGATION OF ENQUIRY
The Trustee shall not be responsible for investigating, monitoring or
supervising the observance or performance by any person of their
obligations in respect of the Secured Property in respect of any Series
or otherwise.
8.14 DEFECTS IN SECURITY
The Trustee shall not be liable for any failure, omission or defect in
perfecting, protecting or further assuring the Secured Property in
respect of any Series or in respect of any assets over which it shall
have been granted a security interest in respect of or in relation to
this Deed including (without prejudice to the generality of the
foregoing) any failure, omission or defect in registering or filing or
procuring registration or filing of or otherwise protecting or perfecting
the Secured Property in respect of any Series or in respect of any assets
over which it shall have been granted a security interest in respect of
or in relation to this Deed or the priority thereof or the right or title
of any person in or to the assets comprised therein by registering under
any applicable registration laws in any territory any notice or other
entry prescribed by or pursuant to the provisions of any such laws.
8.15 STANDARD OF CARE
If the Trustee, any agent thereof or other person to whom some of the
Trustee's functions are delegated hereunder fails to show the degree of
care and diligence required of it as a
29
trustee (due regard being given to the provisions hereof conferring on it
duties, powers and discretions), nothing in this Deed shall relieve or
indemnify it from or against any liability that would otherwise attach to
it in respect of any negligence, default, breach of duty or breach of
trust of which it may be guilty.
8.16 STANDARD OF PROOF
Should the Trustee take legal or other proceedings against the Issuer to
enforce any of the provisions of the Notes, or any of them or this Deed
proof therein that, as regards any Note, the Issuer has made default in
paying any principal or interest due in respect of such Note shall
(unless the contrary be proved) be sufficient evidence that the Issuer
has made the like default as regards all other Notes in respect of which
the relevant payment is then due and payable. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Noteholders
allowed in any judicial proceedings relating to the Issuer, its auditors
or its property.
8.17 TRUSTEE'S LIABILITY
Nothing in this Deed contained shall in any case in which the Trustee has
failed to show the degree of care and diligence required of it as trustee
having regard to the provisions of this Deed conferring on it any powers,
authorities or discretions exempt the Trustee from or indemnify it
against any liability for breach of trust or any liability which by
virtue of any rule of law would otherwise attach to it in respect of any
negligence, default, breach of duty or breach of trust of which it may be
guilty in relation to its duties under this Deed.
9. COVENANTS BY THE ISSUER AND MTN CASH MANAGER
9.1 COVENANTS
The Issuer and the MTN Cash Manager, in respect of each Series, hereby
covenant with the Trustee that, until (i) no further sums are outstanding
in respect of any Secured Obligation issued by the Issuer; (ii) the
Issuer has fulfilled and discharged all of the Secured Obligations in
respect of each Series; and (iii) this Deed is terminated as between the
Issuer and all the other parties, they shall in relation to their
respective obligations under any Series:
9.1.1 in the case of the Issuer, at all times carry on and conduct its
affairs in a proper and efficient manner;
9.1.2 in the case of the Issuer at all times keep proper books of
account and allow the Trustee and any person appointed by it, to
whom the Issuer or the Initial Transferor has no reasonable
objection, access to the books of account of the Issuer at all
reasonable times during normal business hours and to discuss the
same with a nominated officer of the Issuer and in the event that
audited financial accounts of the Issuer are produced, to provide
a copy thereof to the Trustee in relation to each Series;
9.1.3 give notice in writing to the Trustee and the Noteholders in
respect of such Series forthwith upon becoming aware of the
occurrence of a Series Pay Out
30
Event in relation to such Series and without waiting for the
Trustee to take any action;
9.1.4 in the case of the Issuer, so far as permitted by law, at all
times give to the Trustee such information and afford the Trustee
such facilities as it may require for the purpose of discharging
the duties, powers, trusts, authorities and discretions vested in
it by this Deed or by operation of law;
9.1.5 in the case of the Issuer, unless specified otherwise in the
relevant MTN Supplement, not to make or consent to any amendment,
variation or termination to any Series Document in respect of any
Series or any Secured Property in respect of such Series without
the prior written consent of the Trustee, such consent not to be
unreasonably withheld or delayed;
9.1.6 in the case of the Issuer not, without the prior written consent
of the Trustee, give any guarantee or indemnity (other than as
contemplated by the Series Documents);
9.1.7 ensure that each Series or all other transactions to be effected
hereunder shall comply with all applicable laws and regulations of
any governmental or other regulatory authority of England for the
purposes of any relevant MTN and relevant Series Documents and
that all necessary consents and approvals of, and registrations
and filings with, any such authority in connection therewith are
obtained and maintained in full force and effect and copies
thereof are supplied promptly to the Trustee;
9.1.8 the Issuer shall promptly after the date hereof give notice to
each relevant Person of the Security granted to the Trustee
hereunder and shall procure that each such Person acknowledges the
same. In addition to the foregoing, in the case of the Issuer that
the Issuer shall from time to time deliver, and assist the Trustee
in delivering, any other notices in relation to any Security as
the Trustee may reasonably request;
9.1.9 in the case of the Issuer, at all times maintain its residence in
the United Kingdom for the purposes of United Kingdom taxation;
9.1.10 in the case of the Issuer, at all times use its best efforts to
minimise taxes and any other costs arising in connection with its
activities;
9.1.11 in the case of the Issuer, maintain a register of mortgages and
charges in accordance with English law and regulations and
forthwith upon the issue of a Series enter in such register, and
register in any other jurisdiction where such registrations may be
required, any and all mortgages or charges created by the MTN
Supplement constituting and securing the Notes of such Series and,
forthwith upon execution of any further instruments or documents
pursuant thereto creating or purporting to create or to perfect or
to protect any security interest by the Issuer, enter in such
register, and register in any other jurisdiction where such
registration may be required, details of such instrument or
document;
31
9.1.12 in the case of the Issuer not to take any steps in its capacity as
Investor Beneficiary of the Receivables Trust (either on its own
or in conjunction with any other Beneficiary of the Receivables
Trust) to terminate the Receivables Trust or any sub-trust
thereof.
9.1.13 in the case of the Issuer, file with the Trustee copies of the
annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) which the Issuer is
required to file with the SEC pursuant to Section 13 or 15(d) of
the United States Securities Exchange Act of 1934 within 15 days
after it files them with the SEC. The Issuer also shall comply
with the other provisions of TIA ss. 314(a);
9.1.14 the Issuer shall furnish or cause to be furnished to the Trustee
on June 30 and December 31 of each year, commencing June 30, 2000,
and at such other times as the Trustee may request in writing, all
information in the possession or control of the Issuer, or of its
paying agents, as to the names and addresses of the Noteholders,
and requiring the Trustee to preserve, in as current a form as is
reasonably practicable, all such information so furnished to it or
received by it in the capacity of paying agent;
9.1.15 (a) upon any application, demand or request by the Issuer to
the Trustee to take any action under any of the provisions
of this Trust Deed (other than the issuance of Notes) and
upon request of the Trustee, the Issuer shall furnish to
the Trustee an Officers' Certificate and Opinion of Counsel
complying with the provision of Section 314 of the Trust
Indenture Act;
(b) each certificate or opinion provided for in this Trust Deed
and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Trust
Deed shall include (i) a statement that the person making
such certificate or opinion has read such condition or
covenant; (ii) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based; (iii) a statement that, in the opinion
of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such condition or
covenant has been complied with; and (iv) a statement as to
whether or not the opinion of such person, such condition
or covenant has been complied with; and
9.1.16 Promptly after the execution and delivery of this Trust Deed and
each supplement hereto, the Issuer will furnish to Trustee an
Opinion of Counsel stating that in the opinion of such counsel,
appropriate steps have been taken to protect the title of the
Trustee to the Secured Property and reciting the details of such
action, or stating that in the opinion of such counsel no such
action is necessary; and the Issuer shall furnish to the Trustee,
not more than three (3) months after the anniversary of each
calendar year, commencing with calendar year 2001, an Opinion of
Counsel stating either that, in the opinion of such
32
Counsel, (i) such action has been taken as is necessary for the
proper protection of the title of the Trustee to the Secured
Property and reciting the details of such action or (ii) no such
action is necessary for any of such purposes.
The Trustee shall not be responsible for ensuring that the Issuer
complies with its obligations to send the notices referred to in Clauses
9.1.3 and 9.1.5 above to each such Secured Creditor or Noteholder (as the
case may be).
9.2 STATEMENT AS TO COMPLIANCE
The Issuer will deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement signed by the principal executive
officer of the Issuer, stating that
9.2.1 a review of the activities of the Issuer during such year and of
performance under this Trust Deed has been made under his or her
supervision and
9.2.2 to the best of his or her knowledge, based on such review, the
Issuer has fulfilled all its obligations under this Trust Deed
throughout such year, or, if there has been a default in the
fulfilment of any such obligation, specifying each such default
known to him or her and the nature and status thereof.
10. APPOINTMENT OF THE MTN CASH MANAGER
10.1 The Issuer with the consent of the Trustee hereby appoints Barclays Bank
PLC (and Barclays Bank PLC agrees to act) as the MTN Cash Manager for the
Issuer under this Deed and any MTN Supplement. By its execution of an MTN
Supplement in relation to a Series each Secured Creditor in respect
thereof and the Trustee consents to Barclays acting as MTN Cash Manager
in relation to such Series.
10.2 DUTIES OF THE MTN CASH MANAGER
10.2.1 The MTN Cash Manager shall service and administer the relevant
Issuer Accounts in respect of each Series and shall make the
calculations in respect of allocations and collect payments due in
respect of the amounts due to the Noteholders in accordance with
its customary and usual procedures and shall have full power and
authority, acting alone or through any party properly designated
by it hereunder, to do any and all things in connection with such
cash management which it may deem necessary or desirable. The MTN
Cash Manager shall follow such instructions in regard to the
exercise of its power and authority as the Issuer may from time to
time direct until it receives notice from the Trustee that the
security over the Secured Property has become enforceable and
thereafter will follow such instructions as the Trustee may give
it.
10.2.2 Without limiting the generality of the foregoing, the MTN Cash
Manager is hereby obliged, authorised and empowered (unless such
power and authority is revoked by the Issuer or the Trustee on
account of the occurrence of an MTN Cash Manager Default pursuant
to Clause 11.1):
(a) to make withdrawals from any Issuer Account as set forth in
this Deed or the relevant MTN Supplement;
33
(b) to instruct the Issuer to make withdrawals and payments,
from the Issuer Accounts, in accordance with such
instructions as set forth in this Deed and any MTN
Supplement;
(c) to instruct the Issuer in writing, as set forth in this
Deed or any MTN Supplement;
(d) to execute and deliver, in the name of the Issuer, where
appropriate, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge,
and all other comparable instruments, with respect to the
cash administration services hereunder or in respect of any
Series under an MTN Supplement and to the extent permitted
under and in compliance with applicable law and
regulations, to provide reasonable assistance to the
Issuer, to allow the Issuer to commence enforcement
proceedings with respect to delinquent payments in respect
of any Series; and
(e) to make any filing, reports, notices, applications,
registrations with, and to seek any consents or
authorisations from any relevant securities or other
authority as may be necessary to comply with any securities
or reporting requirements or other Requirement of Law
(whether in relation to the Noteholders of a particular
Series or the Issuer).
10.3 ISSUER'S ACKNOWLEDGEMENT OF INSTRUCTIONS FROM THE MTN CASH MANAGER
The Issuer agrees that it shall promptly follow the instructions of the
MTN Cash Manager to withdraw funds from any Issuer Account and to take
any action required under any Enhancement in respect of a Series at such
time as required under this Deed and any MTN Supplement. The Issuer shall
execute at the MTN Cash Manager's written request such documents
acceptable to the Issuer and the Trustee as may be reasonably necessary
or appropriate to enable the MTN Cash Manager to carry out its cash
administration duties hereunder.
10.4 MTN CASH MANAGER'S ADMINISTRATION
The MTN Cash Manager shall not be obliged to use separate cash
administration procedures, offices, employees or accounts in respect of
any Series from the procedures, offices, employees and accounts used by
the MTN Cash Manager in connection with other cash administration;
10.5 PROFESSIONAL INDEMNITY INSURANCE
The MTN Cash Manager shall maintain insurance coverage against losses
through wrongdoing of its officers and employees who are involved in the
cash administration of the Issuer covering such actions and in such
amounts as the MTN Cash Manager believes to be reasonable from time to
time.
10.6 MTN CASH MANAGER COMPENSATION
As full compensation for its cash administration activities hereunder and
as reimbursement for any expense incurred by it in connection therewith,
the MTN Cash Manager shall be entitled to receive the amount as specified
in the relevant MTN Supplement (solely to the extent of payments received
and allocated with respect thereto
34
as provided in this Deed and in any MTN Supplement) an MTN Cash Manager
fee (the "MTN CASH MANAGER FEE") with respect to each Monthly Period,
payable in accordance with the relevant MTN Supplement.
10.7 REPRESENTATIONS AND WARRANTIES OF THE MTN CASH MANAGER
Barclays, as initial MTN Cash Manager, hereby makes, and any successor
MTN Cash Manager by its appointment hereunder shall make (with such
modifications as the Trustee deems appropriate acting reasonably to
Clause 10.7.1 to reflect the successor MTN Cash Manager's organisation)
the following representations and warranties on which the Issuer has
relied in appointing Barclays Bank PLC as the initial MTN Cash Manager
and, whenever appropriate, any other successor MTN Cash Manager.
10.7.1 ORGANISATION It is a company duly incorporated under the laws of
England with full corporate power, authority and legal right to
own its assets and conduct its business as such assets are
presently owned and its business as presently conducted and with
power to enter into the [Series Documents] and to exercise its
rights and perform its obligations thereunder and all corporate
and other action required to authorise its execution of each
Series Document and its performance of its obligations thereunder
has been duly taken.
10.7.2 DUE AUTHORISATION All acts, conditions and things required to be
done, fulfilled and performed in order (i) to enable it lawfully
to enter into, exercise its rights under and perform and comply
with the obligations expressed to be assumed by it in each Series
Document, (ii) to ensure that the obligations expressed to be
assumed by it in each Series Document are legal, valid and binding
on it and (iii) to make each Series Document and each such
assignment admissible in evidence in England have been done,
fulfilled and performed save for the payment of stamp duty in the
United Kingdom in respect of any such assignment under any
applicable law.
10.7.3 NO VIOLATION The execution and delivery of each Series Document by
the MTN Cash Manager and the exercise of its rights and the
performance of its obligations thereunder will not conflict with
or violate any Requirement of Law.
10.7.4 BINDING OBLIGATION The obligations expressly to be assumed by it
in each Series Document are legal and valid obligations binding on
it and enforceable against it in accordance with its terms, except
(a) as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium or other similar laws affecting
the enforcement of the rights of creditors generally and the
rights of creditors of authorised institutions under the Banking
Act 1987 in particular, and (b) as such enforceability may be
limited by the effect of the general principles of equity.
10.7.5 NO PROCEEDINGS There are no proceedings or investigations pending
or, to the best of its knowledge threatened against it before any
court, regulatory body, arbitral tribunal or public or
administrative body or agency (i) asserting the invalidity of any
Series Document; (ii) seeking to prevent the entering into of any
of the transactions contemplated by any Series Document; (iii)
seeking any determination or ruling that, in the reasonable
opinion of the MTN Cash
35
Manager, would materially and adversely affect the performance by
it of its obligations under any Series Document; or (iv) seeking
any determination or ruling that would materially and adversely
affect the validity or enforceability of any Series Document.
10.7.6 NO CONFLICT The execution and delivery of each Series Document and
the exercise by the MTN Cash Manager of its rights and the
performance of its obligations thereunder will not conflict with,
result in any breach of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a
default under, any agreement, indenture, contract, mortgage, trust
deed or other instrument to which it is a party or by which it or
any of its assets is otherwise bound.
10.8 COMPLIANCE WITH REQUIREMENTS OF LAW
The MTN Cash Manager shall duly satisfy all obligations on its part to be
fulfilled under or in connection with its cash administration duties
hereunder and under any MTN Supplement, will maintain in effect all
qualifications required under Requirements of Law in order to fulfil its
cash administration duties hereunder and under any MTN Supplement and
will comply in all material respects with all other Requirements of Law
in connection with its cash administration duties hereunder and under any
MTN Supplement the failure to comply with which would have a Material
Adverse Effect on the interests of any Secured Creditor of any Series or
any Material Adverse Effect on the interests of any Enhancement Provider
in respect of any Series.
11. LIABILITY OF THE MTN CASH MANAGER
The MTN Cash Manager shall be liable in accordance with this Deed only to
the extent of the obligations specifically undertaken by the MTN Cash
Manager in such capacity herein.
11.1 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF, THE MTN
CASH MANAGER
The MTN Cash Manager shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially
as an entirety to any Person, unless:
11.1.1 the corporation formed by such consolidation or into which the MTN
Cash Manager is merged or the Person which acquires by conveyance
or transfer the properties and assets of the MTN Cash Manager
substantially as an entirety, shall expressly assume, by an
agreement supplemental hereto, executed and delivered to the
Issuer in form satisfactory to the Issuer, and the Trustee the
performance of the obligations of the MTN Cash Manager hereunder
(to the extent that any right, covenant or obligation of the MTN
Cash Manager, as applicable hereunder, is inapplicable to the
successor entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as would
apply, to the extent practicable, to such successor entity);
11.1.2 the MTN Cash Manager shall have delivered to the Issuer:
(a) an Director's Certificate that such consolidation, merger,
conveyance or transfer and such supplemental agreement
comply with this Clause 11.1
36
and that all conditions precedent herein provided for
relating to such transaction have been complied with; and
(b) an Opinion of Counsel that such supplemental agreement is
legal, valid, binding and enforceable with respect to the
MTN Cash Manager;
11.1.3 the MTN Cash Manager shall have delivered notice to the Trustee
and to each Rating Agency of such consolidation, merger,
conveyance or transfer.
11.2 LIMITATION ON LIABILITY OF THE MTN CASH MANAGER AND OTHERS
11.2.1 The directors, officers, employees or agents of the MTN Cash
Manager shall not be under any liability, with respect to any
Series, to the Issuer, the Trustee, any Enhancement Provider, the
Secured Creditors, or any other Person hereunder or pursuant to
any document delivered hereunder, it being expressly understood
that all such liability is expressly waived and released by each
such party as a condition of, and as consideration for, the
execution of this Deed and any MTN Supplement PROVIDED, HOWEVER,
that this provision shall not protect the directors, officers,
employees and agents of the MTN Cash Manager against any liability
which would otherwise be imposed by reason of fraud, wilful
default, bad faith or gross negligence in the performance of
duties or by reason of its reckless disregard of its obligations
and duties hereunder or under any MTN Supplement.
11.2.2 Except as provided in Clause 11.4 with respect to the Issuer and
the Trustee and its agents, the MTN Cash Manager shall not be
under any liability, in respect of any Series, to the Issuer, the
Trustee and its agents, the Secured Creditors or any other Person
for any action in its capacity as MTN Cash Manager pursuant to
this Deed or any MTN Supplement PROVIDED, HOWEVER, that this
provision shall not protect the MTN Cash Manager against any
liability which would otherwise be imposed by reason of fraud,
wilful default, bad faith or gross negligence in the performance
of duties or by reason of its reckless disregard of its
obligations and duties hereunder or under any MTN Supplement.
