EXHIBIT 4.4
CLIFFORD
CHANCE
DATED [*] 2008
BARCLAYCARD FUNDING PLC
as MTN Issuer
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
THE BANK OF NEW YORK
(acting through its London Branch)
as Security Trustee
BARCLAYS BANK PLC
as Initial Transferor
and
BARCLAYS BANK PLC
as MTN Cash Manager
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SERIES [*] MTN SUPPLEMENT
Dated [*] 2008
To
SECURITY TRUST DEED AND MTN CASH MANAGEMENT
AGREEMENT
Dated 23 November 1999
--------------------------------------------------------------
CONTENTS
CLAUSE PAGE
Part A Interpretation......................................................3
1. Defined Terms........................................................3
2. General..............................................................3
Part B Effect Of Series [*] MTN Supplement.................................5
3. Noteholders..........................................................5
4. Series [*] MTN Supplement To Security Trust..........................5
Part C Agreements.........................................................11
5. Payments On The Notes...............................................11
6. Agreement Of The Secured Creditors And Trustee......................12
7. Negative Covenants Of The Mtn Issuer................................12
Part D.......................................................................14
8. Governing Law And Jurisdiction......................................14
9. Notices.............................................................14
10. Severability Of Provisions..........................................15
11. No Waiver; Cumulative Remedies......................................15
12. Counterparts........................................................16
13. Contracts (Rights Of Third Parties) Act.............................16
The Schedule.................................................................17
Exhibit A....................................................................29
THIS SERIES [*] MTN SUPPLEMENT, is made on the [*] 2008 as a Deed
BY AND BETWEEN:
(1) BARCLAYCARD FUNDING PLC, a company incorporated in England and Wales
with registered number 2530163, having its registered office at 1
Churchill Place, London E14 5HP (the "MTN ISSUER");
(2) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in
Jersey with registered number 75210, having its registered office at
26 New Street, St. Helier, Jersey JE2 3RA (the "RECEIVABLES TRUSTEE");
(3) BARCLAYS BANK PLC, a company incorporated in England and Wales with
registered number 1026167, acting through its business unit,
Barclaycard, whose principal place of business is at 1234 Pavilion
Drive, Northampton, NN4 7SG (the "INITIAL TRANSFEROR");
(4) BARCLAYS BANK PLC, a company incorporated in England and Wales with
registered number 1026167 having its registered office at 1 Churchill
Place, London E14 5HP (the "MTN CASH MANAGER"); and
(5) THE BANK OF NEW YORK, a banking institution incorporated under the
laws of New York and acting thorough its London branch whose principal
place of business is at 48th Floor, One Canada Square, London E14,
5AL, in its capacity as security trustee (the "SECURITY 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
Security Trustee of this Deed for any series).
WHEREAS
(A) The MTN Issuer has established a programme for the issuance of medium
term notes and note certificates, pursuant to the terms of the
Security Trust Deed and MTN Cash Management Agreement.
(B) The MTN Issuer now intends to issue a Series of Notes in accordance
with Clauses 2.1 to 2.3 of the Security Trust Deed and MTN Cash
Management Agreement, in the manner and in the amount set out herein.
(C) The Security Trustee, the MTN Issuer, the MTN Cash Manager and the
Initial Transferor supplemented and varied the Security Trust Deed and
MTN Cash Management Agreement by entering into the (i) Series 02-1 MTN
Supplement on 24 October 2002; (ii) Series 03-1 MTN Supplement on 8
April 2003; (iii) Series 03-2 MTN Supplement on 19 June 2003; (iv)
Series 03-3 MTN Supplement on 18 September 2003; (v) Series 04-1 MTN
Supplement on 11 March 2004; (vi) Series 04-2 MTN Supplement on 23
November 2004; (vii) Series 05-1 MTN Supplement on 21 June 2005;
(viii) Series 05-2 MTN Supplement on 20 September 2005; (ix) Series
05-3 MTN Supplement on 20 October 2005; (x) Series 05-4 MTN Supplement
on 28 November 2005; and (xi) Series 06-1 MTN Supplement on 28
September 2006.
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(D) The Security Trustee, the MTN Issuer, the MTN Cash Manager and the
Initial Transferor intend to supplement and vary the Security Trust
Deed and MTN Cash Management Agreement in the manner and to the extent
set out herein (the "SERIES [*] MTN SUPPLEMENT").
(E) It is intended by the parties hereto that, following the completion of
the transactions contemplated by this Series [*] MTN Supplement, each
Noteholder will become a Secured Creditor in respect of the Secured
Property, as supplemented and varied in accordance with the provisions
hereof and that each such Note held by a Noteholder will constitute or
form part of a Series for the purposes of the Security Trust Deed and
MTN Cash Management Agreement; such Series to be referred to as
"SERIES [*]".
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NOW IT IS HEREBY AGREED as follows:
PART A
INTERPRETATION
1. DEFINED TERMS
Terms defined in the MTN Master Definitions Schedule dated 23 November
1999 as amended and restated on 24 October 2002 between the Security
Trustee, the MTN Cash Manager, the Initial Transferor and the and as
amended and restated on 27 February 2003 MTN Issuer (as the same may
be amended, varied or supplemented from time to time (the "MTN MASTER
DEFINITIONS SCHEDULE")), the Security Trust Deed and MTN Cash
Management Agreement, the Series [*] Supplement and in the Schedule
hereto (including, without limitation, the Conditions of the Notes)
shall have the same meanings when used in this Series [*] MTN
Supplement and the recitals hereto unless the context requires
otherwise PROVIDED, HOWEVER, that in the event that any term or
provision contained in the Schedule hereto shall conflict with or be
inconsistent with any provision contained in the Security Trust Deed
and MTN Cash Management Agreement, the Series [*] Supplement or the
terms of the MTN Master Definition Schedule, the terms and provisions
contained in the Schedule shall prevail with respect to Series [*]
only.
2. GENERAL
2.1 The headings and the contents pages in this Series [*] MTN Supplement
shall not affect its interpretation.
2.2 Words denoting the singular number only shall include the plural
number also and vice versa; words denoting one gender only shall
include the other gender.
2.3 References to Clauses, paragraphs, Exhibits, and Schedules shall,
unless the context requires otherwise, be to clauses, paragraphs,
exhibits and schedules in this Series [*] MTN Supplement.
2.4 Save where the contrary is indicated, any reference in this Series [*]
MTN Supplement to:
(a) this Series [*] MTN Supplement or any other agreement or
document shall be construed as a reference to this Series [*]
MTN Supplement, or as the case may be, such other agreement or
document as the same may have been, or may from time to time
be, amended, varied, novated or supplemented;
(b) an enactment is a reference to it as already amended and
includes a reference to any repealed enactment which it may
re-enact, with or without amendment, and to any re-enactment
and/or amendment of it; and
(c) a time of day (including opening and closing of business)
shall be construed as a reference to London time.
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2.5 Save where the context otherwise requires, all sums payable by any
party to any other party pursuant hereto are inclusive of any VAT
which is chargeable on the supply or supplies for which such sums (or
any part thereof) are the whole or part of the consideration for VAT
purposes (irrespective of whether such supply is or such supplies are
made to such first mentioned party or another person) and section 89
of the Value Added Tax Act 1994 shall not apply to affect the amount
of such sums and the phrase "inclusive of VAT" shall be construed
accordingly.
2.6 Any reference herein to any fee, cost, disbursement, expense or
liability incurred by any party and in respect of which such party is
to be reimbursed (or indemnified) by any other person or the amount of
which is to be taken into account in any calculation or computation
shall, save where the context otherwise requires, include a reference
to such part of such cost or expense as represents VAT.
2.7 References to the parties hereto shall be construed so as to include
its and any subsequent successors and permitted assigns in accordance
with their respective interests.
2.8 The Schedule forms part of this Series [*] MTN Supplement and in
respect of Series [*], the Security Trust Deed and MTN Cash Management
Agreement and each of them shall be construed accordingly.
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PART B
EFFECT OF SERIES [*] MTN SUPPLEMENT
3. NOTEHOLDERS
3.1 Upon (a) the making of the advance and the payment referred to in
Clause 3.2 and (b) the issue of a duly executed and authenticated
Temporary Global Note in respect of Series [*], the person who has
made such advance shall be treated for all purposes under the Security
Trust Deed and MTN Cash Management Agreement, as supplemented by this
Series [*] MTN Supplement, as a Noteholder in respect of Series [*]
and a Secured Creditor in respect of the Secured Property on the Issue
Date in accordance with Clause 4 of the Security Trust Deed and MTN
Cash Management Agreement, and as such shall be beneficially entitled
to a security interest in such Secured Property to the extent of the
Principal Amount together with interest and any other amounts due or
owing in respect of the Notes.
3.2 In order for the issue and due authentication and delivery of each
Note referred to in Clause 3.1 to be effected, the Noteholder shall
make an advance in an amount of [POUND][*] to the MTN Issuer by
depositing such amount in the Series [*] Distribution Account for
value on the Closing Date. On each Distribution Date, the Noteholder
shall pay to the MTN Issuer the Deferred Subscription Price Amount, to
the extent that such amount is available.
3.3 The Temporary Global Note representing the Notes shall be
substantially in the form of Part 1 of Exhibit A, to the Schedule. The
Permanent Global Note representing each Note shall be substantially in
the form of Part 2 of Exhibit A to the Schedule.
