EXHIBIT 4.5
C L I F F O R D
C H A N C E
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
as Issuing Entity
THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH
as Note Trustee
---------------------------------------------------------------------------
NOTE TRUST DEED
---------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CERTAIN SECTIONS OF THIS NOTE TRUST DEED RELATING
TO SECTIONS 310 THROUGH 318(A),
INCLUSIVE OF THE TRUST INDENTURE ACT OF 1939:
- ------------------------------------------- -----------------------------------
TRUST INDENTURE ACT SECTION NOTE TRUST DEED SECTION
- ------------------------------------------- -----------------------------------
Section 310(a)(1) 16.1
- ------------------------------------------- -----------------------------------
(a)(2) 16.1
- ------------------------------------------- -----------------------------------
(a)(3) 16.3
- ------------------------------------------- -----------------------------------
(a)(4) 16.3
- ------------------------------------------- -----------------------------------
(a)(5) 16.1
- ------------------------------------------- -----------------------------------
(b) 16.1
- ------------------------------------------- -----------------------------------
Section 311(a) 14.1.18
- ------------------------------------------- -----------------------------------
(b) 14.1.18
- ------------------------------------------- -----------------------------------
Section 312(a) 9.1
- ------------------------------------------- -----------------------------------
(b) 22
- ------------------------------------------- -----------------------------------
(c) 22
- ------------------------------------------- -----------------------------------
Section 313(a) 14.1.17
- ------------------------------------------- -----------------------------------
(b) 14.1.17
- ------------------------------------------- -----------------------------------
(c) 14.1.17
- ------------------------------------------- -----------------------------------
(d) 14.1.17
- ------------------------------------------- -----------------------------------
Section 314(a) 9.1
- ------------------------------------------- -----------------------------------
(b) 9.2
- ------------------------------------------- -----------------------------------
(c)(1) 2.3, 17.1.1
- ------------------------------------------- -----------------------------------
(c)(2) 17.1.2
- ------------------------------------------- -----------------------------------
(c)(3) 9.1
- ------------------------------------------- -----------------------------------
(d) 18.2
- ------------------------------------------- -----------------------------------
(e) 17.2
- ------------------------------------------- -----------------------------------
Section 315(a) 14
- ------------------------------------------- -----------------------------------
(b) 14.1.9
- ------------------------------------------- -----------------------------------
(c) 14.2.2
- ------------------------------------------- -----------------------------------
(d) 14.6
- ------------------------------------------- -----------------------------------
(e) 21.2
- ------------------------------------------- -----------------------------------
Section 316(a) 9.1
- ------------------------------------------- -----------------------------------
(b) 12.4
- ------------------------------------------- -----------------------------------
(c) Schedule 14, Provision 4
- ------------------------------------------- -----------------------------------
Section 317(a)(1) 12.3
- ------------------------------------------- -----------------------------------
(a)(2) 12.3.3
- ------------------------------------------- -----------------------------------
(b) 21.2
- ------------------------------------------- -----------------------------------
Section 318(a) 21.1
- ------------------------------------------- -----------------------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Note Trust Deed.
CONTENTS
CLAUSE PAGE
1. Interpretation.........................................................1
2. Amount And Issue Of The Series Of Notes................................2
3. Covenant To Pay........................................................6
4. Security...............................................................9
5. Note Trustee's Powers.................................................11
6. Appointment And Removal Of Administrator And Receiver.................12
7. Provisions Relating To Receivers......................................13
8. Note Certificates.....................................................16
9. Covenants.............................................................17
10. Amendments............................................................18
11. Substitution..........................................................19
12. Enforcement...........................................................22
13. Application Of Moneys.................................................24
14. Terms Of Appointment..................................................26
15. Costs And Expenses....................................................40
16. Appointment And Retirement............................................44
17. Certificates And Opinions.............................................46
18. Release Of Security...................................................47
19. Third Party Beneficiaries.............................................48
20. Actions By Noteholders................................................48
21. TIA Prevails..........................................................49
22. Communications By Noteholders With Other Noteholders..................50
23. Governing Law And Jurisdiction........................................50
24. Delivery..............................................................50
SCHEDULE 1 TERMS AND CONDITIONS OF THE NOTES.................................51
SCHEDULE 2 FORM OF CLASS A SEC REGISTERED GLOBAL NOTE CERTIFICATE............90
SCHEDULE 3 FORM OF CLASS B SEC REGISTERED GLOBAL NOTE CERTIFICATE............98
SCHEDULE 4 FORM OF CLASS C SEC REGISTERED GLOBAL NOTE CERTIFICATE...........106
SCHEDULE 5 FORM OF CLASS D SEC REGISTERED GLOBAL NOTE CERTIFICATE...........114
SCHEDULE 6 FORM OF CLASS A SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE.......122
SCHEDULE 7 FORM OF CLASS B SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE.......127
SCHEDULE 8 FORM OF CLASS C SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE.......132
SCHEDULE 9 FORM OF CLASS D SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE.......137
SCHEDULE 10 FORM OF RULE 144A GLOBAL NOTE CERTIFICATE.......................142
SCHEDULE 11 FORM OF RULE 144A INDIVIDUAL NOTE CERTIFICATE...................151
SCHEDULE 12 FORM OF REGULATION S GLOBAL NOTE CERTIFICATE....................158
SCHEDULE 13 FORM OF REGULATION S INDIVIDUAL NOTE CERTIFICATE................167
SCHEDULE 14 PROVISIONS RELATING TO MEETINGS OF NOTEHOLDERS..................173
THIS NOTE TRUST DEED is made on [o] 2008
BETWEEN:
(1) GRACECHURCH CARD PROGRAMME FUNDING LIMITED, a public limited liability
company incorporated in Jersey, Channel Islands with company number
98638, whose registered office is located at 26 New Street, St. Helier,
Jersey (the "ISSUING ENTITY"); and
(2) THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH, as note trustee
(the "NOTE TRUSTEE", which expression shall include such company and all
other Persons for the time being acting as trustee or trustees under
this Note Trust Deed).
INTRODUCTION:
(A) The Issuing Entity has authorised the establishment of the Programme.
(B) Notes up to the Programme Limit may be issued pursuant to the Programme.
(C) Each Series of Notes issued in accordance with the Programme will be
constituted and secured by this Note Trust Deed and the relevant Note
Trust Deed Supplement executed on or about the relevant Issue Date.
(D) The Note Trustee has agreed to act as trustee of the Security Documents
for each Series and to hold the Security on trust for the Secured
Creditors on the terms and conditions contained in this Note Trust Deed
and any relevant Note Trust Deed Supplement.
THIS NOTE TRUST DEED witnesses:
1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this Note Trust Deed or the context requires
otherwise, words and expressions used in this Note Trust Deed have the
meanings and constructions ascribed to them in the Schedule 1 (Master
Definitions Schedule) of the Issuing Entity Master Framework Agreement
dated on or about the date hereof, between, among others, the Issuing
Entity and the Note Trustee.
1.2 INCORPORATION OF COMMON TERMS
Except as provided below, the Common Terms apply to this Note Trust
Deed, where applicable, and shall be binding on the parties to this Note
Trust Deed and the Noteholders as if set out in full in this Note Trust
Deed.
1.3 FURTHER ASSURANCE
Paragraph 1 (Further Assurance) of the Common Terms applies to this Note
Trust Deed as if set out in full herein, and as if the Issuing Entity
was the Obligor (as defined therein) and the Note Trustee was the
Obligee (as defined therein).
1.4 LIMITED RECOURSE AND NON-PETITION
Paragraphs 8 (Non-Petition and Limited Recourse) and 10 (Obligations as
Corporate Obligations) of the Common Terms apply to this Note Trust Deed
and shall be deemed set out in full herein.
-1-
1.5 CONFLICT WITH COMMON TERMS
If there is any conflict between the provisions of the Common Terms and
the provisions of this Note Trust Deed, the provisions of this Note
Trust Deed shall prevail, save for where any provision of this Note
Trust Deed relates to VAT, in which case the provisions of the Common
Terms shall prevail.
1.6 REPRESENTATIONS AND WARRANTIES
The Issuing Entity gives certain representations and warranties to the
Note Trustee on the terms set out in the Issuing Entity Warranties.
1.7 COVENANTS
The Issuing Entity covenants with the Note Trustee on the terms of the
Issuing Entity Covenants.
2. AMOUNT AND ISSUE OF THE SERIES OF NOTES
2.1 ISSUANCE IN SERIES
The Issuing Entity shall be at liberty from time to time (but subject
always to the provisions of this Note Trust Deed) without the consent of
the Noteholders or any other Secured Creditor to create and (subject to
the conditions precedent in Clause 2.3 (Constitution of Notes)) issue
new Series of Notes upon such terms as to ranking, interest, conversion,
redemption and otherwise as the Issuing Entity may at the time of issue
of such Series determine, PROVIDED THAT such Series of Notes are not
consolidated, and do not form a single Series with any existing Series.
A Series of Notes shall be secured on, and only on, such Secured
Property as may be specified as applicable to such Series in this Note
Trust Deed and in the Note Trust Deed Supplement constituting such
Series of Notes. The aggregate principal amount of Notes outstanding
from time to time may not exceed the Programme Limit.
2.2 PRIOR TO EACH ISSUE DATE
By not later than 4:00 p.m. (London time) on the fifth business day in
London (which for this purpose shall be a day on which commercial banks
are open for business in London) preceding each proposed Issue Date, the
Issuing Entity shall:
2.2.1 deliver or cause to be delivered to the Note Trustee a draft
of the relevant Prospectus Supplements/Final Terms and, if
applicable, notify the Note Trustee of any proposed changes to
the draft Prospectus Supplements/Final Terms delivered to the
Note Trustee; and
2.2.2 notify the Note Trustee in writing without delay of the Issue
Date and the nominal amount of the Notes of each Class.
The Note Trustee shall be deemed to have approved the relevant
Prospectus Supplements/Final Terms or any proposed changes notified to
the Note Trustee in accordance with Clause 2.2.1 if it has not objected
in writing to all or any of the terms thereof within two business days
of the Note Trustee receiving them PROVIDED, HOWEVER, THAT if the Note
Trustee indicates as soon as practicable after receipt of any draft
Prospectus Supplements/Final Terms or any proposed changes to any draft
Prospectus Supplements/Final Terms within such period that it does not
approve of the provisions of the relevant Prospectus Supplements/Final
Terms or the relevant changes then the Series
-2-
of Notes relating to such Prospectus Supplements/Final Terms shall not
be issued until such time as the Note Trustee shall so approve the
relevant Prospectus Supplements/Final Terms.
2.3 CONSTITUTION OF NOTES
The Notes of any Series which are to be created and issued pursuant to
the provisions of Clause 2.1 (Issuance in Series) shall be constituted
pursuant to a Note Trust Deed Supplement. On any Issue Date, the Issuing
Entity shall procure the registration in the applicable Register of the
relevant Note(s) in the name of each relevant initial Noteholder, upon
receipt by the Note Trustee of the following:
2.3.1 an executed Note Trust Deed Supplement (duly stamped or
denoted with any applicable stamp duties or other
documentation taxes) in respect of the Series of Notes to be
issued satisfying the criteria set out in Clause 2.4 (Note
Trust Deed Supplement) below and specifying the Principal
Terms (as defined below) of such Series and the supplements,
amendments and variations to this Note Trust Deed as a
consequence thereof;
2.3.2 a certificate signed by one Director certifying the absence of
any Event of Default or Potential Event of Default and that
the Programme Limit will not be exceeded by the issue of the
Notes in question;
2.3.3 a legal opinion addressed to the Note Trustee from Jersey
counsel (in form and substance satisfactory to the Note
Trustee) regarding the capacity of the Issuing Entity;
2.3.4 a legal opinion addressed to the Note Trustee from English
counsel (in form and substance satisfactory to the Note
Trustee) regarding the legality, validity, enforceability and
binding nature of such Note Trust Deed Supplement;
2.3.5 legal opinions addressed to the Note Trustee from counsel in
other relevant jurisdictions (if any) (in form and substance
satisfactory to the Note Trustee) regarding the legality,
validity and enforceability of any Security located outside of
England and Wales;
2.3.6 a solvency certificate signed by a duly authorised signatory
and dated the Issue Date, from the Issuing Entity;
2.3.7 the MTN Supplement, the relevant Swap Agreements (where
applicable) and any other relevant document in respect of the
Series of Notes; and
2.3.8 an affirmation from each relevant Rating Agency that the issue
of Notes of the relevant Series will not result in such Rating
Agency reducing or withdrawing its then current rating on (a)
any outstanding Notes of any other Series, or (b) any
outstanding notes issued by Gracechurch Card Funding (No.8)
PLC, Gracechurch Card Funding (No.9) PLC, Gracechurch Card
Funding (No.10) PLC, Gracechurch Card Funding (No.11) PLC or
Gracechurch Card Notes 2006-A PLC.
-3-
2.4 NOTE TRUST DEED SUPPLEMENT
A Note Trust Deed Supplement shall be executed in order to effect each
issuance of a Series of Notes and to create security over the relevant
Secured Property relating to such Series of Notes and such Note Trust
Deed Supplement shall:
2.4.1 be executed by the Issuing Entity, the Note Trustee, the
Principal Paying Agent, the Agent Bank, the Paying Agent, and,
where applicable, the Swap Counterparty, the Expenses Lender
and any other party to such Note Trust Deed Supplement;
2.4.2 set out the consent of the Note Trustee to such issue of the
Series of Notes which shall be deemed to be given by its
execution of the relevant Note Trust Deed Supplement;
2.4.3 constitute, upon the issuance of the relevant Series of Notes,
a supplement by the Issuing Entity and the Note Trustee to
this Note Trust Deed which, in respect of such Series of
Notes, shall thereafter be read and construed as supplemented,
amended and varied by such Note Trust Deed Supplement;
2.4.4 set out the principal terms of such Series of Notes (all such
terms the "PRINCIPAL TERMS") which shall include, without
limitation, the following:
(a) the Principal Amount Outstanding of the Notes of such
Series upon their issuance;
(b) the Secured Property for such Series;
(c) the Issue Date;
(d) the names of any accounts or ledgers to be used in
relation to such Series of Notes and the terms governing
the operation of any such accounts or ledgers and use of
moneys therein;
(e) the priority of payments prior to enforcement;
(f) any additional Secured Creditors;
(g) the terms governing any deposit into any account
provided for such Series; and
(h) any other relevant terms of such Series.
Each Secured Creditor, by its execution of a Note Trust Deed Supplement
or, in the case of a Noteholder, by the purchase of the relevant Notes
subject to the relevant Conditions, consents and confirms that the
security trust constituted for the benefit of the relevant Secured
Creditor or Noteholder under this Note Trust Deed and any Note Trust
Deed Supplement may be supplemented, amended and varied from time to
time in accordance with the terms of this Note Trust Deed, the
Conditions and any such additional Note Trust Deed Supplement.
-4-
2.5 PAYMENTS IN SPECIFIED CURRENCY
All payments in respect of, under and in connection with this Note Trust
Deed and the Notes to a Noteholder shall be made in the relevant
currency as required by the Conditions. All other sums payable shall be
payable in Sterling PROVIDED THAT:
2.5.1 each payment in respect of costs shall be made in the currency
in which the same were incurred; and
2.5.2 each payment which is expressed herein to be payable in another
currency shall be made in that other currency.
On each date upon which this Note Trust Deed or any Note Trust Deed
Supplement requires an amount to be paid by or on behalf of any party to
the Issuing Entity, such party shall, save as expressly provided
otherwise herein or in such Note Trust Deed Supplement, make the same
available to the Issuing Entity by payment in Sterling and in
immediately available funds to such account and bank in London as the
Issuing Entity shall have specified in writing for this purpose no later
than midday on the day that such amount becomes payable.
2.6 FEES APPLY TO EACH SERIES
The provisions in the Security Documents concerning costs, expenses,
fees, remuneration and other financial obligations (whether arising
under indemnities or otherwise) shall, save as specifically provided
herein, apply separately to each Series in respect of the costs,
expenses, fees, remuneration and financial obligations which arise in
respect of such Series. No such amount incurred in respect of any Series
will, save as specifically provided herein, be deducted from any amount
payable to the Noteholders in respect of any other Series, nor will any
such amount be in any other way charged to any other such Noteholders.
The provisions of the Security Documents shall be read accordingly.
If the Note Trustee determines in its sole discretion that any such
amounts cannot be considered to be solely referable to a particular
Series, it shall be entitled in its sole discretion to allocate such
amounts between such Series as it shall consider appropriate, those
amounts to be referable pro rata in the proportion which the aggregate
Principal Amount Outstanding of all Notes in respect of each such Series
bears to the aggregate Principal Amount Outstanding of all Notes of all
such Series (as at the date such amounts were incurred) in respect of
which such amounts were incurred as a whole.