11.2.3 The MTN Cash Manager may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder.
11.2.4 The MTN Cash Manager shall not be under any obligation to appear
in, prosecute or defend any legal action which is not incidental
to its duties pursuant to this Deed which in its reasonable
opinion may involve it in any expense or liability.
11.3 MTN CASH MANAGER INDEMNIFICATION OF THE ISSUER AND THE TRUSTEE
The MTN Cash Manager shall indemnify and hold harmless the Issuer and the
Trustee and its agents, from and against any reasonable loss, liability,
expense, damage or injury suffered or sustained by reason of any fraud,
wilful default, bad faith or gross negligence in the performance of
duties or by reason of the MTN Cash Manager's reckless disregard of its
obligations and duties hereunder or under any MTN Supplement pursuant to
this Deed or any MTN Supplement, including, but not limited to any
judgement, award,
37
settlement, reasonable legal fees and other costs or expenses incurred in
connection with the defence of any actual or threatened action,
proceeding or claim PROVIDED, HOWEVER, that the MTN Cash Manager shall
not:
11.3.1 indemnify the Trustee if such acts, omissions or alleged acts or
omissions constitute or are caused by fraud, negligence, or wilful
misconduct by the Trustee or its agents;
11.3.2 indemnify the Issuer or any Secured Creditors, in respect of any
Series, for any liabilities, costs or expenses of the Issuer with
respect to any action taken by the Trustee at the request of any
Secured Creditor of any Series;
11.3.3 indemnify the Issuer, the Trustee any Secured Creditor, in respect
of any Series, as to any losses, claims or damages arising as a
result of default by the Receivables Trustee, the Transferor in
its capacity as Transferor, the Servicer in its capacity as
Servicer or an Obligor; and
11.3.4 indemnify the Issuer, the Trustee or the Secured Creditors, in
respect of any Series, for any Liability of the Issuer, the
Trustee or the Secured Creditors arising under any Tax law (or any
interest or penalties with respect thereto or arising from a
failure to comply therewith) required to be paid by the Issuer,
the Trustee or the Secured Creditors, in respect of any Series, in
connection herewith to any taxing authority.
Any such indemnification shall be payable by the MTN Cash Manager itself
and not be payable by the Issuer. The provision of this indemnity shall
run directly to and be enforceable by an injured party subject to the
limitations hereof.
11.4 THE MTN CASH MANAGER NOT TO RESIGN
The MTN Cash Manager shall not resign, with respect to any Series, from
the obligations and duties hereby imposed on it except upon determination
that (i) the performance of its duties hereunder is no longer permissible
under applicable law and (ii) there is no reasonable action which the MTN
Cash Manager could take to make the performance of its duties hereunder
permissible under applicable law. Any such determination permitting the
resignation of the MTN Cash Manager shall be evidenced as to
sub-paragraph (i) above by an Opinion of Counsel and as to sub-paragraph
(ii) by an Officer's Certificate, each to such effect delivered to the
Secured Creditors of each Series and the Trustee (by delivery to the
Trustee). No such resignation shall become effective until a successor
MTN Cash Manager shall have assumed the responsibilities and obligations
of the MTN Cash Manager in accordance with Clause 11.3 hereof.
11.5 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING CASH
ADMINISTRATION
The MTN Cash Manager shall provide to the Issuer and the Trustee access
to the documentation regarding the cash administration in respect of each
Series in such cases where the Issuer or the Trustee is required in
connection with the enforcement of the rights of any Secured Creditor of
any Series, or by any Series Document or any Requirement of Law to review
such documentation, such access being afforded without charge but only
(i) upon reasonable request, (ii) during normal business hours, (iii)
subject to the MTN Cash Manager's normal security and confidentiality
procedures and
38
(iv) at offices in the United Kingdom designated by the MTN Cash Manager.
Nothing in this Clause 11.5 shall derogate from the obligation of the
Transferor, the Issuer, the Trustee, any Secured Creditor of any Series
or the MTN Cash Manager to observe any Requirement of Law prohibiting
disclosure of information regarding the Obligors and the failure of the
MTN Cash Manager to provide access as provided in this Clause 11.5 as a
result of such obligations shall not constitute a breach of this Clause
11.5.
11.6 DELEGATION OF DUTIES
In the ordinary course of business, the MTN Cash Manager may at any time
delegate any duties hereunder to any Person who agrees to conduct such
duties in accordance with this Deed and the terms of each MTN Supplement.
Any such delegations shall not relieve the MTN Cash Manager of its
liabilities and responsibility with respect to such duties, and shall not
constitute a resignation within the meaning of Clause 11.4 hereof. If any
such delegation is to a party other than an Affiliate of Barclays Bank
PLC, notification thereof shall be given to each Rating Agency rating any
Associated Debt and the Trustee.
12. MTN CASH MANAGER DEFAULTS
If any one of the following events (each a "MTN CASH MANAGER DEFAULT")
shall occur and be continuing:
12.1.1 any failure by the MTN Cash Manager to make any payment, transfer
or deposit or to give instructions or notice to the Issuer, as the
case may be, pursuant to an agreed schedule of calculations and
allocations or to instruct the Issuer to make any required
drawing, withdrawal or payment for any Series on or before the
date occurring five Business Days after the date such payment,
transfer, deposit, withdrawal or drawing or such instruction or
notice is required to be made or given, as the case may be, under
the terms of this Deed or any Series Document;
12.1.2 failure on the part of the MTN Cash Manager duly to observe or
perform in any respect any other covenants or agreements of the
MTN Cash Manager set forth in this Deed or any Series Document
which has a Material Adverse Effect on the interests of any
Secured Creditor of any Series and which continues unremedied for
a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given
to the MTN Cash Manager by the Issuer or the Trustee, or to the
MTN Cash Manager, the Issuer and the Trustee by a Noteholder or
Noteholders representing in aggregate not less than 50 per cent.
of the Principal Amount Outstanding of any Class of Notes of a
Series adversely affected thereby and continues to have a Material
Adverse Effect on the interests of such Noteholder or Noteholders
affected for such period;
12.1.3 delegation by the MTN Cash Manager of its duties under this Deed
to any other entity, except as permitted by Clause 11.6;
12.1.4 any relevant representation, warranty or certification made by the
MTN Cash Manager in this Deed or in any certificate delivered
pursuant hereto proves to have been incorrect when made, which has
a Material Adverse Effect on the interests of the Noteholder of
any Series and continues to be incorrect in any
39
material respect for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the MTN Cash Manager by the Issuer or the
Trustee or to the MTN Cash Manager, the Issuer and the Trustee by
a Noteholder or Noteholders representing in aggregate not less
than 50 per cent. of the Principal Amount Principal Amount
Outstanding of any Class of Notes of a Series affected thereby and
continues to have a Material Adverse Effect on the interests of
such Noteholder or Noteholders affected for such period;
12.1.5 the MTN Cash Manager shall consent to or take any corporate action
relating to the appointment of a receiver, administrator,
administrative receiver, liquidator, trustee or similar officer of
it or relating to all or substantially all of its revenues and
assets or an order of the court is made for its winding-up,
dissolution, administration or re-organisation and such order
shall have remained in force undischarged or unstayed for a period
of 60 days or a receiver, administrator, administrative receiver,
liquidator, trustee or similar officer of it or relating to all of
its revenues and assets is legally and validly appointed;
12.1.6 a duly authorised officer of the MTN Cash Manager shall admit in
writing that the MTN Cash Manager is unable to pay its debts as
they fall due within the meaning of Section 123(1) of the
Insolvency Act 1986 or the MTN Cash Manager makes a general
assignment for the benefit of or a composition with its creditors
or voluntarily suspends payment of its obligations with a view to
the general readjustment or rescheduling of its indebtedness;
then so long as such MTN Cash Manager Default shall not have been
remedied (or in the case of an MTN Cash Manager Default under Clause
12.1.7, the Servicer Default has not been remedied in accordance with the
Receivables Trust Deed and Servicing Agreement), either the Issuer or the
Trustee at the direction of the Noteholders representing in aggregate not
less than 66(2)/3 per cent. of the aggregate Principal Amount Outstanding
of any Class of Notes of a Series adversely affected by such MTN Cash
Manager Default or, where applicable, the Priority Secured Creditor of
such Series, by notice then given in writing to the MTN Cash Manager (a
"MTN CASH MANAGER TERMINATION NOTICE"), may terminate all of the rights
and obligations of the MTN Cash Manager as MTN Cash Manager under this
Agreement.
Notwithstanding the foregoing, a delay in or failure of performance
referred to in paragraph (a) above for the stated period of five Business
Days or under Clause 12.1.2 or 12.1.4 for the stated period of 60
Business Days, shall not constitute an MTN Cash Manager Default if such
delay or failure could not have been prevented by the exercise of
reasonable diligence by the MTN Cash Manager and such delay or failure
was caused by an act of God, acts of declared or undeclared war, public
disorder, rebellion, riot or sabotage, epidemics, landslides, lightning,
fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns,
floods, power cuts or similar causes. The preceding sentence shall not
relieve the MTN Cash Manager from using its best efforts to perform its
obligations in a timely manner in accordance with the terms of this Deed
and any relevant agreement and the MTN Cash Manager shall provide the
Issuer, the Trustee, any Enhancement Provider of any Series and each
Noteholder of any Series with a Director's
40
Certificate of the MTN Cash Manager giving prompt notice of such failure
or delay by it, together with a description of the cause of such failure
or delay and its efforts so to perform its obligations.
12.2 EFFECT OF MTN CASH MANAGER TERMINATION NOTICE
12.2.1 After receipt by the MTN Cash Manager of an MTN Cash Manager
Termination Notice pursuant to Clause 12.1, and on the date that
the MTN Cash Manager receives notification from the Issuer that a
successor MTN Cash Manager has been appointed by the Issuer
pursuant to Clause 12.3, all authority and power of the MTN Cash
Manager under this Deed shall pass to and be vested in a successor
MTN Cash Manager and, without limitation, the Issuer is hereby
appointed, authorised and empowered (upon the failure of the MTN
Cash Manager to co-operate in a timely manner) in order to secure
the performance of the MTN Cash Manager in so doing to execute and
deliver, on behalf of the MTN Cash Manager, as its attorney, all
documents, records and other instruments upon the failure of the
MTN Cash Manager to execute or deliver such documents, records or
instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer
of cash management rights and obligations;
12.2.2 The MTN Cash Manager agrees to use all reasonable efforts and
co-operate with the Issuer, the Trustee and such successor MTN
Cash Manager in effecting the termination of the responsibilities
and rights of the MTN Cash Manager to conduct servicing hereunder
including, without limitation, the transfer to such successor MTN
Cash Manager of all authority of the MTN Cash Manager to perform
cash administration in respect of each Series provided for under
this Deed.
12.2.3 The MTN Cash Manager shall promptly transfer its electronic
records or electronic copies thereof relating to cash
administration in respect of each Series to the successor MTN Cash
Manager in such electronic form as the successor MTN Cash Manager
may reasonably request and shall promptly transfer to the
successor MTN Cash Manager all other records, correspondence and
documents necessary for the continued cash administration in
respect of each Series in the manner and at such times as the
successor MTN Cash Manager shall reasonably request.
12.2.4 To the extent that compliance with this Clause 12.2 shall require
the MTN Cash Manager to disclose to the successor MTN Cash Manager
information of any kind which the MTN Cash Manager reasonably
deems to be confidential, the successor MTN Cash Manager shall be
required to enter into such customary licensing and
confidentiality agreements as the MTN Cash Manager shall deem
reasonably necessary to protect its interests.
12.2.5 The MTN Cash Manager shall, on the date of any servicing transfer,
transfer all of its rights and obligations under any Enhancement
in respect of any Series with respect to any Secured Creditors to
the successor MTN Cash Manager.
41
12.2.6 Upon the termination of the appointment of the MTN Cash Manager
pursuant to this Clause 12.2, any amounts in respect of each
Series and any other amounts belonging to the Issuer in the
possession of the MTN Cash Manager (or coming into the possession
of the MTN Cash Manager at any time thereafter) shall be held on
trust by the MTN Cash Manager for and to the order of the Issuer.
12.3 ISSUER TO ACT; APPOINTMENT OF SUCCESSOR
12.3.1 On and after the receipt by the MTN Cash Manager of an MTN Cash
Manager Termination Notice pursuant to Clause 12.1, the MTN Cash
Manager shall continue to perform all servicing functions under
this Deed until the date specified in the MTN Cash Manager
Termination Notice or otherwise specified by the Issuer in writing
or, if no such date is specified in such MTN Cash Manager
Termination Notice or otherwise specified by the Issuer, until a
date mutually agreed upon by the MTN Cash Manager and Issuer. The
Issuer shall notify each Rating Agency then rating any Associated
Debt of such removal of the MTN Cash Manager. The Issuer shall, as
promptly as possible after the giving of an MTN Cash Manager
Termination Notice, appoint a successor MTN Cash Manager which
shall be an Eligible MTN Cash Manager and shall accept its
appointment by a written assumption in a form acceptable to the
Issuer and the Trustee.
12.3.2 Upon its appointment, the successor MTN Cash Manager shall be the
successor in all respects to the MTN Cash Manager with respect to
servicing functions under this Deed and shall be subject to all
the responsibilities, duties and liabilities relating thereto
placed on the MTN Cash Manager by the terms and provisions hereof,
and all references in this Deed to the MTN Cash Manager shall be
deemed to refer to the successor MTN Cash Manager. Any successor
MTN Cash Manager, by its acceptance of its appointment, will
automatically agree to be bound by the terms and provisions of
each agreement relating to Enhancement for any Series.
12.3.3 In connection with such appointment and assumption, the Issuer
shall be entitled to such compensation, or may make such
arrangements for the compensation of the successor MTN Cash
Manager out of Collections in respect of the Securitised
Portfolio, as it and such successor MTN Cash Manager shall agree
PROVIDED, HOWEVER, that no such compensation shall be in excess of
the MTN Cash Manager Fee permitted to the MTN Cash Manager
pursuant to Clause 10.6.
12.4 NOTIFICATION OF MTN CASH MANAGER DEFAULT
Immediately upon becoming aware of any MTN Cash Manager Default, the MTN
Cash Manager shall give prompt written notice thereof to the Issuer, the
Trustee, each Secured Creditor in respect of any Series, each Rating
Agency then rating any Associated Debt and any Enhancement Provider in
respect of any Series. Upon any termination of the appointment of the MTN
Cash Manager or appointment of a successor MTN Cash Manager pursuant to
Clauses 10.1 to 10.4 the Issuer shall give prompt written notice thereof
to the Trustee and the Principal Paying Agent.
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12.5 WAIVER OF PAST DEFAULTS
The Noteholders representing in aggregate not less than two-thirds of the
Principal Amount Outstanding of a Class of Notes of a Series adversely
affected by any default by the MTN Cash Manager may waive in writing
(with a copy to the Trustee) any default by the MTN Cash Manager in the
performance of its obligations hereunder or in any Series Document and
its consequences, except a default in the failure to make any required
deposits or payments of interest or principal relating to such Series
pursuant to Clause 12.1. Upon any such waiver of a past default, such
default shall be deemed not to have occurred. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived. Any such waiver will bind the
Trustee
13. ACKNOWLEDGEMENT REGARDING PAYMENTS
Each of the Issuer, the Trustee, the Receivables Trustee and the
Transferor acknowledge and confirm that the Receivables Trustee shall
apply any amounts due from the Issuer to the Receivables Trustee in
respect of a Series in or towards satisfaction of any amounts then due to
the Issuer from it in respect of any Trust Property of that Series.
14. WAIVER, AUTHORISATION AND DETERMINATION
The Trustee may without prejudice to its rights in respect of any
subsequent breach, condition event, or act at any time, but only if an
insofar as in its opinion the interests of the Secured Creditors (in
relation to which it is Trustee) will not be materially prejudiced
thereby, waive or authorise any breach or proposed breach by the Issuer
of any of the covenants or provisions contained in this Deed in relation
to such Series or determine that any Event of Default or Potential Event
of Default in relation to such Series shall not be treated as an Event of
Default or, as the case may be, Potential Event of Default in relation to
such Series for the purposes of this Deed in relation to such Series,
provided that the Trustee shall not exercise any powers conferred on it
by this Clause in contravention of any express request given by the
Priority Secured Creditor but so that no such request shall affect any
waiver, authorisation or determination previously given or made. Any such
waiver, authorisation or determination may be given or made on such terms
and subject to such conditions as may seem fit and proper to the Trustee,
shall be binding on the Secured Creditors of such Series and, if (but
only if) the Trustee so requires, shall be notified by the Issuer to the
relevant Secured Creditors of such Series in accordance with the terms of
the relevant Notes as soon as practicable thereafter. The provisions of
this Clause 14 shall be in lieu of section 316(a)(1)(B) of the TIA and
section 316(a)(1)(B) of the TIA is hereby expressly excluded from this
Deed and the Notes, as permitted by the TIA.
15. MODIFICATION
15.1 The Trustee may, without the consent of the Secured Creditors of any
Series,
15.1.1 at any time and from time to time concur with the Issuer in making
any modification to this Deed (other than the definition of
"EXTRAORDINARY RESOLUTION" in paragraph 21 and the terms of
paragraph 5 of Schedule 5) or any of the other Series Documents
which in the opinion of the Trustee it is proper to make, provided
that the Trustee is of the opinion that such modification will not
43
be materially prejudicial to the interests of the Secured
Creditors of any Series (in relation to which it is Trustee); or
15.1.2 to this Deed or any of the other Series Documents if in the
opinion of the Trustee such modification is of a formal, minor or
technical nature or to correct a manifest error.
Any such modification may be made on such terms and subject to such
conditions as may seem fit and proper to the Trustee, shall be binding
upon the Noteholders of such Series and any other Secured Creditor
relating to such Series and, unless the Trustee agrees otherwise, shall
be notified by the Issuer to the relevant Noteholders in accordance with
the terms of the relevant Notes as soon as practicable thereafter.
15.2 In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by
the Issuer or by any affiliate of the Issuer shall be disregarded,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only
Notes which the Trustee knows are so owned shall be disregarded.
16. NOTEHOLDER ASSUMED TO BE COUPONHOLDER
Wherever in this Deed any Trustee is required or entitled to exercise a
power, trust, authority or discretion under this Deed in relation to any
Series, except as ordered by a court of competent jurisdiction or as
required by applicable law, the Trustee shall, notwithstanding that it
may have express notice to the contrary, assume that each Noteholder in
respect of such Series is the holder of all Coupons and Talons relating
to such Note.
17. NO NOTICE TO COUPONHOLDERS
Neither the Trustee nor the Issuer shall be required to give any notice
to the Couponholders or Talonholders of any Series for any purpose under
this Deed and the relevant Couponholders and Talonholders shall be deemed
for all purposes to have notice of the contents of any notice given to
Noteholders in accordance with the Conditions.
18. HOLDER DEEMED TO BE ABSOLUTE OWNER
18.1 The Issuer, the Trustee and any Paying Agent may (to the fullest extent
permitted by applicable laws) deem and treat:
18.1.1 the holder of any Definitive Note and the holder of any Coupon or
Talon as the absolute owner of such Note, Coupon or Talon, as the
case may be, for all purposes (whether or not such Note, Coupon or
Talon is overdue and notwithstanding any notice of ownership or
writing thereon or any notice of previous loss or theft thereof),
and none of the Issuer, the Trustee or any Paying Agent shall be
affected by any notice to the contrary; and
18.1.2 so long as any Note is represented in global form, the person for
the time being shown in the records of Euroclear or Cedelbank as
the holder of such Note and none of the Issuer, the Trustee or any
Paying Agent shall be affected by any notice to the contrary.