4. SERIES [*] MTN SUPPLEMENT TO SECURITY TRUST
4.1 The Security Trust Deed and MTN Cash Management Agreement shall be
supplemented and varied in the manner and to the extent set out below
and shall from such time on the Issue Date be read and construed for
all purposes as supplemented and varied as set out in this Series [*]
MTN Supplement and the Schedule and the Security in respect of Series
[*] shall be constituted accordingly:
(a) Clause 1 of the Security Trust Deed and MTN Cash Management
Agreement shall be supplemented and varied with respect to
Series [*] by the addition of the definitions as contained in
Section A of Part 1 of the Schedule. In the event that any
term or provision contained therein shall conflict with or be
inconsistent with any provision contained in the Security
Trust Deed and MTN Cash Management Agreement, the terms and
provisions of this Series [*] MTN Supplement shall govern with
respect to Series [*]. All clause or sub-clause references in
the Schedule shall be to the relevant clause or sub-clauses of
the Security Trust Deed and MTN Cash Management Agreement,
except as otherwise provided in the Schedule. All capitalised
terms used in the Schedule which are not otherwise defined
therein are defined in the MTN Master
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Definitions Schedule. Each capitalised term defined in the
Schedule shall relate only to Series [*] and no other Series;
(b) the Conditions of the Notes set out in Schedule 4 of the
Security Trust Deed and MTN Cash Management Agreement shall be
supplemented with respect to Series [*] by the additional
provisions set out in Section B of Part 1 of the Schedule;
(c) for the purposes of Clause 10.6 of the Security Trust Deed and
MTN Cash Management Agreement, the MTN Cash Manager Fee
payable by the MTN Issuer to the MTN Cash Manager shall be
paid in the amount and the manner set out in Part 2 of the
Schedule; and
(d) Clauses 3 (Payments on the Notes), 6.1 to 6.3 and 18 (Holder
deemed to be absolute owner) of the Security Trust Deed and
MTN Cash Management Agreement shall be supplemented by the
additional provisions set out in Part 3 of the Schedule and
shall be read in conjunction with the provisions of Part 3 of
the Schedule in relation to the Notes constituting Series [*];
and
(e) Clause 8.2.1(c) of the Security Trust Deed and MTN Cash
Management Agreement shall be supplemented and varied with
respect to Series [*] to read as follows: "The Security
Trustee shall be entitled to take into account, for the
purposes of exercising any power, trust, authority, duty or
discretion under or in relation to any Series Document that
such exercise will not be materially prejudicial to the
beneficial interest of the Secured Creditors in a security
interest in respect of the Secured Property of the relevant
Series (the "NO MATERIAL PREJUDICE TEST") 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, PROVIDED THAT the Security
Trustee shall continue to be responsible for taking into
account, for the purpose of the No Material Prejudice Test,
all other matters which would be relevant to such No Material
Prejudice Test".
4.2 As continuing first fixed security for the payment or discharge of the
Secured Obligations save to the extent that they constitute Jersey
Assets and subject always to Clause 4.13 below, the MTN Issuer with
full title guarantee hereby conveys, assigns and transfers by way of
first fixed security to and in favour of the Security Trustee for
itself and on trust for the Secured Creditors in respect of Series
[*]:
(a) its beneficial interest (and all rights and interests arising
in respect thereof) in respect of Series [*] under the
Receivables Trust as an Investor Beneficiary thereof to the
extent specified in the Series [*] Supplement and in the
Declaration of Trust and Trust Cash Management Agreement;
(b) all its right, title, interest and benefit present and future
in and to any agreement relating to Series [*] (other than the
Declaration of Trust and Trust Cash Management Agreement (as
the same has been supplemented from time to
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time) to the extent secured under (a) above) or document
relating to Series [*] which the MTN Issuer is or may at any
time be, expressed to have the benefit of or to have any
rights under or to have any other interest in unless otherwise
charged or secured by way of fixed security under this Clause
4.2, (INCLUDING, without limitation, all supplements and
accretions thereto, all rights to receive payment of any
amounts which may become payable thereunder and all payments
received by the MTN Issuer thereunder and all items expressed
to be held on trust for the MTN Issuer thereunder or comprised
therein, all rights to serve notices or give consents and
directions or make demands thereunder or take such steps as
are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach
thereof and all rights to receive damages or obtain other
relief in respect thereof);
(c) all its right, title, interest and benefit present and future
in and to all sums of money which may now or hereafter from
time to time be credited to the Series [*] Distribution
Account or any other Series [*] Issuer Distribution Account or
MTN Issuer account established by the MTN Issuer in respect of
Series [*] or in respect of any amounts representing or
derived from Trust Property relating to Series [*] or received
from Barclays Bank PLC pursuant to the Agreement Between
Beneficiaries or to any bank or other accounts in which the
MTN Issuer may at any time have or acquire any right, title,
interest or benefit together with all interest accruing from
time to time thereon and the debts represented thereby and all
its right, title, interest and benefit present and future
therein;
(d) all of the MTN Issuer's rights in and to the Permitted
Investments in respect of Series [*] and any payment due in
respect thereof and the debts represented thereby; and
(e) all of the MTN Issuer's right, title, interest and benefit in
respect of amounts credited to the Trustee Bank Accounts in
respect of Series [*].
4.3 The MTN Issuer by way of first fixed security for payment and
discharge of the Secured Obligations, as beneficial owner thereof and
subject always to Clause 4.13, hereby assigns to the Security Trustee
the Jersey Collateral in order to create a security interest therein
pursuant to Article 2(6) of the Jersey Security Interests Law as a
continuing security for discharge of the Secured Obligations.
4.4 For the purposes of Article 3 of the Jersey Security Interests Law and
for the avoidance of doubt, it is hereby agreed as follows:
(a) the debtor in respect of the creation of the Jersey Security
Interest is the MTN Issuer;
(b) the secured parties in respect of the creation of the Jersey
Security Interest are the Security Trustee and the Secured
Creditors in respect of Series [*], provided however that all
rights in connection therewith are to be exercised on their
behalf by the Security Trustee in accordance with the terms of
this Series [*]
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MTN Supplement, the Security Trust Deed and MTN Cash
Management Agreement and the Jersey Security Interests Law;
(c) the collateral in respect of which the Jersey Security
Interest is created comprises the "Jersey Collateral";
(d) the events of default in respect of the Jersey Security
Interest are the events set out in Condition 9 of the Notes
under the heading "Events of Default" referred to herein as a
"Series [*] Enforcement Event"; and
(e) the obligations in respect of which the Jersey Security
Interest is created comprise the Secured Obligations.
4.5 The MTN Issuer and the Security Trustee hereby give notice, for the
purposes of Article 2(8) of the Jersey Security Interests Law, of the
creation of the Jersey Security Interest and the Receivables Trustee
by execution of this Series [*] MTN Supplement:
(a) acknowledges receipt of such notice;
(b) confirms that it does not have and will not make or exercise
any claims or demands, any rights of counterclaims, rights of
set-off any other rights against the MTN Issuer in respect of
the Jersey Collateral or any part thereof and it has not, as
of the date of this Series [*] MTN Supplement, received any
notice that any third party has or will have any rights or
interest whatsoever in or has made or will be making any claim
or demand or taking any action whatsoever against the Jersey
Collateral or any part thereof; and
(c) undertakes in the event that it becomes aware at any time that
any person or entity other than the Security Trustee (as
Security Trustee for the Secured Creditors in respect of
Series [*]) has or will have any right or interest whatsoever
against the Jersey Collateral or any part thereof, it will
immediately give written notice of any such right or interest,
claim or demand or action to both the Security Trustee and the
MTN Issuer.
4.6 Following irrevocable discharge in full of the Secured Obligations of
which the Security Trustee has notice, the Security Trustee shall
reassign to the MTN Issuer the Jersey Collateral.
4.7 The MTN Issuer hereby gives notice to the Receivables Trustee and the
MTN Cash Manager (as operating bank) of the assignment by way of
security made by the MTN Issuer to the Security Trustee (for itself,
and on trust for the Noteholders) under Clause 4.2, which notice each
of the Receivables Trustee and the MTN Cash Manager acknowledges by
execution of this Series [*] MTN Supplement.
4.8 Notwithstanding the charges and securities created by or pursuant to
this Series [*] MTN Supplement, the Security Trustee agrees that,
until the occurrence of a Series [*] Enforcement Event, payments
becoming due to the MTN Issuer from the Receivables Trustee as
provided by the Declaration of Trust and Trust Cash Management
Agreement and the Series [*] Supplement, together with all other
monies payable to the MTN Issuer
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pursuant to any other documents or arrangements to which it is a
party, may (in any case) be made to the MTN Issuer in accordance with
the provisions of the Declaration of Trust and Trust Cash Management
Agreement and the Series [*] Supplement or (as the case may be) the
documents or arrangements concerned, and the MTN Issuer may exercise
its rights, powers and discretions and perform its obligations in
relation to the Secured Property and under the Series [*] Documents in
accordance with the provisions of the Series [*] Documents (as defined
below) or (as the case may be) such other documents or arrangements.
4.9 Notwithstanding the Security created by or pursuant to this Series [*]
MTN Supplement, prior to a Series [*] Enforcement Event, amounts
standing to the credit of the Series [*] Distribution Account from
time to time may be withdrawn therefrom by the MTN Issuer but only in
accordance with the applicable provisions of the Series [*] Documents.
4.10 From and including the time when a Series [*] Enforcement Event has
occurred and the Notes have become due in accordance with the
Conditions, (a) the security created pursuant to this Series [*] MTN
Supplement shall become enforceable and the Security Trustee may
enforce any rights it may have in respect of the Secured Property, in
respect of Series [*] and (b) no amount may be withdrawn from the
Series [*] Distribution Account by the MTN Issuer or on its behalf
without the prior written consent of the Security Trustee.