2.7 RELATED AGREEMENTS
In relation to each Series, if specified in the relevant Note Trust Deed
Supplement, the Issuing Entity may enter into one or more Swap
Agreements or other related agreements with a Swap Counterparty, under
which the Issuing Entity will make payments to such Swap Counterparty
and the Swap Counterparty will make payments to the Issuing Entity as
specified in such Swap Agreement or other related agreement. Each swap
transaction or other form of hedging transaction evidenced by a Swap
Agreement and other related agreement will terminate on the date
specified in the relevant Note Trust Deed Supplement, unless terminated
earlier in accordance with its terms.
-5-
3. COVENANT TO PAY
3.1 COVENANT TO PAY
The Issuing Entity covenants with the Note Trustee that it shall, as and
when the Notes of any Series or any of them become due to be redeemed or
any principal on the Notes of any Series or any of them becomes due to
be repaid in accordance with the Conditions, unconditionally pay or
procure to be paid to or to the order of the Note Trustee in immediately
available freely transferable funds in the relevant currency the
principal amount of the Notes of such Series or any of them becoming due
for payment on that date and shall (subject to the provisions of the
Conditions), until all such payments (both before and after judgment or
other order) are duly made, unconditionally pay or procure to be paid to
or to the order of the Note Trustee as aforesaid on the dates provided
for in the Conditions interest on the Principal Amount Outstanding (or
such other amount as may be specified in the relevant Note Trust Deed
Supplement) of the Notes or any of them of such Series, together with
any Deferred Interest and Additional Interest attributable to such
Notes, outstanding from time to time as set out in the Conditions
(subject to Clause 3.7 (Interest on the Floating Rate Notes following an
Event of Default)) PROVIDED THAT:
3.1.1 every payment of principal or interest in respect of such
Notes or any of them made to the Principal Paying Agent in the
manner provided in the Paying Agency and Agent Bank Agreement
shall satisfy, to the extent of such payment, the relevant
covenant by the Issuing Entity contained in this Clause 3.1
except to the extent that there is a default in the subsequent
payment thereof to the relevant Noteholders in accordance with
the Conditions;
3.1.2 if any payment of principal or interest in respect of such
Notes or any of them is made after the due date, payment shall
be deemed not to have been made until either the full amount
is paid to the relevant Noteholders or, if earlier, the
seventh day after notice has been given to the relevant
Noteholders in accordance with the Conditions that the full
amount has been received by the Principal Paying Agent or the
Note Trustee except, in the case of payment to the Principal
Paying Agent to the extent that there is failure in the
subsequent payment to the Noteholders under the Conditions;
and
3.1.3 in any case where payment of the whole or any part of the
principal amount due in respect of any Note is improperly
withheld or refused (if so provided for in the Conditions,
upon due presentation of the relevant Note Certificate)
interest shall accrue on the whole or such part of such
principal amount from the date of such withholding or refusal
until the date either on which such principal amount due is
paid to the relevant Noteholders or, if earlier, the seventh
day after which notice is given to the relevant Noteholders
in accordance with the Conditions that the full amount
payable in respect of the said principal amount is available
for collection by the relevant Noteholders provided that
(if so provided for in the Conditions, on further due
presentation of the relevant Note Certificate) such payment
is in fact made.
No provision contained in the Conditions or the Security Documents will
require the Issuing Entity to pay an amount of principal in respect of a
Note which exceeds the
-6-
Principal Amount Outstanding of such Note or an amount of interest
calculated on any principal amount in excess of such Principal Amount
Outstanding, in each case, at the relevant time.
The Note Trustee will hold the benefit of this covenant and the covenant
in Clause 9.1 (Covenant to comply with the Note Trust Deed) on trust for
itself and for the benefit of the Noteholders and the other Secured
Creditors in accordance with its and their respective interests.
3.2 PAYMENTS TO SECURED CREDITORS
The Issuing Entity hereby covenants to pay to the Note Trustee all
amounts due to the Secured Creditors of a Series in accordance with the
order of priority of payments prior to and post enforcement of the
Security in respect of that Series as set out in the relevant Note Trust
Deed Supplement, Condition 3 (Status, Security and Priority of Payments)
and Clause 13 (Application of Moneys) and any other amounts payable by
the Issuing Entity hereunder which the Note Trustee determines, in its
sole discretion, are referable or allocable to a Series (the "SECURED
OBLIGATIONS") PROVIDED, HOWEVER, THAT payment of any sum due to a
Secured Creditor of such Series made to such Secured Creditor shall, to
that extent, satisfy such obligation. This covenant shall only have
effect each time obligations are owed to Secured Creditors when the Note
Trustee shall hold the benefit of this covenant in relation to each
Series on trust for itself and each other Secured Creditor of such
Series according to its and their respective interests. For the
avoidance of doubt, nothing in this Note Trust Deed shall prevent the
Issuing Entity from creating Security pursuant to a Note Trust Deed
Supplement over specific assets in relation to a Series in favour of a
specific sub-group of Secured Creditors or in respect of Secured
Obligations in relation to such Series. Subject as provided in the
relevant Note Trust Deed Supplement, the provisions of this Note Trust
Deed shall, where the context permits, apply to any such Security
mutatis mutandis as if it were Secured Property created in respect of
Secured Obligations owed to Secured Creditors hereunder.
3.3 DUTIES AND TAXES
Subject to paragraph 22 (VAT) of the Common Terms, the Issuing Entity
shall pay all stamp, registration and other similar taxes and duties (if
any) (including any interest and penalties thereon or in connection
therewith) which are payable in the United Kingdom or the United States
upon or in connection with the execution and delivery of this Note Trust
Deed and any Note Trust Deed Supplement, and the Issuing Entity will
indemnify the Note Trustee and the other Secured Creditors relating to
such Series (each an "INDEMNIFIED PARTY") on demand from and against all
stamp duty, issue, registration, documentary and other similar taxes
(excluding, for the avoidance of doubt, VAT which shall be dealt with in
accordance with paragraph 22 (VAT) of the Common Terms) paid by any such
Indemnified Party in any such jurisdiction or jurisdictions in
connection with any action taken by such Indemnified Party to enforce
the obligations of the Issuing Entity under this Note Trust Deed or any
Note Trust Deed Supplement in respect of such Series.
3.4 COVENANT OF COMPLIANCE
The Issuing Entity covenants with the Note Trustee separately in respect
of each Series that it will comply with, perform and observe all the
provisions of this Note Trust Deed
-7-
and the relevant Note Trust Deed Supplement relating to such Series
which are expressed to be binding on it in respect of such Series. The
Conditions in respect of each Series shall be binding on the Issuing
Entity and the Noteholders of such Series. The Note Trustee shall be
entitled to enforce the obligations of the Issuing Entity under the
Documents in respect of a Series by reason of the security interests
granted in its favour pursuant to Clause 4 (Security).
3.5 ONLY NOTE TRUSTEE TO ACT
For any Series, only the Note Trustee, subject to it being indemnified
and/or secured to its satisfaction, shall pursue the remedies available
under the general law or under this Note Trust Deed to enforce the
rights under this Note Trust Deed or any relevant Note Trust Deed
Supplement of the Secured Creditors relating to such Series. No Secured
Creditor relating to such Series shall be entitled to proceed directly
against the Issuing Entity or the assets of the Issuing Entity to
enforce the performance of any of the provisions of this Note Trust
Deed, any relevant Note Trust Deed Supplement or any other Documents (if
any) relating to such Series unless the Note Trustee having become bound
in accordance with Clause 12 (Enforcement), fails or neglects to do so
within a reasonable period of time and such failure or neglect is
continuing.
3.6 FOLLOWING AN EVENT OF DEFAULT
At any time after any Event of Default or Potential Event of Default
shall have occurred, which has not been waived by the Note Trustee or
remedied to its satisfaction, the Note Trustee may:
3.6.1 by notice in writing to the Issuing Entity, the Principal Paying
Agent and the other Agents require the Principal Paying Agent
and the other Agents or any of them:
(a) to act thereafter, until otherwise instructed by the
Note Trustee, as agents of the Note Trustee under the
provisions of this Note Trust Deed on the terms provided
in the Paying Agency and Agent Bank Agreement (with
consequential amendments as necessary and save that the
Note Trustee's liability under any provisions thereof
for the indemnification, remuneration and payment of out
of pocket expenses of the Agents shall be limited to
amounts for the time being held by the Note Trustee on
the trusts of the Security Documents in relation to the
Notes on the terms of this Note Trust Deed and available
to the Note Trustee for such purpose) and thereafter to
hold all Notes and all sums, documents and records held
by them in respect of Notes on behalf of the Note
Trustee; and/or
(b) to deliver up all Note Certificates and all sums,
documents and records held by them in respect of Note
Certificates to the Note Trustee or as the Note Trustee
shall direct in such notice PROVIDED THAT such notice
shall be deemed not to apply to any document or record
which the relevant Agent is obliged not to release by
any law or regulation; and
3.6.2 by notice in writing to the Issuing Entity require the Issuing
Entity to make all subsequent payments in respect of Note
Certificates to or to the order of the Note Trustee and, with
effect from the issue of any such notice until such notice
-8-
is withdrawn, then (so far as it concerns payments by the
Issuing Entity) Clause 13.4 (Payment to Noteholders) shall cease
to have effect.
3.7 INTEREST ON THE FLOATING RATE NOTES FOLLOWING AN EVENT OF DEFAULT
If Floating Rate Notes become immediately due and repayable under
Condition 10 (Events of Default) the rate and/or amount of interest
payable in respect of them will be calculated at the same intervals as
if such Notes had not become due and repayable, the first of which will
commence on the expiry of the Interest Period during which the Notes
become so due and repayable in accordance with such Condition (with
consequential amendments as necessary) except that the Interest Rate
need not be published.
3.8 SEPARATE SERIES
Each Series of Notes constituted by a Note Trust Deed Supplement shall
form a separate Series of Notes and accordingly, unless for any purpose
the Note Trustee in its absolute discretion shall otherwise determine,
all the provisions of this Note Trust Deed shall apply mutatis mutandis
separately and independently to each Series and in such Clauses and
Schedules the expressions "NOTES" and "NOTEHOLDERS" shall be construed
accordingly.
4. SECURITY
4.1 CREATION OF SECURITY
The Issuing Entity, with full title guarantee and as continuing security
for all the moneys and other Liabilities payable or owing by it under
the Security Documents in respect of all Series issued by it, hereby:
4.1.1 assigns absolutely by way of first fixed security to the Note
Trustee as trustee for itself and on trust for the other Secured
Creditors all of the Issuing Entity's right, title and interest
in and to, and the entire benefit of, the Issuing Entity Master
Framework Agreement, the Paying Agency and Agent Bank Agreement
and the Issuing Entity Account Bank Agreement (and sums received
or recoverable thereunder); and
4.1.2 charges to the Note Trustee by way of first floating charge, the
whole of its undertaking and assets and paragraph 14 of Schedule
B1 to the Insolvency Act 1986 applies to the floating charge
created pursuant hereto.
The Note Trustee shall hold the benefit of the security created by the
assignment and charge pursuant to this Clause 4.1 on trust for itself,
the Noteholders and the other Secured Creditors of all Series, PROVIDED
THAT such security may only be enforced and the floating charge shall
only crystallise in accordance with the provisions of Clause 12
(Enforcement).
The floating charge created by Clause 4.1.2 above shall be deferred in
point of priority to all fixed security validly and effectively created
by the Issuing Entity under the Security Documents in favour of the Note
Trustee as trustee for the Secured Creditors as security for the all the
moneys and other Liabilities payable or owing by it under the Security
Documents in respect of all Series issued by it.
-9-
4.2 ADDITIONAL SECURITY
Additional security in respect of each Series or (provided that the Note
Trustee consents to the same) in respect of any transaction entered into
by the Issuing Entity relating to or connected with any arrangement for
the issue of any Notes may be created by or pursuant to this Note Trust
Deed and the Note Trust Deed Supplement relating to such Series.
4.3 PROVISIONS RELATING TO SECURITY
The following provisions of this Clause 4 shall apply to the Security
except as may be otherwise specified in the Security Documents.
4.4 NOTE TRUSTEE ACKNOWLEDGEMENT
Notwithstanding the Security, the Note Trustee acknowledges that, until
it delivers an Enforcement Notice in accordance with Clause 12
(Enforcement):
4.4.1 payments becoming due to the Issuing Entity under any of the
Documents, together with all other moneys payable to the Issuing
Entity pursuant to any other documents or arrangements to which
it is a party, may be made to the Issuing Entity in accordance
with the provisions of the relevant Documents or (as the case
may be) the documents or arrangements concerned;
4.4.2 the Issuing Entity may, subject to Clause 4.4.3, exercise its
rights, powers and discretions and perform its obligations in
relation to the relevant Secured Property and under the
Documents in accordance with the provisions of the Documents or
(as the case may be) such other documents or arrangements; and
4.4.3 amounts standing to the credit of any Issuing Entity
Distribution Account from time to time may be withdrawn
therefrom by the Issuing Entity, but only in accordance with the
terms of this Note Trust Deed and any relevant Note Trust Deed
Supplement.
4.5 EXCESS SWAP COLLATERAL
Notwithstanding the Security created by this Note Trust Deed or any Note
Trust Deed Supplement, the Note Trustee acknowledges that (whether
before or after the delivery of an Enforcement Notice) amounts
representing Excess Swap Collateral may be withdrawn from the Issuing
Entity Bank Accounts from time to time and returned to the Swap
Counterparty in accordance with the relevant Swap Agreement and such
sums are automatically released from the Security.
4.6 RIGHTS OF SECURED CREDITORS
The entitlement of any Secured Creditor (other than the Note Trustee and
any Receiver appointed by it) to the relevant Secured Property for a
given Series of Notes, unless otherwise specified herein, shall be
specified in the relevant Note Trust Deed Supplement. If the relevant
Note Trust Deed Supplement specifies that any additional party is to be
a Secured Creditor of the Secured Property in relation to such Series,
the beneficial entitlement of such additional Secured Creditor to a
security interest in the relevant Secured Property shall be specified in
the relevant Note Trust Deed Supplement.
-10-
4.7 LIMITATIONS ON NOTE TRUSTEE'S LIABILITY
The Note Trustee shall not be responsible for, nor shall it have any
liability with respect to, any loss or theft of any Secured Property or
any defect in title to any of the Secured Property, shall not be obliged
to insure, to perfect title to or to procure the insurance of any
Secured Property and shall have no responsibility or liability arising
from the fact that any Secured Property is registered in its name or
held by it or in an account with Euroclear, Clearstream or DTC or any
similar clearing system in accordance with the system's rules or is
otherwise held in safe custody by any bank or custodian selected by the
Note Trustee.
5. NOTE TRUSTEE'S POWERS
5.1 EXTENSION AND VARIATION OF LPA POWERS
For any Series, any time upon or after any part or parts of the Security
becomes enforceable, the Note Trustee may, from time to time:
5.1.1 enter into, make, execute, sign and do all such contracts,
agreements, receipts, payments, assignments, transfers,
conveyances, assurances and things and bring, prosecute,
enforce, defend and abandon all such actions, suits and
proceedings in relation to any Secured Property as it may think
expedient;
5.1.2 exercise all or any of the powers or rights incidental to the
ownership of all or any of the Secured Property and, in
particular but without limiting the generality of the foregoing,
exercise all rights to enforce the Security against the Secured
Property and all rights to attend or vote at any Meeting of the
holders of any Secured Property or to give any consent or
notification or make any declaration in relation to such
securities or any of them;
5.1.3 without prejudice to the generality of the foregoing, exercise
all or any of the powers or rights of the Issuing Entity under
or pursuant to any Secured Property;
5.1.4 without prejudice to the generality of the foregoing, if in its
absolute discretion it is of the opinion that the interests of
the Noteholders and any other Secured Creditors will not be
materially prejudiced thereby, agree to the transfer of any
Secured Property to an account with Euroclear, Clearstream or
DTC or any similar clearing system or the holding thereof in
safe custody by the Note Trustee or by a bank or custodian
selected by the Note Trustee (and shall not incur any liability
by doing so);
5.1.5 demand, sue for or take any action or institute any proceedings
to recover or obtain payment of any amounts which may then be
due and payable but which remain unpaid under or in respect of
the Secured Property or any part thereof either in its own name
or in the name of the Issuing Entity and shall not be liable by
so doing; and
5.1.6 without prejudice to the generality of the foregoing, act
generally in relation to the Secured Property in such manner as
it may think expedient.
-11-
6. APPOINTMENT AND REMOVAL OF ADMINISTRATOR AND RECEIVER
6.1 APPOINTMENT AND REMOVAL OF RECEIVER
Subject to Clause 6.2 (Appointment of Receiver instead of an
administrator), at any time after all or part of the Security in
relation to any one or more Series of Notes issued by the Issuing Entity
has become enforceable in accordance with the Conditions, the Note
Trustee may by writing appoint any person or persons to be a Receiver of
the Secured Property of any such Series, and may remove any Receiver so
appointed and appoint another in its place. Section 109(1) of the Law of
Property Act 1925 shall not apply in respect of any such appointment.