44
18.2 All payments made to any such person shall be valid and, to the extent of
the sums so paid, effective to satisfy and discharge the liability for
the monies payable upon such Note or Coupon.
19. EUROCLEAR/CEDELBANK CONFIRMATIONS
The Issuer and the Trustee may call for and shall be at liberty to accept
and place full reliance on as sufficient evidence thereof a certificate
or letter of confirmation signed on behalf of Euroclear or Cedelbank (or
any other clearing system approved in writing by the Trustee in which
Notes may for the time being be held) or any form of record made by
either or any of them to the effect that at any particular time or
throughout any particular period any particular person is, was or will be
shown in its records as entitled to a particular interest in any global
note representing Notes.
20. SUBSTITUTION
20.1 SUBSTITUTION
The Trustee may, without the consent of the Noteholders, agree with the
Issuer to the substitution in place of the Issuer or any previous
Substituted Issuer (as defined below) as the principal debtor in respect
of the Notes of any other body corporate (the "SUBSTITUTED ISSUER")
provided that:
20.1.1 a trust deed or an indenture is executed or some other form of
undertaking is given by the Substituted Issuer to the Trustee in
form and manner satisfactory to the Trustee to be bound by the
terms of this Deed and by the Conditions (with any consequential
amendments which the Trustee may reasonably consider or deem to be
appropriate) as fully as if the Substituted Issuer had been a
party to this Deed and named herein and in the Notes as the
principal debtor in respect of the Notes in place of the Issuer;
20.1.2 the Substituted Issuer becomes a party to the relevant Series
Documents or to equivalent documents acceptable to the Trustee;
20.1.3 if a director of the Substituted Issuer certifies that the
Substituted Issuer will be solvent immediately after the time at
which the said substitution is to be effected, the Trustee shall
not have regard to the financial condition, profits or prospects
of the Substituted Issuer or compare the same with those of the
Issuer (or any other Substituted Issuer substituted under this
Clause);
20.1.4 the Trustee is satisfied that the relevant transaction is not
materially prejudicial to the interest of the Noteholders;
20.1.5 confirmation is received from the rating agencies appointed in
relation to any Related Beneficiary Debt issued in respect of such
Series that the ratings assigned to such Related Beneficiary Debt
will not be withdrawn or reduced as a result of the substitution;
20.1.6 the Trustee shall be satisfied (by means of legal opinions in form
and substance satisfactory to it or otherwise) that (i) all
necessary governmental and regulatory approvals and consents
necessary for, or in connection with, the assumption by the
Substituted Issuer of liability as principal debtor in respect of,
and of its
45
obligations under, this Deed and (ii) such approvals and consents
are at the time of substitution in full force and effect; and
20.1.7 the Issuer or, as the case may be, the previous Substituted Issuer
and the Substituted Issuer shall execute such other deeds,
documents and instruments (if any) and make such representations
and warranties and provide such other documentation (particularly,
but not limited to, with regard to any applicable bankruptcy law)
as the Trustee may require in order to be satisfied that such
substitution is fully effective and comply with such other
requirements in the interests of the Noteholders as the Trustee
may direct.
20.2 CHANGE OF LAW
In connection with any proposed substitution of the Issuer or, as the
case may be, any previous Substituted Issuer, the Trustee, may, without
the consent of the Noteholders, agree to a change of the law from time to
time governing the Notes and/or this Deed and/or the Paying Agency and
Agent Bank Agreement provided that such change of law, in the opinion of
the Trustee, would not be materially prejudicial to the interests of the
Noteholders.
21. CURRENCY INDEMNITY
In relation to each Series, the Issuer shall indemnify the Trustee and
the Secured Creditors in respect of such Series and keep them indemnified
against;
21.1.1 any Liability incurred by any of them arising from the non-payment
by the Issuer of any amount due to the Trustee, the Secured
Creditors of such Series or any other beneficiary of the trusts
under this Deed in respect of such Series by reason of any
variation in the rates of exchange between those used for the
purposes of calculating the amount due under a judgment or order
in respect thereof and those prevailing at the date of actual
payment by the Issuer;
21.1.2 any deficiency arising or resulting from any variation in rates of
exchange between (a) the date as of which the local currency
equivalent of the amounts due or contingently due under this Deed
(other than this Clause) is calculated for the purposes of any
bankruptcy, insolvency or liquidation of the Issuer and (b) the
final date for ascertaining the amount of the claims in such
bankruptcy, insolvency or liquidation; the amount of such
deficiency shall be deemed not to be reduced by any variation in
rates of exchange occurring between the said final date and the
date of any distribution of assets in connection with any such
bankruptcy, insolvency or liquidation; and
21.1.3 the above indemnity shall constitute an obligation of the issuer
separate and independent from its obligations under the other
provisions of this Deed and shall apply irrespective of any
indulgence granted by the Trustee, the Secured Creditors in
respect of such Series from time to time and shall continue in
full force and effect notwithstanding the judgment or filing of
any proof or proofs in any bankruptcy, insolvency or liquidation
of the issuer for a liquidated sum or sums in respect of amounts
due under this Deed (other than this Clause). Any such deficiency
as aforesaid shall be deemed to constitute a loss suffered by the
46
Secured Creditors in respect of such Series and no proof or
evidence of any actual loss shall be required by the Issuer or its
liquidator or liquidators.
22. PROTECTION OF RIGHT, TITLE AND INTEREST TO SECURED PROPERTY
22.1 DOCUMENTS OF TITLE
The MTN Cash Manager shall cause this Deed, all amendments hereto and/or
the RSA and any other necessary documents relating to the right, title
and interest to the Secured Property for any Series to be promptly
recorded, registered and filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and
interest of the Secured Creditors for any Series or the Issuer, as the
case may be, hereunder to all property comprising the Secured Property
for any Series. The MTN Cash Manager shall deliver to the Issuer office
copies of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such recording,
registration or filing. Barclaycard shall co-operate fully with the MTN
Cash Manager in connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfil the intent of
this Clause 22.11.
22.2 NOTICE OF CHANGE OF ADDRESS
The MTN Cash Manager will give the Issuer prompt written notice of any
relocation of any office from which it services Secured Property in
respect of any Portfolio assigned or purported to be assigned to the
Issuer or keeps records concerning such Secured Property or of its
principal executive office.
23. NOTICES
23.1.1 Unless otherwise stated herein, each communication or notice to be
made hereunder shall be made in writing and may be made by telex,
telefax or letter.
23.1.2 Any communication, notice or document to be made or delivered by
any one person to another pursuant to this Deed shall (unless that
other person has by fifteen days' written notice to the other
parties hereto specified another address) be made or delivered to
that other person at the address identified below and shall be
deemed to have been made or delivered when despatched and
confirmation of transmission received by the sending machine (in
the case of any communication made by telefax) or (in the case of
any communication made by telex) when dispatched and the
appropriate answerback or identification symbol received by the
sender or (in the case of any communications made by letter) when
left at that address or (as the case may be) ten days after being
deposited in the post postage prepaid in an envelope addressed to
it at that address PROVIDED, HOWEVER, that each telefax or telex
communication made by one party to another shall be made to that
other person at the telefax or telex number notified to such party
by that other person from time to time;
(a) in the case of the Initial Transferor, to Barclaycard, 1234
Pavilion Drive, Northampton NN4 7SG, Attention: Timothy
Gaffney, facsimile number: 01604 256 822;
47
(b) in the case of the Issuer, to 200 Aldersgate Street, London
EC1A 4JJ, Attention: Company Secretary, facsimile number:
0207 600 5555;
(c) in the case of the MTN Cash Manager, to 54 Lombard Street,
London EC3P 3AH Attention: Relationship Manager City
Markets Team, facsimile number: 0207 699 3131;
(d) in the case of the Receivables Trustee, Normandy House,
Grenville Street, St. Helier, Jersey JE2 4UF, facsimile
number: 01534 814 815;
(e) in the case of the Trustee, to Operations Department, One
Canada Square, London E14 5AL, facsimile number: 0207 893
6259;
(f) in the case of the Principal Paying Agent, to Operations
Department, One Canada Square, London E14 5AL, facsimile
number: 0207 893 6259;
(g) in the case of any Secured Creditor (other than an
Noteholder) for a Series, the address, if any, specified in
the MTN Supplement relating to such Series; and
(h) in the case of the Rating Agency for Associated Debt in
respect of a particular Series, the address, if any,
specified in the MTN Supplement relating to such Series.
23.2 SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of
this Deed shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Deed and
shall in no way affect the validity or enforceability of the other
provisions of this Deed or of the rights of the Secured Creditors of any
Series.
23.3 COMMUNICATIONS BY NOTEHOLDERS WITH OTHER NOTEHOLDERS
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Deed or the Notes.
The Issuer, the Trustee, and anyone else shall have the protection of TIA
Section 312(c).
23.4 NOTICES TO NOTEHOLDERS
Any notice or communication mailed to Noteholders hereunder shall be
transmitted by mail to such other Noteholders as have, within the two
years preceding such transmission, filed their names and addresses with
the Trustee for that purpose.
24. ASSIGNMENT
Notwithstanding anything to the contrary contained herein, except as
provided in Clause 11.2, the benefit of the Security Trust Deed and Cash
Management Agreement may not be assigned by the MTN Cash Manager without
the prior consent of Noteholders representing in aggregate not less than
66(2)/3 per cent. of the Principal Amount Outstanding of each Class of
Notes in each Series or, where applicable, the Priority Secured Creditor
of such Series,.
48
25. FURTHER ASSURANCES AND UNDERTAKING OF NON-PETITION
25.1 FURTHER ASSURANCES
The Initial Transferor, the Trustee and the MTN Cash Manager agree to do
and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the Issuer
more fully to effect the purposes of this Deed and each MTN Supplement.
25.2 UNDERTAKING OF NON-PETITION
Barclays Bank PLC as Initial Transferor and initial MTN Cash Manager,
hereby undertakes (and any successor MTN Cash Manager shall, by its
appointment under this Deed, also undertake) to the Issuer and the
Trustee for itself and as trustee for each Secured Creditor that it will
not take any corporate action or other steps or legal proceedings for the
winding up, dissolution or re-organisation of, or for the appointment of
a receiver, administrator, administrative receiver, trustee, liquidator,
sequestrator or similar officer of any Secured Creditor (unless a Secured
Creditor of a Series specifies otherwise in the MTN Supplement in respect
of that Series), the Issuer or any or all of the revenues and assets of
any of them nor participate in any ex parte proceedings nor seek to
enforce any judgement against any such Persons.
26. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, in respect of any
Series, on the part of the Issuer, the Trustee, any Enhancement Provider
or any Secured Creditor, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
27. RELEASE OF COLLATERAL
Except to the extent expressly provided in this Clause 27, the Trustee
shall release property from the lien of the Deed of Charge only upon
receipt of an Issuer Request accompanied by an Officers' Certificate, an
Opinion of Counsel and Independent Certificates in accordance with TIA
ss.ss.314(c) and 314(d)(1) or an Opinion of Counsel in lieu of such
Independent Certificates to the effect that the TIA does not require any
such Independent Certificates.
Prior to the release of any property or securities subject to the lien of
the Deed of Charge, the Issuer shall, in addition to any obligation
imposed in this Clause 27 or elsewhere in this Trust Deed, furnish to the
Trustee an Officers' Certificate certifying or stating the opinion of
each person signing such certificate as to the fair value to the Issuer
of the property or securities to be so released. The officers so
certifying may consult with, and may conclusively rely upon a certificate
as to the fair value of such property provided to such officers by an
internationally recognized financial institution with expertise in such
matters.
Whenever the Issuer is required to furnish to the Trustee an Officers'
Certificate certifying or stating the opinion of any signer thereof as to
the matters described in the
49
preceding paragraph, the Issuer shall also deliver to the Trustee an
Independent Certificate as to the same matters, if the fair value to the
Issuer of the property to be so released and of all other such property
made the basis of any such release since the commencement of the then
current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to this Clause 27, is 10% or more of the Outstanding
Amount of the Notes, but such a certificate need not be furnished with
respect to any property so released if the fair value thereof to the
Issuer as set forth in the related Officers' Certificate is less than
$25,000 or less than one percent of the Outstanding Amount of the Notes.
Whenever any property is to be released from the lien of the Deed of
Charge, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each Person
signing such certificate that in the opinion of such person the proposed
release will not impair the security under this Indenture in
contravention of the provisions hereof.
Notwithstanding anything to the contrary contained herein, the Issuer may
(A) collect, liquidate, sell or otherwise dispose of Receivables as and
to the extent permitted or required by the Transaction Documents, (B)
make cash payments out of the Designated Accounts as and to the extent
permitted or required by the Transaction Documents and (C) take any other
action not inconsistent with the TIA.
28. COUNTERPARTS
This Deed may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same instrument.
29. THIRD PARTY BENEFICIARIES
29.1.1 This Deed will inure to the benefit of and be binding upon the
parties hereto, in respect of any Series, the Secured Creditors,
any additional Secured Creditors named therein, and their
respective successors and permitted assigns as Secured Creditors
and beneficiaries of the Secured Property in respect of a relevant
Series;
29.1.2 To the extent specified in any related MTN Supplement, third
parties, including any Enhancement Provider, if any, that is not a
Secured Creditor of the Secured Property of a Series, may by
execution of such MTN Supplement, as a matter of contract only, be
entitled to the benefit of the provisions of this Deed as if such
third parties were Secured Creditors hereunder and the rights of
such third parties so provided shall enure to the benefit of such
third parties and be binding upon the parties hereto and the
Secured Creditors of the Secured Property in respect of such
Series; and
29.1.3 Except as otherwise provided in this Clause 29 and Clause 11.1
hereof, no other Person will have any right or obligation
hereunder.
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30. ACTIONS BY NOTEHOLDERS
30.1.1 Wherever in this Deed a provision is made that an action may be
taken or a notice, demand or instruction given by an Noteholder of
a Series, such action, notice or instruction may be taken or given
by any Noteholder of such Series, unless such provision requires a
specific aggregate percentage of the Principal Amount Outstanding
of a Class in any Series.
30.1.2 Any request, demand, authorisation, direction, notice, consent,
waiver or other act by an Noteholder of a Series shall bind each
and every successor of such Noteholder.
31. MERGER AND INTEGRATION
Except as specifically stated otherwise herein, this Deed sets forth the
entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by
this Deed. This Deed may not be modified, amended, waived or supplemented
except as provided herein.
32. TIA PREVAILS
If any provision of this Deed limits, qualifies or conflicts with another
provision which is required to be included in this Deed by the TIA, the
required provision shall prevail.
33. GOVERNING LAW AND JURISDICTION
33.1 GOVERNING LAW
This Deed (and the Security Trust constituted hereby) shall be governed
by, and construed in accordance with the laws of England.
33.2 JURISDICTION
33.2.1 Each of the parties hereto irrevocably agrees for the benefit of
each other party that the courts of England shall have exclusive
jurisdiction to hear and determine any suit, action or proceeding,
and to settle any disputes, which may arise out of or in
connection with this Deed, and for such purposes, irrevocably
submit to the exclusive jurisdiction of such courts.
33.2.2 Each of the parties hereto irrevocably waives any objection which
it might now or hereafter have to the courts of England being
nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or
in connection with this Deed and agrees not to claim that any such
court is not a convenient or appropriate forum.
33.2.3 Each party hereto (if it is not incorporated in England)
irrevocably appoints the person specified against its name on the
execution pages hereto (or, in the case of a successor Receivables
Trustee the document appointing such successor Receivables
Trustee) to accept service of any process on its behalf and
further undertakes to the other parties hereto that it will at all
times during the continuance of this Deed maintain the appointment
of some person in England as its agent for the service of process
and irrevocably agrees that service of any writ, notice or other
document for the purposes of any suit, action or proceeding
51
in the courts of England shall be duly served upon it if delivered
or sent by registered post to the address of such appointee (or to
such other address in England as that party may notify to the
other parties hereto).
IN WITNESS WHEREOF, the Trustee, the MTN Cash Manager and the Initial
Transferor, the Receivables Trustee and the Issuer have caused this agreement to
be duly executed and delivered by their duly authorised representatives as a
deed on the day and year first above written.
52
SCHEDULE 1
FORM OF TEMPORARY GLOBAL NOTES
53
TEMPORARY GLOBAL NOTE
Series Number:[ ] Serial Number: [ ]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
TEMPORARY GLOBAL NOTE
REPRESENTING UP TO
(POUND)[O]
FLOATING RATE ASSET BACKED CLASS [O] NOTE DUE [O]
This global note is a Temporary Global Note without interest coupons issued in
respect of an issue of an aggregate principal amount of (pound)[o] of Floating
Rate Asset Backed Class [o] Note due [o] (the "NOTES") by Barclaycard Funding
PLC (the "ISSUER").
The Issuer for value received promises, all in accordance with the terms and
conditions set out in the applicable Series 99-1 Supplement ("TERMS AND
CONDITIONS") and the Principal Trust Deed (as defined below) to pay to the
bearer upon presentation or, as the case may be, surrender hereof in respect of
each Note for the time being from time to time represented hereby, on the
maturity date specified in the Terms and Conditions or on such earlier date as
any such Note may become due and payable in accordance with the Terms and
Conditions, the Principal Amount on such dates as may be specified in the Terms
and Conditions or, if any such Note shall become due and payable on any other
date, the Principal Amount and, in respect of each such Note, to pay interest
and all other amounts as may be payable pursuant to the Terms and Conditions all
subject to and in accordance therewith.
Except as specified herein, the bearer of this Temporary Global Note is entitled
to the benefit of the Terms and Conditions and of the same obligations on the
part of the Issuer as if such bearer were the bearer of the Notes represented
hereby and to the benefit of those provisions of the Terms and Conditions (and
the obligations on the part of the Issuer contained therein) applicable
specifically to Temporary Global Notes, and all payments under and to the bearer
of this Temporary Global Note shall be valid and effective to satisfy and
discharge the corresponding Liabilities of the Issuer in respect of the Notes.
This Temporary Global Note is issued pursuant to a security trust deed and MTN
cash management deed dated 23 November 1999 (the "PRINCIPAL TRUST DEED")
together with the supplemental trust deed in respect of Series [o] (the "SERIES
[O] SUPPLEMENT" and, together with the Principal Trust Deed, the "TRUST DEED")
and made between the Issuer and The Bank of New
54
York, London Branch as trustee (the "TRUSTEE" which expression includes any
person or corporation from time to time appointed as trustee). Words and
expressions defined expressly or by reference in the Terms and Conditions and
the Trust Deed shall have the same meanings in this Temporary Global Note.
On or after the expiry of 40 days after the date of issue of this Temporary
Global Note (the "Exchange Date"), this Temporary Global Note shall be
exchangeable in whole or in part for a Permanent Global Note or, in the
circumstances set out in the Series 99-1 Supplement for Definitive Notes. An
exchange for a Permanent Global Note or, as the case may be, Definitive Notes
will be made only on or after the Exchange Date (specified in the Series 99-1
Supplement) and upon presentation or, as the case may be, surrender of this
Temporary Global Note to the Principal Paying Agent at its specified office and
upon and to the extent of delivery to the Principal Paying Agent of a
certificate or certificates issued by Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System ("EUROCLEAR") or Cedelbank
or by any other relevant clearing system and dated not earlier than the Exchange
Date in substantially the form set out in Annex I hereto or, as the case may be,
in the form that is customarily issued in such circumstances by such other
clearing system. Any Definitive Notes will be made available for collection by
the persons entitled thereto at the specified office of the Principal Paying
Agent.