4.11 The Security Trustee shall hold and apply all moneys received by it
under the Security Trust Deed and MTN Cash Management Agreement and
this Series [*] MTN Supplement in connection with the realisation or
enforcement of the Secured Property in respect of Series [*] in
accordance with the priorities set out in the Security Trust Deed and
MTN Cash Management Agreement as supplemented by Part 3 of the
Schedule hereto.
4.12 Upon proof being given to the satisfaction of the Security Trustee as
to the irrevocable and unconditional payment or discharge of the
Secured Obligations in respect of Series [*], the Security Trustee
will at the request and cost of the MTN Issuer release, discharge or
reassign the Secured Property to the MTN Issuer or any other person
entitled thereto of whom the Security Trustee has notice.
4.13 Section 103 of the Law of Property Act 1925 shall not apply in
relation to any of the Security created by this Clause 4 (Series [*]
MTN Supplement to Security Trust). The statutory powers of sale and of
appointing a receiver which are conferred upon the Security Trustee as
varied and extended by this Deed and all other powers shall in favour
of any purchaser be deemed to arise and be exercisable immediately
after the execution of this Deed but shall only be exercised upon and
following the giving of an Enforcement Notice and in the case of the
Jersey Security Interest, subject to the provisions of Articles 6(4)
and 8(3) of the Jersey Security Interests Law, the Security Trustee
shall have an immediate power of sale over the Jersey Collateral,
without having to apply to the Royal Court of Jersey for authority to
exercise the same.
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4.14 The power of sale in respect of the Jersey Security Interest shall be
exercisable by the Security Trustee in such manner as the Security
Trustee may in its absolute discretion deem appropriate and with all
powers of a beneficial owner. Without limitation the Security Trustee
may, without liability and subject to the Security Trustee having been
indemnified in full to its satisfaction, sell or dispose of the whole
or part of the Jersey Collateral at such times and in such manner and
generally on such terms and conditions and for such consideration as
the Security Trustee may think fit. Any such sale or disposal may be
for cash, debentures or other obligations, shares, stocks, securities
or other valuable consideration and may be payable immediately or by
instalment spread over such a period as the Security Trustee may think
fit. The Security Trustee shall have right of recourse to any monies
forming part of the Jersey Collateral and may, without liability and
subject to the Security Trustee having been indemnified in full to its
satisfaction, apply such monies in the payment or discharge of the
Secured Obligations as if such moneys were proceeds of sale.
4.15 For the avoidance of doubt, the power of attorney granted by the MTN
Issuer under Clause 7.13.2 of the Security Trust Deed and MTN Cash
Management Agreement is granted in respect of the Security created by
this Clause 4, inter alia, pursuant to Article 5 of the Powers of
Attorney (Jersey) Law 1995 for the purposes of facilitating the
Security Trustee's powers hereunder and under the Jersey Security
Interests Law in respect of the Jersey Security Interest.
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PART C
AGREEMENTS
5. PAYMENTS ON THE NOTES
COVENANT TO PAY
The MTN Issuer shall, on any date when the Notes of any Series
(including 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 Security 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
Security Trustee in respect of interest on the Principal Amount
outstanding including Further Interest, Deferred Interest and
Additional Interest (if any) as 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:
5.1 the MTN Issuer shall only be obliged to pay such Principal Amount
outstanding and interest (including Further Interest (if any)),
Deferred Interest and Additional Interest, if any, in respect of
Series [*] to the extent set out in the Security Trust Deed and MTN
Cash Management Agreement and this related Series [*] MTN Supplement,
in respect of such Series;
5.2 every payment of a Principal Amount outstanding or interest (including
Further Interest (if any)), 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
5.3 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 Security 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 Security 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.
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6. AGREEMENT OF THE SECURED CREDITORS AND TRUSTEE
ADDITIONAL SUPPLEMENTS
Each Secured Creditor in respect of Series [*] consents and confirms
as a Secured Creditor in respect of the Secured Property in respect of
Series [*] that, subject to Clause 5.6.2 of the Security Trust Deed
and MTN Cash Management Agreement, the Security Trust Deed and MTN
Cash Management Agreement may be supplemented and varied from time to
time in accordance with the terms of this Series [*] MTN Supplement or
additional MTN Supplements.
7. NEGATIVE COVENANTS OF THE MTN ISSUER
The MTN Issuer shall not, save to the extent permitted by the Security
Trust Deed and MTN Cash Management Agreement or any Supplement thereto
or with the prior written consent of the Initial Transferor and each
Rating Agency then rating any outstanding Associated Debt of any
Series:
(a) dispose of any Secured Property or create or permit to subsist
any Encumbrance including, without limitation, anything
analogous to any of the foregoing under the laws of any
jurisdiction upon the whole or any part of its present or
future undertaking, assets or revenues (including, without
limitation, uncalled capital and any Secured Property) other
than the interest referred to in Clauses 6.1 to 6.3 of the
Security Trust Deed and MTN Cash Management Agreement, as
amended by this Series [*] MTN Supplement;
(b) carry on any business other than as contemplated herein
relating to the purchase of beneficial interests in the
Securitised Portfolio (as defined in the Trust Master
Definitions Schedule) to be held on trust by the Receivables
Trustee and the issue of the Notes of any Series and in
respect of that business shall not engage in any activity or
do anything whatsoever except:
(i) preserve and/or exercise and/or enforce any of its
rights and perform and observe its obligations under
the Notes appertaining thereto, the Security Trust
Deed and MTN Cash Management Agreement, the MTN Master
Definitions Schedule, the Declaration of Trust and
Trust Cash Management Agreement, the Trust Master
Definitions Schedule, the Beneficiaries Servicing
Agreement and the supplement thereto, the MTN Issuer
Bank Agreement, the Series [*] Supplement, the
Agreement Between Beneficiaries, Agency Agreement,
declaration of purpose trust, deed of novation,
Programme Dealer Agreement and this Series [*] MTN
Supplement and any mandate regarding any MTN Issuer
account (including the Series [*] Distribution
Account) (together, the "SERIES [*] DOCUMENTS");
(ii) use, invest or dispose of any of its property or
assets in the manner provided in or contemplated by
the Series [*] Documents;
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(iii) perform any act incidental to or necessary in
connection with (i) or (ii) above;
(c) have or form, or cause to be formed, any subsidiary,
subsidiary undertakings or undertakings of any other nature or
have any employees or premises or have an interest in a bank
account other than the Series [*] Distribution Account or any
other MTN Issuer accounts;
(d) create, incur or suffer to exist any indebtedness (other than
indebtedness permitted to be incurred under the terms of its
articles of association and pursuant to or as contemplated in
any of the Series [*] Documents) or give any guarantee in
respect of any obligation of any person;
(e) repurchase any shares (except to the extent of any Series [*]
Extra Amount received and retained by the MTN Issuer in
accordance with the Security Trust Deed and MTN Cash
Management Agreement and this Series [*] MTN Supplement) or
declare or pay any dividend or other distribution to its
shareholders or issue or allot shares to any Person other than
Barclays Bank PLC or the share trustee, except to the extent
required by law;
(f) consolidate with or merge with or into any person or on a
voluntary basis enter into an administration or any form or
reorganisation or liquidate or dissolve;
(g) waive, modify or amend, or consent to any waiver, modification
or amendment of, any of the provisions of the Series [*]
Documents which the MTN Issuer is a party to, without the
prior written consent of the Initial Transferor and the
Security Trustee;
(h) offer to surrender to any company any amounts which are
available for surrender by way of group relief; or
(i) 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.
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PART D
MISCELLANEOUS
8. GOVERNING LAW AND JURISDICTION
8.1 GOVERNING LAW
This Series [*] MTN Supplement and all matters arising from or
connected with it shall be governed by, and construed in accordance
with, the laws of England, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such
laws, except to the extent the provisions of this Series [*] MTN
Supplement relate to the creation and enforcement of the Jersey
Security Interest, to which extent this Deed shall be governed by and
construed in accordance with Jersey law.
8.2 JURISDICTION
(a) 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 Series [*] MTN Supplement, and,
for such purposes, irrevocably submits to the exclusive
jurisdiction of such courts.
(b) Each party hereto irrevocably waives any objection which it
might now or hereafter have to the courts of England referred
to above 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 Series [*]
MTN Supplement and agrees not to claim that any such court is
not a convenient or appropriate forum.
(c) Each party hereto (if it is not incorporated in England)
irrevocably appoints the person specified against its name on
the execution pages hereto 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
Series [*] MTN Supplement 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 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).
9. NOTICES
9.1 Unless otherwise stated herein, each communication or notice to be
made hereunder shall be made in writing and may be made by telefax or
letter.
9.2 Any communication, notice or document to be made or delivered by any
one person to another pursuant to this Series [*] MTN Supplement shall
(unless that other person has
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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 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 communication made by one party
hereto to another shall be made to that person at the telefax number
notified to such party by that other person from time to time:
9.2.1 in the case of the Initial Transferor, the MTN Cash Manager
(in whatever capacity) and the MTN Issuer to the addresses
specified in the Security Trust Deed and MTN Cash Management
Agreement;
9.2.2 in the case of the Security Trustee, the Bank of New York
(acting through its London branch), 40th Floor, One Canada
Square, London E14 5AL, fax no.: 020 7964 2533; Attention:
Corporate Trust - ABS/MBS/PF;
9.2.3 in the case of the Receivables Trustee, 26 New Street, St.