6.2 APPOINTMENT OF RECEIVER INSTEAD OF AN ADMINISTRATOR
If the Note Trustee has actual notice of:
6.2.1 a petition to a court of competent jurisdiction for an
administration order to be made on the application by a creditor
or creditors of the Issuing Entity;
6.2.2 the giving of notice of intention to appoint an administrator in
respect of the Issuing Entity; or
6.2.3 the filing of a notice of appointment of an administrator of the
Issuing Entity with a court of competent jurisdiction,
the Note Trustee shall use reasonable endeavours, subject to its being
practicable so to do, and provided it has been indemnified and/or
secured to its satisfaction, forthwith to appoint a Receiver or
Receivers (being, for the avoidance of doubt, an administrative receiver
or similar officer falling within the definition of "administrative
receiver" under Section 29(2) of the Insolvency Act 1986) of the whole
of the Secured Property in relation to all Series of Notes outstanding
and in relation to all of the assets subject to the floating charge
created pursuant to Clause 4 (Security). Any proceeds of enforcement of
the floating charge shall be distributed amongst the Secured Creditors
of the relevant Series pro rata in the proportion which the aggregate
Principal Amount Outstanding of all Notes in respect of each such Series
bears to the Aggregate Principal Amount Outstanding of all Notes of all
such Series (as at the date such moneys were received) in respect of
which such moneys were received (unless, in relation to any Series, the
relevant Note Trust Deed Supplement specifies that any such Series shall
be subordinated to any other Series).
6.3 CONTINUING SERIES
The appointment of any Receiver shall include a direction to the
Receiver in relation to those Series in respect of which the specific
Security relating to such service has not become enforceable to continue
all the existing contracts in relation to such Series and carry on the
existing business of the Issuing Entity in relation to such Series.
6.4 INSOLVENCY ACT REQUIREMENTS
The Note Trustee shall comply with any requirement under the Insolvency
Act 1986 that any person appointed to be a Receiver is a licenced
insolvency practitioner.
-12-
7. PROVISIONS RELATING TO RECEIVERS
7.1 PROVISIONS RELATING TO RECEIVERS
If the Note Trustee appoints a Receiver under Clause 6.1 (Appointment
and removal of Receiver), the following provisions shall have effect in
relation thereto:
7.1.1 such appointment may be made either before or after the Note
Trustee has taken possession of the relevant Secured Property
relating to any Series;
7.1.2 such Receiver may be vested by the Note Trustee with such powers
and discretions as the Note Trustee may think expedient and,
subject to Clause 6.1 (Appointment and removal of Receiver), (i)
may sell or concur in selling all or any of such Secured
Property, or assign or release all or any of such Secured
Property, to any Person save for itself or any of its
Affiliates, or (ii) continue the business of the Issuing Entity
as a going concern with respect to the Secured Property, in each
case without restriction and on such terms and for such
consideration (if any) as he may think fit and may carry any
such transaction into effect by conveying, transferring and
delivering in the name or on behalf of the Issuing Entity or
otherwise;
7.1.3 the Receiver shall have, mutatis mutandis, the powers,
authorities and discretions conferred upon the Note Trustee
under this Note Trust Deed and any relevant Note Trust Deed
Supplement, subject to such restrictions as the Note Trustee may
think fit. Without prejudice to the generality of the foregoing,
any Receiver appointed to the whole or substantially the whole
of the Secured Property shall have the powers referred to in
Schedule 1 of the Insolvency Act 1986;
7.1.4 the exclusion of any part of the Secured Property of any Series
from the appointment of the Receiver shall not preclude the Note
Trustee from subsequently extending his appointment (or that of
the Receiver replacing him) to that part;
7.1.5 the Note Trustee may from time to time fix the remuneration of
such Receiver and direct payment thereof out of moneys accruing
to him in the exercise of his powers as such PROVIDED, HOWEVER,
THAT such remuneration shall only be payable from such sums as
are realised from the Secured Property of those Series in
respect of which the Receiver was appointed;
7.1.6 the Note Trustee may from time to time and at any time require
any such Receiver to give security for the due performance of
his duties as the Receiver and may fix the nature and amount of
the security to be so given but the Note Trustee shall not be
bound in any case to require any such security;
7.1.7 save insofar as otherwise directed by the Note Trustee, all
moneys from time to time received by such Receiver shall be paid
over forthwith to the Note Trustee to be held and applied by it
in accordance with the provisions of Clause 13 (Application of
Moneys) as supplemented by the relevant Note Trust Deed
Supplement;
-13-
7.1.8 every such Receiver shall be the agent of the Issuing Entity for
all purposes and the Issuing Entity alone shall be responsible
for his acts, defaults and misconduct, and the Note Trustee and
the Noteholders and the Secured Creditors shall not incur any
liability therefor or by reason of its or their making or
consenting to the appointment of a person as a Receiver under
this Note Trust Deed;
7.1.9 none of the Note Trustee and the Noteholders and Secured
Creditors shall be in any way responsible for any misconduct or
negligence on the part of any such Receiver or for providing any
Receiver with any indemnity;
7.1.10 the Note Trustee may (subject to Section 45 of the Insolvency
Act 1986) remove the Receiver whether or not appointing another
in his place and the Note Trustee may also appoint another
receiver if the Receiver resigns;
7.1.11 the Note Trustee may pay over to such Receiver any moneys
constituting part of the Security to the intent that the same
may be applied for the purposes of this Note Trust Deed by such
Receiver and the Note Trustee may from time to time determine
what funds the Receiver shall be at liberty to keep in hand with
a view to the performance of his duties as such Receiver;
7.1.12 Sections 109(6) and (8) of the Law of Property Act 1925
(relating to application of moneys received by a receiver) shall
not apply in relation to a Receiver appointed under Clause 6.1
(Appointment and removal of Receiver); and
7.1.13 none of the restrictions imposed by the Law of Property Act 1925
in relation to the appointment of receivers or as to the giving
of notice or otherwise shall apply in relation to a Receiver
appointed under Clause 6.1 (Appointment and removal of
Receiver).
7.2 MONEYS HELD ON TRUST
For each Series, all moneys received by the Note Trustee in respect of
the Security or the Secured Property relating to such Series shall be
held by the Note Trustee upon trust to apply the same as provided in
Clause 13 (Application of Moneys) hereof and the relevant Note Trust
Deed Supplement.
7.3 FURTHER ASSURANCE
For each Series, the Issuing Entity shall execute and do all such
assurances, acts and things as the Note Trustee or any Receiver may
require (including, without limitation, the giving of notices of
assignment and the effecting of filings or registrations in any
jurisdiction) for perfecting or protecting the Security and from time to
time and at any time after the Security or any part thereof has become
enforceable shall execute and do all such assurances, acts and things as
the Note Trustee or any Receiver may require for facilitating the
realisation of, or enforcement of rights in respect of, all or any of
the Secured Property relating to such Series and the exercise of all
powers, authorities and discretions vested in the Note Trustee or in any
Receiver of all or any of the Secured Property relating to such Series.
-14-
7.4 BORROWING POWERS
For each Series, the Note Trustee may raise and borrow money on the
security of all or any of the Secured Property relating to such Series
for the purpose of defraying any Liabilities paid or incurred by it in
relation to this Note Trust Deed and any relevant Note Trust Deed
Supplement relating to such Series or in the exercise of any of the
powers contained in this Note Trust Deed and any relevant Note Trust
Deed Supplement relating to such Series. The Note Trustee may raise and
borrow such money at such rate of interest and generally on such terms
and conditions as it shall think fit and may secure the repayment of the
money so raised or borrowed with interest on the same by mortgaging or
otherwise charging all or any of the Secured Property relating to such
Series in such manner and form as the Note Trustee may think fit (which
mortgage or other charge may rank in priority to, pari passu with or
after the Security) and for such purposes may execute and do all such
assurances and things as it may think fit and no person lending any such
money shall be concerned to enquire as to the propriety or purpose of
the exercise of any power of the Note Trustee or to see to the
application of any money so raised or borrowed.
7.5 APPOINTMENT OF ATTORNEYS
For the purpose of securing the interests of the Note Trustee and the
other Secured Creditors whether under or pursuant to this Note Trust
Deed or any Document or in relation to the Secured Property and the
performance of its obligations to the Secured Creditors, whether under
or pursuant to this Note Trust Deed or any Document or in relation to
the Secured Property, the Issuing Entity irrevocably for value and by
way of security hereby severally appoints the Note Trustee and every
Receiver of the Secured Property or any part thereof to be its attorney
(with full power to appoint substitutes or to sub-delegate, including
power to authorise the person so appointed to make further appointments)
on behalf of the Issuing Entity and in its name or otherwise, to execute
any document or do any assurance, act or thing which the Issuing Entity
ought to execute or do pursuant to this Note Trust Deed and generally on
its behalf and in its name or otherwise, to execute any document or do
any assurance, act or thing which the Note Trustee or such Receiver (or
such substitute or delegate) may, in its or his absolute discretion,
properly consider appropriate in connection with the exercise or
enforcement of any of the rights, powers, authorities or discretions
conferred on the Note Trustee or the Receiver under or pursuant to this
Note Trust Deed or any Document. The Issuing Entity hereby ratifies and
confirms and agrees to ratify and confirm whatever any such attorney
does or purports to do in the exercise or purported exercise of all or
any of the powers, authorities and discretions referred to in this
Clause 7.5.
7.6 NO LIABILITY
For each Series, the Note Trustee shall not, nor shall any Receiver
appointed as aforesaid nor any attorney, agent or delegate of the Note
Trustee by reason of taking possession of or having assigned to it all
or any of the Secured Property relating to such Series or any other
reason whatsoever and whether as mortgagee in possession or on any other
basis whatsoever be liable to account for anything except actual
receipts or be liable for any loss or damage arising from realisation
of, or enforcement of rights in respect of, all or any of the Secured
Property relating to such Series or any other property, assets, rights
or undertakings of whatsoever nature (including but not limited to any
other Secured
-15-
Property) whether or not owned by the Issuing Entity or any other person
or in which the Issuing Entity or such other person has an interest,
from any act, default or omission in relation to all or any of the
Secured Property relating to such Series or any other property, assets,
rights or undertakings of whatsoever nature (including but not limited
to any other Secured Property) whether or not owned by the Issuing
Entity or any other person or in which the Issuing Entity or such other
person has an interest, or from any exercise or non exercise by it of
any power, authority or discretion conferred upon it in relation to all
or any of the Secured Property relating to such Series or any other
property, assets, rights or undertakings of whatsoever nature (including
but not limited to any other Secured Property) whether or not owned by
the Issuing Entity or any other person or in which the Issuing Entity or
such other person has an interest, by or pursuant to this Note Trust
Deed as supplemented by the relevant Note Trust Deed Supplement relating
to such Series or otherwise.
7.7 POWERS ADDITIONAL TO LPA AND INSOLVENCY ACT POWERS
For each Series, the powers conferred by this Note Trust Deed in
relation to all or any of the Secured Property in respect of such Series
on the Note Trustee or on any Receiver of all or any of the Secured
Property shall be in addition to and not in substitution for the powers
conferred on mortgagees or receivers under the Law of Property Act 1925
and the Insolvency Act and where there is any ambiguity or conflict
between the powers contained in such Act and those conferred by this
Note Trust Deed and any relevant Note Trust Deed Supplement the terms of
this Note Trust Deed and any relevant Note Trust Deed Supplement shall
prevail.
7.8 PROTECTION OF THIRD PARTIES
For each Series, no person dealing with the Note Trustee or with any
Receiver of all or any of the Secured Property in respect of such Series
appointed by the Note Trustee shall be concerned to enquire whether any
event has happened upon which any of the powers, authorities and
discretions conferred by or pursuant to this Note Trust Deed and any
relevant Note Trust Deed Supplement in relation to such Secured Property
in respect of such Series are or may be exercisable by the Note Trustee
or by any such Receiver or otherwise as to the propriety or regularity
of acts purporting or intended to be in exercise of any such powers,
authorities or discretions and all the protection to purchasers
contained in Sections 104 and 107 of the Law of Property Act 1925 shall
apply to any person purchasing from or dealing with the Note Trustee or
any such Receiver in like manner as if the statutory powers of sale and
of appointing a Receiver in relation to such Secured Property in respect
of such Series had not been varied or extended by this Note Trust Deed
and any relevant Note Trust Deed Supplement.
8. NOTE CERTIFICATES
8.1 GLOBAL NOTE CERTIFICATES
Each Class or Sub-Class of Notes of each Series will be initially
represented by (a) an SEC Registered Global Note Certificate, (b) a
Regulation S Global Note Certificate or (c) a Rule 144A Global Note
Certificate and a Regulation S Global Note Certificate. Interests in a
Global Note Certificate shall be exchangeable, in accordance with its
terms for Individual Note Certificates.
-16-
8.2 INDIVIDUAL NOTE CERTIFICATES
Individual Note Certificates will not be security printed unless
required by applicable legal and Stock Exchange requirements and will be
substantially in the forms set out (in the case of a Class A SEC
Registered Individual Note Certificate) in Schedule 6 (Form of Class A
SEC Registered Individual Note Certificate), (in the case of a Class B
SEC Registered Individual Note Certificate) in Schedule 7 (Form of Class
B SEC Registered Individual Note Certificate), (in the case of a Class C
SEC Registered Individual Note Certificate) in Schedule 8 (Form of Class
C SEC Registered Individual Note Certificate), (in the case of a Class D
SEC Registered Individual Note Certificate) in Schedule 9 (Form of Class
D SEC Registered Individual Note Certificate), (in the case of a Rule
144A Individual Note Certificate) in Schedule 11 (Form of Rule 144A
Individual Note Certificate) and (in the case of a Regulation S
Individual Note Certificate) in Schedule 13 (Form of Regulation S
Individual Note Certificate). Individual Note Certificates will have the
Conditions attached thereto.
8.3 SIGNATURE
The Note Certificates will be signed manually or in facsimile by a duly
authorised person designated by the Issuing Entity and will be
authenticated manually by or on behalf of the Registrar. The Issuing
Entity may use the facsimile signature of a person who at the date such
signature was originally produced was such a duly authorised person even
if at the time of issue of any Note Certificate he no longer holds that
office. Note Certificates so executed and duly authenticated will be
binding and valid obligations of the Issuing Entity.
8.4 ENTITLEMENT TO TREAT HOLDER AS OWNER
The Issuing Entity, the Note Trustee and any Agent may deem and treat
the holder of any Note Certificate as the absolute owner of such Note
Certificate, free of any equity, set-off or counterclaim on the part of
the Issuing Entity against the original or any intermediate holder of
such Note Certificate (whether or not such Note represented by such Note
Certificate shall be overdue and notwithstanding any notation of
ownership or other writing thereon (other than the endorsed form of
transfer) or any notice of previous loss or theft of such Note
Certificate) for all purposes and, except as ordered by a court of
competent jurisdiction or as required by applicable law, the Issuing
Entity, the Note Trustee and each Agent shall not be affected by any
notice to the contrary. All payments made to any such holder shall be
valid and, to the extent of the sums so paid, effective to satisfy and
discharge the liability for the moneys payable upon the Notes.
9. COVENANTS
9.1 COVENANT TO COMPLY WITH THE NOTE TRUST DEED
The Issuing Entity, in respect of each Series, hereby covenants with the
Note Trustee on the terms of the Issuing Entity Covenants and covenants
to comply with those provisions of the other Documents, this Note Trust
Deed, any Note Trust Deed Supplement and the Conditions which are
expressed to be binding on it and to perform and observe the same. The
Notes are subject to the provisions contained in the Security Documents,
all of which shall be binding upon the Issuing Entity and the
Noteholders and all persons claiming through or under them respectively.
-17-
9.2 OPINION OF COUNSEL
In accordance with Section 314(b) of the TIA, promptly after the
execution and delivery of this Note Trust Deed and each Note Trust Deed
Supplement, the Issuing Entity will furnish to the Note Trustee an
Opinion of Counsel stating that in the opinion of such counsel,
appropriate steps have been taken to protect the title of the Note
Trustee to the Secured Property and reciting the details of such action,
or stating that in the opinion of such counsel no such action is
necessary; and the Issuing Entity shall furnish to the Note Trustee, not
more than three months after the anniversary of the execution and
delivery of this Note Trust Deed and each Note Trust Deed Supplement,
commencing in calendar year 2009, an Opinion of Counsel stating either
that, in the opinion of such counsel, (i) such action has been taken as
is necessary for the proper protection of the title of the Note Trustee
to the Secured Property and reciting the details of such action or (ii)
no such action is necessary for any of such purposes.
9.3 NOTE TRUSTEE MAY ENFORCE CONDITIONS
The Note Trustee shall itself be entitled to enforce the obligations of
the Issuing Entity under the Notes and the Conditions as if the same
were set out and contained in this Note Trust Deed which shall be read
and construed as one document with the Notes.