The Issuer undertakes to procure that the relevant Permanent Global Note and
Definitive Notes will be duly issued in accordance with the Terms and
Conditions, the provisions hereof and of the Trust Deed.
The bearer of this Temporary Global Note shall not (unless, upon due
presentation of this Temporary Global Note for exchange (in whole or in part)
for a Permanent Global Note or for delivery of Definitive Notes, such exchange
or delivery is improperly withheld or refused and such withholding or refusal is
continuing at the relevant payment date) be entitled to receive any payment in
respect of the Notes represented by this Temporary Global Note which falls due
on or after the Exchange Date or be entitled to exercise any option on a date
after the Exchange Date.
Payments of interest otherwise falling due before the Exchange Date will be made
only upon presentation of this Temporary Global Note at the specified office of
any of the Paying Agents outside the United States and upon and to the extent of
delivery to the relevant Paying Agent of a certificate or certificates issued by
Euroclear or Cedelbank or by any other relevant clearing system and dated not
earlier than the relevant interest payment date in substantially the form set
out in Annex II hereto or, as the case may be, in the form that is customarily
issued in such circumstances by such other clearing system.
On any occasion on which a payment of principal is made in respect of this
Temporary Global Note or on which this Temporary Global Note is exchanged in
whole or in part as aforesaid or on which Notes represented by this Temporary
Global Note are to be cancelled, the Issuer shall procure that (i) the aggregate
principal amount of the Notes in respect of which such payment is made (or, in
the case of a partial payment, the corresponding part thereof) or which are
delivered in definitive form or which are to be exchanged for a permanent global
instrument or which are to be cancelled and (ii) the remaining principal amount
of this Temporary Global Note (which shall be the previous principal amount
hereof less the amount referred to at (i)
55
above) are noted on the Schedule hereto, whereupon the principal amount of this
Temporary Global Note shall for all purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Notes
represented by this Temporary Global Note, the Issuer shall procure that the
appropriate notations are made on the Schedule hereto.
The obligations of the Issuer in respect of this Temporary Global Note are
limited recourse in nature, as more particularly set out in the Terms and
Conditions and the Trust Deed. In addition the bearer of this Temporary Global
Note and, inter alios, the Trustee are restricted in the proceedings which they
may take against the Issuer to enforce their rights hereunder and under the
Trust Deed, as more particularly set out in the Terms and Conditions and the
Trust Deed.
This Temporary Global Note is governed by, and shall be construed in accordance
with, English law.
The Issuer irrevocably agrees for the benefit of the bearer that the courts of
England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in connection
with these presents (respectively, "PROCEEDINGS" and "DISPUTES") and, for such
purposes, irrevocably submits to the jurisdiction of such courts. The Issuer
irrevocably waives any objection which it might now or hereafter have to the
courts of England being nominated as the forum to hear and determine any
Proceedings and to settle any Disputes and agrees not to claim that any such
court is not a convenient or appropriate forum.
This Temporary Global Note shall not be valid for any purpose until
authenticated for and on behalf of The Bank of New York, London Branch as Issue
Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the Issuer.
56
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTES, EXCHANGE FOR PERMANENT GLOBAL NOTE,
EXERCISE OF OPTIONS AND CANCELLATION OF NOTES
==============================================================================================================================
Date of Amount of Amount of Aggregate Aggregate Aggregate Aggregate Remaining Authorised
payment, interest then principal principal principal principal principal principal signature by
delivery, paid then paid amount of amount of amount of amount in amount of or on behalf
exchange, Definitive Note this Notes then respect of this of the
exercise of Certificates Temporary cancelled which option Temporary Principal
option (and then delivered Global Note is exercised Global Note Paying Agent
date upon then
which exchanged for
exercise is the Permanent
effective) or Global Note
cancellation
- ------------------------------------------------------------------------------------------------------------------------------
==============================================================================================================================
57
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
ISSUED in London on [o] 1999
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK
as Issue Agent without recourse,
warranty or liability
By:[manual signature]
(duly authorised)
58
ANNEX I
[Form of certificate to be given in relation to exchanges of
this Temporary Global Note for the Permanent Global Note or
Definitive Notes:]
BARCLAYCARD FUNDING PLC
(POUND)[O] FLOATING RATE ASSET BACKED CLASS [O] NOTES
(the "NOTES")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (OUR "MEMBER ORGANISATIONS") substantially to the effect
set forth in the Agency Agreement as of the date hereof, [ ] principal amount of
the above-captioned Notes (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("UNITED STATES PERSONS"), (ii) is
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) ("FINANCIAL INSTITUTIONS")) purchasing for their own account
or for resale, or (b) acquired the Notes through and are holding through on the
date hereof (as such terms "acquired through" and "holding through" are
described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign
branches of United States financial institutions (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Notes for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as at the date hereof.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if
59
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorise
you to produce this certification to any interested party in such proceedings.
Date:[ ](1)
[Morgan Guaranty Trust Company of New York, Brussels office, as Operator of the
Euroclear System/Cedelbank]
By:[authorised signature]
(1)To be dated not earlier than the Exchange Date.
60
ANNEX II
[Form of certificate to be given in relation to payments of
interest falling due before the Exchange Date:]
BARCLAYCARD FUNDING PLC
(POUND)[O] FLOATING RATE ASSET BACKED CLASS [O] NOTES
(the "NOTES")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "MEMBER ORGANISATIONS") substantially to the effect
set forth in the Issue and Paying Agency Agreement as of the date hereof, [ ]
principal amount of the above-captioned Notes (i) is owned by persons that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("UNITED STATES
PERSONS"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) ("FINANCIAL INSTITUTIONS")) purchasing for their own
account or for resale, or (b) acquired the Notes through and are holding through
on the date hereof (as such terms "acquired through" and "holding through" are
described in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign
branches of United States financial institutions (and in either case (a) or (b),
each such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Notes for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of the Notes set forth above that,
except as set out below, we have received in writing, by tested telex or by
electronic transmission, from our Member Organisations entitled to a portion of
such principal amount, certifications with respect of such portion,
substantially to the effect set forth in the temporary Global Note representing
the Notes.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global security excepted in such certifications and
(ii) that as of the date hereof we have not received any
61
notification from any of our Member Organisations to the effect that the
statements made by such Member Organisations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights or
collection of any interest) are no longer true and cannot be relied upon as at
the date hereof.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date:[ ](2)
[Morgan Guaranty Trust Company of New York, Brussels office, as Operator of the
Euroclear System/Cedelbank]
By:[authorised signature]
(2)To be dated not earlier than the relevant interest payment date.
62
ANNEX III
[Form of accountholder's certification referred to in
the preceding certificate:]
BARCLAYCARD FUNDING PLC
(POUND)[O] FLOATING RATE ASSET BACKED CLASS [O] NOTES
(the "NOTES")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Notes held by you for our account (i) are owned by persons
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
the United States Federal income taxation regardless of its source ("UNITED
STATES PERSONS"), (ii) are owned by United States person(s) that (a) are foreign
branches of a United States financial institution (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("FINANCIAL INSTITUTIONS") purchasing for
their own account or for resale, or (b) acquired the Notes through and are
holding through on the date hereof (as such terms "acquired through" and
"holding through" are described in U.S. Treasury Regulations Section 1.163-5(c)
(2)(i) (D)(6)) foreign branches of United States financial institutions (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise the Issuer
or the Issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition if the owner of the Notes is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)) this is further to certify that such financial institution
has not acquired the Notes for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
If the Notes are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933 (the "ACT") then this is also to
certify that, as except as set forth below, the Notes are beneficially owned by
(a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Notes in
transactions which did not require registration under the Act. As used in this
paragraph, the term "U.S. person" has the meaning given to it by Regulation S
under the Act.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Notes held by you
for our account in accordance with your operating procedures if any applicable
statement herein is not correct on such date, and in the absence of any such
notification it may be assumed that this certification applies as of such date.
This certification excepts and does not relate to [ ] of such interest in the
above Notes in respect of which we are not able to certify and as to which we
understand exchange and delivery
63
of definitive Notes (or, if relevant, exercise of any rights or collection of
any interest) cannot be made until we do so certify.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date:[ ](3)
[ACCOUNTHOLDER] AS (OR AS AGENT FOR) THE BENEFICIAL OWNER OF THE NOTES.
By:[authorised signature]
(3)To be dated not earlier than fifteen days before the Exchange Date or, as
the case may be the relevant interest payment date.
64
SCHEDULE 2
FORM OF PERMANENT GLOBAL NOTES
65
PERMANENT GLOBAL NOTE
Series Number:[ ] Serial Number: [ ]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
PERMANENT GLOBAL NOTE
representing up to
(pound)[o]
FLOATING RATE ASSET BACKED CLASS [O] NOTE DUE NOVEMBER 2002
This global instrument is a Permanent Global Note with interest coupons issued
in respect of an issue of an aggregate principal amount of (pound)[o] of
Floating Rate Asset Backed Class [o] Notes due November [o] (the "NOTES") by
BARCLAYCARD FUNDING PLC (the "Issuer").
The Issuer for value received promises, all in accordance with the terms and
conditions set out in the Series 99-1 Supplement ("TERMS AND CONDITIONS") and
the Trust Deed (as defined below) to pay to the bearer upon presentation or, as
the case may be, surrender hereof in respect of each Note for the time being
from time to time represented hereby, on the maturity date specified in the
Terms and Conditions or on such earlier date as any such Note may become due and
payable in accordance with the Terms and Conditions, the Principal Amount on
such dates as may be specified in the Terms and Conditions or, if any such Note
shall become due and payable on any other date, the Principal Amount and, in
respect of each such Note, to pay interest and all other amounts as may be
payable pursuant to the Terms and Conditions, all subject to and in accordance
therewith.
Except as specified herein, the bearer of this Permanent Global Note is entitled
to the benefit of the Terms and Conditions and of the same obligations on the
part of the Issuer as if such bearer were the bearer of the Notes represented
hereby and to the benefit of those Terms and Conditions (and the obligations on
the part of the Issuer contained therein) applicable specifically to Permanent
Global Notes, and all payments under and to the bearer of this Permanent Global
Note shall be valid and effective to satisfy and discharge the corresponding
Liabilities of the Issuer in respect of the Notes.
This Permanent Global Note is issued pursuant to a security trust deed dated 23
November 1999 (the "PRINCIPAL TRUST DEED") and the supplement thereto in respect
of Series [o] (the "Series [o] Supplement" and together with the Security Trust
Deed, the "TRUST DEED") and made between the Issuer and The Bank of New York,
London Branch as trustee (the "TRUSTEE" which
66
expression includes any person or corporation appointed from time to time as
trustee). Words and expressions defined expressly or by reference in the Terms
and Conditions and the Trust Deed shall have the same meanings in this Permanent
Global Note.
This Permanent Global Note will be exchanged in whole but not in part for
Definitive Notes if (a) any Note of the relevant Series becomes immediately
redeemable following the occurrence of an Event of Default in relation thereto
(b) Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System or Cedelbank, or any other relevant clearing system is
closed for business for a continuous period of 14 days (other than by reason of
legal holidays) or announces an intention to cease business permanently or in
fact does so; or (c) if so specified in the Trust Deed, upon the request of a
Holder of a beneficial interest in this Permanent Global Note. In the case of
(a) and (b), the Issuer shall bear the entire cost and expense and, in the case
of (c) the Holder making such request shall bear the entire cost and expense. In
order to exercise the option contained in paragraph (c) of the preceding
sentence, the bearer hereof must, at the request of the Holder making such
request, not less than forty-five days before the date upon which the delivery
of such Definitive Notes is required, deposit this Permanent Global Note with
the Principal Paying Agent at its specified office with the form of exchange
notice endorsed hereon duly completed. Any Definitive Notes will be made
available for collection by the persons entitled thereto at the specified office
of the Principal Paying Agent.
The Issuer undertakes to procure that the relevant Definitive Notes will be duly
issued in accordance with the Terms and Conditions, the provisions hereof and of
the Trust Deed.
On any occasion on which a payment of interest is made in respect of this
Permanent Global Note, the Issuer shall procure that the same is noted on the
Schedule hereto.
On any occasion on which a payment of principal is made in respect of this
Permanent Global Note or on which this Permanent Global Note is exchanged as
aforesaid or on which any Notes represented by this Permanent Global Note are to
be cancelled the Issuer shall procure that (i) the aggregate principal amount of
the Notes in respect of which such payment is made (or, in the case of a partial
payment, the corresponding part thereof) or which are delivered in definitive
form or which are to be cancelled and (ii) the remaining principal amount of
this Permanent Global Note (which shall be the previous principal amount hereof
less the amount referred to at (i) above) are noted on the Schedule hereto,
whereupon the principal amount of this Permanent Global Note shall for all
purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Notes
represented by this Permanent Global Note, the Issuer shall procure that the
appropriate notations are made on the Schedule hereto.
Insofar as the Temporary Global Note by which the Notes were initially
represented has been exchanged in part only for this Permanent Global Note and
is then to be further exchanged as to the remaining principal amount or part
thereof for this Permanent Global Note, then upon presentation of this Permanent
Global Note to the Principal Paying Agent at its specified office and to the
extent that the aggregate principal amount of such Temporary Global Note is then
reduced by reason of such further exchange, the Issuer shall procure that (i)
the aggregate principal amount of the Notes in respect of which such further
exchange is then made and (ii) the new principal amount of this Permanent Global
Note (which shall be the previous principal
67
amount hereof plus the amount referred to at (i) above) are noted on the
Schedule hereto, whereupon the principal amount of this Permanent Global Note
shall for all purposes be as most recently noted.
The obligations of the Issuer in respect of this Permanent Global Note are
limited recourse in nature, as more particularly set out in the Terms and
Conditions and the Trust Deed. In addition, the bearer of this Permanent Global
Note and, inter alios, the Trustee are restricted in the proceedings which they
may take against the Issuer to enforce their rights hereunder and under the
Trust Deed, as more particularly described in the Terms and Conditions and the
Trust Deed.
This Permanent Global Note is governed by, and shall be construed in accordance
with, English law.
The Issuer irrevocably agrees for the benefit of the bearer that the courts of
England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in connection
with this Permanent Global Note (respectively, "PROCEEDINGS" and "DISPUTES")
and, for such purposes, irrevocably submits to the jurisdiction of such courts.
The Issuer irrevocably waives any objection which it might now or hereafter have
to the courts of England being nominated as the forum to hear and determine any
Proceedings and to settle any Disputes and agrees not to claim that any such
court is not a convenient or appropriate forum.
This Permanent Global Note shall not be valid for any purpose until
authenticated for and on behalf of Barclays Capital as Issue Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the Issuer.
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
68
ISSUED in London as of [o]
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK as Issue Agent
without recourse, warranty or liability
By:[manual signature]
(duly authorised)
69
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTE CERTIFICATES, FURTHER EXCHANGES OF
THE TEMPORARY GLOBAL NOTE, EXERCISE OF OPTIONS AND
CANCELLATION OF NOTES
================================================================================================================================
Date of payment, Amount of Amount of Aggregate Aggregate Aggregate Aggregate Current Authorised
delivery, further interest principal principal principal principal principal principal signature
exchange of then paid then paid amount of amount of amount of amount in amount of by or on
Temporary Global Definitive Notes then further respect of this behalf of
Note, exercise of Note cancelled exchanges which Permanent the
option (and date Certificates of option is Global Principal
upon which then Temporary exercised Note Paying Agent
exercise is delivered Global Note
effective) or
cancellation
================================================================================================================================
================================================================================================================================
70
EXCHANGE NOTICE
.............................., being the bearer of this Permanent Global Note at
the time of its deposit with the Principal Paying Agent at its specified office
for the purposes of the Notes, hereby exercises the option set out above to have
this Permanent Global Note exchanged in whole for Definitive Notes in aggregate
principal amount of [ ] and directs that such Definitive Notes be made available
for collection by it from the Principal Paying Agent's specified office.
By: ...........................................
(duly authorised)
71
SCHEDULE 3
FORM OF DEFINITIVE NOTES
72
DEFINITIVE NOTE
[ON THE FACE OF THE NOTE:]
Series Number:[ ] Serial Number: [ ]
(pound)[Denomination]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
(POUND)[AGGREGATE PRINCIPAL AMOUNT OF TRANCHE]
FLOATING RATE ASSET BACKED CLASS [O] NOTE DUE [O]
BARCLAYCARD FUNDING PLC (the "ISSUER") for value received promises, all in
accordance with the terms and conditions endorsed hereon (the "TERMS AND
CONDITIONS") and the Trust Deed prepared in relation to the Notes to pay to the
bearer upon presentation or, as the case may be, surrender hereof on the
maturity date specified in the Terms and Conditions or on such earlier date as
the same may become payable in accordance therewith the Principal Amount on such
dates as may be specified in the Terms and Conditions or if this Note shall
become due and payable on any other date, the Principal Amount and to pay
interest and all other amounts as may be payable pursuant to the Terms and
Conditions, all subject to and in accordance therewith.
Words and expressions defined in the Terms and Conditions shall have the same
meanings when used on the face of this Note.
Neither this Note nor any of the interest coupons or talons appertaining hereto
shall be valid for any purpose until this Note has been authenticated for and on
behalf of the Issue Agent.
This Note is governed by, and shall be construed in accordance with, English
law.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer or duly authorised attorney on behalf of the Issuer.
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
73
ISSUED in London as of [o]
AUTHENTICATED for and on behalf of
THE BANK OF NE YORK AS Issue Agent
without recourse, warranty or liability
By:[manual signature]
(duly authorised)
74
[On the reverse of the Notes:]
TERMS AND CONDITIONS
[As contemplated in the Prospectus and as amended supplemented or replaced by
the relevant Supplemental Trust Deed]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
One Canada Square
London E14 5AL
United Kingdom
75
COUPON
[On the front of Coupon:]
BARCLAYCARD FUNDING PLC
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
(POUND)[O] FLOATING RATE ASSET BACKED CLASS [O] NOTE
Series No:[ ]
Serial Number of Note: [ ]
Coupon for [set out the amount due] due on Interest Payment Date falling in
[month, year].
Such amount is payable (subject to the Terms and Conditions applicable to the
Note to which this Coupon appertains, which shall be binding on the Noteholder
of this Coupon whether or not it is for the time being attached to such Note)
against surrender of this Coupon at the specified office of the Principal Paying
Agent or any of the Paying Agents set out on the reverse hereof (or any other or
further principal paying agent or paying agents and/or specified offices from
time to time designated for the purpose by notice duly given in accordance with
such Terms and Conditions).
The attention of Couponholders is drawn to Condition 7 of the Terms and
Conditions. The Note to which this Coupon appertains may in certain
circumstances specified in such Terms and Conditions, fall due for redemption
before the due date in relation to this Coupon. In such event the Paying Agent
to which such Note is presented for redemption may determine, in accordance with
the aforesaid Condition 7 that this Coupon is to become void.
76
[On the reverse of each Coupon:]
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
One Canada Square
London E14 5AL
United Kingdom
77
TALON
[On the front of Talon:]
BARCLAYCARD FUNDING PLC
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE PROGRAMME
(POUND)[O] FLOATING RATE ASSET BACKED CLASS [O] NOTE
Series No:[ ]
Serial Number of Note: [ ]
Talon for further Coupons
After all the Coupons appertaining to the Note to which this Talon appertains
have matured, further Coupons (including, where appropriate, a Talon for further
Coupons) will be issued at the specified office of the Principal Paying Agent or
any of the Paying Agents set out in the reverse hereof (or any other or further
paying agents and/or specified offices from time to time designated by notice
duly given in accordance with the Terms and Conditions applicable to the Note to
which this Talon appertains (which shall be binding on the Holder of this Talon
whether or not it is for the time being attached to such Note)) upon production
and surrender of this Talon upon and subject to such Terms and Conditions.