Helier, Jersey JE2 3RA, fax no.: 01534 814815 Attention:
Richard Gerwat; and
9.2.4 in the case of the Rating Agencies for Associated Debt:
(a) in the case of Standard & Poor's to Standard & Poor's
Ratings Group, 11th Floor 20, Canada Square, Canary
Wharf, London E14 5LH, fax no.: +44 (020) 7176 3598
Attention: Structured Finance Department; and
(b) in the case of Moody's to Moody's Investors Service
Inc., 2 Minster Court, Mincing Lane, London, EC3R 7XB,
fax no.: + 44 (020) 7772 5400 Attention: Structured
Finance.
10. SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms
of this Series [*] MTN Supplement 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 Series [*] MTN Supplement and shall in no
way affect the validity or enforceability of the other provisions of
this Series [*] MTN Supplement or of the rights of the Secured
Creditors hereunder.
11. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of any
of the parties hereto, 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.
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12. COUNTERPARTS
This Series [*] MTN Supplement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but
one and the same instrument.
13. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of
this Deed but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.
IN WITNESS WHEREOF the MTN Issuer, the Receivables Trustee, the Security
Trustee, the MTN Cash Manager and the Initial Transferor have caused this
Series [*] MTN Supplement to be duly executed and delivered by their duly
authorised representatives as a deed on the day and year first above written.
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THE SCHEDULE
PART 1 - SECTION A: DEFINITIONS
"ADDITIONAL AVAILABLE FUNDS" means amounts credited to the Additional Funds
Ledger in respect of the Series [*] MTN Certificate;
"ADDITIONAL FUNDS LEDGER" has the meaning given to it in Clause 3A.1;
"ADDITIONAL INTEREST" has the meaning ascribed to it in Clause 5.7 of the
Security Trust Deed and MTN Cash Management Agreement;
"AGREEMENT BETWEEN BENEFICIARIES" means, with respect to Series [*], the
agreement between Barclays Bank PLC, the Receivables Trustee and the MTN Issuer
dated [*] 2008;
"ASSIGNED EXCESS SPREAD" means, with respect to Series [*], the amounts payable
by the Receivables Trustee to the MTN Issuer as beneficial owner thereof in
consequence of the Agreement Between Beneficiaries;
"ASSOCIATED DEBT" means, collectively, the Class A Associated Debt, the Class B
Associated Debt, the Class C Associated Debt and the Class D Associated Debt;
"ASSOCIATED SWAP AGREEMENT" means the Class A currency and interest rate swap
agreement, the Class B currency and interest rate swap agreement, the Class C
currency and interest rate swap agreement and the Class D currency and interest
rate swap agreement, each dated [*] 2008 and in each case entered into between
the Series [*] Associated Issuer and the Associated Swap Counterparty in
respect of the Associated Debt;
"ASSOCIATED SWAP COUNTERPARTY" means Barclays Bank PLC;
"AUTHORISED DENOMINATION" means [POUND][*];
"BENEFICIARIES" has the meaning given to it in the Series [*] Supplement;
"BENEFICIARIES SERVICING AGREEMENT" has the meaning given to it in the Trust
Master Definitions Schedule;
"BUSINESS DAY" means a day (i) other than a Saturday or a Sunday or a day on
which banking institutions in London are authorised or obliged by law to be
closed and (ii) on which the TARGET System is open;
"CLASS A" shall mean for calculation purposes, the portion of the Notes related
to the Class A Associated Debt;
"CLASS A ASSOCIATED DEBT" means the $/[POUND]/[EURO][*] Class A Asset Backed
Floating Rate Notes due [*], constituted by the Series [*] Note Trust Deed
Supplement dated [*] 2008 between the Series [*] Associated Issuer and The Bank
of New York, acting through its London branch;
"CLASS A INVESTOR INTEREST" shall have the meaning given to it in the Series
[*] Supplement;
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"CLASS B" shall mean for calculation purposes, the portion of the Notes related
to the Class B Associated Debt;
"CLASS B ASSOCIATED DEBT" means the $/[POUND]/[EURO][*] Class B Asset Backed
Floating Rate Notes due [*] constituted by the Series [*] Note Trust Deed
Supplement dated [*] 2008 between the Series [*] Associated Issuer and The Bank
of New York, acting through its London branch;
"CLASS B INVESTOR INTEREST" shall have the meaning given to it in the Series
[*] Supplement;
"CLASS C" shall mean for calculation purposes, the portion of the Notes related
to the Class C Associated Debt;
"CLASS C ASSOCIATED DEBT" means the $/[POUND]/[EURO][*] Class C Asset Backed
Floating Rate Notes due [*] constituted by the Series [*] Note Trust Deed
Supplement dated [*] 2008 between the Series [*] Associated Issuer and The Bank
of New York, acting through its London branch;
"CLASS C INVESTOR INTEREST" shall have the meaning given to it in the Series
[*] Supplement;
"CLASS D" shall mean for calculation purposes, the portion of the Notes related
to the Class D Associated Debt;
"CLASS D ASSOCIATED DEBT" means the $/[POUND]/[EURO][*] Class D Asset Backed
Floating Rate Notes due [*] constituted by the Series [*] Note Trust Deed
Supplement dated [*] 2008 between the Series [*] Associated Issuer and The Bank
of New York, acting through its London branch;
"CLASS D INVESTOR INTEREST" shall have the meaning given to it in the Series
[*] Supplement;
"DAY COUNT FRACTION" means, in relation to Series [*], the actual number of
days in the relevant period divided by 365 (or, in the case of a leap year,
366);
"DEFERRED INTEREST" has the meaning ascribed to it in Clause 5.7 of the
Security Trust Deed and MTN Cash Management Agreement;
"DEFERRED SUBSCRIPTION PRICE AMOUNT" means, on any Distribution Date in
relation to Series [*], an amount paid by the Series [*] Associated Issuer
equal to the Further Interest received by such Series [*] Associated Issuer in
its capacity as Noteholder in relation to Series [*] on such Distribution Date
and not utilised by the Series [*] Associated Issuer in paying any amounts
other than Deferred Subscription Price Amounts;
"DISTRIBUTION DATE" means the 15th day of each month commencing on [*] or, if
such day is not a Business Day, the next following Business Day, PROVIDED THAT
the first Distribution Date shall fall on [*];
"EXCESS ENTITLEMENT CONSIDERATION" means an amount equal to the Deferred
Subscription Price Amount payable by the MTN Issuer to Barclays Bank PLC;
"EXCESS FINANCE CHARGE AMOUNTS" has the meaning ascribed to it in Clause 3.2(c)
of the Declaration of Trust and Trust Cash Management Agreement;
"FINAL REDEMPTION DATE" means in respect of Series [*] the Interest Payment
Date falling in [*];
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"FOLLOWING BUSINESS DAY CONVENTION" has the meaning given to it in Condition 1;
"FURTHER INTEREST" means in relation to Series [*] the amount to be paid by the
MTN Issuer to the Series [*] Associated Issuer which is equal to the aggregate
of: (1) Excess Finance Charge Amounts received by the MTN Issuer pursuant to
the assignment contained in the Agreement Between Beneficiaries; and (2) any
other amounts which are treated as Excess Finance Charge Amounts referable to
Series [*] pursuant to the Declaration of Trust and Trust Cash Management
Agreement (including Clauses 5.19(c), 5,19(d), 5.22(e) and 5.22(f), thereof as
applicable to Series [*]);
"INITIAL TRANSFEROR" means Barclays Bank PLC;
"INTEREST DETERMINATION DATE" means the first day of each Interest Period;
"INTEREST PAYMENT DATE" means each Distribution Date;
"INTEREST PERIOD" means [*];
"INTEREST RATE" means in respect of (1) the first and second Interest Periods,
the linear interpolation of [*]-month and [*]-month deposits and (2) for any
other Interest Period, [*]-month deposits, in each case for pounds sterling in
the London interbank market;
"INVESTOR BENEFICIARY" means the MTN Issuer;
"INVESTOR INTEREST" shall have the meaning given to it in the Series [*]
Supplement;
"JERSEY ASSETS" means in relation to the MTN Issuer all or any of its
undertaking, property, assets, rights and revenues whatsoever, present and
future, situated in Jersey (including, without limitation, the Jersey
Collateral);
"JERSEY COLLATERAL" means in relation to the MTN Issuer, to the extent they
constitute Jersey Assets and relate to Series [*], all its right, title,
interest and benefit present and future in, to and under the Declaration of
Trust and Trust Cash Management Agreement as supplemented by the Series [*]
Supplement), including without limitation all rights to receive payment of any
amount which may become payable to the MTN Issuer thereunder or payments
received by the MTN Issuer thereunder or rights to serve notices and/or to take
such steps as are required to cause payments to be become due and payable
thereunder and all rights of action in respect of any breach thereof and all
rights to receive damages or obtain other relief in respect thereof;
"JERSEY SECURITY INTEREST" means the security created in respect of Series [*]
pursuant to Clause 4.3 of this Series [*] MTN Supplement in accordance with the
requirements of the Jersey Security Interests Law;
"JERSEY SECURITY INTERESTS LAW" means the Security Interests (Jersey) Law,
1983;
"MARGIN" means [*] per cent. per annum;
"MTN ISSUER BANK AGREEMENT" means the MTN Issuer bank agreement entered into on
or about the date hereof between the Security Trustee, the MTN Issuer and
Barclays Bank PLC;
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"MTN ISSUER COSTS AMOUNT" means all third party costs, fees, taxes and expenses
payable in relation to Series [*] by the MTN Issuer for the relevant Monthly
Period;
"NOTE TRUST DEED" means the Note Trust Deed dated [*] 2008 between the Bank of
New York, acting through its London branch, as Note Trustee, and the Series [*]
Associated Issuer as Issuer;
"RELEVANT CURRENCY" means Sterling;
"RELEVANT DOCUMENTS" has the meaning given to it in the Trust Master
Definitions Schedule;
"SCHEDULED REDEMPTION DATE" means in respect of Series [*] the Interest Payment
Date falling in [*];
"SECURED CREDITORS" means, in respect of Series [*], the Security Trustee and
the Noteholder(s) in respect of Series [*];
"SECURED PROPERTY" means all that property of the MTN Issuer held as security
(whether fixed, floating or as a Jersey Security Interest) under this
Supplement or the Security Trust Deed and MTN Cash Management Agreement;
"SECURITISED PORTFOLIO" has the meaning given to it in the Trust Master
Definitions Schedule;
"SERIES [*]" means the Series of the Receivables Trust created pursuant to the
Series [*] Supplement to the Trust and Cash Management Agreement dated [*]
2008;
"SERIES [*] ASSOCIATED ISSUER" means Gracechurch Card Programme Funding Limited
as issuer of the Associated Debt and its successors and assigns as holder of
the Notes in respect of Series [*];
"SERIES [*] DISTRIBUTION ACCOUNT" means the account in the name of the MTN
Issuer at Barclays Bank PLC, 1 Churchill Place, London E14 5HP (account number
[*] sort code [*]);
"SERIES [*] ENFORCEMENT EVENT" means an event specified in Condition 9;
"SERIES [*] EXTRA AMOUNT" has the meaning given to it in the Series [*]
Supplement;
"SERIES [*] ISSUER DISTRIBUTION ACCOUNT" means the account in the name of the
Series [*] Associated Issuer at Barclays Bank PLC, 1 Churchill Place, London
E14 5HP (account number [*]; sort code [*]);
"SERIES [*] SUPPLEMENT" means the Series [*] Supplement to the Declaration of
Trust and Trust Cash Management Agreement dated [*] 2008 between the Initial
Transferor, the MTN Issuer and the Receivables Trustee;
"SERIES TERMINATION DATE" means in respect of Series [*] the earlier to occur
of (a) the Distribution Date on which the Investor Interest in respect of
Series [*] is reduced to zero; or (b) the Final Redemption Date;
"TRUST CASH MANAGEMENT FEE" shall have the meaning given to it in Clause 9.2(a)
of the Declaration of Trust and Trust Cash Management Agreement; and
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"TRUST MASTER DEFINITIONS SCHEDULE" means the master definitions schedule dated
23 November 1999 as amended and restated on 7 July 2000 and 24 October 2002
between the MTN Issuer, the Receivables Trustee and Barclays Bank PLC as
Transferor, Initial Transferor Beneficiary, Initial Excess Interest
Beneficiary, Servicer and Trust Cash Manager in respect of the Beneficiaries
Servicing Agreement, the Declaration of Trust and Trust Cash Management
Agreement and the Receivables Securitisation Agreement.