10. AMENDMENTS
10.1 WAIVER
The Note Trustee may, without any consent or sanction of the Noteholders
or any other Secured Creditor and without prejudice to its rights in
respect of any subsequent breach, Event of Default or Potential Event of
Default, from time to time and at any time, but only if and in so far as
in its opinion the interests of the holders of the Most Senior Class of
Notes of the relevant Series shall not be materially prejudiced thereby,
authorise or waive, on such terms and conditions (if any) as shall seem
fit and proper to it, any breach or proposed breach of any of the
covenants or provisions contained in the Security Documents or the Notes
or any of the other Documents in relation to such Series or determine
that any Event of Default or Potential Event of Default in relation to
such Series shall not be treated as such for the purposes of the
Security Documents; any such authorisation, waiver or determination
shall be binding on the Noteholders of such Series and the other Secured
Creditors and, unless the Note Trustee agrees otherwise, the Issuing
Entity shall cause such authorisation, waiver or determination to be
notified to the Noteholders of such Series as soon as practicable
thereafter in accordance with the Conditions PROVIDED THAT the Note
Trustee shall not exercise any powers conferred upon it by this Clause
10.1 in contravention of any express direction by an Extraordinary
Resolution of, or a request in writing made by the holders of at least
one-quarter in aggregate principal amount of, the Most Senior Class of
Notes then outstanding of the relevant Series (but so that no such
direction or request shall affect any authorisation, waiver or
determination previously given or made) or so as to authorise or waive
any such breach or proposed breach relating to a Basic Terms
Modification.
10.2 MODIFICATIONS
The Note Trustee may, from time to time and at any time without any
consent or sanction of the Noteholders, concur with the Issuing Entity
in making any modification
-18-
to the Documents (including where required Relevant Documents) other
than in respect of a Basic Terms Modification:
10.2.1 which in the opinion of the Note Trustee it may be proper to
make provided the Note Trustee is of the opinion that such
modification will not be materially prejudicial to the interests
of the holders of the Most Senior Class of Notes then
outstanding of the relevant Series;
10.2.2 if in the opinion of the Note Trustee such modification is of a
formal, minor or technical nature or is to correct a manifest
error; or
10.2.3 to comply with any requirements of the SEC in order to effect
and maintain the qualification of this Note Trust Deed under the
TIA PROVIDED THAT the Note Trustee is provided with an Opinion
of Counsel confirming such requirement.
Any such modification shall be binding on the Noteholders and, unless
the Note Trustee agrees otherwise, shall be notified by the Issuing
Entity to the Noteholders as soon as practicable thereafter in
accordance with Condition 15 (Notices).
Notwithstanding the foregoing, the Note Trustee shall be entitled to
make any modification or amendment to any Document upon receipt of an
Opinion of Counsel that such modification or amendment is necessary in
order to register any Series of Notes under the Securities Act.
Every modification made to this Note Trust Deed pursuant to this Clause
10.2 shall conform to the requirements of the TIA as then in effect
PROVIDED THAT the Note Trustee is provided with an Opinion of Counsel
confirming such requirement.
11. SUBSTITUTION
11.1 PROCEDURE
The Note Trustee may, without the consent of the Noteholders or other
Secured Creditors, agree to the substitution, in place of the Issuing
Entity (or of any previous substitute under this Clause 11) of any other
body corporate (the "SUBSTITUTED ISSUING ENTITY") as the principal
debtor in respect of the Security Documents, the Notes and the other
Secured Obligations of any Series if:
11.1.1 a Note Trust Deed is executed or some other written form of
undertaking is given by the Substituted Issuing Entity to the
Note Trustee, in form and manner satisfactory to the Note
Trustee, agreeing to be bound by the terms of the Security
Documents, the Notes and the other Documents with any
consequential amendments which the Note Trustee may deem
appropriate as fully as if the Substituted Issuing Entity had
been named in the Security Documents and the other Documents and
on the Notes as the principal debtor in place of the Issuing
Entity (or of any previous substitute under this Clause 11);
11.1.2 the Issuing Entity (or any previous substitute) and the
Substituted Issuing Entity execute such other deeds, documents
and instruments (if any) as the Note Trustee may require in
order that the substitution is fully effective and comply
-19-
with such other requirements as the Note Trustee may direct in
the interests of the Noteholders and the other Secured
Creditors;
11.1.3 where all or substantially all the assets of the Issuing Entity
or any previous substitute are transferred to the Substituted
Issuing Entity, the Substituted Issuing Entity:
(a) acquires the Issuing Entity's (or such previous
substitute's) equity of redemption in the Secured
Property (other than the undertaking of the Issuing
Entity or any previous substitute);
(b) becomes a party to all the Documents to which the
Issuing Entity (or such previous substitute) is a party;
(c) acknowledges the Security and the other matters created
and effected in respect thereof pursuant to the Security
Documents; and
(d) takes all such action as the Note Trustee may require so
that the Secured Property continues to be subject to the
Security and the other matters created and effected in
respect thereof pursuant to the Security Documents and
otherwise effected or maintained in all respects
corresponding to those previously subsisting on the part
of the Issuing Entity or such previous substitute;
11.1.4 (unless all or substantially all of the assets of the Issuing
Entity or any previous substitute are transferred to the
Substituted Issuing Entity) an unconditional and irrevocable
guarantee limited in recourse to and secured only on the Secured
Property in form and substance satisfactory to the Note Trustee
is given by the Issuing Entity (or such previous substitute) of
the obligations of any Substituted Issuing Entity under the
Security Documents, the Notes and the other Documents;
11.1.5 the Note Trustee is provided with a legal opinion (in form and
substance satisfactory to the Note Trustee) or such other
evidence which is acceptable to the Note Trustee that (i) the
Substituted Issuing Entity has obtained all governmental and
regulatory approvals and consents necessary for its assumption
of liability as principal debtor in respect of the Security
Documents, the Notes and the other Secured Obligations in place
of the Issuing Entity (or such previous substitute as aforesaid)
and (ii) such approvals and consents are at the time of
substitution in full force and effect;
11.1.6 the Substituted Issuing Entity is a single purpose company
similar to, and with like constitution as, and having
substantially the same restrictions and prohibitions on its
activities and operations as the Issuing Entity, undertakes to
be bound by provisions corresponding to those set out in the
Conditions and satisfies the SPV Criteria;
11.1.7 without prejudice to the rights of reliance of the Note Trustee
under sub-clause 11.4 (Directors' certification) the Note
Trustee is satisfied that the said
-20-
substitution is not materially prejudicial to the interests of
the holders of the Most Senior Class of Notes outstanding of
each Series; and
11.1.8 the Note Trustee is provided with any further legal opinions it
requires in respect of such substitution in form and substance
satisfactory to it (including, without limitation, any such
opinions it requires to satisfy itself about the continuing
validity and enforceability of the Security created pursuant to
the Security Documents).
11.2 CHANGE OF LAW
In connection with any proposed substitution of the Issuing Entity or
any previous substitute, the Note Trustee may, in its absolute
discretion and without the consent of the Noteholders or the other
Secured Creditors agree to a change of the law from time to time
governing the Notes and/or the Security Documents provided that such
change of law, in the opinion of the Note Trustee, would not be
materially prejudicial to the interests of the holders of the Most
Senior Class of Notes outstanding of each Series.
11.3 EXTRA DUTIES
The Note Trustee shall be entitled to refuse to approve any Substituted
Issuing Entity if, pursuant to the law of the country of incorporation
of the Substituted Issuing Entity, the assumption by the Substituted
Issuing Entity of its obligations hereunder imposes (in the opinion of
the Note Trustee) responsibilities and Liabilities on the Note Trustee
over and above those which it has assumed under the Security Documents.
11.4 DIRECTORS' CERTIFICATION
If any two directors of the Substituted Issuing Entity certify that
immediately prior to the assumption of its obligations as Substituted
Issuing Entity under the Security Documents, the Notes and the other
Documents the proposed Substituted Issuing Entity is solvent after
taking account of all prospective and contingent Liabilities resulting
from its becoming the Substituted Issuing Entity, the Note Trustee need
not have regard to the financial condition, profits or prospects of the
proposed Substituted Issuing Entity or compare the same with those of
the Issuing Entity (or of any previous substitute under this Clause 11)
or have regard to the possibility of avoidance of the Security or any
part thereof on the grounds of insolvency or the proximity to
insolvency, liquidation or some other event of the Substituted Issuing
Entity.
11.5 INTERESTS OF NOTEHOLDERS AND SECURED CREDITORS
In connection with any proposed substitution, the Note Trustee shall not
have regard to, or be in any way liable for, the consequences of such
substitution for individual Noteholders or the other Secured Creditors
resulting from their being for any purpose domiciled or resident in, or
otherwise connected with, or subject to the jurisdiction of, any
particular territory. No Noteholder or other Secured Creditor shall, in
connection with any such substitution, be entitled to claim from the
Issuing Entity any indemnification or payment in respect of any tax
consequence of any such substitution upon individual Noteholders or
other Secured Creditors.
11.6 RELEASE OF ISSUING ENTITY
Any agreement by the Note Trustee pursuant to Clause 11.1 (Procedure)
shall, if so expressed, operate to release the Issuing Entity (or such
previous substitute) from all of
-21-
its obligations as principal debtor under the Notes, the Security
Documents and the other Secured Obligations (but without prejudice to
its liabilities under any guarantee given pursuant to Clause 11.1.4).
11.7 COMPLETION OF SUBSTITUTION
Upon the execution of such documents and compliance with the said
requirements, the Substituted Issuing Entity shall be deemed to be named
in the Security Documents, the Notes and the other Documents as the
principal debtor in place of the Issuing Entity (or of any previous
substitute under this Clause) and the Security Documents, the Notes and
the other Documents shall thereupon be deemed to be amended in such
manner as shall be necessary to give effect to the substitution and
without prejudice to the generality of the foregoing any references in
the Security Documents, Notes and the other Documents to the Issuing
Entity shall be deemed to be references to the Substituted Issuing
Entity.
12. ENFORCEMENT
12.1 SECURITY ENFORCEABLE
The Security in relation to any Series shall become enforceable upon the
Note Trustee giving an Enforcement Notice pursuant to the terms of this
Note Trust Deed and the relevant Note Trust Deed Supplement to the
Issuing Entity subsequent to an Event of Default in respect of such
Series or as otherwise provided in the Note Trust Deed Supplement for
such Series.
12.2 ENFORCEMENT NOTICE
The Note Trustee shall not be bound to give any Enforcement Notice in
respect of any Series of Notes pursuant to Clause 12.1 (Security
enforceable) unless it shall have been indemnified and/or secured to its
satisfaction and:
12.2.1 in relation to the Security created pursuant to any Note Trust
Deed Supplement, it shall have been so requested in writing by
the holders of at least one-quarter in aggregate Principal
Amount Outstanding of the Notes of the Most Senior Class of the
relevant Series or it shall have been so directed by an
Extraordinary Resolution of the holders of the Most Senior Class
outstanding of the relevant Series;
12.2.2 in relation to the Security created pursuant to Clause 4.1
(Creation of Security), it shall have been instructed by an
Extraordinary Resolution of the holders of the Most Senior Class
of Notes of each outstanding Series, acting as one class, at a
Meeting duly convened and held in accordance with Schedule 14
(Provisions Relating to Meetings of Noteholders); or
12.2.3 in relation to any Security, it shall have been requested in
writing by the relevant Swap Counterparty,
PROVIDED THAT the Note Trustee shall not be held liable for the
consequence of the taking of any such action and may take such action
without having regard to the effect of such action on individual
Noteholders or any other Secured Creditor in relation to that Series or
all or any of the Noteholders or any other Secured Creditors in relation
to any other Series.
-22-
12.3 LEGAL PROCEEDINGS
At any time after the service of an Enforcement Notice pursuant to
Clause 12.1 (Security enforceable) and Clause 12.2 (Enforcement Notice)
and in accordance with the terms of these Clauses, the Note Trustee may
at its discretion (but without being under any obligation to do so) and
without further notice and subject always to being indemnified and/or
secured to its satisfaction against any liability, fees, costs and
expenses which it may incur, recover judgment in its own name and as
trustee of an express trust against the Issuing Entity for the whole
amount of principal and interest and any other sums secured under the
Security Documents remaining unpaid and take:
12.3.1 such other steps and/or institute such proceedings as it may
think fit against, or in relation to, the Issuing Entity, and/or
12.3.2 such steps as it may think fit to enforce the security created
in favour of the Note Trustee by, and contained in, this Note
Trust Deed and any relevant Note Trust Deed Supplement, and/or
12.3.3 such steps as it may think fit to enforce the Issuing Entity's
obligations under this Note Trust Deed and any Relevant Document
including, without limitation, to enforce repayment of the
relevant Notes together with accrued interest and any other
moneys payable pursuant to this Note Trust Deed and any relevant
Note Trust Deed Supplement PROVIDED THAT the Note Trustee shall
be bound by the terms of this Note Trust Deed and the relevant
Note Trust Deed Supplement in determining the priority in which
any moneys received by it shall be applied. In enforcing the
security created in favour of the Note Trustee by and contained
in this Note Trust Deed (other than in relation to the floating
charge created pursuant to Clause 4.1.2, which shall be enforced
as detailed in Clause 12.2 (Enforcement Notice)), the Note
Trustee shall only take steps to realise assets which are (i)
secured both by this Note Trust Deed and the relevant Note Trust
Deed Supplement for the relevant Series which is the subject of
enforcement and/or (ii) not already secured by a fixed charge in
favour of any other Series pursuant to the relevant Note Trust
Deed Supplement.
12.4 PRESERVATION OF NOTEHOLDERS' RIGHTS
Notwithstanding any other provision in this Note Trust Deed and any
relevant Note Trust Deed Supplement, if this Note Trust Deed is a
"qualified" indenture for the purposes of the TIA, in accordance with
Section 316(b) of the TIA, the right of any Noteholder to receive
payment of principal and interest on its Notes on or after the due date
for such principal or interest, or to institute suit for the enforcement
of payment of that principal or interest, may not be impaired or
affected without the consent of the Noteholder, provided that no such
right of enforcement shall exist (i) in respect of a postponement of an
interest payment which has been consented to by the Noteholders in
accordance with the Conditions or (ii) to the extent that the
institution or prosecution of such suit or the entry of judgment therein
would, under applicable law, result in the surrender, impairment, waiver
or loss of the security granted pursuant to this Note Trust Deed or the
relevant Note Trust Deed Supplement upon any property subject to such
security.
-23-
12.5 POWER OF SALE
At any time after the Security in relation to any Series has become
enforceable, the Note Trustee may take possession of all or any of the
Secured Property in relation to such Series and may sell, call in,
collect and convert into money, and enforce any rights it may have in
respect of, all or any of the Secured Property relating to the relevant
Series of Notes in respect of which the Security has become enforceable,
in such manner and upon such terms as the Note Trustee may think fit and
so that the power of sale conferred by Section 101 of the Law of
Property Act 1925 (but free from the restrictions imposed by Sections 93
and 103 of such Act) shall apply and have effect on the basis that the
Security Documents constitute a mortgage within the meaning of that Act
and the Note Trustee is a mortgagee exercising the power of sale
conferred upon mortgagees by that Act PROVIDED, HOWEVER, THAT the
statutory power of sale (as extended by the Security Documents) and the
other powers of the Note Trustee referred to above shall, in relation to
the property which is secured by the Issuing Entity pursuant to Clause
4.1 (Creation of Security), only be exercisable by the Note Trustee
after the Security in respect of all Notes then outstanding and issued
by the Issuing Entity has become enforceable.
12.6 EVIDENCE OF DEFAULT
Should the Note Trustee take legal or other proceedings against the
Issuing Entity to enforce any of the provisions of the Notes, or any of
them or any of the provisions of this Note Trust Deed and any relevant
Note Trust Deed Supplement, proof therein that, as regards any Note of
any Series, the Issuing Entity has made default in paying any principal
or interest due in respect of such Note shall (unless the contrary be
proved) be sufficient evidence that the Issuing Entity has made the like
default as regards all other Notes of such Series in respect of which
the relevant payment is then due and payable. The Note Trustee may file
such proofs of claim and other papers or documents and may take any and
all actions authorised under the TIA as may be necessary or advisable in
order to have the claims of the Note Trustee and the Secured Creditors
allowed in any judicial proceedings relating to the Issuing Entity, its
auditors or its property.
12.7 CONTINUING SECURITY
The Security constituted by this Note Trust Deed as supplemented by the
relevant Note Trust Deed Supplement is continuing security for the
performance of the Secured Obligations notwithstanding any intermediate
payment in respect of the Secured Obligations and shall be in addition
to any other security, rights or remedies which the Note Trustee may
have.
13. APPLICATION OF MONEYS
13.1 APPLICATION OF MONEYS
All moneys received by the Note Trustee in respect of the Notes of any
Series or amounts payable under the Security Documents will, despite any
appropriation of all or part of them by the Issuing Entity (including
any moneys which represent principal or interest in respect of Notes
which have become void under the Conditions), be held by the Note
Trustee on trust to apply them (subject to Clause 13.2 (Investment of
moneys)), if received prior to the delivery of an Enforcement Notice, in
accordance with the priority of application of amounts prior to
enforcement of the Security contained in the relevant Note Trust Deed
Supplement and, if received after delivery of an Enforcement
-24-
Notice in accordance with the order of priority contained in Condition
3(b) (Security) PROVIDED, HOWEVER, THAT at any time, Excess Swap
Collateral shall be returned to the Swap Counterparty in accordance with
the relevant Swap Agreement.