Under the said Terms and Conditions, such Note may, in certain circumstances,
fall due for redemption before the original due date for exchange of this Talon
and in any such event this Talon shall become void and no exchange shall be made
in respect hereof.
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[On the reverse of each Talon:]
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
One Canada Square
London E14 5AL
United Kingdom
79
SCHEDULE 4
TERMS AND CONDITIONS OF THE NOTES
The following is the text of the terms and conditions which (subject to
completion and amendment and as supplemented or varied in accordance with the
provisions of the relevant Supplementary Listing Particulars (as defined below)
or Pricing Supplement (as defined below) and, save for the italicised text) will
be endorsed on the Notes in definitive form (if any) issued in exchange for the
Global Note(s) representing each Series of Notes in bearer form. These terms and
conditions will also apply to the Global Notes save as modified by the Global
Notes. Text in italics in these Conditions (save for sub-headings) refers to the
Global Notes alone and will not be endorsed on the Notes in definitive form.
Further information with respect to Notes of each Series will be given in the
relevant Supplementary Listing Particulars or Pricing Supplement which will
provide for those aspects of these terms and conditions which are applicable to
the Notes. References in the terms and conditions to "Notes" are to the Notes of
one Series only, not to all Notes which may be issued under the Programme,
reference to a "Class" are to a Class of Notes. Terms used in the relevant
Supplementary Listing Particulars or Pricing Supplement and not otherwise
defined herein shall have the same meanings where used herein or in the Trust
Deed (as defined below), the absence of any such term indicating that such term
is not applicable to the Notes and references to a matter being "specified"
means as the same may be specified in the relevant Supplementary Listing
Particulars or Pricing Supplement:
The Notes (as defined in Condition 1.1.1) are constituted and secured by a
security trust deed and MTN cash management agreement dated on or about 23
November 1999 (the "PRINCIPAL TRUST DEED") between the Issuer and The Bank of
New York (the "TRUSTEE" which expression shall include all persons for the time
being the trustee or trustees under the Trust Deed referred to below) as
supplemented by a supplemental trust deed (the "SUPPLEMENTAL TRUST DEED") dated
the Issue Date (as defined in Condition 5.8 below) between the Issuer, the
Trustee and the other parties named therein (the Principal Trust Deed and any
Supplemental Trust Deed being referred to herein as the "TRUST DEED").
The Notes will have the benefit (to the extent applicable) of an agency and
agreement dated on or about 23 November 1999 as may be amended or supplemented
from time to time (the "AGENCY AGREEMENT") between the Issuer, the Trustee, The
Bank of New York acting through its London Branch in its capacities as issue
agent (the "ISSUE AGENT" which expression shall include any successor to The
Bank of New York in its capacity as such), acting through the office specified
in the Applicable Supplement (as defined below) as principal paying agent (the
"PRINCIPAL PAYING AGENT", which expression shall include any successor to The
Bank of New York in its capacity as such) and The Bank of New York as Agent Bank
(the "AGENT BANK", which expression shall include any successor to The Bank of
New York in its capacity as such), As used herein, "PRINCIPAL PAYING AGENT",
"ISSUE AGENT" and "AGENT BANK" means, in relation to any Series of Notes, the
person specified in the relevant Pricing Supplement or Supplementary Listing
Particulars as the Principal Paying Agent, the Issue Agent and the Agent Bank
respectively, for such Series.
Certain statements in these terms and conditions (the "CONDITIONS") may be
summaries of the detailed provisions appearing on the face of the Notes (which
expression shall include the body thereof) and in the Principal Trust Deed.
Copies of the Principal Trust Deed and the Agency
80
Agreement are available for inspection at the principal office of the Trustee
(presently at One Canada Square, London E14 5AL) and at the specified offices of
the Principal Paying Agent in London. The Holders (as defined in Condition 1
below, and the holders of the coupons (the "COUPONS") (if any) appertaining to
interest bearing Notes in bearer form (the "COUPONHOLDERS", which expression
includes the holder of talons (the "TALONS") (if any) for further coupons
attached to such Notes (the "TALONHOLDERS")) are entitled to the benefit of, are
bound by, and are deemed to have notice of, all the provisions of the Trust Deed
and to have notice of those provisions of the Agency Agreement applicable to
them.
The pricing supplement or, if the Notes are listed on the London Stock Exchange
Limited (the "LONDON STOCK EXCHANGE"), the supplementary listing particulars
relating to the Notes (respectively, the "PRICING SUPPLEMENT" and the
"SUPPLEMENTARY LISTING PARTICULARS", each an "APPLICABLE SUPPLEMENT") will be
endorsed upon or attached to the Notes and will supplement these Conditions and
may specify other terms and conditions which shall, to the extent so specified
or to the extent inconsistent with these Conditions, replace or modify these
Conditions for the purpose of such Notes.
Words and expressions defined in the Trust Deed, the Agency Agreement or the
Master Schedule of Definitions, Interpretation and Construction Clauses (as
amended and supplemented from time to time) signed for the purpose of
identification by, amongst others, the Issuer and the Trustee (the "MASTER
SCHEDULE OF DEFINITIONS") or used in the Applicable Supplement shall have the
same meaning where used in these Conditions unless the context otherwise
requires or unless otherwise stated and provided that, in the event of
inconsistency between the Agency Agreement or the Trust Deed, the Applicable
Supplement and the Master Schedule of Definitions, the definition of the
relevant term shall have the meaning specified in the relevant document ranking
the highest in the following order of priority:
(a) firstly, the Applicable Supplement;
(b) secondly, the Supplemental Trust Deed relevant to the Series in question;
(c) thirdly, the Terms and Conditions;
(d) fourthly, the Principal Trust Deed;
(e) fifthly, the Agency Agreement; and
(f) sixthly, the Master Schedule of Definitions.
1. FORM, DENOMINATION AND TITLE
1.1 FORM AND DENOMINATION
1.1.1 The Notes may be issued in bearer form serially numbered in an
Authorised Denomination (as defined below) or an integral multiple
thereof. "AUTHORISED DENOMINATION" means the currency and
denomination or denominations of such currency or currencies
specified in the Applicable Supplement. References herein to
"NOTES" shall be to Notes, as specified in the Applicable
Supplement Notes of one Authorised Denomination may not be
exchanged for Notes of another Authorised Denomination.
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1.1.2 Interest bearing Notes are issued with Coupons (and, where
appropriate, a Talon) attached. After all the Coupons attached to,
or issued in respect of, any Note which was issued with a Talon
have matured, a coupon sheet comprising further Coupons (other
than Coupons which would be void) and, if applicable, one further
Talon, will be issued against presentation of the relevant Talon
at the specified office of the Principal Paying Agent in London.
"Final Redemption Date" means the date specified in the Applicable
Supplement as the final date on which the Principal Amount of such
Note is due and payable.
1.2 TITLE
Title to Notes, Coupons and Talons (if any) passes by delivery. In these
Conditions, subject as provided below, "HOLDER" means the bearer of any
Note, Coupon or Talon (as the case may be). The Holder of any Note,
Coupon or Talon will (except as otherwise required by law) be treated as
its absolute owner for all purposes (whether or not it is overdue and
regardless of any notice of ownership on the face of such Note) and no
person shall be liable for so treating such Holder. In these Conditions
"NOTEHOLDER" means the bearer of any Note.
1.3 CLASSES OF NOTES COMPRISING A SERIES
A Series of Notes may comprise a number of Classes under which the right
to receive the payment of interest and repayment of principal may be
subordinated to the rights of one or more Classes of Notes within the
same Series.
2. STATUS OF THE NOTES AND PRIORITY SECURED CREDITOR
2.1 UNSUBORDINATED CLASSES OF NOTES
2.1.1 This Condition 2.1 is applicable only in relation to any Class of
Notes which is specified as being Unsubordinated.
2.1.2 In the case of an Unsubordinated Class of Notes, the Notes and
Coupons are secured, limited recourse obligations of the Issuer,
secured in the manner described in Condition 3 and recourse in
respect of which is limited in the manner described in Condition
10 and will rank pari passu without any preference among
themselves.
2.2 SUBORDINATED NOTES
2.2.1 This Condition 2.2 is applicable only in relation to any Class of
Notes which is specified as being Subordinated.
2.2.2 In the case of Subordinated Notes, the subordination provisions
will be set out in full in the Applicable Supplement.
2.3 PRIORITY SECURED CREDITOR
The relevant Supplemental Trust Deed will enable the Trustee to determine
a Priority Secured Creditor (as defined in the Master Schedule of
Definitions), which may be the Noteholders of the most senior ranking
Class of Notes and, for such purpose the Noteholders of the most senior
ranking Class of Notes such Series will be deemed to be a single Secured
Creditor. Such Priority Secured Creditor will enjoy preferential ranking
in the order of priority of payments on enforcement of the relevant
Security or following a Mandatory Redemption (as set out in Condition
6.2), and the Trustee will, where the
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interests of such Priority Secured Creditor conflict with those of the
other Secured Creditors (as defined in Condition 3.1.2), prefer the
interests of such Priority Secured Creditor over that of other Secured
Creditors (and shall not take into account the interests of such other
Secured Creditors). If, following a request as aforesaid and unless the
Trustee has already taken action pursuant to such request which (in its
sole discretion it determines) it would not be practical to reverse, the
identity of the Priority Secured Creditor changes to another Secured
Creditor (as so provided in the definition of Priority Secured Creditor
in the Master Schedule of Definitions), the Trustee shall in its absolute
discretion and without liability therefor be entitled to take into
account the request of such succeeding Priority Secured Creditor, but
shall not be obliged to do so and shall not incur any liability for
determining that it is impractical to take account of the change of
identity of the Priority Secured Creditor.
3. SECURITY AND RELATED AGREEMENTS
3.1 SECURITY AND RELATED AGREEMENTS
3.1.1 In connection with the issue of the Notes or in respect of any
Series, the Issuer may enter into swap transactions or other
hedging agreements or any letters of credit, guarantees or other
credit support or credit enhancement documents or other financial
arrangements (each a "RELATED AGREEMENT") with one or more
counterparties (each a "COUNTERPARTY"). The obligations of a
Counterparty may be guaranteed by a guarantor (the "GUARANTOR").
3.1.2 The obligations of the Issuer to the persons having the benefit of
the Security relating to a Series pursuant to the Supplemental
Trust Deed in respect thereof (the "SECURED CREDITORS") are
secured pursuant to the Supplemental Trust Deed in respect of such
Series by Encumbrances governed by English law and such further
encumbrances as may be required by the Trustee, governed by the
law of any other relevant jurisdiction over the Charged Assets
and/or the Underlying Assets as specified in the Applicable
Supplement.
3.1.3 The Secured Creditors of all Series are also secured pursuant to
the Principal Trust Deed by an assignment of certain contractual
rights of the Issuer and a floating charge over the assets of the
Issuer not otherwise charged or assigned by the Security Documents
or effectively encumbranced by the assignments granted in the
Principal Trust Deed.
3.1.4 The security created by each Supplemental Trust Deed will be
supported by such further security documents as may, from time to
time, be required by the Trustee and as specified in the
Applicable Supplement (each a "SUPPLEMENTARY SECURITY DOCUMENT"
and together with the relevant Supplemental Trust Deed, the
"SECURITY DOCUMENTS") (the "SECURITY").
3.2 APPLICATION OF PROCEEDS
After meeting the Trustee's and any receiver's expenses, liabilities and
remuneration and any other amounts due to the Trustee and such receiver,
and any other expenses payable by the Issuer, the proceeds of the
Security for any Series shall be applied in accordance with the
provisions set out in the relevant Supplemental Trust Deed.
83
3.3 SHORTFALL AFTER APPLICATION OF PROCEEDS
If the net proceeds of:
(a) the realisation of the Security for any Series of Notes, having
become enforceable under these Conditions; or
(b) the sale or redemption of the Charged Assets and/or Underlying
Assets in accordance with these Conditions,
are not sufficient to make all payments due in respect of the Notes and
Coupons of such Series and for the Issuer to meet its obligations, if
any, in respect of the termination of any Related Agreement(s) in respect
of that Series, the assets of the Issuer, including, in particular,
assets securing other Series of Notes not related to that Series will not
be available for payment of any shortfall arising therefrom and all
further claims of the Holders (if any) in respect of the first mentioned
Series of Notes will be extinguished. Any such shortfall shall be borne
as specified in the relevant Supplemental Trust Deed. Claims and the
right of any person to claim in respect of any such shortfall remaining
after the application of such net proceeds in accordance with the
relevant Supplemental Trust Deed shall be extinguished and the Holders of
such Series will have no further recourse to the Issuer and failure to
make any payment in respect of any such shortfall shall in no
circumstances constitute an Event of Default (or, if an Event of Default
has already occurred, a further Event of Default) under Condition 9.
4. RESTRICTIONS
So long as any of the Notes remain outstanding (as defined in the
Principal Trust Deed), the Issuer will not, save to the extent permitted
by the Transaction Documents or the Trade Documents, or with the prior
written consent of the Trustee:
(a) engage in any business (other than acquiring and holding the
Charged Assets, issuing the Notes, entering into the Transaction
Documents and the Trade Documents in respect of each Series of
Notes, acquiring and holding other assets similar to the Charged
Assets, issuing further Series of Notes substantially in the form
of the Terms and Conditions set out in Schedule 2 to the Principal
Trust Deed, performing its obligations and exercising its rights
under the Trade Documents and the Transaction Documents in respect
of any Series of Notes and such further matters as may be
reasonably incidental thereto);
(b) have any employees or premises;
(c) declare or pay any dividends or make any distributions in respect
of its share capital, or issue any additional shares;
(d) incur or permit to subsist any indebtedness for borrowed money
whatsoever or give any guarantee or indemnity in respect of any
indebtedness other than issuing further Notes (in accordance with
the Transaction Documents and the Trade Documents), provided that
the Trustee is satisfied that such further Notes are:
84
(i) secured on assets of the Issuer other than:
(1) the Underlying Assets for any other Series;
(2) any assets other than those described in (i) above
on which any other obligations of the Issuer are
secured; and
(3) the Issuer's share capital; and
(ii) issued on terms in substantially the form contained in
these Terms and Conditions which provide for the
extinguishment of all claims in respect of such further
Notes and obligations after application of the proceeds of
sale or redemption of the Underlying Assets on which such
further Notes and obligations are secured;
(e) sell or otherwise dispose of the Underlying Assets relating to any
Series or any interest therein or agree or purport to do so;
(f) create or permit to exist upon or affect any of the Underlying
Assets relating to any Series, any Encumbrance or any other
security interest whatsoever other than as contemplated by any
Supplemental Trust Deed, or any Supplementary Security Document
executed in relation to such Series;
(g) consolidate or merge with any other person or convey or transfer
its properties or assets to any person;
(h) permit the Trust Deed or any Supplemental Trust Deed executed in
relation to any Series or any guarantee agreements executed in
relation to such Series, or the priority of the Security created
hereby, thereby or pursuant to any Supplemental Security Document
executed in relation to any Series of Notes to be amended,
terminated, postponed or discharged, or permit any person whose
obligations form part of such Security to be released from such
obligations;
(i) release any party to any Related Agreement from any executory
obligation thereunder; or
(j) have any subsidiaries.
The Trustee shall be entitled to rely absolutely on a certificate of a
director of the Issuer in relation to any matter relating to such
restrictions and to accept without liability any such certificate as
sufficient evidence of the relevant fact or matter in question.
5. INTEREST AND OTHER CALCULATIONS
5.1 INTEREST RATE AND ACCRUAL
5.1.1 Each Note bears interest on its Principal Amount (or as otherwise
specified in the Applicable Supplement) from the Interest
Commencement Date at the rate per annum (expressed as a
percentage) equal to the Interest Rate as adjusted by the
applicable Margin (if any), such interest being payable in arrear
(unless
85
otherwise specified in the Applicable Supplement) on each Interest
Payment Date (as defined in Condition 5.8).
5.1.2 Interest will cease to accrue on each Note on the due date for
redemption unless, upon due presentation, payment of principal is
improperly withheld or refused, in which event interest will
continue to accrue (as well after as before judgment) at the
Interest Rate as adjusted by the applicable Margin (if any) in the
manner provided in this Condition 5 to the Relevant Date (as
defined in Condition 5.4).
5.2 BUSINESS DAY CONVENTION
If any date referred to in these Conditions which is specified to be
subject to adjustment in accordance with a Business Day Convention would
otherwise fall on a day which is not a Relevant Business Day, then if the
Business Day Convention specified in such Condition is:
5.2.1 the Floating Rate Convention, such date shall be postponed to the
next day which is a Relevant Business Day unless:
(a) it would thereby fall into the next calendar month, in
which event:
(i) such date shall be brought forward to the
immediately preceding Relevant Business Day; and
(ii) each subsequent such date shall be the last Relevant
Business Day of the month in which such date is due
to fall; or
(b) there is no such numerically corresponding day in the
calendar month in which such date is proposed to fall in
which event:
(i) such date will be the last Relevant Business Day of
the month in which such date is due to fall; and
(ii) each subsequent such date shall be the last Relevant
Business Day of the month in which such date is due
to fall;
5.2.2 the Following Business Day Convention, such date shall be
postponed to the next day which is a Relevant Business Day;
5.2.3 the Modified Following Business Day Convention, such date shall be
postponed to the next day which is a Relevant Business Day unless
it would thereby fall into the next calendar month, in which event
such date shall be brought forward to the immediately preceding
Relevant Business Day; or
5.2.4 the Preceding Business Day Convention, such date shall be brought
forward to the immediately preceding Relevant Business Day.
5.3 INTEREST RATE
The Interest Rate for each Interest Period will be determined by the
Agent Bank at or about the Relevant Time on the Interest Determination
Date in respect of such Interest Period in accordance with the following:
86
5.3.1 if the Primary Source as specified in the Applicable Supplement is
a Page (as defined in Condition 5.8) , subject as provided below,
the Interest Rate shall be:
(a) the Relevant Rate (where such Relevant Rate on such Page is
a composite quotation or is customarily supplied by one
entity); or
(b) the arithmetic mean of the Relevant Rates of the persons
whose Relevant Rates appear on that Page,
in each case appearing on such Page at the Relevant Time on the
Interest Determination Date and as adjusted by the Margin (if
applicable);
5.3.2 if the Primary Source as specified in the Applicable Supplement is
Reference Banks or if Condition 5.3.1(a) above applies and no
Relevant Rate appears on the Page at the Relevant Time on the
Interest Determination Date or if Condition 5.3.1(b) above applies
and fewer than two Relevant Rates appear on the Page at the
Relevant Time on the Interest Determination Date, subject as
provided below, the Interest Rate shall be the arithmetic mean of
the Relevant Rates which each of the Reference Banks is quoting to
major banks in the Relevant Financial Centre at the Relevant Time
on the Interest Determination Date, as determined by the Agent
Bank and as adjusted by the Margin (if applicable); and
5.3.3 if Condition 5.3.2 above applies and the Agent Bank determines
that fewer than two Reference Banks are so quoting Relevant Rates,
subject as provided below, the Interest Rate shall be the
arithmetic mean of the rates per annum (expressed as a percentage)
which the Agent Bank determines to be the rates (being the nearest
equivalent to the Benchmark in respect of a Representative Amount
of the Relevant Currency) which four leading banks selected by the
Agent Bank in (a) the principal financial centre of the country of
the Relevant Currency (the "PRINCIPAL FINANCIAL CENTRE") if the
Relevant Currency is not euro, or (b) London if the Relevant
Currency is euro, are quoting at or about the Relevant Time on the
date on which such banks would customarily quote such rates for a
period commencing on the Effective Date for a period equivalent to
the Specified Duration to leading banks carrying on business in
Europe and as adjusted by the Margin (if applicable) or, if the
Agent Bank determines that fewer than two of such banks are so
quoting, in (a) the Principal Financial Centre if the Relevant
Currency is not euro, or (b) London if the Relevant Currency is
euro, the Interest Rate shall be the Interest Rate determined on
the previous Interest Determination Date and as adjusted by the
Margin (if applicable).