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SECTION B SUPPLEMENTS TO THE CONDITIONS
The Conditions set out in Schedule 4 to the Security Trust Deed and MTN Cash
Management Agreement shall be supplemented as follows:
1. For the purposes of Condition 5.2, all dates referred to in the
Conditions shall be subject to adjustment in accordance with the
Following Business Day Convention.
2. For the purposes of Condition 5.8 (Definitions), (a) the "Controlled
Accumulation Period" shall commence at the close of business on [*] or
such later date as is determined in accordance with Clause 5.11(g) of
the Series [*] Supplement and (b) the "Day Count Fraction" shall be
Actual / 365 / 366.
3. Condition 9.1 (Occurrence of Events of Default) shall be supplemented
by the addition of the following sub-paragraph 9.1.10:
"9.1.10 Associated Swap Agreement: the early termination, without
replacement, of any Associated Swap Agreement".
4. Condition 5.1.1 shall be supplemented by the addition of the following
wording to be inserted in line 4 after the words "Margin (if any)":
"together with any amounts of Further Interest (if any)".
5. A further Condition 5.11 shall be added with respect to Series [*]:
"The Noteholder shall, on each Distribution Date pay the Deferred
Subscription Price Amount to the MTN Issuer. By subscribing for, or
acquiring, the MTN Certificate, the Noteholder agrees to be bound by
this obligation."
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PART 2
CASH MANAGEMENT COMPENSATION
The MTN Cash Manager's compensation for providing cash management services in
respect of Series [*] shall be met in full out of the MTN Cash Manager's
standard banking charges levied against the MTN Issuer from time to time in its
capacity as an account operating bank under the terms of the MTN Issuer Bank
Agreement dated [*] 2008 made between the MTN Issuer and the MTN Cash Manager.
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PART 3
SUPPLEMENTS TO CLAUSE 3 (PAYMENTS ON THE NOTES), CLAUSE 6 (ESTABLISHMENT
OF ISSUER BANK ACCOUNTS IN RESPECT OF EACH SERIES) AND CLAUSE 18 (HOLDER
TO BE DEEMED ABSOLUTE OWNER) OF THE SECURITY TRUST DEED AND MTN CASH
MANAGEMENT AGREEMENT
3A ESTABLISHMENT AND MAINTENANCE OF LEDGERS
3A.1 The MTN Cash Manager shall open and maintain in the Series [*]
Distribution Account of the MTN Issuer certain notional ledgers (each
a "LEDGER") in respect of Series [*] to be known respectively as the
"Class A Coupon Ledger", the "Class B Coupon Ledger", the "Class C
Coupon Ledger", the "Class D Coupon Ledger", the "Additional Funds
Ledger", the "Class A Principal Ledger", the "Class B Principal
Ledger", the "Class C Principal Ledger" and the "Class D Principal
Ledger" which together shall reflect the amount of monies from time to
time held by the MTN Issuer in the Series [*] Distribution Account.
3A.2 The MTN Cash Manager shall record all monies received or payments made
by it on behalf of the MTN Issuer in respect of Series [*] in the
manner set out in this Agreement. If at any time the Cash Manager is
in any doubt as to which Ledger a particular amount should be credited
or debited, it shall consult with the Security Trustee thereon.
3A.3 The MTN Cash Manager shall ensure that:
(a) the Class A Coupon Ledger will be credited on each
Distribution Date with the aggregate of (i) the amount
credited on such Distribution Date to the Distribution Ledger
that is referable to Class A (other than any amounts
representing Class A Monthly Principal Amounts), (ii) all
other amounts (other than principal) distributed to the MTN
Issuer by the Receivables Trustee on such date in respect of
the Class A Investor Interest;
(b) the Class B Coupon Ledger will be credited on each
Distribution Date with the aggregate of (i) the amount
credited on such Distribution Date to the Distribution Ledger
that is referable to Class B (other than any amounts
representing Class B Monthly Principal Amounts) and (ii) all
other amounts (other than principal) distributed to the MTN
Issuer by the Receivables Trustee on such date in respect of
the Class B Investor Interest;
(c) the Class C Coupon Ledger will be credited on each
Distribution Date with the aggregate of (i) the amount
credited on such Distribution Date to the Distribution Ledger
that is referable to Class C (other than any amounts
representing Class C Monthly Principal Amounts) and (ii) all
other amounts (other than principal) distributed to the MTN
Issuer by the Receivables Trustee on such date in respect of
the Class C Investor Interest;
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(d) the Class D Coupon Ledger will be credited on each
Distribution Date with the aggregate of (i) the amount
credited on such Distribution Date to the Distribution Ledger
that is referable to Class D (other than any amounts
representing Class D Monthly Principal Amounts) and (ii) all
other amounts (other than principal) distributed to the MTN
Issuer by the Receivables Trustee on such date in respect of
the Class D Investor Interest;
(e) the Class A Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables
Trustee to the MTN Issuer on such date in reduction of the
Class A Investor Interest;
(f) (if applicable) the Class A Principal Ledger will be credited
on each Distribution Date falling during the Rapid
Amortisation Period or the Regulated Amortisation Period with
the amount paid by the Receivables Trustee to the MTN Issuer
on such date in reduction of the Class A Investor Interest;
(g) the Class B Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables
Trustee to the MTN Issuer on such date in reduction of the
Class B Investor Interest;
(h) (if applicable) the Class B Principal Ledger will be credited
on each Distribution Date falling during the Rapid
Amortisation Period or the Regulated Amortisation Period with
the amount paid by the Receivables Trustee to the MTN Issuer
on such date in reduction of the Class B Investor Interest;
(i) the Class C Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables
Trustee to the MTN Issuer on such date in reduction of the
Class C Investor Interest;
(j) (if applicable) the Class C Principal Ledger will be credited
on each Distribution Date falling during the Rapid
Amortisation Period or the Regulated Amortisation Period with
the amount paid by the Receivables Trustee to the MTN Issuer
on such date in reduction of the Class C Investor Interest;
(k) the Class D Principal Ledger will be credited on the Scheduled
Redemption Date with the amount paid by the Receivables
Trustee to the MTN Issuer on such date in reduction of the
Class D Investor Interest;
(l) (if applicable) the Class D Principal Ledger will be credited
on each Distribution Date falling during the Rapid
Amortisation Period with the amount paid by the Receivables
Trustee to the MTN Issuer on such date in reduction of the
Class D Investor Interest; and
(m) the Additional Funds Ledger will be credited on each
Distribution Date with the Assigned Excess Spread and the
Deferred Subscription Price Amount (to the extent available).
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3A.4 The amounts credited to the Class A Coupon Ledger, the Class B Coupon
Ledger, the Class C Coupon Ledger, the Class D Coupon Ledger and the
Additional Funds Ledger on each Distribution Date shall constitute
"Available Funds" and "Additional Available Funds" respectively.