13.2 INVESTMENT OF MONEYS
If, upon enforcement of the Security, the amount of the moneys at any
time available for payment of principal and interest in respect of the
Notes of any Series under Clause 13.1 (Application of moneys) shall be
less than a sum sufficient to pay at least one tenth of the Principal
Amount Outstanding of the Notes of such Series then outstanding, the
Note Trustee may, at its discretion, invest such moneys upon some or one
of the investments hereinafter authorised with power from time to time,
with like discretion, to vary such investments; and such investment with
the resulting income thereof may be accumulated until the accumulations
together with any other funds for the time being under the control of
the Note Trustee and available for the purpose shall amount to a sum
sufficient to pay at least one tenth of the Principal Amount Outstanding
of the Notes of such Series then outstanding and such accumulation and
funds (after deduction of any taxes and any other deductibles applicable
thereto) shall then be applied in accordance with the order of priority
contained in Condition 3(b) (Security).
13.3 AUTHORISED INVESTMENTS
Any moneys which under this Trust Deed may be invested by the Note
Trustee may be invested in the name or under the control of the Note
Trustee in any of the investments for the time being authorised by
English law for the investment by trustees of trust moneys or in any
other investments, whether similar to those aforesaid or not, which may
be selected by the Note Trustee or by placing the same on deposit in the
name or under the control of the Note Trustee with such bank or other
financial institution as the Note Trustee may think fit and in such
currency as the Note Trustee in its absolute discretion may determine
and the Note Trustee may at any time vary or transfer any of such
investments for or into other such investments or convert any moneys so
deposited into any other currency and shall not be responsible for any
Liability occasioned by reason of any such investments or such deposit
whether by depreciation in value, fluctuation in exchange rates or
otherwise.
13.4 PAYMENT TO NOTEHOLDERS
The Note Trustee shall, after the delivery of an Enforcement Notice,
give notice to the Noteholders in accordance with the Conditions of the
date fixed for any payment under Clause 13.1 (Application of Moneys).
Any payment to be made in respect of the Notes of any Series by the
Issuing Entity or the Note Trustee may be made in the manner provided in
the Conditions, the Paying Agency and Agent Bank Agreement and the
Security Documents and any payment so made shall be a good discharge to
the extent of such payment by the Issuing Entity or the Note Trustee (as
the case may be).
13.5 PRODUCTION OF NOTE CERTIFICATES
Upon any payment under Clause 13.4 (Payment to Noteholders) of principal
or interest, the Note or Note Certificate in respect of which such
payment is made shall, if the Note Trustee so requires, be produced to
the Note Trustee or the Paying Agent by or through whom such payment is
made and the Note Trustee shall (a) in the case of part payment, require
the relevant Registrar to make a notation on the Register maintained by
such
-25-
Registrar of the amount and date of payment or (b) in the case of
payment in full, cause the relevant Note Certificate to be surrendered
or shall cancel or procure the same to be cancelled and shall certify or
procure the certification of such cancellation.
14. TERMS OF APPOINTMENT
The Note Trustee shall have all powers conferred upon trustees by the
Trustee Acts (which provisions shall take precedence, except as
expressly provided in Section 315(a) of the TIA) and by way of
supplement to the Trustee Acts, it is expressly declared as follows:
14.1 RELIANCE ON INFORMATION
14.1.1 Advice: The Note Trustee may in relation to any Document act on
the opinion or advice of or a certificate or any information
obtained from any lawyer, banker, valuer, surveyor, broker,
auctioneer, accountant or other expert (whether obtained by the
Note Trustee, the Issuing Entity, any Agent or any other Secured
Creditor) and which advice or opinion may be provided on such
terms (including as to limitations on liability) as the Note
Trustee may consider in its sole discretion to be consistent
with prevailing market practice with regard to advice or
opinions of that nature and shall not be responsible for any
Liability occasioned by so acting; any such opinion, advice,
certificate or information may be sent or obtained by letter,
e-mail or facsimile transmission and the Note Trustee shall not
be liable for acting on any opinion, advice, certificate or
information purporting to be so conveyed although the same
contains some error or is not authentic and whether or not
addressed to the Note Trustee.
14.1.2 Certificate of Directors: The Note Trustee may call for and
shall be at liberty to accept a certificate signed by two
Directors of the Issuing Entity or other person duly authorised
on its behalf as to any fact or matter prima facie within the
knowledge of the Issuing Entity as sufficient evidence thereof
and a like certificate to the effect that any particular
dealing, transaction or step or thing is, in the opinion of the
person so certifying expedient, as sufficient evidence that it
is expedient and the Note Trustee shall not be bound in any such
case to call for further evidence or be responsible for any
Liability that may be occasioned by its failing so to do.
14.1.3 Resolution or direction of Noteholders: The Note Trustee shall
not be responsible for acting upon any resolution purporting to
be a Written Resolution or to have been passed at any Meeting in
respect whereof minutes have been made and signed or upon a
direction of a specified percentage of Noteholders, even though
it may subsequently be found that there was some defect in the
constitution of the Meeting or the passing of the resolution or
the making of the directions or that for any reason the
resolution purporting to be a Written Resolution or to have been
passed at any Meeting or the making of the directions was not
signed by the proper persons or was not valid or binding upon
the Noteholders.
-26-
14.1.4 Certificates of other parties to the Documents: The Note Trustee
shall be entitled to call for and rely upon a certificate,
reasonably believed by it to be genuine, of:
(a) any of the parties to any of the Documents, in respect
of every matter and circumstance for which a certificate
is expressly provided for under the Security Documents,
the Conditions or the other Documents; and
(b) the Auditors or, if applicable, the liquidator (if any)
of the Issuing Entity as to the amounts to be paid to
Secured Creditors in accordance with the order of
priority of application of amounts prior to and
following enforcement provided in the relevant Note
Trust Deed Supplement,
as sufficient evidence thereof, and the Note Trustee shall not
be bound in any such case to call for further evidence or be
responsible for any loss, liability or inconvenience that may be
occasioned by its failing to do so.
14.1.5 Note Trustee not responsible for investigations: The Note
Trustee shall not be responsible for, or for investigating any
matter which is the subject of, any recital, statement,
representation, warranty or covenant of any person contained in
the Security Documents, the other Documents, the Notes or any
other agreement or document relating to the transactions herein
or therein contemplated or for the execution, legality,
effectiveness, adequacy, genuineness, validity, enforceability
or admissibility in evidence thereof and shall assume the
accuracy and correctness thereof nor shall the Note Trustee, by
execution of the Security Documents, be deemed to make any
representation as to the validity, sufficiency or enforceability
of either the whole or any part of the Security.
14.1.6 No Liability as a result of the delivery of a certificate: The
Note Trustee shall have no liability whatsoever for any
Liability directly or indirectly suffered or incurred by the
Issuing Entity, any Secured Creditor or any other person as a
result of any determination made by it as to material prejudice
pursuant to Clause 14.2.1 (Note Trustee's determination) on the
basis of an opinion formed by it in good faith.
14.1.7 Notes held by the Issuing Entity: in the absence of knowledge or
express notice to the contrary, the Note Trustee may assume
without enquiry (other than requesting a certificate of the
Issuing Entity), that no Notes are for the time being held by or
for the benefit of the Issuing Entity.
14.1.8 Entry on the Register: The Note Trustee shall not be liable to
the Issuing Entity or any Noteholder by reason of having
accepted as valid or not having rejected any entry on a Register
which is later found to be forged or not authentic and can
assume for all purposes in relation hereto that any entry on a
Register is correct.
14.1.9 Events of Default: Except to the extent required pursuant to
Section 315(b) of the TIA, the Note Trustee shall not be bound
to give any notice to any person,
-27-
unless required by the terms of the Security Documents, or to
take any steps to ascertain whether any Event of Default or
Potential Event of Default has happened and, until it shall have
actual knowledge or express notice to the contrary, the Note
Trustee shall be entitled to assume that no such Event of
Default or Potential Event of Default has happened and that the
Issuing Entity is observing and performing all the obligations
on its part contained in the Notes and under the Security
Documents and the other Documents and no event has happened as a
consequence of which any of the Notes may become repayable.
14.1.10 Legal Opinions: The Note Trustee shall not be responsible to any
person for failing to request, require or receive any legal
opinion relating to any Notes or for checking or commenting upon
the content of any such legal opinion.
14.1.11 Programme Limit: The Note Trustee shall not be concerned, and
need not enquire, as to whether or not any Notes are issued in
breach of the Programme Limit.
14.1.12 Note Trustee not Responsible: The Note Trustee shall not be
responsible for the execution, delivery, legality,
effectiveness, adequacy, genuineness, validity, enforceability
or admissibility in evidence of any Document and shall not be
liable for any failure to obtain any rating of Notes (where
required), any licence, consent or other authority for the
execution, delivery, legality, effectiveness, adequacy,
genuineness, validity, performance, enforceability or
admissibility in evidence of this Note Trust Deed or any other
document relating thereto. In addition, subject to Clause 14.6
(Note Trustee's Liability) below, the Note Trustee shall not be
responsible for the effect of the exercise of any of its powers,
duties and discretions thereunder.
14.1.13 Freedom to Refrain: Notwithstanding anything else contained in
the Security Documents or the other Documents, the Note Trustee
may refrain from doing anything which would or might in its
opinion be contrary to any law of any jurisdiction or any
directive or regulation of any agency or any state of which
would or might otherwise render it liable to any person and may
do anything which is, in its opinion, necessary to comply with
any such law, directive or regulation.
14.1.14 Right to Deduct or Withhold: Notwithstanding anything contained
in the Security Documents or any of the other Documents, to the
extent required by any applicable law, if the Note Trustee is or
will be required to make any deduction or withholding from any
distribution or payment made by it under the Security Documents
or if the Note Trustee is or will be otherwise charged to, or is
or may become liable to, tax (excluding, for the purposes of
this Clause 14.1.14, VAT and any tax on its profits) as a
consequence of performing its duties under the Security
Documents or the other Documents whether as principal, agent or
otherwise, and whether by reason of any assessment, prospective
assessment or other imposition of liability to taxation of
whatsoever nature and whensoever made upon the Note Trustee, and
whether in connection with or arising from any sums received or
distributed by it or to which it may be
-28-
entitled under the Security Documents (other than in connection
with its remuneration as provided for herein or its profits) or
any investments or deposits from time to time representing the
same, including any income or gains arising therefrom or any
action of the Note Trustee in connection with the trusts of this
Note Trust Deed (other than the remuneration herein specified or
its profits) or otherwise, then the Note Trustee shall notify
the Issuing Entity of such requirement prior to making the
proposed retention and thereafter shall be entitled to make such
deduction or withholding or, as the case may be, to retain out
of sums received by it an amount sufficient to discharge any
liability to tax (excluding VAT and any tax on its profits)
which relates to sums so received or distributed or to discharge
any such other liability of the Note Trustee to such tax from
the funds held by the Note Trustee upon the trusts of the
Security Documents.
14.1.15 Advice regarding Market Practice: The Note Trustee may rely and
act upon the advice of an internationally recognised investment
bank when having regard to the then current market practice or
any other matter which falls within the Conditions and shall not
be responsible for any loss occasioned by so acting.
14.1.16 Information: It is a term of the trusts created in this Note
Trust Deed, that, except where expressly provided otherwise, the
Note Trustee receives any information provided to it for
information purposes only and the Note Trustee will not and is
not expected routinely to review or monitor such information.
14.1.17 Reports by Note Trustee to Noteholders: Within sixty days after
the end of the calendar year following the date on which this
deed is required to be qualified under the TIA, the Note Trustee
shall deliver to each Noteholder a brief report dated as of such
that complies with Section 313(a) of the TIA. The Note Trustee
also shall comply with Sections 313(b), (c) and (d) of the TIA.
Reports delivered pursuant to this Clause 14.1.17 shall be
transmitted by mail to all Noteholders, as the names and
addresses of such Noteholders appear upon the Register.
14.1.18 Preferential collection of claims against the Issuing Entity:
The Note Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of
the TIA. A Note Trustee who has resigned or been removed shall
be subject to Section 311(a) of the TIA to the extent indicated
therein. The provisions of Section 311 of the TIA shall apply to
the Issuing Entity as the obligor of the Notes.
14.2 NOTE TRUSTEE'S POWERS AND DUTIES
14.2.1 Note Trustee's determination: The Note Trustee may determine
whether or not a default in the performance or observance by the
Issuing Entity of any obligation under the provisions of the
Security Documents or contained in the Notes or any other
Documents is capable of remedy and/or materially prejudicial to
the interests of the Noteholders and if the Note Trustee shall
certify that any such default is, in its opinion, not capable of
remedy and/or
-29-
materially prejudicial to the interests of the Noteholders such
certificate shall be conclusive and binding upon the Issuing
Entity and the Secured Creditors.
14.2.2 Duties of the Note Trustee: Notwithstanding any additional
duties imposed on the Note Trustee under this Deed, the Trustee
Acts or otherwise, if an Event of Default has occurred and is
continuing, the Note Trustee shall exercise the rights and
powers and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs (having regard
to the provisions of the Security Documents).
14.2.3 Determination of questions: The Note Trustee as between itself
and the other Secured Creditors shall have full power to
determine all questions and doubts arising in relation to any of
the provisions of the Security Documents and every such
determination, whether made upon a question actually raised or
implied in the acts or proceedings of the Note Trustee, shall be
conclusive and shall bind the Note Trustee and the other Secured
Creditors.
14.2.4 Note Trustee's discretion: The Note Trustee shall (save as
expressly otherwise provided herein) as regards all the trusts,
powers, authorities and discretions vested in it by the Security
Documents or by operation of law have absolute and uncontrolled
discretion as to the exercise or non exercise thereof and the
Note Trustee shall not be responsible for any Liability that may
result from the exercise or non exercise thereof but, whenever
the Note Trustee is under the provisions of the Security
Documents bound to act at the request or direction of the
Noteholders, the Note Trustee shall nevertheless not be so bound
unless first indemnified and/or provided with security to its
satisfaction against all actions, proceedings, claims and
demands to which it may render itself liable and all costs,
charges, damages, expenses and Liabilities which it may incur by
so doing. Without limiting the general statement above, the Note
Trustee may refrain from taking any action in any jurisdiction
if the taking of such action in that jurisdiction would, in its
opinion based upon legal advice in the relevant jurisdiction, be
contrary to any law of that jurisdiction or, to the extent
applicable, of England. Furthermore, the Note Trustee may also
refrain from taking such action if it would otherwise render it
liable to any person in that jurisdiction or England or if, in
its opinion based upon such legal advice, it would not have the
power to do the relevant thing in that jurisdiction by virtue of
any applicable law in that jurisdiction or in England or if it
is determined by any court or other competent authority in that
jurisdiction or in England that it does not have such power.
14.2.5 Note Trustee's consent: Any consent given by the Note Trustee
for the purposes of the Security Documents, the Notes and the
other Documents may be given on such terms and subject to such
conditions (if any) as the Note Trustee may require and
(notwithstanding any provision to the contrary) may be given
retrospectively.
14.2.6 Conversion of currency: Where it is necessary or desirable for
any purpose in connection with the Security Documents to convert
any sum from one currency
-30-
to another it shall (unless otherwise provided by the Security
Documents or required by law) be converted at such rate(s) of
exchange, in accordance with such method and as at such date for
the determination of such rate(s) of exchange as may be
specified by the Note Trustee in its absolute discretion as
relevant and any rate of exchange, method and date so specified
shall be binding on the Issuing Entity, the Noteholders and the
other Secured Creditors.
14.2.7 Application of proceeds: The Note Trustee shall not be
responsible for the receipt or application by the Issuing Entity
of the proceeds of the issue of the Notes, the exchange of any
Global Note Certificate for Individual Note Certificates or the
delivery of any Note or Note Certificate to the persons entitled
to them.
14.2.8 Agents: The Note Trustee may, in the conduct of the trusts
created pursuant to the Security Documents instead of acting
personally, employ and pay an agent on any terms, whether or not
a lawyer or other professional person, to transact or conduct,
or concur in transacting or conducting, any business and to do
or concur in doing all acts required to be done by the Note
Trustee (including the receipt and payment of money) and, if the
Note Trustee exercises due care in selecting any such person,
the Note Trustee shall not be responsible for any Liability
incurred by reason of the misconduct, omission or default on the
part of any person appointed by it hereunder or be bound to
supervise the proceedings or acts of, and shall not in any way
or to any extent be responsible for any Liability incurred by
any misconduct or default on the part of, any such person.