5.4 MARGIN AND ROUNDING
5.4.1 If any Interest Rate is expressed to be as adjusted by any Margin,
such adjustment shall be made by adding (if a positive number) or
subtracting (if a negative number) the absolute value of any such
Margin specified on the Notes or in the Applicable Supplement. If
such calculation results in a negative figure, the amount of
interest so calculated will be deemed to be zero.
87
5.4.2 For the purposes of any calculations required pursuant to these
Conditions (unless otherwise specified):
(a) all percentages resulting from such calculations will be
rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (with halves being
rounded up);
(b) all figures will be rounded to seven significant figures
(with halves being rounded up); and
(c) all currency amounts which fall due and payable will be
rounded to the nearest unit of such currency (with halves
being rounded up). For these purposes, "UNIT" means, with
respect to any currency other than euro, the lowest amount
of such currency which is available as legal tender in the
country of such currency and, with respect to euro, means
0.01 euro.
5.5 CALCULATIONS
The amount of interest payable in respect of any Note for any period
shall be calculated by multiplying the product of the Interest Rate as
adjusted by the Margin (if applicable) and the Principal Amount
outstanding of such Note on the relevant Interest Payment Date after the
making of any principal repayment on the Notes on such Interest Payment
Date by the Day Count Fraction.
5.6 DETERMINATION AND PUBLICATION OF INTEREST RATES, INTEREST AMOUNTS,
REDEMPTION AMOUNTS AND INSTALMENT AMOUNTS
As soon as practicable after the Relevant Time on each Interest
Determination Date or such other time on such date as the Agent Bank may
be required to calculate any Redemption Amount, obtain any quote or make
any determination or calculation, the Agent Bank will determine the
Interest Rate as adjusted by the Margin (if applicable) and calculate the
amount of interest payable (the "INTEREST AMOUNTS") in respect of each
Authorised Denomination of Notes for the relevant Interest Period,
calculate the Redemption Amount, obtain such quote or make such
determination or calculation, as the case may be, and cause the Interest
Rate as adjusted by the Margin (if any) and the Interest Amounts for each
Interest Period and the relevant Interest Payment Date and, if required
to be calculated, the Redemption Amount to be notified to the Principal
Paying Agent and, if the Notes are listed on a stock exchange and such
exchange so requires, such exchange as soon as possible after their
determination but in no event later than (i) (in case of notification to
such stock exchange) the commencement of the relevant Interest Period, if
determined prior to such time, in the case of an Interest Rate and
Interest Amount, or (ii) in all other cases, the fourth Relevant Business
Day after such determination. The Interest Amounts and the Interest
Payment Date so published may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without notice in the
event of an extension or shortening of the Interest Period. If the Notes
become due and payable under Condition 9, the accrued interest and the
Interest Rate as adjusted by the Margin (if applicable) payable in
respect of the Notes shall nevertheless continue to be calculated as
previously in accordance with this Condition but no publication of the
Interest Rate or the Interest Amount so calculated need be made unless
otherwise required by the Trustee. The determination of each Interest
Rate, Interest Amount and Redemption Amount, the obtaining of each quote
and
88
the making of each determination or calculation by the Agent Bank or, as
the case may be, the Trustee pursuant to Condition 5.10, shall (in the
absence of manifest error) be final and binding upon all parties.
5.7 INTEREST DEFERRAL
To the extent that the monies which are deposited to the Series
Distribution Account for the relevant Series by the Receivables Trustee
on an Interest Payment Date are insufficient to pay the full amount of
interest on any Class of Notes, payment of the shortfall ("DEFERRED
INTEREST"), which will be borne by each Note of the relevant Class, in a
proportion equal to the proportion that the Principal Amount Outstanding
of the relevant Class of Note bears to the aggregate Principal Amount
Outstanding of all the Notes of the same Class (in each case as
determined on the Interest Payment Date on which such Deferred Interest
arises), will be deferred until the Interest Payment Date thereafter on
which funds are available to the Issuer (by being paid to the Issuer by
the Receivables Trustee on such Interest Payment Date) to pay such
Deferred Interest to the extent of such available funds. Such Deferred
Interest will accrue interest ("ADDITIONAL INTEREST") at the then
applicable Interest Rate as adjusted by any Margin plus an additional
margin of 2 per cent. per annum, and payment of any Additional Interest
will also be deferred until the earlier of the Interest Payment Date
thereafter on which funds are available to the Issuer to pay such
Additional Interest to the extent of such available funds and the Series
Termination Date as specified in the Applicable Supplement.
5.8 DEFINITIONS
In these Conditions, unless the context otherwise requires, the following
defined terms shall have the meanings set out below.
"BENCHMARK" means LIBOR or such other benchmark as may be specified;
"AGENT BANK" means The Bank of New York, London Branch or such other
agent as may be appointed by the Issuer for the purposes of making any
calculations or determination in respect of any Series of Notes;
"CONTROLLED ACCUMULATION PERIOD" means (unless the Regulated Amortisation
Period or the Rapid Amortisation Period has commenced) the period
commencing on the close of business on the date specified in the
Applicable Supplement or such later date as is determined in accordance
with the provisions of the Programme (such later date falling no later
than the date specified in the Applicable Supplement), and ending (for
the purposes of these Conditions) on the first to occur of (a) the
commencement of the Rapid Amortisation Period, (b) the day the Investor
Interest is reduced to zero and (c) the Series Termination Date specified
in the Applicable Supplement.
"DAY COUNT FRACTION" means, in respect of the calculation of an amount of
interest on any Note for any period of time (whether or not constituting
an Interest Period, the "Calculation Period"):
(a) if "ACTUAL/365" or "ACTUAL/ACTUAL" is specified, the actual number
of days in the Calculation Period divided by 365 (or, if any
portion of that Calculation Period falls in a leap year, the sum
of:
89
(i) the actual number of days in that portion of the
Calculation Period falling in a leap year divided by 366;
and
(ii) the actual number of days in that portion of the
Calculation Period falling in a non-leap year divided by
365); and
(b) if "ACTUAL/360" is specified, the actual number of days in the
Calculation Period divided by 360.
"EURO" means the lawful currency of the Member States of the European
Union participating in Economic and Monetary Union;
"INTEREST COMMENCEMENT DATE" means the Issue Date or such other date as
may be specified.
"INTEREST DETERMINATION DATE" means, with respect to an Interest Rate and
an Interest Period, the date specified as such or, if none is so
specified, the day falling two Relevant Business Days in London prior to
the first day of such Interest Period (if the specified currency is not
sterling).
"INTEREST PAYMENT DATE" means the date(s) specified as such in the
Applicable Supplement.
"INTEREST PERIOD" means the period specified as such in the Applicable
Supplement Provided, however, that with respect to an Interest Period
that commences during a Revolving Period or Controlled Accumulation
Period and ends during a Rapid Amortisation Period, such Interest Period
will end on the last day of the originally scheduled Interest Period;
"INTEREST RATE" means the rate of interest payable from time to time in
respect of the Note and which is either specified in, or calculated in
accordance with the provisions of, the Applicable Supplement.
"ISSUE DATE" means the date of issue of the Notes.
"MARGIN" means the rate per annum (expressed as a percentage) specified
in the Applicable Supplement.
"PAGE" means such page, section, caption, column or other part of a
particular information service (including, but not limited to, the Reuter
Monitor Money Rates Service ("REUTERS") and the Dow Jones Telerate
Service ("TELERATE")) as may be specified for the purpose of providing a
Relevant Rate, or such other page, section, caption, column or other part
as may replace the same on that information service or on such other
information service, in each case as may be nominated by the person or
organisation providing or sponsoring the information appearing there for
the purpose of displaying rates or prices comparable to that Relevant
Rate.
"PRIMARY SOURCE" means, unless otherwise specified, a Page or Reference
Banks.
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"PRINCIPAL AMOUNT OUTSTANDING" means in relation to a Note or Series, the
original face value thereof less any repayment of principal made to the
holder(s) thereof in respect of such Note or Series.
"RAPID AMORTISATION PERIOD" means the period commencing on the day on
which a Pay-Out Event (not being a Regulated Amortisation Trigger Event)
is deemed to occur pursuant to the provisions of the Applicable
Supplement, and ending (for the purposes of these Conditions) on the
earlier of (i) the day on which the Investor Interest is reduced to zero
and (ii) the Series Termination Date specified in the Applicable
Supplement;
"REDEMPTION AMOUNT" means, unless otherwise specified in the Applicable
Supplement, in relation to a Note or Series, the amount of the original
face value thereof less any repayment of principal made to the Holder(s)
thereof in respect of such Note or Series.
"REFERENCE BANKS" means the institutions specified as such or, if none,
four major banks selected by the Agent Bank in (a) the interbank market
(or, if appropriate, money market) which is most closely connected with
the Benchmark if the Relevant Currency is not euro, or (b) London if the
Relevant Currency is euro.
"REGULATED AMORTISATION PERIOD" means the period commencing on the day on
which a Regulated Amortisation Trigger Event is deemed to occur pursuant
to the terms of the Applicable Supplement and ending (for the purposes of
these Conditions) on the earlier of (i) the day on which the Investor
Interest is reduced to zero and (ii) the Distribution Date falling on the
date specified in the Applicable Supplement.
"RELEVANT BUSINESS DAY" means:
(i) in the case of a specified currency (other than euro) and/or one
or more specified financial centres, a day (other than a Saturday
or a Sunday) on which commercial banks and foreign exchange
markets settle payments in London and in the principal financial
centre for that currency and/or each of the financial centres so
specified; and/or
(ii) in the case of euro, a day on which the TARGET system is
operating.
"RELEVANT CURRENCY" means the currency specified as such or, if none is
specified, the currency in which the Notes are denominated.
"RELEVANT FINANCIAL CENTRE" means, with respect to any Interest Rate to
be determined on an Interest Determination Date, the financial centre as
may be specified as such or, if none is so specified, (a) the financial
centre with which the relevant Benchmark is most closely connected or, if
none is so connected, London, if the Relevant Currency is not euro, or
(b) London if the Relevant Currency is euro.
"RELEVANT RATE" means the Benchmark for a Representative Amount of the
Relevant Currency for a period (if applicable) equal to the Specified
Duration commencing on the Effective Date.
"RELEVANT TIME" means, with respect to any Interest Determination Date,
the local time in the Relevant Financial Centre specified in the
Applicable Supplement or, if none is
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specified, the local time in the Relevant Financial Centre at which it is
customary to determine bid and offered rates in respect of deposits in
the relevant currency in the interbank market in the Relevant Financial
Centre.
"REPRESENTATIVE AMOUNT" means, with respect to any Interest Rate to be
determined on an Interest Determination Date, the amount specified as
such or, if none is specified, an amount that is representative for a
single transaction in the relevant market at the time.
"REVOLVING PERIOD" means the period from and including the Issue Date to,
but not including, the earlier of the date of commencement of (a) the
Controlled Accumulation Period (b) the Regulated Amortisation Period and
(c) the Rapid Amortisation Period.
"SPECIFIED DURATION" means, with respect to any Floating Rate to be
determined on an Interest Determination Date, the duration specified or,
if none is specified, a period of time equal to the relative Interest
Period.
"TARGET SYSTEM" means the Trans-European Automated Real-Time Gross
Settlement Express Transfer system.
5.9 AGENT BANK AND REFERENCE BANKS
The Agent Bank will procure that there shall at all times be four
Reference Banks selected by the Agent Bank with offices in the Relevant
Financial Centre and a Agent Bank if provision is made for them in the
Conditions applicable to this Note and for so long as it is outstanding.
If any Reference Bank (acting through its relevant office) is unable or
unwilling to continue to act as a Reference Bank, then the Agent Bank
will appoint another Reference Bank with an office in the Relevant
Financial Centre to act as such in its place. If the Agent Bank is unable
or unwilling to act as such or if the Agent Bank fails duly to establish
the Interest Rate (as adjusted by any applicable Margin) for any Interest
Period or to calculate the Interest Amounts or any other requirements,
the Issuer will appoint (with the prior written consent of the Trustee) a
successor to act in its place. The Agent Bank may not resign its duties
without a successor having been appointed as aforesaid.
5.10 DETERMINATION OR CALCULATION BY TRUSTEE
If the Agent Bank does not at any time for any reason determine any
Interest Rate (as adjusted by any applicable Margin), Interest Amount,
Redemption Amount or any other amount to be determined or calculated by
it, the Trustee shall determine such Interest Rate (as adjusted by any
applicable Margin), Interest Amount, Instalment Amount or other amount as
aforesaid at such rate or in such amount as in its absolute discretion
(having regard as it shall think fit to the procedures described above,
but subject to the terms of the Trust Deed) it shall deem fair and
reasonable in all the circumstances or, subject as aforesaid, apply the
foregoing provisions of this Condition, with any consequential
amendments, to the extent that, in its sole opinion, it can do so and in
all other respects it shall do so in such manner as it shall, in its
absolute discretion, deem fair and reasonable in the circumstances, and
each such determination or calculation shall be deemed to have been made
by the Principal Paying Agent or the Agent Bank, as the case may be.
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6. REDEMPTION
6.1 SCHEDULED REDEMPTION
Unless the Rapid Amortisation Period or the Regulated Amortisation Period
has earlier commenced each Class of Note will be redeemed on its
Scheduled Redemption Date as specified in the Applicable Supplement. To
the extent that the principal amount which is deposited to the Series
Distribution Account on the Scheduled Redemption Date in reduction of the
class of Investor Interest corresponding to any Class of Note as
specified in the Applicable Supplement (such amount, the "RELEVANT
INVESTOR AMOUNT") is less than the Principal Amount Outstanding on such
Class of Notes on the Scheduled Redemption Date, then that Class of Notes
will be redeemed pro rata to the extent of the Relevant Investor Amount
and the Rapid Amortisation Period will commence with effect from such
Scheduled Redemption Date. On each Interest Payment Date which thereafter
occurs during the Rapid Amortisation Period, such Class of Notes will be
redeemed pro rata to the extent of the principal amount which is
deposited to the Series Distribution Account on such date in reduction of
the corresponding Class of Investor Interest as specified in the
Applicable Supplement until the earlier of (a) such time as the relevant
Class of Notes has been repaid in full and (b) the Series Termination
Date specified in the Applicable Supplement.
6.2 MANDATORY EARLY REDEMPTION
If the Rapid Amortisation Period or the Regulated Amortisation Period
commences in respect of any Class of Notes prior to its Scheduled
Redemption Date as specified in the Applicable Supplement, then on each
Interest Payment Date which thereafter occurs, such Class of Note will be
redeemed pro rata to the extent of the principal amount which is
deposited on such date to the Series Distribution Account in reduction of
the corresponding Class of Investor Interest as specified in the
Applicable Supplement until the earlier of (a) such time as such Class of
Notes has been repaid in full and (b) the Series Termination Date
specified in the Applicable Supplement.
6.3 OPTIONAL REDEMPTION IN FULL
Upon giving not more than 60 nor less than 30 days' notice to the Trustee
and the Noteholders in accordance with Condition 14, the Issuer may
redeem (all but not some only) of the Notes at their then Principal
Amount Outstanding together with any accrued but unpaid interest and any
Deferred Interest and Additional Interest on any Interest Payment Date on
which the aggregate Principal Amount Outstanding of the Notes is less
than 10 per cent. of the aggregate Principal Amount Outstanding on the
issue of the Notes, provided that, prior to the giving of any such
notice, the Issuer shall have provided to the Trustee a certificate
signed by two directors of the Issuer to the effect that it will have the
funds, not subject to the interest of any other person, required to
redeem the Notes as aforesaid and any amounts required under the Trust
Deed to be paid in priority to or pari passu with the Notes then
outstanding. Any certificate given by or on behalf of the Issuer may be
relied upon by the Trustee and shall be conclusive and binding on the
Noteholders.
6.4 FINAL REDEMPTION
If the Notes of any Class have not previously been redeemed in full
pursuant to Condition 6.1 or 6.3 above, such Class of Notes will be
redeemed at their then Principal Amount Outstanding on the Final
Redemption Date specified in the Applicable
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Supplement together with all accrued and unpaid interest, Deferred
Interest and Additional Interest.
7. PAYMENTS
7.1 NOTES
Payments of principal (or, as the case may be, Redemption Amounts) and
interest (or, as the case may be, Interest Amounts) in respect of Notes
will, subject as mentioned below, be made against presentation and
surrender of the relevant, Notes (in the case of all payments of
principal) or Coupons (in the case of interest), as the case may be, at
the specified office of the Principal Paying Agent in London or any
non-UK Paying Agent specified in the Applicable Supplement by a cheque
payable in the currency in which such payment is due drawn on, or, at the
option of the Holders by transfer to an account denominated in that
currency with, a bank in (a) the principal financial centre of the
country of the currency concerned if that currency is not euro, or (b)
the principal financial centre of any Member State of the European
Communities if that currency is euro; provided that in the case of
British pounds sterling, the cheque shall be drawn on a town clearing
branch of a bank in the City of London.
7.2 PAYMENTS SUBJECT TO FISCAL LAWS; PAYMENTS ON GLOBAL NOTES
All payments are subject in all cases to any applicable fiscal or other
laws, regulations and directives, but without prejudice to the provisions
of Condition 9. No commission or expenses shall be charged to the Holders
in respect of such payments.
Payments of principal (or Redemption Amounts) and interest (or Interest
Amounts) in respect of the Notes when represented by a Permanent Global
Note will be made against presentation and surrender or, as the case may
be, presentation of the Permanent Global Note at the specified office of
the Principal Paying Agent in London, or any non-UK Paying Agent
specified in the Applicable Supplement subject in all cases to any fiscal
or other laws, regulations and directives applicable in the place of
payment to the Principal Paying Agent or the bearer of the Permanent
Global Note. A record of each payment so made will be endorsed on the
schedule to the Permanent Global Note by or on behalf of the Principal
Paying Agent which endorsement shall be prima facie evidence that such
payment has been made.
7.3 APPOINTMENT OF THE PRINCIPAL PAYING AGENT, THE ISSUE AGENT AND THE AGENT
BANK#
The Agents act solely as agents of the Issuer and do not assume any
obligation or relationship of agency or trust for or with any Holder. The
Issuer reserves the right at any time to vary or terminate the
appointment of any Agent, and to appoint additional or other Agents,
provided that the Issuer will at all times maintain (i) a Principal
Paying Agent which, so long as the Notes are listed on the London Stock
Exchange Limited, shall be London, and (ii) a Agent Bank where the
Conditions so require one.