3B APPLICATION OF MONIES PRE-ENFORCEMENT
3B.1 On each Interest Payment Date:
(a) Available Funds on such date will be applied in making the
following payments, in the amounts calculated by the MTN Cash
Manager to be required, in the following order of priority (in
each case if and to the extent that payments of a higher
priority have been made in full):
(i) first, to pay when due the MTN Issuer Cost Amounts
(such amount to be paid to the parties to whom the
relevant cost amounts are owed);
(ii) second, to pay all amounts of interest (other than
Further Interest) including any Deferred Interest and
any Additional Interest payable in respect of Class A
(such amount to be paid to or to the order of the
Noteholder in respect of Series [*]);
(iii) third, to pay all amounts of interest (other than
Further Interest) including any Deferred Interest and
any Additional Interest payable in respect of Class B
(such amount to be paid to or to the order of the
Noteholder in respect of Series [*]);
(iv) fourth, to pay all amounts of interest (other than
Further Interest) including any Deferred Interest and
any Additional Interest payable in respect of Class C
(such amount to be paid to or to the order of the
Noteholder in respect of Series [*]);
(v) fifth, to pay all amounts of interest (other than
Further Interest) including any Deferred Interest and
any Additional Interest payable in respect of Class D
(such amount to be paid to or to the order of the
Noteholder in respect of Series [*]);
(vi) sixth, an amount equal to 1/2 of the Series [*] Extra
Amount will be paid to the MTN Issuer;
(vii) seventh, an amount equal to 1/2 of the Series [*]
Extra Amount will be deposited in the Series [*]
Issuer Distribution Account;
(viii) eighth, to pay the Servicing Fee and the Trust Cash
Management Fee due in respect of the preceding Monthly
Period to the extent not paid directly to the Servicer
and the Trust Cash Manager out of amounts allocated to
the MTN Issuer by the Receivables Trustee on the
preceding Transfer Date; and
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(ix) ninth, in payment to the MTN Issuer; and
(b) Additional Available Funds (if any) on such date will be
applied in and towards payment of, first, Further Interest (if
any), second, Excess Entitlement Consideration (if any)
payable by the MTN Issuer and then repayment of any principal
due for repayment thereunder on such date.
3B.2 Amounts credited to the Class A Principal Ledger, the Class B
Principal Ledger, the Class C Principal Ledger and the Class D
Principal Ledger on the Scheduled Redemption Date or, if applicable,
each Distribution Date falling during the Rapid Amortisation Period
or, as the case may be, the Regulated Amortisation Period, shall be
applied on such dates in and towards redemption of the Notes;
3B.3 All Ledgers shall be reset to zero at the close of business on each
Interest Payment Date.
3C APPLICATION OF MONIES POST-ENFORCEMENT
3C.1 Notwithstanding the security rights created by this Series [*] MTN
Supplement but subject always to the provisions of Article 8(6)(b) of
the Jersey Security Interests Law in respect of the Jersey Security
Interest, the Security Trustee and each of the Secured Creditors
hereby agrees, and the MTN Issuer concurs, that from the time of the
giving of an Enforcement Notice, no amount may be withdrawn from the
Series [*] Distribution Account except to the extent that it is
applied in accordance with the order of priorities set out in Clause
3C.3 or as otherwise permitted by the provisions of this Series [*]
MTN Supplement or any other Relevant Documents in respect of Series
[*] that are applicable after the giving of an Enforcement Notice.
3C.2 Notwithstanding the security rights created by this Series [*] MTN
Supplement, but subject always to the provisions of Article 8(6)(b) of
the Jersey Security Interests Law in respect of the Jersey Security
Interest, the Security Trustee and each of the Secured Creditors
hereby agrees, and the MTN Issuer concurs, that any monies whatsoever
recovered by each of them or on their behalf (whether by the Security
Trustee or otherwise) after the giving of an Enforcement Notice, shall
be paid to the Security Trustee (and pending such payment shall be
held on trust for the Security Trustee) for application in accordance
with the order of priorities set out in Clause 3C.3 (in each case only
if and to the extent that payments of higher priority have been made
in full).
3C.3 The order of the priorities referred to in Clauses 3C.1 and 3C.2 is as
follows:
(a) FIRST, in no order of priority inter se but pro rata to the
respective amounts then due, to pay remuneration then due to
any receiver appointed pursuant to this Series [*] MTN
Supplement or to the Security Trustee and all amounts due in
respect of legal fees and other costs, charges, liabilities,
expenses, losses, damages, proceedings, claims and demands
then incurred by the Security Trustee under and in respect of
the Relevant Documents in respect of Series [*] and in
enforcing the security created by or pursuant to this Series
[*] MTN Supplement or in perfecting title to the Security,
together with interest thereon as provided in any such
document;
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(b) SECOND, (to the extent not covered by (a) above) in payment or
satisfaction of costs, charges, liabilities, expenses, losses,
damages, proceedings, claims and demands of the Security
Trustee under the Security Trust Deed and MTN Cash Management
Agreement and this MTN Supplement; and
(c) THIRD, in or towards payment pari passu and rateably of all
principal, premium (if any) and interest then due and unpaid
in respect of the Notes (other than Further Interest);
(d) FOURTH, in or towards payment of any sums due from (or
required to be provided for by) the MTN Issuer to meet its
liabilities to any taxation authority (including in respect of
corporation tax to the H.M. Revenue and Customs);
(e) FIFTH, in or towards payment of any sums due to third parties
under obligations incurred in the course of the MTN Issuer's
business;
(f) SIXTH, in or towards payment of any dividends due and unpaid
to shareholders of the MTN Issuer; and
(g) SEVENTH, to pay all amounts of Further Interest (if any);
(h) EIGHTH, to pay all amounts of Excess Entitlement Consideration
(if any); and
(i) NINTH, in payment of the balance (if any) to the liquidator of
the MTN Issuer.
Without prejudice to the above, if the Security Trustee holds any monies which
represent principal and interest in respect of any Note which has become void
or in respect of which claims have been prescribed under Note Condition 11
(Prescription), the Security Trustee will hold such monies on the above trusts.
3C.4 Clause 18.1 of the Security Trust Deed and MTN Cash Management
Agreement shall be supplemented by the addition of the following
wording to be inserted in line 2 after the words "applicable laws)":
"except for the purposes of payments in respect thereof, the right to
which shall be vested, as against the MTN Issuer, the Trustee and the
Agents, solely in the bearer thereof".
28
EXHIBIT A
PART 1
FORM OF TEMPORARY GLOBAL NOTE CERTIFICATE
TEMPORARY GLOBAL NOTE CERTIFICATE
ISIN:[*] Common Code:[*]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE AND NOTE CERTIFICATE PROGRAMME
TEMPORARY GLOBAL NOTE CERTIFICATE
REPRESENTING UP TO
[POUND][*]
FLOATING RATE ASSET BACKED NOTE CERTIFICATE DUE [*]
This global note is a Temporary Global Note Certificate without interest
coupons issued in respect of an issue of an aggregate principal amount of
[POUND][*] of Floating Rate Asset Backed Notes due [*] (the "NOTE CERTIFICATE")
by Barclaycard Funding PLC (the "MTN ISSUER").
The MTN Issuer for value received promises, all in accordance with the terms
and conditions set out in the applicable Series [*] MTN Supplement ("TERMS AND
CONDITIONS") and the Principal Trust Deed (as defined below) to pay to the
bearer upon presentation or, as the case may be, surrender hereof in respect of
each Note Certificate for the time being from time to time represented hereby,
on the maturity date specified in the Terms and Conditions or on such earlier
date as any such Note Certificate may become due and payable in accordance with
the Terms and Conditions, the Principal Amount on such dates as may be
specified in the Terms and Conditions or, if any such Note Certificate shall
become due and payable on any other date, the Principal Amount and, in respect
of each such Note Certificate, to pay interest and all other amounts as may be
payable pursuant to the Terms and Conditions all subject to and in accordance
therewith.
Except as specified herein, the bearer of this Temporary Global Note
Certificate is entitled to the benefit of the Terms and Conditions and of the
same obligations on the part of the MTN Issuer as if such bearer were the
bearer of the Note Certificates represented hereby and to the benefit of those
provisions of the Terms and Conditions (and the obligations on the part of the
MTN Issuer contained therein) applicable specifically to Temporary Global Note
Certificate,
29
and all payments under and to the bearer of this Temporary Global Note
Certificate shall be valid and effective to satisfy and discharge the
corresponding Liabilities of the MTN Issuer in respect of the Note
Certificates.
This Temporary Global Note Certificate is issued pursuant to a security trust
deed and MTN cash management deed dated 23 November 1999 (the "PRINCIPAL TRUST
DEED") together with the supplemental trust deed in respect of Series [*] dated
[*] 2008 (the "SERIES [*] MTN SUPPLEMENT" and, together with the Principal
Trust Deed, the "TRUST DEED") and made between the MTN Issuer and The Bank of
New York, London Branch, as Security Trustee (the "SECURITY TRUSTEE" which
expression includes any person or corporation from time to time appointed as
Security Trustee). Words and expressions defined expressly or by reference in
the Terms and Conditions and the Trust Deed shall have the same meanings in
this Temporary Global Note Certificate.