14.2.9 Delegation: The Note Trustee may, in the execution and exercise
of all or any of the trusts, powers, authorities and discretions
vested in it by the Security Documents, act by responsible
officer(s) for the time being of the Note Trustee and the Note
Trustee may also whenever it thinks fit, whether by power of
attorney or otherwise, delegate to any person(s) or fluctuating
body of persons (whether being a joint trustee of this Note
Trust Deed or not) all or any of the trusts, powers, authorities
and discretions vested in it by the Security Documents and any
such delegation may be made upon such terms and conditions and
subject to such regulations (including power to sub delegate
with the consent of the Note Trustee) as the Note Trustee may
think fit in the interests of the Noteholders and, if the Note
Trustee exercises due care in selecting any such person, the
Note Trustee shall not be bound to supervise the proceedings or
acts of and shall not in any way or to any extent be responsible
for any loss, liability, expense, demand, cost, claim or
proceedings incurred by reason of the misconduct, omission or
default on the part of such delegate or sub-delegate;
14.2.10 Custodians and nominees: The Note Trustee may appoint and pay
any person to act as a custodian or nominee on any terms in
relation to such assets of the trust as the Note Trustee may
determine, including for the purpose of depositing with a
custodian this Note Trust Deed or any other Documents and the
Note Trustee shall not be responsible for any Liability incurred
by reason of the
- 31 -
misconduct, omission or default on the part of any person
appointed by it hereunder or be bound to supervise the
proceedings or acts of any such person; the Note Trustee is not
obliged to appoint a custodian if the Note Trustee invests in
securities payable to bearer;
14.2.11 Confidential information: The Note Trustee shall not (unless
required by law or ordered so to do by a court of competent
jurisdiction) be required to disclose to any Noteholder
confidential information or other information made available to
the Note Trustee by the Issuing Entity in connection with the
Documents and no Noteholder shall be entitled to take any action
to obtain from the Note Trustee any such information.
14.2.12 Noteholders as a Class: Without prejudice to the provisions of
Clause 14.2.13 (Consideration of the interests of the
Noteholders and the other Secured Creditors) whenever in the
Security Documents the Note Trustee is required in connection
with any exercise of its powers, trusts, authorities or
discretions to have regard to the interests of the Noteholders,
it shall have regard to the interests of the Noteholders as a
Class. Where, in the opinion of the Note Trustee there is a
conflict between the interests of holders of any of the Classes
of Notes of a particular Series, the Note Trustee shall in the
exercise of its duties, powers and discretions, have regard
solely to the interests of the holders of the Most Senior Class
of Notes outstanding PROVIDED THAT where, in the opinion of the
Note Trustee, there is a conflict between the interests of
holders of two or more Sub-Classes of Notes of the Most Senior
Class then outstanding, the Note Trustee shall in the exercise
of its duties, powers and discretions, have regard solely to the
interests of the holders of the Sub-Class of Notes of the Most
Senior Class then outstanding with the greatest Principal Amount
Outstanding. The Note Trustee shall not be obliged to have
regard to the consequences (including the tax consequences) of
such exercise for any individual Noteholder resulting from his
or its being for any purpose domiciled or resident in, or
otherwise connected in any way with, or subject to the
jurisdiction of, any particular territory or taxing
jurisdiction;
14.2.13 Consideration of the interests of the Noteholders and the other
Secured Creditors: The Note Trustee shall, as regards all the
powers, trusts, authorities, duties and discretions vested in it
by the Security Documents, the other Documents or the Notes,
except where expressly provided otherwise, have regard to the
interests of both the Noteholders and the other Secured
Creditors, but if, in the Note Trustee's sole opinion, there is
a conflict between their interests, it will have regard solely
to the interests of the Noteholders and no other Secured
Creditor shall have any claim against the Note Trustee for so
doing;
14.2.14 Determination of material prejudice: For the purposes of
exercising any power, trust, authority, duty or discretion under
or in relation to the Notes, the Security Documents or any of
the other Documents, if each Rating Agency has affirmed that the
then current rating of the Notes would not be adversely affected
by such exercise (in this Clause 14.2.14 only, a "RATINGS
AFFIRMATION"), the Note
- 32 -
Trustee, in considering whether such exercise is materially
prejudicial to the interests of the Noteholders (in this Clause
14.2.14 only, the "NO MATERIAL PREJUDICE TEST"), shall be
entitled to take into account such Rating Affirmation provided
that the Note Trustee shall continue to be responsible for
taking into account, for the purpose of the No Material
Prejudice Test, such other matters as it considers to be
relevant to such No Material Prejudice Test.
14.2.15 No obligation to monitor performance: The Note Trustee shall be
under no obligation to monitor or supervise the performance by
the Issuing Entity or any of the other Transaction Parties of
their respective obligations under the Documents or under the
Notes or any other agreement or document relating to the
transactions herein or therein contemplated and shall be
entitled, in the absence of actual knowledge of a breach of
obligation, to assume that each such person is properly
performing and complying with its obligations and that no Event
of Default, or Potential Event of Default has occurred, unless
it receives express notice to the contrary;
14.2.16 Maintenance of Rating: The Note Trustee shall not be responsible
for the maintenance of the Ratings, for the consequence on any
Rating of any exercise of its duties, powers and discretions or
for the obtaining or maintaining of any listing in respect of
the Notes.
14.2.17 Responsibility for determination of certain matters: The Note
Trustee acknowledges that the Agent Bank is responsible,
pursuant to the Conditions for determining the amount of
principal and interest payable in respect of each Series of
Notes and the Note Trustee shall have no responsibility to
recalculate any such amounts. If the Agent Bank does not at any
time for any reason determine such amounts, the Note Trustee may
so determine the same and such calculation shall be deemed to
have been made by the Agent Bank pursuant to the Conditions and
the Note Trustee shall have no Liability in respect thereof
other than as a result of the wilful default, negligence or
fraud of the Note Trustee;
14.2.18 Reliance on certification of clearing system: The Note Trustee
may call for any certificate or other document issued by
Euroclear, Clearstream, DTC or any other relevant clearing
system in relation to any matter. Any such certificate or other
document shall, in the absence of manifest error, be conclusive
and binding for all purposes. Any such certificate or other
document may comprise any form of statement or print out of
electronic records provided by the relevant clearing system
(including Euroclear's EUCLID or Clearstream's Cedom system) in
accordance with its usual procedures and in which the holder of
a particular principal or nominal amount of the Notes is clearly
identified together with the amount of such holding. The Note
Trustee shall not be liable to any person by reason of having
accepted as valid or not having rejected any certificate or
other document to such effect purporting to be issued by
Euroclear, Clearstream, DTC or any other relevant clearing
system and subsequently found to be forged or not authentic.
- 33 -
14.3 FINANCIAL MATTERS
14.3.1 Professional charges: Any Note Trustee being a banker, lawyer,
broker or other person engaged in any profession or business
shall be entitled to charge and be paid all usual professional
and other charges for business transacted and acts done by him
or his partner or firm on matters arising in connection with the
trusts of the Security Documents and also his properly incurred
charges in addition to disbursements for all other work and
business done and all time spent by him or his partner or firm
on matters arising in connection with the Security Documents,
including matters which might or should have been attended to in
person by a trustee not being a banker, lawyer, broker or other
professional person.
14.3.2 Expenditure by the Note Trustee: Nothing contained in the
Security Documents or the other Documents shall require the Note
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties or the
exercise of any right, power, authority or discretion hereunder
if it has grounds for believing that the repayment of such funds
or adequate indemnity against, or security for, such risk or
liability is not reasonably assured to it.
14.3.3 Note Trustee may enter into financial transactions with the
Issuing Entity and Secured Creditors: No Note Trustee and no
director or officer of any corporation being a Note Trustee
hereof shall by reason of the fiduciary position of such Note
Trustee be in any way precluded from making any contracts or
entering into any transactions in the ordinary course of
business with (a) the Issuing Entity or any person or body
corporate directly or indirectly associated with the Issuing
Entity or (b) any Secured Creditor or any person or body
corporate directly or indirectly associated with any Secured
Creditor, or from accepting the trusteeship of any other
debenture stock, debentures or securities of the Issuing Entity
or any person or body corporate directly or indirectly
associated with the Issuing Entity or a Secured Creditor or its
affiliates and neither the Note Trustee nor any such director or
officer shall be accountable to the Noteholders, the Issuing
Entity, any Secured Creditor or any person or body corporate
directly or indirectly associated with any of them for any
profit, fees, commissions, interest, discounts or share of
brokerage earned, arising or resulting from any such contracts
or transactions and the Note Trustee and any such director or
officer shall also be at liberty to retain the same for its or
his own benefit.
14.3.4 Note Trustee not accountable for profits: Neither the Note
Trustee nor any company associated with it nor any director or
officer of any corporation being a Note Trustee shall be
accountable to the Noteholders, the other Secured Creditors, the
Issuing Entity or any other Transaction Party or any person or
body corporate directly or indirectly associated with the
Issuing Entity or any such other Transaction Party for any
profit, fees, commissions, interest, discounts or share of
brokerage earned, arising or resulting from (i) any contracts or
transactions referred to in paragraph 6 (Services non-exclusive)
of the Common Terms and the Note Trustee and any such director
or officer shall also be at liberty to retain the same for its
or his own benefit; and (ii) the deposit
- 34 -
of moneys with any company associated with it which is a bank
save that the Note Trustee shall account for the standard amount
of interest paid by it to a standard customer in respect of a
deposit of the type made.
14.3.5 Noteholder appraisal of financial condition: Each Noteholder and
each other Secured Creditor shall be solely responsible for
making its own independent appraisal of and investigation into
the financial condition, creditworthiness, affairs, status and
nature of the Issuing Entity and the Note Trustee shall not at
any time have any responsibility for any such appraisal or
investigation and no Noteholder or other Secured Creditors shall
rely on the Note Trustee in respect thereof.
14.4 MATTERS RELATING TO SECURITY
14.4.1 Reliance on title to the Security: The Note Trustee may accept
without investigation, requisition or objection such right and
title as the Issuing Entity may have to any of the Secured
Property and the other Security created in favour of the Note
Trustee by the Security Documents and shall not be bound or
concerned to examine or enquire into or be liable for any defect
or failure in the right or title of the Issuing Entity to all or
any of the Secured Property whether such defect or failure was
known to the Note Trustee or might have been discovered upon
examination or enquiry and whether capable of remedy or not.
14.4.2 Registration and perfection of the Security: The Note Trustee
shall not be liable for any failure, omission or defect in
perfecting, protecting or further assuring the Security
including:
(a) any failure, omission or defect in registering or filing
or procuring registration or filing of, or otherwise
protecting or perfecting the Security or the priority
thereof or the right or title of any person in or to the
assets comprised in the Security; and
(b) any failure or omission to require any further
assurances in relation to the Security.
14.4.3 Adequacy of the Security: The Note Trustee shall not be
responsible for any unsuitability, inadequacy or unfitness of
any Secured Property as security for the Secured Obligations and
shall not be obliged to make any investigation into, and shall
be entitled to assume, the suitability, adequacy and fitness of
the Secured Property as security for the Secured Obligations.
14.4.4 Monitoring: The Note Trustee shall not be responsible for
investigating, monitoring or supervising the observance or
performance by any person in respect of the Secured Property or
otherwise.
14.4.5 No responsibility for Security: The Note Trustee shall not be
responsible for any Liabilities occasioned to the Security
however caused, whether by an act or omission of the Issuing
Entity or any other party to the Documents or any other person
(including any bank, broker, depositary or other intermediary or
any clearing system or operator thereof) acting in accordance
with or contrary to the
- 35 -
provisions of any of the Documents or otherwise and
irrespective of whether the Security is held by or to the order
of any of such persons, unless such loss is caused by a Breach
of Duty of the Note Trustee;
14.4.6 Insurance: Without prejudice to the provisions of any Document
relating to insurance, the Note Trustee shall not be under any
obligation to insure any of the Security or any deeds or
documents of title or other evidence in respect of the Security
or to require any other person to maintain any such insurance or
monitor the adequacy of any such insurance and shall not be
responsible for any Liability which may be suffered by any
person as a result of the lack of or inadequacy of any such
insurance.
14.4.7 Depreciation in value: Until the delivery of an Enforcement
Notice, the moneys standing to the credit of any account
comprised in the Secured Property shall be dealt with in
accordance with the provisions of the Documents and the Note
Trustee shall not be responsible in such circumstances or at any
other time for any Liability suffered by any person, whether by
reason of depreciation in value or by fluctuation in exchange
rates or otherwise, unless such Liability is by reason of a
Breach of Duty of the Note Trustee.
14.4.8 No liability for loss: The Note Trustee will not be liable for
any decline in the value nor any loss realised upon any sale or
other disposition pursuant to the Security Documents of, any of
the Secured Property. In particular and without limitation, the
Note Trustee shall not be liable for any such decline or loss
directly or indirectly arising from its acting or failing to act
as a consequence of an opinion reached by it in good faith based
on advice received by it in accordance with the Security
Documents and the Conditions.
14.4.9 Liability to Tax: The Note Trustee shall have no responsibility
whatsoever to the Issuing Entity, any Noteholder or other
Secured Creditors as regards any deficiency which might arise
because the Note Trustee is subject to any Tax in respect of all
or any of the Secured Property, the income therefrom or the
proceeds thereof.
14.4.10 Responsibility: The Note Trustee shall not be responsible for
the execution, legality, effectiveness, adequacy, genuineness,
validity, enforceability or suitability of any Note or other
documents entered into in connection therewith, nor shall it be
responsible or liable to any person because of any invalidity of
any provisions of such documents or the unenforceability
thereof, whether arising from statute, law or decision of any
court. The Note Trustee shall not have any responsibility for,
or have any duty to make any investigation in respect of or in
any way be liable whatsoever for:
(a) the nature, status, creditworthiness or solvency of the
Transferor, the Issuing Entity or any Cardholder or any
other person or entity who has at any time provided any
security or support whether by way of guarantee, charge
or otherwise in respect of any advance made to the
Transferor, the Issuing Entity or any Cardholder;
- 36 -
(b) the execution, legality, validity, adequacy,
admissibility in evidence or enforceability of the Notes
or any other document entered into in connection
therewith;
(c) the title, ownership, value, sufficiency or existence of
any Receivables;
(d) the scope or accuracy of any representations, warranties
or statements made by or on behalf of any Cardholder in
any application for any advance or any document entered
into in connection therewith;
(e) the performance or observance by any party of any
provisions of the Note or in any document entered into
in connection therewith or the fulfilment or
satisfaction of any conditions contained therein or
relating thereto or as to the existence or occurrence at
any time of any Event of Default or Potential Event of
Default or similar event contained therein or waiver or
consent which has at any time been granted in relation
to any of the foregoing;
(f) the registration, filing, protection or perfection of
any assignment or security interest or the priority of
the security thereby created;
(g) the existence, accuracy or sufficiency of any legal or
other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or
required to be delivered or obtained at any time in
connection herewith;
(h) the suitability, adequacy or sufficiency of any Credit
Card Guidelines operated by a Transferor and any arrears
and enforcement procedures operated by a Transferor;
(i) the failure by a Transferor, MTN Issuing Entity or the
Servicer to obtain or comply with any licence, consent
or other authority in connection with the origination,
sale, purchase or administration of any of the
Receivables or the failure to effect or procure
registration of or to give notice to any person in
relation to the Receivables Securitisation Agreement or
other Documents or otherwise protect interests in,
and/or the security created or purported to be created
by or pursuant to any of the Receivables or other
documents entered into connection therewith;
(j) the failure to call for delivery of documents of title
to or require any transfers, legal mortgages, charges or
other further assurances in relation to any of the
assets the subject matter of any of the Documents or any
other document;
(k) any accounts, books, records or files maintained by the
MTN Issuing Entity, the Receivables Trustee, a
Transferor or any other person in respect of any of the
Receivables;
- 37 -
(l) any other matter or thing relating to or in any way
connected with any Receivables or any document entered
into in connection therewith, whether or not similar to
the foregoing;
(m) obtaining insurance for any of the security constituted
by this Note Trust Deed or any deeds or documents of
title or other evidence in respect thereof and shall not
be responsible for any loss, expense or liability which
may be suffered as a result of the lack of or inadequacy
of any such insurance; or
(n) any deficiency in amounts payable to Noteholders by
virtue of the Note Trustee being liable to tax or
obliged to deduct tax in respect of sums received, held
or paid out by it under the Documents.
14.4.11 No duty to creditors except payment: In acting as Note Trustee
under the Security Documents, the Note Trustee shall not assume
any duty or responsibility toward any Secured Creditors (other
than the Noteholders) other than to pay to any such party any
moneys received and payable to it in accordance with the order
of priority of payments prior to and post enforcement and, in
the exercise of its trusts, powers, authorities, duties and
discretions hereunder, it shall (except where expressly provided
otherwise) have regard solely to the interests of the
Noteholders and shall not be required to have regard to the
interests of any other Secured Creditor or any other person
(including, without limitation, to enforce or realise the
Security), in the case of any such other Secured Creditor,
whilst any amount remains owing to any Noteholder and, in the
case of any other person, at any time.
14.4.12 Secured Creditor Instructions: Where in the exercise of its
trusts, powers, authorities, duties and discretions hereunder,
the Note Trustee is required to have regard to the interests of
any Secured Creditor (other than the Noteholders) the Note
Trustee shall be entitled to request, and rely without further
enquiry upon, a certificate signed by the relevant Secured
Creditor certifying that such exercise will not be materially
prejudicial to the interests of such Secured Creditor and the
Note Trustee shall not be responsible for any loss that may be
occasioned by acting on such certificate.