7.4 UNMATURED COUPONS AND UNEXCHANGED TALONS
7.4.1 Subject to the provisions of the Applicable Supplement, upon the
due date for redemption of any Note, unmatured Coupons relating to
such Note (whether or not attached) shall become void and no
payment shall be made in respect of them.
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7.4.2 Upon the date for redemption of any Note, any unmatured Talon
relating to such Note (whether or not attached) shall become void
and no Coupon shall be delivered in respect of such Talon.
7.4.3 Where any Note, is presented for redemption without all unmatured
Coupons and any unexchanged Talon relating to it, redemption shall
be made only against the provision of such indemnity as the Issuer
may require.
7.5 NON-BUSINESS DAYS
Subject as provided in the Applicable Supplement, if any date for payment
in respect of any Note or Coupon is not a business day, the Holder shall
not be entitled to payment until the next following business day nor to
any interest or other sum in respect of such postponed payment. In this
paragraph, "business day" means a day (other than a Saturday or a Sunday)
on which banks are open for presentation and payment of debt securities
and for dealings in foreign currencies in London and the relevant place
of presentation and in the cities referred to in the definition of
Business Days set out in the Applicable Supplement or on the face of the
Notes:
7.5.1 (in the case of a payment in a currency other than euro) where
payment is to be made by transfer to an account maintained with a
bank in the relevant currency, on which dealings may be carried on
in the relevant currency in the principal financial centre of the
country of such currency; or
7.5.2 (in the case of a payment in euro) a day on which the TARGET
system is operating.
7.6 TALONS
On or after the Interest Payment Date for the final Coupon forming part
of a coupon sheet issued in respect of any Note, the Talon forming part
of such coupon sheet may be surrendered at the specified office of the
Principal Paying Agent in London or any non-UK Paying Agent in exchange
for a further coupon sheet (and if necessary another Talon for a further
coupon sheet) (but excluding any Coupons which may have become void
pursuant to Condition 11).
8. TAXATION
All payments in respect of the Notes or Coupons will be made without
withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatsoever nature unless the Issuer or any
Paying Agent or, where applicable, the Trustee is required by applicable
law to make any payment in respect of the Notes or Coupons subject to any
withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatsoever nature. In that event, the Issuer,
any Paying Agent or the Trustee (as the case may be) shall make such
payment after such withholding or deduction has been made and shall
account to the relevant authorities for the amount so required to be
withheld or deducted. Neither the Issuer, nor any Paying Agent nor the
Trustee will be obliged to make any additional payments to the Holders,
in respect of such withholding or deduction. The Issuer, or any Paying
Agent may require the Holders to provide such certifications and other
documents as required by applicable law in order to qualify for
exemptions from applicable tax laws.
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9. EVENTS OF DEFAULT
9.1 OCCURRENCE OF EVENTS OF DEFAULT
The Trustee at its discretion may, and if so requested by the Priority
Secured Creditor of a Series shall (in each case, provided the Trustee is
secured, indemnified, or both, to its satisfaction) give notice (an
"ENFORCEMENT NOTICE") to the Issuer that the Notes of such Series are,
and they shall accordingly immediately become, due and repayable, at
their Redemption Amount together with accrued interest, Deferred Interest
and Additional Interest, if any, or as otherwise specified in the
Applicable Supplement and the Security constituted by the Trust Deed in
respect of such Series shall thereupon become enforceable (as provided in
the Trust Deed) on the occurrence of any of the following events (each an
"EVENT OF DEFAULT"):
9.1.1 Non-payment: the Issuer fails to pay any amount of principal in
respect of the Notes within 7 days of the due date for payment
thereof or fails to pay any amount of interest in respect of the
Notes within 15 days of the due date for payment thereof; or
9.1.2 Breach of other obligations: the Issuer defaults in the
performance or observance of any of its other obligations under or
in respect of the Notes, the Trust Deed, (other than, in any such
case, any obligation for the payment of any principal or interest
on the Notes) or the Agency Agreement and (except where such
default is incapable of remedy) such default remains unremedied
for 30 days after the Trustee has given written notice thereof to
the Issuer, certifying that such default is, in the opinion of the
Trustee, materially prejudicial to the interests of the
Noteholders; or
9.1.3 Unsatisfied judgment: a judgment or order for the payment of any
amount is rendered against the Issuer and continues unsatisfied
and unstayed for a period of 30 days after the date thereof or, if
later, the date therein specified for payment; or
9.1.4 Security enforced: a secured party and/or encumbrancer takes
possession or a receiver, administrative receiver, administrator,
examiner, manager or other similar officer is appointed, of the
whole or any part of the undertaking, assets and revenues of the
Issuer or a distress or execution is levied; or
9.1.5 Insolvency etc: (i) the Issuer becomes insolvent or is unable to
pay its debts as they fall due, (ii) an administrator or
liquidator of the Issuer or the whole or any part of the
undertaking, assets and revenues of the Issuer is appointed (or
application for any such appointment is made), (iii) the Issuer
takes any action for a readjustment or deferment of any of its
obligations or makes a general assignment or an arrangement or
composition with or for the benefit of its creditors or declares a
moratorium in respect of any of its indebtedness or any guarantee
of indebtedness given by it or (iv) the Issuer ceases or threatens
to cease to carry on all or any substantial part of its business;
or
9.1.6 Winding up etc: an order is made or an effective resolution is
passed for the winding up, liquidation or dissolution of the
Issuer; or
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9.1.7 Failure to take action etc: any action, condition or thing at any
time required to be taken, fulfilled or done in order (i) to
enable the Issuer lawfully to enter into, exercise its rights and
perform and comply with its obligations under and in respect of
the Notes and the Related Documents or (ii) to ensure that those
obligations are legal, valid, binding and enforceable (except as
such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganisation or other similar laws
affecting the enforcement of the rights of creditors generally and
as such enforceability may be limited by the effect of general
principles of equity); or
9.1.8 Unlawfulness: it is or will become unlawful for the Issuer to
perform or comply with any of its obligations under or in respect
of the Notes or the Related Documents; or
9.1.9 Government intervention: (i) all or any substantial part of the
undertaking, assets and revenues of the Issuer is condemned,
seized or otherwise appropriated by any person acting under the
authority of any national, regional or local government or (ii)
the Issuer is prevented by any such person from exercising normal
control over all or any substantial part of its undertaking,
assets and revenues.
9.2 VARIATION OF EVENTS OF DEFAULT
The Events of Default may be varied or amended in respect of any Series
of Notes as set out in the Applicable Supplement.
9.3 REALISATION OF THE UNDERLYING ASSETS UPON REDEMPTION
In the event of the Security constituted under the Trust Deed becoming
enforceable following an acceleration of the Notes of a particular Series
as provided in this Condition 9, the Trustee shall, but in each case
without any liability as to the consequence of such action and without
having regard to the effect of, or being required to account for, such
action to, the Secured Creditors in relation to such Series, have the
right to enforce its rights under the Security Documents, in relation to
the relevant Underlying Assets in relation to such Series only, provided
that the Trustee shall not be required to take any action that would
involve the Trustee in any personal liability or expense unless
previously indemnified and/or secured to its satisfaction.
The provisions of the Trust Deed are expressed to apply separately to
each Series. Accordingly, the occurrence of an Event of Default under one
Series does not per se constitute and nor does it trigger an Event of
Default under any other Series.
10. ENFORCEMENT
(a) Only the Trustee may pursue the remedies available under the Trust
Deed, the Conditions or any of the Transaction Documents or any of
the Trade Documents to enforce the rights of the Secured Creditors
in relation to the Underlying Assets of the relevant Series. No
Secured Creditor of such Series is entitled to proceed directly
against the Issuer or any assets of the Issuer unless the Trustee,
having become bound to proceed in accordance with the terms of the
Principal Trust Deed, any Supplemental Trust Deed, any
Supplementary Security
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Document executed in relation to the Notes or the Conditions,
fails or neglects to do so within a reasonable period and such
failure or neglect is continuing. However, the Trustee shall not
be bound to take any action to enforce the Security or pursue the
remedies available under the Trust Deed, the Conditions (including
under Condition 9.1) any of the Transaction Documents or any of
the Trade Documents or otherwise take any action unless it is
indemnified and/or secured to its satisfaction and has, if so
required by the Conditions, been requested to do so by the
Priority Secured Creditor in respect of the relevant Series.
(b) After the date falling three months after the Series Termination
Date or, if earlier, realisation of the Security in respect of
such Series which has become enforceable and distribution of the
net proceeds thereof in accordance with Condition 4, neither the
Trustee nor any Secured Creditor in respect of such Series may
take any further steps against the Issuer, or any of its assets to
recover any sums due but unpaid in respect of the Notes or
otherwise and the relevant Related Agreement will provide that the
Counterparty may not take any further steps against the Issuer, or
any of its assets to recover any sums due to it but unpaid in
respect of the relevant Related Agreement in respect of such
Series and all claims and all rights to claim against the Issuer
in respect of each such sum unpaid shall be extinguished.
(c) No Secured Creditor, nor the Trustee on its behalf, may institute
against, or join any person in instituting against the Issuer any
bankruptcy, winding-up, re-organisation, arrangement, insolvency
or liquidation proceeding (except for the appointment of a
receiver and manager pursuant to the terms of the Trust Deed) or
other proceeding under any similar law nor shall any of them have
any claim in respect of any such sums over or in respect of any
assets of the Issuer which are Security for any other Series. The
Secured Creditors accept and agree that the only remedy of the
Trustee against the Issuer of any Series after any of the Notes in
a Series have become due and payable pursuant to Condition 9 is to
enforce the Security for the relevant Series pursuant to the
provisions of the Trust Deed and any Supplementary Security
Document executed in relation to such Series.
(d) The net proceeds of enforcement of the Security for the relevant
Series may be insufficient to pay all amounts due to the Secured
Creditors in respect of such Series, in which event claims in
respect of all such amounts will be extinguished.
11. PRESCRIPTION
Claims against the Issuer for payment in respect of the Notes or Coupons
(which, for this purpose, shall not include Talons) shall be prescribed
and become void unless made within ten years (in the case of principal)
or five years (in the case of interest) from the appropriate Relevant
Date in respect thereof.
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12. REPLACEMENT OF NOTES, COUPONS AND TALONS
If any Note, Coupon or Talon is lost, stolen, mutilated, defaced or
destroyed it may be replaced, subject to applicable laws and any relevant
stock exchange requirements, at the specified office of the Principal
Paying Agent or any non-UK Paying Agent specified in the Applicable
Supplement, upon payment by the claimant of the expenses incurred in
connection with such replacement and on such terms as to evidence,
security, indemnity and otherwise as the Issuer may require. Mutilated or
defaced Notes, Coupons or Talons must be surrendered before replacements
will be issued.
13. MEETINGS OF NOTEHOLDERS, MODIFICATION, WAIVER, AUTHORISATION AND
SUBSTITUTION
13.1 MEETINGS OF NOTEHOLDERS
The Principal Trust Deed contains provisions for convening joint and
separate meetings of each Class of Noteholders to consider any matter
affecting their interests, including the sanctioning by an Extraordinary
Resolution of such Noteholders of the relevant Class of any modification
of the Notes of the relevant Class (including these Conditions as they
relate to the Notes of such relevant class) or the provisions of any of
the Transaction Documents or the Trade Documents, Provided that no
modification of certain terms by the Noteholders of any Class including,
inter alia, the maturity date of the Notes of the relevant Class or a
modification which would have the effect of postponing any day for
payment of interest in respect of such Notes, the reduction or
cancellation of the amount of principal or premium payable in respect of
such Notes, the alteration of the Interest Rate in respect of the
currency of payment of such Notes or any alteration of the priority of
redemption of such Notes (any such modification in respect of any such
class of Notes being referred to below as a "BASIC TERMS MODIFICATION")
shall be effective unless such modification is sanctioned by an
Extraordinary Resolution of the Noteholders of the other classes of
Notes.
The quorum at any meeting of the Noteholders of any Class of Notes for
passing an Extraordinary Resolution shall be two or more persons holding
or representing a clear majority of the aggregate Principal Amount
Outstanding of the Notes of the relevant Class; Provided however, that,
at any meeting the business of which includes the sanctioning of a Basic
Terms Modification, the necessary quorum for passing an Extraordinary
Resolution shall be two or more persons holding or representing 75 per
cent., or more of the aggregate Principal Amount Outstanding of the Notes
of the relevant Class.
Except in the case of a Basic Terms Modification, an Extraordinary
Resolution of any Subordinated Secured Creditor shall only be effective
if the Trustee is of the opinion that it will not be materially
prejudicial to the interests of the Priority Secured Creditor or (if the
Trustee is not of that opinion) it is sanctioned by an Extraordinary
Resolution of the Priority Secured Creditor. Except in certain
circumstances, the Principal Trust Deed imposes no such limitations on
the powers of the Priority Secured Creditor, the exercise of which will
be binding on each Subordinated Secured Creditor irrespective of the
effect on their interests.
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An Extraordinary Resolution passed at any meeting of the Noteholders of
any Class of Notes shall be binding on all Noteholders of the relevant
class, whether or not they are present at the meeting. The majority
required for an Extraordinary Resolution, including the sanctioning of
the Basic Terms Modification, shall be 75 per cent. of the votes cast on
that Extraordinary Resolution.
13.2 MODIFICATION OR WAIVER
The Trustee may agree, without the consent of the Noteholders, or
Couponholders to (a) any modification (except a Basic Term Modification)
of, or to the waiver or authorisation of any breach or proposed breach
of, the Notes including these Conditions, any Transaction Document or any
other Trade Document, which is not, in the opinion of the Trustee,
materially prejudicial to the interests of the Noteholders the
Couponholders or (b) any modification of the Notes, or Coupons (including
these Conditions), any Transaction Document or any of the Trade
Documents, which in the Trustee's opinion is to correct a manifest error
or is of a formal minor or technical nature. Any such modification,
waiver, authorisation or determination shall be binding on the
Noteholders and the Couponholders and, unless the Trustee agrees
otherwise, any such modification shall be notified to the Noteholders in
accordance with Condition 14 as soon as practicable thereafter.
13.3 SUBSTITUTION AND ADDITION
As more fully set forth in the Principal Trust Deed (and subject to the
conditions and qualifications therein) subject to such amendment of the
Principal Trust Deed and such other conditions as the Trustee may
require, but without the consent of the Noteholders, the Trustee may also
agree to the substitution of any other body corporate in place of the
Issuer as principal debtor under the Principal Trust Deed and the Notes
and in the case of such a substitution or addition the Trustee may agree,
without the consent of the Noteholders, to a change of the law governing
the Notes and/or the Prinicpal Trust Deed provided that such change would
not in the opinion of the Trustee be materially prejudicial to the
interests of the Noteholders. Any such substitution or addition shall be
notified to the Noteholders in accordance with Condition 14 as soon as
practicable thereafter.
14. NOTICES
(a) Notices to the Noteholders shall be deemed to have been duly validly
given if published in a leading English language daily newspaper
published in London (which is expected to be the Financial Times). Any
such notice shall be deemed to have been given on the date of first
publication.
(b) Until such time as any Definitive Notes are issued, there may, so long as
the Global Note(s) is or are held in its or their entirety on behalf of
Euroclear and Cedelbank, be substituted for such publication in such
newspaper the delivery of the relevant notice to Euroclear and Cedelbank
for communication by them to the holders of the Notes. Any such notice
shall be deemed to have been given to the holders of the Notes on the
seventh day after the day on which such notice was given to Euroclear and
Cedelbank.
(c) Any notices specifying an Interest Rate, an Interest Amount, an amount of
Additional Interest or of Deferred Interest, a Redemption Amount or a
Principal Amount
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Outstanding shall be deemed to have been duly given if the information
contained in such notice appears on the relevant page of the Reuters
Screen or such other medium for the electronic display of data as may be
approved by the Trustee and notified to Noteholders (the "RELEVANT
SCREEN"). Any such notice shall be deemed to have been given on the first
date on which such information appeared on the Relevant Screen. If it is
impossible or impracticable to give notice in accordance with this
paragraph, then notice of the matters referred to in this Condition shall
be given in accordance with the preceding paragraph.
Copies of all notices given in accordance with these provisions shall be
sent to the London Stock Exchange Company Announcements Office, Euroclear
and Cedelbank.
15. GOVERNING LAW
15.1 GOVERNING LAW
The Principal Trust Deed, the Supplemental Trust Deed, the Notes, the
Coupons and the Talons (if any) and the Agency Agreement are governed by
and shall be construed in accordance with English law.
15.2 SUBMISSION TO JURISDICTION
The Issuer has, in the Principal Trust Deed, irrevocably agreed for the
benefit of the Secured Creditors that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceedings, and
to settle any disputes, which may arise out of or in connection with the
Notes (respectively, "PROCEEDINGS" and "DISPUTES") and, for such
purposes, irrevocably submits to the jurisdiction of such courts.
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SCHEDULE 5
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1.A. As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
(i) "VOTING CERTIFICATE" shall mean an English language certificate
issued by a Paying Agent and dated in which it is stated:
(b) that on the date thereof Notes of the relevant class (not
being Notes in respect of which a block voting instruction
has been issued and is outstanding in respect of the
meeting specified in such voting certificate and any such
adjourned meeting) were either deposited with such Paying
Agent or (to the satisfaction of such Paying Agent) were
held to its order or under its control or blocked by a
Depositary holding the same in a manner approved by the
Trustee and that no such Notes will cease to be so
deposited, held or blocked until the first to occur of:
(1) the conclusion of the meeting specified in such
certificate or, if applicable, any such adjourned
meeting; and
(2) the surrender of the certificate to the Paying Agent
who issued the same; and
(c) that until the release of the Notes represented thereby the
bearer thereof is entitled to attend and vote at such
meeting and any such adjourned meeting in respect of the
Notes represented by such certificate;
(ii) "BLOCK VOTING INSTRUCTION" shall mean an English language document
issued by a Paying Agent and dated in which:
(a) it is certified that Notes of the relevant class (not being
Notes in respect of which a voting certificate has been
issued and is outstanding in respect of the meeting
specified in such block voting instruction and any such
adjourned meeting) have been deposited with such Paying
Agent or (to the satisfaction of such Paying Agent) are
held to its order or under its control or blocked by a
Depositary holding the same and that no such Notes will
cease to be so deposited, held or blocked until the first
to occur of:
(1) the conclusion of the meeting specified in such
document or, if applicable, any such adjourned
meeting; and
(2) the surrender to the Paying Agent, not less than 48
hours before the time for which such meeting or any
such adjourned meeting is convened, of the receipt
issued by such Paying Agent in respect of each such
deposited Note which is to be
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released or (as the case may require) the Note or
Notes ceasing with the agreement of the Paying Agent
to be held to its order or under its control or
blocked and the giving of notice by the Paying Agent
to the Issuer in accordance with paragraph 17 below
of the necessary amendment to the block voting
instruction;
(b) it is certified that each holder of such Notes has
instructed such Paying Agent or that Euroclear or Cedelbank
has advised such Paying Agent that the holder of such Notes
has given instructions, that the vote(s) attributable to
the Note(s) so deposited, held or blocked should be cast in
a particular way in relation to the resolution or
resolutions to be put to such meeting or any such adjourned
meeting and that all such instructions are during the
period commencing 48 hours prior to the time for which such
meeting or any such adjourned meeting is convened and
ending at the conclusion or adjournment thereof neither
revocable or capable of amendment;
(c) the total number and the serial numbers of the Notes so
deposited, held or blocked are listed distinguishing with
regard to each such resolution between those in respect of
which instructions have been given as aforesaid that the
votes attributable thereto should be cast in favour of the
resolution and those in respect of which instructions have
been so given that the votes attributable thereto should be
cast against the resolution; and
(d) one or more persons named in such document (each
hereinafter called "PROXY") is or are authorised and
instructed by such Paying Agent to cast the votes
attributable to the Notes so listed in accordance with the
instructions referred to in (c) above as set out in such
document.