On or after the expiry of 40 days after the date of issue of this Temporary
Global Note Certificate (the "EXCHANGE DATE"), this Temporary Global Note
Certificate shall be exchangeable in whole or in part for a Permanent Global
Note or, in the circumstances set out in the Series [*] MTN Supplement, for a
Definitive Note. An exchange for a Permanent Global Note or, as the case may
be, Definitive Note will be made only on or after the Exchange Date and upon
presentation or, as the case may be, surrender of this Temporary Global Note
Certificate to the Principal Paying Agent at its specified office and upon and
to the extent of delivery to the Principal Paying Agent of a certificate or
certificates issued by Euroclear Bank S.A./N.V. as operator of the Euroclear
System ("EUROCLEAR") or Clearstream, Luxembourg or by any other relevant
clearing system and dated not earlier than the Exchange Date in substantially
the form set out in Annex I hereto or, as the case may be, in the form that is
customarily issued in such circumstances by such other clearing system. Any
Definitive Note will be made available for collection by the persons entitled
thereto at the specified office of the Principal Paying Agent.
The MTN Issuer undertakes to procure that the relevant Permanent Global Note
and Definitive Note will be duly issued in accordance with the Terms and
Conditions, the provisions hereof and of the Trust Deed.
The bearer of this Temporary Global Note Certificate shall not (unless, upon
due presentation of this Temporary Global Note Certificate for exchange (in
whole or in part) for a Permanent Global Note or for delivery of Definitive
Note, such exchange or delivery is improperly withheld or refused and such
withholding or refusal is continuing at the relevant payment date) be entitled
to receive any payment in respect of the Note Certificates represented by this
Temporary Global Note Certificate which falls due on or after the Exchange Date
or be entitled to exercise any option on a date after the Exchange Date.
Payments of interest otherwise falling due before the Exchange Date will be
made only upon presentation of this Temporary Global Note Certificate at the
specified office of any of the Paying Agents outside the United States and upon
and to the extent of delivery to the relevant Paying Agent of a certificate or
certificates issued by Euroclear or Clearstream, Luxembourg or by any other
relevant clearing system and dated not earlier than the relevant interest
payment
30
date in substantially the form set out in Annex II hereto or, as the case may
be, in the form that is customarily issued in such circumstances by such other
clearing system.
On any occasion on which a payment of principal is made in respect of this
Temporary Global Note Certificate or on which this Temporary Global Note
Certificate is exchanged in whole or in part as aforesaid or on which Note
Certificate represented by this Temporary Global Note Certificate are to be
cancelled, the MTN Issuer shall procure that (i) the aggregate principal amount
of the Note Certificates in respect of which such payment is made (or, in the
case of a partial payment, the corresponding part thereof) or which are
delivered in definitive form or which are to be exchanged for a permanent
global instrument or which are to be cancelled and (ii) the remaining principal
amount of this Temporary Global Note Certificate (which shall be the previous
principal amount hereof less the amount referred to at (i) above) are noted on
the Schedule hereto, whereupon the principal amount of this Temporary Global
Note Certificate shall for all purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Note
Certificates represented by this Temporary Global Note Certificate, the MTN
Issuer shall procure that the appropriate notations are made on the Schedule
hereto.
The obligations of the MTN Issuer in respect of this Temporary Global Note
Certificate are limited recourse in nature, as more particularly set out in the
Terms and Conditions and the Trust Deed. In addition the bearer of this
Temporary Global Note Certificate and, inter alios, the Security Trustee are
restricted in the proceedings which they may take against the MTN Issuer to
enforce their rights hereunder and under the Trust Deed, as more particularly
set out in the Terms and Conditions and the Trust Deed.
This Temporary Global Note Certificate is governed by, and shall be construed
in accordance with, English law.
The MTN Issuer irrevocably agrees for the benefit of the bearer that the courts
of England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in
connection with these presents (respectively, "PROCEEDINGS" and "DISPUTES")
and, for such purposes, irrevocably submits to the jurisdiction of such courts.
The MTN Issuer irrevocably waives any objection which it might now or hereafter
have to the courts of England being nominated as the forum to hear and
determine any Proceedings and to settle any Disputes and agrees not to claim
that any such court is not a convenient or appropriate forum.
This Temporary Global Note Certificate shall not be valid for any purpose until
authenticated for and on behalf of The Bank of New York, London Branch as Issue
Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the MTN Issuer.
31
THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTE CERTIFICATES, EXCHANGE FOR
PERMANENT GLOBAL NOTE CERTIFICATE, EXERCISE OF OPTIONS AND
CANCELLATION OF NOTE CERTIFICATES
Date of Amount of Amount of Aggregate Aggregate Aggregate Aggregate Remaining Authorised
payment, interest principal principal principal principal principal principal signature
delivery then then amount of amount of amount of amount in amount of by or on
exchange, paid paid Definitive this Note respect this behalf of
exercise Note Temporary Certificate of which Temporary the
of option Certificates Global then option Global Principal
(and date then Note cancelled is Note Paying
upon delivered Certificate exercised Certificate Agent
which then
exercise exchanged
is for the
effective) Permanent
or Global
cancellation Note
Certificate
32
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
ISSUED in London on [*] 2008
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK
(acting through its London branch)
as Issue Agent without recourse,
warranty or liability
By:[manual signature]
(duly authorised)
33
ANNEX I
[Form of certificate to be given in relation to exchanges of this
Temporary Global Note for the Permanent Global Note
Certificates or Definitive Note Certificates:]
BARCLAYCARD FUNDING PLC
[POUND][*] FLOATING RATE ASSET BACKED NOTE CERTIFICATE
(the "NOTE CERTIFICATE")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member
organisations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "MEMBER ORGANISATIONS")
substantially to the effect set forth in the Agency Agreement as of the date
hereof, [ ] principal amount of the above-captioned Note Certificate (i) is
owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("UNITED STATES PERSONS"), (ii) is owned by United States persons that
(a) are foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(iv) ("FINANCIAL
INSTITUTIONS")) purchasing for their own account or for resale, or (b) acquired
the Note Certificates through and are holding through on the date hereof (as
such terms "acquired through" and "holding through" are described in U.S.
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United
States financial institutions (and in either case (a) or (b), each such United
States financial institution has agreed, on its own behalf or through its
agent, that we may advise the MTN Issuer or the MTN Issuer's agent that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States
or foreign financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they have not
acquired the Note Certificates for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Global security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organisations to the effect that the statements made by such
Member Organisations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as at the date hereof.
34
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:[ ]1
[Euroclear Bank S.A./N.V. as operator of the Euroclear System/Clearstream,
Luxembourg]
By:[authorised signature]
_______________________________________________________________________________
1 To be dated not earlier than the Exchange Date.
35
ANNEX II
[Form of certificate to be given in relation to payments of
interest falling due before the Exchange Date:]
BARCLAYCARD FUNDING PLC
[POUND][*] FLOATING RATE ASSET BACKED NOTE CERTIFICATE
(the "NOTE CERTIFICATE")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member
organisations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "MEMBER ORGANISATIONS")
substantially to the effect set forth in the Agency Agreement as of the date
hereof, [ ] principal amount of the above-captioned Note Certificates (i) is
owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("UNITED STATES PERSONS"), (ii) is owned by United States persons that
(a) are foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(iv) ("FINANCIAL
INSTITUTIONS")) purchasing for their own account or for resale, or (b) acquired
the Note Certificates through and are holding through on the date hereof (as
such terms "acquired through" and "holding through" are described in U.S.
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(6)) foreign branches of United
States financial institutions (and in either case (a) or (b), each such United
States financial institution has agreed, on its own behalf or through its
agent, that we may advise the MTN Issuer or the MTN Issuer's agent that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States
or foreign financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they have not
acquired the Note Certificates for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section 230.903(b)(3) of
Regulation S under the Securities Act of 1933, as amended, then this is also to
certify with respect to such principal amount of the Note Certificates set
forth above that, except as set out below, we have received in writing, by
tested telex or by electronic transmission, from our Member Organisations
entitled to a portion of such principal amount, certifications with respect of
such portion, substantially to the effect set forth in the Temporary Global
Note Certificate representing the Note Certificates.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
36
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 administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Date:[ ]1
[Euroclear Bank S.A./N.V. as operator of the Euroclear System/Clearstream,
Luxembourg]
By:[authorised signature]
_______________________________________________________________________________
1 To be dated not earlier than the relevant interest payment date.
37
ANNEX III
[Form of accountholder's certification referred to in
the preceding certificate:]
BARCLAYCARD FUNDING PLC
[POUND][*] FLOATING RATE ASSET BACKED NOTE CERTIFICATE
(the "NOTE CERTIFICATE")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Note Certificate held by you for our account (i) are owned
by persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to the United States Federal income taxation regardless of its
source ("UNITED STATES PERSONS"), (ii) are owned by United States person(s)
that (a) are foreign branches of a United States financial institution (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv)) ("FINANCIAL
INSTITUTIONS") purchasing for their own account or for resale, or (b) acquired
the Note Certificates through and are holding through on the date hereof (as
such terms "acquired through" and "holding through" are described in U.S.
Treasury Regulations Section 1.163-5(c) (2)(i) (D)(6)) foreign branches of
United States financial institutions (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise the MTN Issuer or the MTN Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of
the Note Certificates is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) this is further to certify that such financial institution has not
acquired the Note Certificates for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
If the Note Certificates are of the category contemplated in Section
230.903(b)(3) of Regulation S under the Securities Act of 1933 (the "ACT") then
this is also to certify that, as except as set forth below, the Note
Certificates are beneficially owned by (a) non-U.S. person(s) or (b) U.S.
person(s) who purchased the Note Certificates in transactions which did not
require registration under the Act. As used in this paragraph, the term "U.S.
person" has the meaning given to it by Regulation S under the Act.