14.4.13 No responsibility to monitor Notes: The Note Trustee shall not
be responsible for monitoring whether an Event of Default or
Potential Event of Default has occurred and shall have no
obligation to give an Enforcement Notice or to procure the
giving of such, or to instruct any party to give such a notice
or to act in any way, unless it has been instructed in
accordance with Clause 12.2 (Enforcement Notice) and indemnified
in accordance with Clause 15 (Costs and Expenses).
14.4.14 Interests of Swap Counterparty and other Agents: In acting as
Note Trustee under this Note Trust Deed, the Note Trustee shall
not assume any duty or responsibility to any Swap Counterparty,
custodian or Paying Agent (other than to pay to any such party
any moneys received and payable to it and to act in accordance
with the provisions of Condition 3 (Status, Security and
Priority of
- 38 -
Payments)) and shall have regard solely to the interests of the
Noteholders of any Series, or as the case may be, all Series. In
addition, the Note Trustee need not make any investigation into
the creditworthiness of any Swap Counterparty or into the
validity of any such party's obligations in respect of any of
the Secured Property (including, without limitation, whether the
cashflows in respect of the Secured Property relating to any
Notes are matched).
14.4.15 Certification: The Note Trustee may call for and accept as
sufficient evidence of the existence and amount of any
termination payment or other amounts due in accordance with the
terms of the Swap Agreement a certificate to that effect signed
by an authorised signatory or a director of the relevant Swap
Counterparty and the Note Trustee shall not be bound to call for
further evidence and shall not be responsible for any loss that
may be occasioned by acting on any such certificate.
14.4.16 Entry into possession: Without prejudice to the generality of
this Clause 14, entry into possession of the Secured Property or
any part thereof shall not render the Note Trustee or the
Receiver liable to account as mortgagee in possession or liable
for any loss on realisation or for any default or omission for
which a mortgagee in possession might be liable.
14.4.17 Going out of possession: Without prejudice and subject to the
terms and conditions of this Note Trust Deed, if and whenever
the Note Trustee or the Receiver enters into possession of the
Secured Property, it shall be entitled at any time at its
discretion to go out of such possession.
14.4.18 No obligation for payments: The Note Trustee shall not have any
duty to ensure that any payment or other financial benefit in
respect of any of the Secured Property is duly and punctually
paid, received or collected as and when the same becomes due and
payable or to secure that the correct amounts (if any) are paid
or received.
14.5 DISAPPLICATION
Without prejudice to Clause 14.6 (Note Trustee's liability) below,
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Note Trustee in relation to the trusts constituted by the Security
Documents. Where there are any inconsistencies between the Trustee Acts
and the provisions of the Security Documents, the provisions of the
Security Documents shall, to the extent allowed by law, prevail and, in
the case of any such inconsistency with the Trustee Act 2000, the
provisions of the Security Documents shall constitute a restriction or
exclusion for the purposes of that Act.
14.6 NOTE TRUSTEE'S LIABILITY
None of the provisions of the Security Documents shall in any case in
which the Note Trustee has failed to show the degree of care and
diligence required of it as Note Trustee, having regard to the
provisions of the Security Documents conferring on the Note Trustee any
powers, authorities or discretions (i) exempt the Note Trustee from or
indemnify it against any liability for breach of trust or any Liability
which by virtue of any rule of law would otherwise attach to it in
respect of any negligence, wilful default or fraud of which it may be
guilty in relation to its duties under the Security Documents
- 39 -
or (ii) relieve the Note Trustee from liability for its own negligence,
wilful default or fraud except as permitted in Section 315(d) of the
TIA, or Section 192 of the Companies Act 1985 (as applicable).
15. COSTS AND EXPENSES
15.1 REMUNERATION
15.1.1 Normal remuneration: The Issuing Entity shall pay to the Note
Trustee remuneration for its services as Note Trustee as from
the initial Issue Date, such remuneration to be at such rate as
may from time to time be agreed between the Issuing Entity and
the Note Trustee. Such remuneration shall accrue from day to day
and be payable in accordance with the order of priority of
payments prior to and post enforcement until the trusts of the
Security Documents are discharged.
15.1.2 Extra remuneration: In the event of the occurrence of an Event
of Default or a Potential Event of Default or the Note Trustee
considering it expedient or necessary or being requested by the
Issuing Entity to undertake duties which the Note Trustee and
the Issuing Entity agree to be of an exceptional nature or
otherwise outside the scope of the normal duties of the Note
Trustee under this Note Trust Deed, the Issuing Entity shall pay
to the Note Trustee such additional remuneration as shall be
agreed between them.
15.1.3 Reduction in Remuneration: The rate of remuneration in force
from time to time may, upon the final redemption of the whole of
the Notes of a Class, be reduced by an amount as may from time
to time be agreed between the Issuing Entity and Note Trustee.
Such reduction in remuneration shall be calculated from the date
following such final redemption.
15.1.4 Failure to agree: In the event of the Note Trustee and the
Issuing Entity failing to agree:
(a) (in a case to which Clauses 15.1.1 or 15.1.3 apply) upon
the amount of the remuneration; or
(b) (in a case to which Clause 15.1.2 applies) upon whether
such duties shall be of an exceptional nature or
otherwise outside the scope of the normal duties of the
Note Trustee under the Security Documents, or upon such
additional remuneration,
such matters shall be determined by an investment bank (acting
as an expert and not as an arbitrator) selected by the Note
Trustee and approved by the Issuing Entity or, failing such
approval, nominated (on the application of the Note Trustee)
by the President for the time being of The Law Society of
England and Wales (the expenses involved in such nomination
and the fees of such investment bank being payable by the
Issuing Entity) and the determination of any such investment
bank shall be final and binding upon the Note Trustee and the
Issuing Entity.
- 40 -
15.1.5 Expenses: The Issuing Entity shall also pay or discharge all
properly incurred and duly documented costs, charges and
expenses incurred by the Note Trustee in relation to the
preparation and execution of, the exercise of its powers and the
performance of its duties under, and in any other manner in
relation to, the Security Documents and the other Documents,
including but not limited to legal and travelling expenses and
any stamp, issue, registration, documentary and other similar
taxes (excluding, for the avoidance of doubt, VAT which shall be
dealt with in accordance with paragraph 22 (VAT) of the Common
Terms) or duties paid or payable by the Note Trustee in
connection with any action taken or contemplated by or on behalf
of the Note Trustee for enforcing, or resolving any doubt
concerning, or for any other purpose in relation to, the
Security Documents and the other Documents.
15.1.6 Reimbursement: As full reimbursement for any costs and expenses
incurred by it in connection with its activities in respect of
(i) a particular Series, the Issuing Entity prior to the service
of an Enforcement Notice, and the Note Trustee thereafter, shall
be entitled to utilise Secured Property in respect of each
Series allocated to the Secured Creditors for the relevant
Series to meet such costs and expenses attributable solely to a
particular Series with respect to each Interest Period, solely
to the extent of Secured Property allocable with respect thereto
as provided in this Note Trust Deed, any Note Trust Deed
Supplement and the relevant Conditions, on the related
Distribution Date for such Series (which shall include all sums
due to the Note Trustee under Clause 13 (Application of Moneys))
and, (ii) some or all Series, the Issuing Entity prior to the
service of an Enforcement Notice, and the Note Trustee
thereafter, shall be entitled to use Secured Property in respect
of those Series allocated to the Secured Creditors for each
Series to meet such costs and expenses attributable to those
Series with respect to each Interest Period, solely to the
extent of Secured Property allocable with respect thereto as
provided in this Note Trust Deed, any Note Trust Deed Supplement
and the relevant Conditions, on the related Distribution Date
for each Series. The amount of any reimbursement for its
activities as the Issuing Entity will be determined in
accordance with the relevant Note Trust Deed Supplement for each
Series. For the avoidance of any doubt, the amounts due to the
Note Trustee under Clause 13 (Application of Moneys) shall be
considered expenses of the Issuing Entity and will be allocated
to the particular Series the Note Trustee is owed an amount in
respect of (if this is capable of calculation).
15.1.7 Indemnity: The Issuing Entity covenants with and undertakes to
the Note Trustee to indemnify the Note Trustee on demand against
any Liabilities which are incurred by the Note Trustee, any
Receiver or any Appointee in, or in connection with, (except
insofar as the same are incurred because of a Breach of Duty of
the Note Trustee, Receiver or Appointee):
(a) the performance of the terms of the Security Documents;
- 41 -
(b) anything done or purported to be done by the Note
Trustee, any Appointee or the Receiver in relation to
the Secured Property or under the Security Documents or
any other Document;
(c) the exercise or attempted exercise by or on behalf of
the Note Trustee, any Appointee or the Receiver of any
of the powers of the Note Trustee, any Appointee or the
Receiver or any other action taken by or on behalf of
the Note Trustee with a view to or in connection with
enforcing any obligations of the Issuing Entity or any
other person under any Document or the recovery by the
Note Trustee, any Appointee or the Receiver from the
Issuing Entity of the Secured Obligations;
(d) any payment made in respect of the Secured Obligations
(whether by the Issuing Entity or any other person)
which is subsequently impeached or declared void for any
reason whatsoever; or
(e) the Note Trustee being held to be, or treated as, or
being deemed to be a creditor for the purposes of the
Consumer Credit Act 1974 in respect of a Regulated
Agreement (as defined in the Consumer Credit Act 1974).
15.1.8 Priority of Indemnity: The Note Trustee and the Receiver shall
(save where the Note Trustee has incurred liability because of a
Breach of Duty) be entitled to be indemnified out of the Secured
Property against all actions, Liabilities payable pursuant to
Clause 15.1.7 (Indemnity), proceedings (or threats of actions or
proceedings) costs, claims and demands in respect of any matter
or thing in any way omitted or done in any way in relation to
the Security Documents in accordance with the order of priority
of payments prior to and post enforcement as referred to in
Clause 13.1 (Application of moneys) and in the relevant Note
Trust Deed Supplement and the Note Trustee may retain and pay
out of the moneys in its hands arising from the Secured Property
all sums necessary to effect such indemnity.
15.1.9 Payment of amounts due: All amounts due and payable pursuant to
sub-clauses 15.1.5 (Expenses) and 15.1.7 (Indemnity) shall be
payable by the Issuing Entity on the date specified in a demand
by the Note Trustee; the rate of interest applicable to such
payments shall be one per cent. per annum above the base rate
from time to time of Barclays Bank PLC and interest shall
accrue:
(a) in the case of payments made by the Note Trustee prior
to the date of the demand, from the date on which the
payment was made or such later date as specified in such
demand;
(b) in the case of payments made by the Note Trustee on or
after the date of the demand, from the date specified in
such demand, which date shall not be a date earlier than
the date such payments are made.
All remuneration payable to the Note Trustee shall carry
interest at the rate specified in this Clause 15.1.9 from the
due date thereof.
- 42 -
15.1.10 Apportionment of expenses: The Note Trustee shall apportion the
costs, charges, expenses and liabilities incurred by the Note
Trustee in the preparation and execution of the trusts of the
Security Documents (including remuneration of the Note Trustee)
between the several Series of Notes in such manner and in such
amounts as it shall, in its absolute discretion, consider
appropriate.
15.1.11 Discharges: Unless otherwise specifically stated in any
discharge of the Security Documents the provisions of this
Clause 15.1 shall continue in full force and effect
notwithstanding such discharge.
15.1.12 Payments: All payments to be made by the Issuing Entity to the
Note Trustee under the Security Documents shall be made free and
clear of, and without withholding or deduction for, any taxes,
duties, assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by or within
any relevant jurisdiction or any authority therein or thereof
having power to tax, unless such withholding or deduction is
required by law. In that event, the Issuing Entity shall pay
such additional amounts as are necessary to ensure that the Note
Trustee receives such amounts as would have been received by it
had no such withholding or deduction been required.
15.1.13 VAT: All sums payable by the Issuing Entity to the Note Trustee
under this Note Trust Deed shall be deemed to be exclusive of
any VAT chargeable on any supply by the Note Trustee for which
that sum is the consideration (in whole or in part) for VAT
purposes. Where, under the terms of this Note Trust Deed, the
Note Trustee makes a supply to the Issuing Entity for VAT
purposes and VAT is or becomes chargeable on such supply for
which the Note Trustee is required to account to HM Revenue and
Customs, the Issuing Entity shall pay an amount to the Note
Trustee equal to that VAT (in addition to and at the same time
as paying or providing any other consideration for such supply).
15.2 EXCHANGE RATE INDEMNITY
15.2.1 Currency of Account and Payment: Unless otherwise specified in
any relevant Note Trust Deed Supplement, the Contractual
Currency will be the sole currency of account and payment for
all sums (including damages) payable by the Issuing Entity under
or in connection with the Security Documents, the other
Documents and the Notes.
15.2.2 Extent of Discharge: An amount received or recovered in a
currency other than the Contractual Currency (whether as a
result of, or of the enforcement of, a judgment or order of a
court of any jurisdiction, in the winding up or dissolution of
the Issuing Entity or otherwise) by the Note Trustee or any
Noteholder in respect of any sum expressed to be due to it from
the Issuing Entity will only discharge the Issuing Entity to the
extent of the Contractual Currency amount which the recipient is
able to purchase with the amount so received or recovered in
that other currency on the date of that receipt or recovery (or,
if it is not practicable to make that purchase on that date, on
the first date on which it is practicable to do so).
- 43 -
15.2.3 Indemnity: If that Contractual Currency amount is less than the
Contractual Currency amount expressed to be due to the recipient
under the Security Documents, the Issuing Entity will indemnify
the Note Trustee against any Liability sustained by it as a
result. In any event, the Issuing Entity will indemnify the Note
Trustee against the cost of making any such purchase.
15.3 INDEMNITIES SEPARATE
The indemnities in this Clause 15 constitute separate and independent
obligations from the other obligations in this Note Trust Deed, will
give rise to separate and independent causes of action (but, for the
avoidance of doubt, are subject to paragraphs 8 (Non-Petition and
Limited Recourse) and 10 (Obligations as Corporate Obligations) of the
Common Terms), will apply irrespective of any indulgence granted by the
Note Trustee and/or any Noteholder and will continue in full force and
effect despite any judgment, order, claim or proof for a liquidated
amount in respect of any sum due under this Note Trust Deed or the Notes
or any other judgment or order and despite any termination of the other
provisions of this Note Trust Deed. Any such Liability as referred to in
Clause 15.2.3 (Indemnity) shall be deemed to constitute a Liability
suffered by the Note Trustee and the Noteholders and no proof or
evidence of any actual Liability shall be required by the Issuing Entity
or its liquidator or liquidators.
16. APPOINTMENT AND RETIREMENT
16.1 ELIGIBILITY AND DISQUALIFICATION
This Note Trust Deed shall always have a Note Trustee which shall be
eligible to act as Note Trustee under Sections 310(a)(1), 310(a)(2) and
310(a)(5) of the TIA. The Note Trustee shall have a combined capital and
surplus of at least U.S.$150,000,000 as set forth in its most recent
published annual report of condition. If the Note Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b)
of the TIA, the Note Trustee and the Issuing Entity shall comply with
the provisions of Section 310(b) of the TIA PROVIDED, HOWEVER, THAT
there shall be excluded from the operation of Section 310(b)(1) of the
TIA any deed or deeds under which other securities or certificates of
interest or participation in other securities of the Issuing Entity are
outstanding if the requirements for such exclusion set forth in Section
310(b)(1) of the TIA are met. If at any time the Note Trustee shall
cease to be eligible in accordance with the provisions of this Clause
16.1, the Note Trustee shall resign promptly in the manner and with the
effect specified in Clause 16.4 (Retirement of Note Trustees).
16.2 APPOINTMENT AND REMOVAL OF NOTE TRUSTEES
The power of appointing new trustees of the Security Documents shall be
vested in the Issuing Entity but no person shall be appointed who shall
not previously have been approved by an Extraordinary Resolution of the
Noteholders of all Series acting as one Class. A trust corporation may
be appointed sole trustee hereof but subject thereto there shall be at
least two trustees hereof at least one of which shall be a trust
corporation. Any appointment of a new trustee hereof shall as soon as
practicable thereafter be notified by the Issuing Entity to the Agents
and the Noteholders. The Noteholders of all Series acting as one Class
shall have the power, exercisable by Extraordinary Resolution, to remove
any trustee or trustees for the time being hereof. The removal of any
trustee
- 44 -
shall not become effective unless there remains a Note Trustee hereof
(being a trust corporation) in office after such removal.
16.3 CO-NOTE TRUSTEES
Notwithstanding the provisions of Clause 16.2 (Appointment and removal
of Note Trustees), the Note Trustee may, upon giving prior notice to the
Issuing Entity but without the consent of the Issuing Entity or the
Noteholders or anyone else, appoint any person established or resident
in any jurisdiction (whether a trust corporation or not) to act either
as a separate trustee (if the Note Trustee shall not be qualified to act
as such in such jurisdiction) or as a co-trustee jointly with the Note
Trustee (in all other cases):
16.3.1 if the Note Trustee considers such appointment to be in the
interests of the Secured Creditors; or
16.3.2 for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any
particular act or acts are to be performed; or
16.3.3 for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction either of a judgment already
obtained or of the Security Documents or any other Document.