(iii) "PRINCIPAL AMOUNT OUTSTANDING" shall mean in relation to a Note on
any date, the principal amount of the Note upon issue less the
aggregate amount of all principal payments in respect of that Note
that have been paid by the Issuer to the Noteholder prior to such
date in accordance with the Conditions.
(iv) "48 HOURS" shall mean a period of 48 hours including all or part
of two days upon which banks are open for business in both the
place where the relevant meeting is to be held and in each of the
places where the Paying Agents have their specified offices
(disregarding for this purpose the day upon which such meeting is
to be held) and such period shall be extended by one or, to the
extent necessary, more periods of 24 hours until there is included
as aforesaid all or part of two days upon which banks are open for
business as aforesaid; and
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(v) "24 HOURS" shall mean a period of 24 hours including all or part
of a day upon which banks are open for business in both the place
where the relevant meeting is to be held and in each of the places
where the Paying Agents have their specified offices (disregarding
for this purpose the day upon which such meeting is to be held)
and such period shall be extended by one or, to the extent
necessary, more periods of 24 hours until there is included as
aforesaid all or part of a day upon which banks are open for
business as aforesaid.
Voting certificates and block voting instructions will only be issued in
respect of Notes blocked in the Noteholder's account with a Depositary in
favour of the Paying Agent or deposited with any Paying Agent (or to the
satisfaction of such Paying Agent held to its order or under its control
as referred to in this paragraph 1) not less than 48 hours before the
time for which the meeting or the poll to which the same relate has been
convened or called and shall be valid for so long as the relevant Notes
continued to be so blocked, deposited or held pursuant to this paragraph
1.
The holder of any voting certificate or the proxies named in any block
voting instruction shall for all purposes in connection with the relevant
meeting or adjourned meeting of Noteholders be deemed to be the holder of
the Notes to which such voting certificate or block voting instruction
relates and the Paying Agent with which such Notes have been deposited or
the person holding the same to the order or under the control of such
Paying Agent or the person holding the same blocked as aforesaid shall be
deemed for such purposes not to be the holder of those Notes.
B. Unless the context otherwise requires or unless otherwise defined in this
Schedule, terms defined in the MTN Master Definitions Schedule (including
the Conditions) shall have the same meaning in this Schedule.
2. The Issuer or the Trustee may at any time and the Issuer shall upon a
requisition in writing signed by the holders of not less than one-tenth
of the Notes of the relevant class for the time being then outstanding,
convene a meeting of the Noteholders of such Class or, and if the Issuer
makes default for a period of seven days in convening such a meeting the
same may be convened by the Trustee or the requisitionists. Whenever the
Issuer is about to convene any such meeting, it shall immediately give
notice in writing to the Trustee of the date, time and place thereof and
the nature of the business to be transacted. Every such meeting shall be
held at such place as the Trustee may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place, day
and hour of meeting shall be given by the Trustee (if the meeting is
convened by the Trustee) or by the Issuer (if the meeting is convened by
the Issuer on its own behalf or upon requisition by the Noteholders
pursuant to paragraph 2) to the relevant Noteholders prior to any meeting
of the relevant Noteholders in the manner provided by Condition 14. Such
notice shall state generally the nature of the business to be transacted
at the meeting thereby convened and (except
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for an Extraordinary Resolution) it shall not be necessary to specify in
such notice the terms of any resolution to be proposed. Such notice shall
include a statement to the effect that Notes may be deposited with Paying
Agents or (to their satisfaction) held to their order or under their
control or blocked by a Depositary holding the same in a manner approved
by the Trustee for the purpose of obtaining voting certificates or
appointing proxies until 48 hours before the time fixed for the meeting
but not thereafter. A copy of the notice shall be sent by post to the
Trustee (unless the meeting is convened by the Trustee) and to the Issuer
(unless the meeting is convened by the Issuer).
4. Some person (who may but need not be a Noteholder or, if applicable, a
Noteholder of the relevant class of Notes) nominated in writing by the
Trustee shall be entitled to take the chair at every such meeting but if
no such nomination is made or if at any meeting the person nominated
shall not be present within fifteen minutes after the time appointed for
holding the meeting the relevant Noteholders present shall choose one of
their number to be Chairman.
5. At any such meeting two or more persons present holding Notes and/or
voting certificates and/or being proxies in respect thereof and holding
or representing in the aggregate not less than one-tenth of the principal
amount of Notes of the relevant class for the time being outstanding,
shall form a quorum for the transaction of business and no business
(other than the choosing of a Chairman) shall be transacted at any
meeting unless the requisite quorum be present at the commencement of
business. The quorum at any such meeting for passing an Extraordinary
Resolution shall (subject as provided below) be two or more persons
present holding Notes or voting certificates in respect thereof or being
proxies or representatives and holding or representing in the aggregate a
clear majority of the aggregate Principal Amount Outstanding of the Notes
of the relevant class for the time being outstanding, provided that at
any meeting the business of which (in relation to the relevant class of
Notes):
(1) includes the sanctioning of a modification of the date of maturity
of the Notes;
(2) would have the effect of modifying any day for payment of interest
on the Notes or the Rate of Interest (as defined in Condition 5.3)
applicable in respect of the Notes or modifying the method of
determining the same;
(3) includes reducing or cancelling (or, in the case of the Notes,
increasing) the amount of principal or the rate of interest
payable in respect of the Notes;
(4) would have the effect of altering the currency of payment of the
Notes;
(5) would have the effect of sanctioning any such scheme or proposal
as is described in paragraph 18(i) below;
(6) would have the effect of altering the majority required to pass an
Extraordinary Resolution or the manner in which such majority is
constituted;
(7) would have the effect of altering the manner or priority of
redemption of the Notes; or
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(8) would have the effect of altering this proviso or the proviso to
paragraph 6 below,
the quorum shall be two or more persons present holding Notes or voting
certificates or being proxies and holding or representing in the
aggregate not less than seventy-five per cent. of the of the aggregate
Principal Amount Outstanding of the Notes of the relevant class for the
time being outstanding. Such matters shall only be capable of being
effected after having been approved by Extraordinary Resolutions of
Noteholders of each class of Notes outstanding at such time.
6. If within fifteen minutes after the time appointed for any such meeting a
quorum is not present the meeting shall, if convened upon the requisition
of the Noteholders be dissolved. In any other case it shall stand
adjourned to the same day in the next week (or if such day is a public
holiday the next succeeding business day) at the same time and place
(except in the case of a meeting at which an Extraordinary Resolution is
to be proposed in which case it shall stand adjourned for such period
being not less than 14 days nor more than 42 days, and at such place as
may be appointed by the Chairman of the meeting and approved by the
Trustee) and at such adjourned meeting two or more persons present
holding Notes and/or voting certificates and/or being proxies in respect
thereof (whatever the aggregate of the Principal Amount Outstanding of
the Notes of the relevant class so held or represented by them shall
(subject as provided below) form a quorum and shall (subject as provided
below) have power to pass any Extraordinary Resolution or other
resolution and to decide upon all matters which could properly have been
dealt with at the meeting from which the adjournment took place had the
requisite quorum been present. Provided that, subject to proviso (i) to
paragraph 18 below, at any adjourned meeting the business of which
includes any of the matters specified in the proviso to paragraph 5
above, the quorum shall be two or more persons present holding Notes
and/or voting certificates or being proxies in respect thereof and
holding or representing in the aggregate 33(1)/3 per cent. of the
aggregate of the Principal Amount Outstanding of the Notes of the
relevant class then outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall (except in cases where the proviso to
paragraph 6 above shall apply when it shall state the relevant quorum)
state that the persons present holding Notes and/or voting certificates
and/or being proxies in respect thereof at the adjourned meeting
(whatever the aggregate of the Principal Amount Outstanding of the Notes
of the relevant class then outstanding held) will form a quorum if at
least two such persons are present. Subject as aforesaid it shall not be
necessary to give any notice of any adjourned meeting.
8. Every resolution submitted to a meeting shall (subject to paragraph 21)
be decided by a simple majority, in the first instance by a show of
hands, then (subject to paragraph 9) by a poll and in case of equality of
votes the Chairman shall both on a show of hands and on a poll have a
casting vote in addition to the vote or votes (if any) to which he may be
entitled as a Noteholder of the relevant class (in the case of Notes in
definitive form) and/or as a holder of a voting certificate and/or as a
proxy.
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9. At any meeting, unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the Issuer or by
two or more persons present holding Notes and/or voting certificates
and/or being proxies and holding or representing in the aggregate not
less than one-fiftieth part of the Principal Amount Outstanding of the
Notes of the relevant class then outstanding a declaration by the
Chairman that a resolution has been carried by a particular majority or
lost or not carried by a particular majority shall be conclusive evidence
of that fact without proof of the number or proportion of the votes
recorded in favour or against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded, it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman directs
and the result of such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of the taking of
the poll. The demand for a poll shall not prevent the continuance of the
meeting for the transaction of any business other than the motion on
which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any such
meeting adjourn the same from time to time and from place to place but no
business shall be transacted at any adjourned meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any such meeting on the election of a Chairman or on
any question of adjournment shall be taken at the meeting without
adjournment.
13. The Trustee and the Issuer (through their respective officers, employees,
advisers, agents or other representatives) and their respective financial
and legal advisers should be entitled to attend and speak at any meeting
of the Noteholders. Save as aforesaid [but without prejudice to the
proviso to the definition of "OUTSTANDING" in the Master Definitions
Schedule] no person shall be entitled to attend and speak nor shall any
person be entitled to vote at any meeting of the Noteholders or join with
others in requesting the convening of such a meeting or to exercise the
rights conferred on the Noteholders by Conditions 8 and 13 or, unless he
either produces the Note(s) of which he is the holder or a voting
certificate or is a proxy.
14. Subject as provided in paragraph 13 hereof at any meeting on a show of
hands every person who is present in person and produces a Definitive
Note of the relevant class or a voting certificate or is a proxy shall
have one vote or on a poll every person who is so present shall have one
vote in respect of each (pound)1 in Principal Amount Outstanding of the
Notes of the relevant class so produced or represented by the voting
certificate so produced or in respect of which he is a proxy.
Without prejudice to the obligations of the proxies named in any block
voting instruction any person entitled to more than one vote need not use
all his votes or cast all the votes to which he is entitled in the same
way.
15. The proxies need not be Noteholders.
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16. Each block voting instruction together (if so required by the Trustee)
with proof satisfactory to the Trustee of its due execution on behalf of
the relevant Paying Agent shall be deposited at such place as the Trustee
shall approve not less than 24 hours before the time appointed for
holding the meeting or adjourned meeting at which the proxies named in
the block voting instruction propose to vote and in default of such
deposit the block voting instruction shall not be treated as valid unless
the Chairman of the meeting decides otherwise before such meeting or
adjourned meeting proceeds to business. A notarially certified copy of
each block voting instruction shall, unless the Trustee otherwise agrees,
be deposited with the Trustee before the commencement of the meeting or
adjourned meeting but the Trustee shall not thereby be obliged to
investigate or be concerned with the validity of or the authority of the
proxies named in any such block voting instruction.
17. Any vote cast in accordance with the terms of a block voting instruction
shall be valid notwithstanding the previous revocation or amendment of
the block voting instruction or of any of the Noteholder's instructions
pursuant to which it was executed, provided that no intimation in writing
of such revocation or amendment shall have been received from the
relevant Paying Agent by the Issuer at its registered office (or such
other place as may have been approved by the Trustee for the purpose) by
the time being 24 hours before the time appointed for holding the meeting
or adjourned meeting at which the block voting instruction is to be used.
18. A meeting of the Noteholders shall, in respect of Notes of the relevant
class only and insofar as it affects Notes of the relevant class, and in
addition to the powers hereinbefore given, have the following powers
exercisable by Extraordinary Resolution (subject to the provisions
relating to quorum contained in paragraphs 5 and 6 above) only, namely:
(a) power to sanction any compromise or arrangement proposed to be
made between the Issuer and the Noteholders;
(b) power to sanction any abrogation, modification (including for the
avoidance of doubt a modification which would have the effect of
increasing the amount of principal or the rate of interest payable
(in respect of the Notes)), compromise or arrangement in respect
of the rights of the Noteholders against the Issuer or against any
of its property or against any other person whether such rights
shall arise under this Deed, any of the Notes or otherwise;
(c) power to assent to any modification of the provisions contained in
this Deed, the Conditions or the Notes which shall be proposed by
the Issuer or the Trustee;
(d) power to give any authority or sanction which under the provisions
of this Deed (including the Conditions) is required to be given by
Extraordinary Resolution;
(e) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or discretions
108
which the Noteholders could themselves exercise by Extraordinary
Resolution;
(f) power to approve of a person to be appointed a trustee and power
to remove any trustee or trustees for the time being of this Deed;
(g) power to discharge or exonerate the Trustee from all liability in
respect of any act or omission for which the Trustee may have
become responsible under this Deed or under the Notes;
(h) power to authorise the Trustee to concur in and execute and do all
such deeds, instruments, acts and things as may be necessary to
carry out and give effect to any Extraordinary Resolution;
(i) power to sanction any such substitution as is referred to in
Condition 13, but without prejudice to the Trustee's powers in
relation thereto or any scheme or proposal for the exchange or
sale of the Notes for, or the conversion of any of the Notes into,
or the cancellation of any of the Notes in consideration of
shares, stock, notes, bonds, debentures, debenture stock and/or
other obligations and/or securities of the Issuer or of any other
company formed or to be formed, or for or into or in consideration
of cash, or partly for or into or in consideration of such shares,
stock, notes, bonds, debenture stock and/or other obligations
and/or securities as aforesaid and partly for or into or in
consideration of cash; and
(j) power to authorise the Trustee or any receiver appointed by it
where it or he shall have entered into possession of the security
to discontinue enforcement of any security constituted by this
Deed and the Deed of Charge either unconditionally or upon any
conditions,
provided that:
(i) no modification involving any of the matters referred to in the
proviso to paragraph 5 above passed by Noteholders who are
Priority Secured Creditors shall be effective unless it is
sanctioned by an Extraordinary Resolution of each Class of
Noteholders who are Subordinated Secured Creditors in respect of
such Series;
(ii) no other Extraordinary Resolution of Noteholders who are
Subordinated Secured Creditors in respect of any Series shall be
effective unless (a) the Trustee is of the opinion that it will
not be materially prejudicial to the interests of the Noteholders
who are Priority Secured Creditors of such Series, or (b) it is
sanctioned by an Extraordinary Resolution of such Priority Secured
Creditors;
19. The following provisions shall apply where outstanding Notes belong to
more than one class:
109
(a) business which in the opinion of the Trustee affects the Notes of
only one class shall be transacted at a separate meeting of the
Noteholders of that class;
(b) business which in the opinion of the Trustee affects the Notes of
more than one class but does not give rise to an actual or
potential conflict of interest between the Noteholders of one such
class and the Noteholders of any other class shall be transacted
either at separate meetings of the Noteholders of each such class
or at a single meeting of the Noteholders of all such classes as
the Trustee shall in its absolute discretion determine;
(c) business which in the opinion of the Trustee affects the Notes of
more than one class and gives rise to an actual or potential
conflict of interest between the Noteholders of one such class and
the Noteholders of any other such class shall be transacted at
separate meetings of the Noteholders of each such class; and
(d) as may be necessary to give effect to the above provisions, the
preceding paragraphs of this Schedule shall be applied as if
references to the Notes and Noteholders were to the Notes of the
relevant class and to the Noteholders of such Notes.
20. Subject to the provisos to paragraph 18 above, any resolution passed at a
meeting of the Noteholders duly convened and held in accordance with this
Deed shall be binding upon all the Noteholders of the relevant class or
classes (as the case may be) whether present or not present at such
meeting and whether or not voting and any resolution passed at a meeting
of the Priority Secured Creditors of any Series duly convened and held as
aforesaid shall also be binding upon all the Subordinated Secured
Creditors of whatever Class of such Series.
All of the relevant classes of Noteholders shall be bound to give effect
to any such resolutions accordingly and the passing of any such
resolution shall be conclusive evidence that the circumstances justify
the passing thereof. Notice of the result of the voting on any resolution
duly considered by the Noteholders shall be published (at the cost of the
Issuer) in accordance with Condition 14 by the Issuer within 14 days of
such result being known, provided that the non-publication of such notice
shall not invalidate such resolution.
21. The expression "EXTRAORDINARY RESOLUTION" when used in this Deed means a
resolution passed at a meeting of the Noteholders duly convened and held
in accordance with the provisions herein contained by a majority
consisting of seventy-five per cent. of the persons voting thereat upon a
show of hands or if a poll be duly demanded then by a majority consisting
of not less than seventy-five per cent. of the votes given on such poll.
22. Minutes of all resolutions and proceedings at every such meeting as
aforesaid shall be made and duly entered in books to be from time to time
provided for that purpose by the Issuer and any such Minutes as aforesaid
if purporting to be signed by the Chairman of the meeting at which such
resolutions were passed or proceedings had shall be conclusive evidence
of the matters therein contained and until the contrary is proved
110
every such meeting in respect of the proceedings of which Minutes have
been made shall be deemed to have been duly held and convened and all
resolutions passed or proceedings had thereat to have been duly passed or
had.
23. Where appropriate, subject to the provisions of the Security Trust Deed
and the relevant Conditions, joint meetings of different classes of
Noteholders or of Noteholders of different Series may be held to consider
the same resolution and/or, as the case may be, the same Extraordinary
Resolution and the provisions of this Schedule shall apply mutatis
mutandis thereto.
24. Subject to all other provisions contained in this Deed the Trustee may
without the consent of the Issuer or the Noteholders prescribe such
further resolutions regarding the requisitioning and/or the holding of
meetings of Noteholders and attendance and voting thereat as the Trustee
may in its sole discretion think fit.
References herein to a "RESOLUTION DULY PASSED AT A MEETING OF THE NOTEHOLDERS"
shall include, where the context permits, a resolution in writing signed by or
on behalf of all Noteholders of the relevant class who for the time being are
entitled to receive notice of a meeting in accordance with the provisions herein
contained. Such resolution in writing may be contained in one document or in
several documents in like form each signed by or on behalf of one or more of
such Noteholders.
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ISSUER
Executed as a deed by )
BARCLAYCARD FUNDING PLC ) D. ROGER FINNEY
acting by two directors ) PETER S. CROOK
in the presence of: )
GINA HARTNETT
MTN CASH MANAGER AND INITIAL TRANSFEROR
Executed as a deed by )
BARCLAYS BANK PLC ) MARK WINTER
acting by its duly authorised attorney )
in the presence of: )
GINA HARTNETT
TRUSTEE
Executed as a deed by )
THE BANK OF NEW YORK ) MICHAEL HELLMUTH
acting by its duly authorised )
attorney in the presence of )
GINA HARTNETT
RECEIVABLES TRUSTEE
Executed as a deed by )
GRACECHURCH RECEIVABLES )
TRUSTEE LIMITED ) PETER S. CROOK
acting by two directors/a director and ) RICHARD GERWAT
the secretary in the presence of: )
GINA HARTNETT
SHANE HOLLYWOOD
112