As used herein, "UNITED STATES" means the United States of America (including
the States and the District of Columbia); and its "POSSESSIONS" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Note Certificates
held by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
38
This certification excepts and does not relate to [ ] of such interest in the
above Note Certificate in respect of which we are not able to certify and as to
which we understand exchange and delivery of definitive Note Certificate (or,
if relevant, exercise of any rights or collection of any interest) cannot be
made until we do so certify.
We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced
or threatened in connection with which this certification is or would be
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Date:[ ]1
[ACCOUNTHOLDER] AS (OR AS AGENT FOR) THE BENEFICIAL OWNER OF THE NOTE
CERTIFICATES.
By:[authorised signature]
_______________________________________________________________________________
1 To be dated not earlier than fifteen days before the Exchange Date or, as
the case may be the relevant interest payment date.
39
PART 2
FORM OF PERMANENT GLOBAL NOTE CERTIFICATE
PERMANENT GLOBAL NOTE CERTIFICATE
ISIN: [*] Common Code: [*]
BARCLAYCARD FUNDING PLC
(a public limited company incorporated under the laws of England and Wales)
BARCLAYCARD ASSET BACKED MEDIUM TERM NOTE AND NOTE CERTIFICATE PROGRAMME
PERMANENT GLOBAL NOTE CERTIFICATE
representing up to
[POUND][*]
FLOATING RATE ASSET BACKED NOTE CERTIFICATES DUE [*]
This global instrument is a Permanent Global Note Certificate with interest
coupons issued in respect of an issue of an aggregate principal amount of
[POUND][*] of Floating Rate Asset Backed Note Certificates due [*] (the "NOTE
CERTIFICATE") by Barclaycard Funding PLC (the "MTN ISSUER").
The MTN Issuer for value received promises, all in accordance with the terms
and conditions set out in the Series [*] MTN 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
Certificate for the time being from time to time represented hereby, on the
maturity date specified in the Terms and Conditions or on such earlier date as
any such Note Certificate may become due and payable in accordance with the
Terms and Conditions, the Principal Amount on such dates as may be specified in
the Terms and Conditions or, if any such Note Certificate shall become due and
payable on any other date, the Principal Amount and, in respect of each such
Note Certificate, to pay interest and all other amounts as may be payable
pursuant to the Terms and Conditions, all subject to and in accordance
therewith.
Except as specified herein, the bearer of this Permanent Global Note
Certificate is entitled to the benefit of the Terms and Conditions and of the
same obligations on the part of the MTN Issuer as if such bearer were the
bearer of the Note Certificates represented hereby and to the benefit of those
Terms and Conditions (and the obligations on the part of the MTN Issuer
contained therein) applicable specifically to Permanent Global Note
Certificate, and all payments under and to the bearer of this Permanent Global
Note Certificate shall be valid and effective to satisfy and discharge the
corresponding Liabilities of the MTN Issuer in respect of the Note
Certificates.
40
This Permanent Global Note Certificate is issued pursuant to a security trust
deed dated 23 November 1999 (the "PRINCIPAL TRUST DEED") and the supplement
thereto in respect of Series [*] (the "SERIES [*] MTN SUPPLEMENT" and together
with the Security Trust Deed, the "TRUST DEED") and made between the MTN Issuer
and The Bank of New York, acting through its London branch, as Security Trustee
(the "SECURITY TRUSTEE" which expression includes any person or corporation
appointed from time to time as Security 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 Certificate.
This Permanent Global Note Certificate will be exchanged in whole but not in
part for Definitive Note Certificate if (a) any Note Certificate of the
relevant Series becomes immediately redeemable following the occurrence of an
Event of Default in relation thereto (b) Euroclear Bank S.A./N.V. as operator
of the Euroclear System or Clearstream, Luxembourg, 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 Certificate. In the case of (a) and (b), the MTN 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 Note Certificate is
required, deposit this Permanent Global Note Certificate with the Principal
Paying Agent at its specified office with the form of exchange notice endorsed
hereon duly completed. Any Definitive Note Certificate will be made available
for collection by the persons entitled thereto at the specified office of the
Principal Paying Agent.
The MTN Issuer undertakes to procure that the relevant Definitive Note
Certificate 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 Certificate, the MTN 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 Certificate or on which this Permanent Global Note
Certificate is exchanged as aforesaid or on which any Note Certificate
represented by this Permanent Global Note Certificate are to be cancelled the
MTN Issuer shall procure that (i) the aggregate principal amount of the Note
Certificates in respect of which such payment is made (or, in the case of a
partial payment, the corresponding part thereof) or which are delivered in
definitive form or which are to be cancelled and (ii) the remaining principal
amount of this Permanent Global Note Certificate (which shall be the previous
principal amount hereof less the amount referred to at (i) above) are noted on
the Schedule hereto, whereupon the principal amount of this Permanent Global
Note Certificate shall for all purposes be as most recently so noted.
On each occasion on which an option is exercised in respect of any Note
Certificate represented by this Permanent Global Note Certificate, the MTN
Issuer shall procure that the appropriate notations are made on the Schedule
hereto.
41
Insofar as the Temporary Global Note Certificate by which the Note Certificates
were initially represented has been exchanged in part only for this Permanent
Global Note Certificate and is then to be further exchanged as to the remaining
principal amount or part thereof for this Permanent Global Note Certificate,
then upon presentation of this Permanent Global Note Certificate to the
Principal Paying Agent at its specified office and to the extent that the
aggregate principal amount of such Temporary Global Note Certificate is then
reduced by reason of such further exchange, the MTN Issuer shall procure that
(i) the aggregate principal amount of the Note Certificates in respect of which
such further exchange is then made and (ii) the new principal amount of this
Permanent Global Note Certificate (which shall be the previous principal 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
Certificate shall for all purposes be as most recently noted.
The obligations of the MTN Issuer in respect of this Permanent Global Note
Certificate are limited recourse in nature, as more particularly set out in the
Terms and Conditions and the Trust Deed. In addition, the bearer of this
Permanent Global Note Certificate and, inter alios, the Security Trustee are
restricted in the proceedings which they may take against the MTN Issuer to
enforce their rights hereunder and under the Trust Deed, as more particularly
described in the Terms and Conditions and the Trust Deed.
This Permanent Global Note Certificate is governed by, and shall be construed
in accordance with, English law.
The MTN Issuer irrevocably agrees for the benefit of the bearer that the courts
of England are to have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in
connection with this Permanent Global Note Certificate (respectively,
"PROCEEDINGS" and "DISPUTES") and, for such purposes, irrevocably submits to
the jurisdiction of such courts. The MTN Issuer irrevocably waives any
objection which it might now or hereafter have to the courts of England being
nominated as the forum to hear and determine any Proceedings and to settle any
Disputes and agrees not to claim that any such court is not a convenient or
appropriate forum.
This Permanent Global Note Certificate shall not be valid for any purpose until
authenticated for and on behalf of The Bank of New York, acting through its
London branch, as Issue Agent.
AS WITNESS the manual or facsimile signature of a director, duly authorised
officer, or duly authorised attorney on behalf of the MTN Issuer.
BARCLAYCARD FUNDING PLC
By:[manual/facsimile signature]
(director)
42
ISSUED in London as of [*]
AUTHENTICATED for and on behalf of
THE BANK OF NEW YORK
(acting through its London branch)
as Issue Agent without recourse,
warranty or liability
By:[manual signature]
(duly authorised)
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THE SCHEDULE
PAYMENTS, DELIVERY OF DEFINITIVE NOTE CERTIFICATES, FURTHER EXCHANGES OF THE
TEMPORARY GLOBAL NOTE CERTIFICATE, EXERCISE OF OPTIONS AND CANCELLATION OF NOTE
CERTIFICATES
Date of Amount of Amount of Aggregate Aggregate Aggregate Aggregate Current Authorised
payment, interest principal principal principal principal principal principal signature by
delivery, then paid then paid amount of amount of amount of amount in amount of or on behalf
further Definitive Note further respect of this of the
exchange of Note Certificate exchanges which option Permanent Principal
Temporary Certificates then of Temporary is exercised Global Note Paying Agent
Global then delivered cancelled Global Note Certificate
Note Certificate
Certificate,
exercise
of option
(and date
upon
which
exercise is
effective) or
cancellation
44
EXCHANGE NOTICE
.............................., being the bearer of this Permanent Global Note
Certificate at the time of its deposit with the Principal Paying Agent at its
specified office for the purposes of the Note Certificates, hereby exercises
the option set out above to have this Permanent Global Note exchanged in whole
for Definitive Note Certificates in aggregate principal amount of [ ] and
directs that such Definitive Note Certificates be made available for collection
by it from the Principal Paying Agent's specified office.
By: ...............................
(duly authorised)
45
MTN ISSUER
EXECUTED and DELIVERED as a Deed on
behalf of )
BARCLAYCARD FUNDING PLC )
By two Directors, being )
)
)
in the presence of:
INITIAL TRANSFEROR
EXECUTED and DELIVERED as a Deed on
behalf of )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
in the presence of:
SECURITY TRUSTEE
EXECUTED as a Deed )
For and on behalf of )
THE BANK OF NEW YORK )
By: )
_____________________________
Authorised Signatory
RECEIVABLES TRUSTEE
EXECUTED and DELIVERED as a Deed on
behalf of )
GRACECHURCH RECEIVABLES )
TRUSTEE LIMITED )
acting by its duly authorised
signatory )
PROCESS AGENT
Clifford Chance Secretaries Limited
10 Upper Bank Street E14 5JJ
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MTN CASH MANAGER
EXECUTED and DELIVERED as a Deed
on behalf of )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
in the presence of:
47