The Issuing Entity hereby irrevocably appoints the Note Trustee to be
its attorney in its name and on its behalf to execute any such
instrument of appointment. Such a person shall (subject always to the
provisions of this Note Trust Deed) have such trusts, powers,
authorities and discretions (not exceeding those conferred on the Note
Trustee by this Note Trust Deed) and such duties and obligations as
shall be conferred or imposed by the instrument of appointment. The Note
Trustee shall have power in like manner to remove any such person. Such
reasonable remuneration as the Note Trustee may pay to any such person,
together with any attributable costs, charges and expenses properly
incurred by it in performing its function as such separate trustee or
co-trustee shall for the purposes of this Note Trust Deed be treated as
costs, charges and expenses incurred by the Note Trustee.
16.4 RETIREMENT OF NOTE TRUSTEES
Any Note Trustee for the time being of the Security Documents may retire
at any time upon giving not less than three calendar months' notice in
writing to the Issuing Entity without assigning any reason therefor and
without being responsible for any costs occasioned by such retirement.
The retirement of any Note Trustee shall not become effective unless
there remains a trustee hereof (being a trust corporation) in office
after such retirement. The Issuing Entity hereby covenants that in the
event of the only trustee hereof which is a trust corporation giving
notice under this Clause 16.4 it shall use its best endeavours to
procure a new trustee, being a trust corporation, to be appointed and if
the Issuing Entity shall fail to appoint a successor within 60 days of
the Note Trustee giving notice of resignation then, the Note Trustee
shall be entitled to appoint forthwith a new trustee which meets the
requirements of the Documents.
- 45 -
16.5 COMPETENCE OF A MAJORITY OF NOTE TRUSTEES
Whenever there shall be more than two trustees hereof the majority of
such trustees shall (provided such majority includes a trust
corporation) be competent to execute and exercise all the trusts,
powers, authorities and discretions vested by the Security Documents in
the Note Trustee generally.
16.6 POWERS ADDITIONAL
The powers conferred by the Security Documents upon the Note Trustee
shall be in addition to any powers which may from time to time be vested
in it by general law or as the holder of any of the Notes.
16.7 ENTIRE AGREEMENT
Except as specifically stated otherwise herein, this Note Trust Deed
together with the relevant Note Trust Deed Supplement sets forth the
entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by
this Note Trust Deed together with the relevant Note Trust Deed
Supplement. This Note Trust Deed may not be modified, amended, waived or
supplemented except as provided herein.
16.8 MERGER AND INTEGRATION
Any corporation into which the Note Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Note Trustee shall
be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Note Trustee, shall be the successor
of the Note Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Clause 16, without the
execution or filing of any paper or any further act on the part of any
of the parties hereto.
17. CERTIFICATES AND OPINIONS
17.1 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Issuing Entity to the Note
Trustee to take any action in relation to Clause 18 (Release of
Security), the Issuing Entity shall furnish to the Note Trustee:
17.1.1 an Officer's Certificate (which shall include the statements set
forth in Clause 17.2 (Statements required in certificate and
opinion) below) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Note Trust
Deed relating to the proposed action have been complied with;
and
17.1.2 an Opinion of Counsel (which shall include the statements set
forth in Clause 17.2 (Statements required in certificate and
opinion) below) stating that, in the opinion of such counsel,
all such conditions precedent, if any, provided for in this Note
Trust Deed relating to the proposed action have been complied
with.
17.2 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION
Each certificate and opinion with respect to compliance with a condition
or covenant provided for in this Note Trust Deed shall include:
- 46 -
17.2.1 a statement that the Person making such certificate or opinion
has read such covenant or condition and the definitions relating
thereto;
17.2.2 a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
17.2.3 a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
17.2.4 a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
18. RELEASE OF SECURITY
18.1 RELEASE OF SECURITY
Except to the extent expressly provided in this Clause 18, the Note
Trustee shall (at the request and cost of the Issuing Entity) execute
and do all such deeds, act and things as may be reasonably necessary to
reassign and release property from the security constituted by this Note
Trust Deed as supplemented by the relevant Note Trust Deed Supplement
either in respect of all Secured Property or in respect of Security
created in respect of a particular Note Trust Deed Supplement, only upon
receipt of a notice from the Issuing Entity accompanied by an Officer's
Certificate (as described above), an Opinion of Counsel and Independent
Certificates in accordance with Sections 314(c) and 314(d)(1) of the TIA
or an Opinion of Counsel in lieu of such Independent Certificates to the
effect that the TIA does not require any such Independent Certificates,
provided that the Issuing Entity shall not be obliged to issue such
notice:
18.1.1 to release all Secured Property from the Security constituted by
this Note Trust Deed and all relevant Note Trust Deed
Supplements, where all outstanding Series of Notes have been
repaid in full and no Noteholder has any further obligation to
make any further subscription payment in respect of such Notes;
or
18.1.2 to release all secured property from the security constituted in
respect of a particular Note Trust Deed Supplement, where the
relevant outstanding Series of Notes issued pursuant to such
Note Trust Deed Supplement have been repaid in full and no
Noteholder under such Note Trust Deed Supplement has any further
obligation to make any further subscription payment in respect
of such Notes.
Whenever any property is to be released from the Security constituted by
this Note Trust Deed as supplemented by the relevant Note Trust Deed
Supplement, the Issuing Entity shall also furnish to the Note Trustee an
Officer's Certificate certifying that either 18.1.1 or 18.1.2 above is
true, and that in the opinion of such Person the proposed release will
not impair the Security under this Note Trust Deed or relevant Note
Trust Deed Supplement in contravention of the provisions hereof.
- 47 -
18.2 FAIR VALUE CERTIFICATE
Prior to the release of any security granted pursuant to this Note Trust
Deed or any Note Trust Deed Supplement, the Issuing Entity shall, in
addition to any obligation imposed in this Clause 18 or elsewhere in
this Note Trust Deed, furnish to the Note Trustee an Officers'
Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value to the Issuing Entity of the
property in relation to which the security is to be so released. The
officers so certifying may consult with, and may conclusively rely upon
a certificate as to the fair value of such property provided to such
officers by an internationally recognised financial institution with
expertise in such matters.
Whenever the Issuing Entity is required to furnish to the Note Trustee
an Officers' Certificate certifying or stating the opinion of any signer
thereof as to the matters described in the preceding paragraph, the
Issuing Entity shall also deliver to the Note Trustee an Independent
Certificate as to the same matters, if the fair value to the Issuing
Entity of the property to be so released and of all other such property
made the basis of any such release since the commencement of the then
current fiscal year of the Issuing Entity, as set forth in the
certificates delivered pursuant to this Clause 18, is 10 per cent. or
more of the Principal Amount Outstanding, but such a certificate need
not be furnished with respect to any property so released if the fair
value thereof to the Issuing Entity as set forth in the related
Officers' Certificate is less than $25,000 or less than one per cent. of
the Principal Amount Outstanding.
18.3 NO IMPAIRMENT CERTIFICATE
Whenever any property is to be released from any Security granted
pursuant to this Note Trust Deed or any Note Trust Deed Supplement, the
Issuing Entity shall also furnish to the Note Trustee an Officer's
Certificate certifying or stating the opinion of each Person signing
such certificate that in the opinion of such person the proposed release
will not impair the security under this Note Trust Deed or any Note
Trust Deed Supplement in contravention of the provisions hereof.
18.4 SAVINGS
Notwithstanding anything to the contrary contained herein, the Issuing
Entity may (a) collect, liquidate, sell or otherwise dispose of any of
its property as and to the extent permitted or required by the Relevant
Documents, (b) make cash payments out of the Issuing Entity Bank
Accounts as and to the extent permitted or required by the Relevant
Documents and (c) take any other action not inconsistent with the TIA.
19. THIRD PARTY BENEFICIARIES
This Note Trust Deed will enure to the benefit of and be binding upon
the parties hereto, and, in respect of any Series, the Secured Creditors
named in the relevant Note Trust Deed Supplement, and their respective
successors and permitted assigns as Secured Creditors and beneficiaries
of the Secured Property in respect of a relevant Series.
To the extent specified in any relevant Note Trust Deed Supplement, any
third party that is not a Secured Creditor of the Secured Property of a
Series, may by execution of such Note Trust Deed Supplement, as a matter
of contract only, be entitled to the benefit of the provisions of this
Note Trust Deed as if such third party were a Secured Creditor
- 48 -
hereunder and the rights of such third parties so provided shall enure
to the benefit of such third parties and be binding upon the parties
hereto and the Secured Creditors of the Secured Property in respect of
such Series.
Except as otherwise provided in this Clause 19, no other Person will
have any right or obligation hereunder.
20. ACTIONS BY NOTEHOLDERS
20.1 OBLIGATIONS OF NOTE TRUSTEE
Subject to the satisfaction of Clauses 12.1 (Security enforceable) and
12.2 (Enforcement Notice) and subject always to being indemnified and/or
secured to its satisfaction, the Note Trustee shall be bound to take the
following actions:
20.1.1 following the occurrence of a Medium Term Note Certificate Event
of Default, to direct the Security Trustee to demand all amounts
of principal and/or interest owing in respect of the Medium Term
Note Certificate to be paid immediately and to take such steps
as it shall think fit to enforce any Security it holds in
relation to all Series then issued;
20.1.2 to direct the Security Trustee to waive any of the matters
pursuant to Medium Term Note Certificate condition 13.2
(Modification or waiver);
20.1.3 to direct the Security Trustee to enforce its rights under the
MTN Issuing Entity Jersey Security Interest; and
20.1.4 any other actions specified in the relevant Note Trust Deed
Supplement.
21. TIA PREVAILS
21.1 TIA PREVAILS
Subject to Clause 21.3 (Qualified indenture), if any provision of this
Note Trust Deed limits, qualifies or conflicts with another provision
which is required to be included in this Note Trust Deed by, and is not
subject to a contractual waiver under, the TIA, the required provision
of the TIA shall prevail.
21.2 INCORPORATION OF TIA
Subject to Clause 21.3 (Qualified indenture), the parties agree the
provisions of the TIA (including Sections 310 through 318, inclusive,
thereof) that impose duties on any Person (including the provisions
automatically deemed included unless expressly excluded by this Note
Trust Deed) are part of and govern this Note Trust Deed, whether or not
physically contained herein. If and to the extent that any provision of
this Note Trust Deed limits, qualifies, or conflicts with the duties
imposed by, or with another provision (an "INCORPORATED PROVISION")
included in this Note Trust Deed by operation of Sections 310 to 318,
inclusive, of the TIA, such imposed duties or incorporated provision
shall control and such Note Trust Deed provision shall be deemed
modified thereby.
21.3 QUALIFIED INDENTURE
Notwithstanding any other provision of this Note Trust Deed, all
provisions relating to the TIA will only apply as and when this Note
Trust Deed is a "qualified" indenture under the TIA.
- 49 -
22. COMMUNICATIONS BY NOTEHOLDERS WITH OTHER NOTEHOLDERS
Noteholders may communicate pursuant to Section 312(b) of the TIA with
other Noteholders with respect to their rights under this Note Trust
Deed or the Notes. The Issuing Entity, the Note Trustee, the Registrar
and anyone else shall have the protection of Section 312(c) of the TIA.
23. GOVERNING LAW AND JURISDICTION
This Note Trust Deed and all matters arising from or connected with it
shall be governed by English law in accordance with paragraph 25
(Governing Law) of the Common Terms PROVIDED THAT if this Note Trust
Deed is a "qualified" indenture for the purposes of the TIA, this Note
Trust Deed shall be subject to the provisions of the TIA that are
required to be part of this Note Trust Deed and shall, to the extent
applicable, be governed by such provisions. Paragraph 26 (Jurisdiction)
of the Common Terms applies to this Note Trust Deed as if set out in
full in this Note Trust Deed.
24. DELIVERY
This Note Trust Deed is delivered as a deed on the date written at the
start of this Note Trust Deed.
- 50 -
SCHEDULE 1
TERMS AND CONDITIONS OF THE NOTES
- 51 -
TERMS AND CONDITIONS OF THE NOTES
The following is the text of the terms and conditions which, subject to
completion and as supplemented, amended and/or replaced in accordance with the
provisions of the relevant series note trust deed supplement and as reflected in
the relevant prospectus supplement/final terms, will be endorsed on each Note
issued under the Programme in definitive form. References in these terms and
conditions to "notes" are to the notes of a particular Series only and not to
all notes that may be issued under the Programme.
(A) Introduction
PROGRAMME
Gracechurch Card Programme Funding Limited (the "ISSUING ENTITY") has
established a medium term note programme (the "PROGRAMME") under which the
maximum aggregate principal amount of notes outstanding at any time may not
exceed [o]. The notes of a particular series (the "NOTES") are constituted and
secured by a note trust deed (the "NOTE TRUST DEED") between the issuing entity
and The Bank of New York (the "NOTE TRUSTEE") (which expression includes the
trustee or trustees for the time being of the note trust deed) and a supplement
to the note trust deed (the "SERIES NOTE TRUST DEED SUPPLEMENT") in respect of
notes issued in each series. References to the note trust deed include reference
to the relevant series note trust deed supplement where the context admits.
PROSPECTUS SUPPLEMENT/FINAL TERMS
Notes issued under the Programme are issued in series (each a "SERIES") and
each Series comprises up to four classes of notes (each a "CLASS"). A Series
will be constituted by class A notes, class B notes, class C notes and, if
applicable, class D notes. Each Class may comprise Sub-Classes of notes (each a
"SUB-CLASS"), which may be denominated in any of sterling, US dollar, euro or
such other currency as specified in the relevant prospectus supplement/final
terms. The Sub-Classes within each Class of notes will rank pari passu and with
no priority or preference among them. Each Series is the subject of a prospectus
supplement/final terms (the "PROSPECTUS SUPPLEMENT/FINAL TERMS"). The terms and
conditions applicable to any particular Series are these terms and conditions
(the "CONDITIONS") as supplemented, amended and/or replaced by the relevant
series note trust deed supplement and as presented in the relevant prospectus
supplement/final terms. In the event of any inconsistency between these
Conditions and the Conditions as presented in the relevant prospectus
supplement/final terms, the Conditions as presented in the relevant prospectus
supplement/final terms shall prevail.
PAYING AGENCY AND AGENT BANK AGREEMENT
The notes are the subject of a Paying Agency and Agent Bank Agreement (the
"PAYING AGENCY AND AGENT BANK AGREEMENT") between, among others, the issuing
entity, the Note Trustee, The Bank of New York as Principal Paying Agent (the
"PRINCIPAL PAYING AGENT") and as US Paying Agent (the "US PAYING AGENT"), the
Paying Agents named in the Paying Agency and Agent Bank Agreement (together with
the Principal Paying Agent and the US Paying Agent, the "Paying Agents", and in
each case, the expressions "Principal Paying Agent", "US Paying Agent" and
"PAYING AGENTS" include any successor to such Person in such capacity), the
Agent Bank named in the Paying Agency and Agent Bank Agreement (the "AGENT BANK"
which expression includes any successor to such Person in such capacity), and
the registrar named in the Paying Agency and Agent Bank Agreement (the
"REGISTRAR" which expression includes any successor to such Person in such
capacity).
THE NOTES
All subsequent references in these Conditions to "notes" are to the notes
which are the subject of the relevant prospectus supplement/final terms. Copies
of the relevant prospectus supplement/final terms are available for inspection
by you the holders of the notes (the "NOTEHOLDERS") during normal business hours
at the Specified Office of the Principal Paying Agent, the initial Specified
Office of which is set out below.
SUMMARIES
Certain provisions of these Conditions are summaries of the note trust deed
and the Paying Agency and Agent Bank Agreement and are subject to their detailed
provisions. The holders of the notes (the "NOTEHOLDERS") are bound by, and are
deemed to have notice of, all the provisions of the note trust
- 52 -
deed, the series note trust deed supplement, the prospectus supplement/final
terms and the Paying Agency and Agent Bank Agreement applicable to them. Copies
of the note trust deed, the series note trust deed supplement, the prospectus
supplement/final terms and the Paying Agency and Agent Bank Agreement are
available for inspection by Noteholders during normal business hours at the
Specified Office of each of the Paying Agents, the initial Specified Offices of
which are set out below.
(1) INTERPRETATION
DEFINITIONS
Unless otherwise defined in these Conditions or the context requires
otherwise, capitalised terms used in these Conditions have the meanings and
constructions ascribed to them in Schedule 1 (Master Definitions Schedule) to
the Master Framework Agreement between, amongst others, the issuing entity and
the Note Trustee (the "MASTER FRAMEWORK AGREEMENT").
In these Conditions the following expressions have the following meanings:
"ACCOUNT BANK" means Barclays Bank PLC;
"ACCOUNT BANK AGREEMENTS" means the Series Distribution Account Bank
Agreement and the Bank Account Operating Agreement;
"ADDITIONAL BUSINESS CENTRE(S)" means the city or cities specified as such
in the relevant prospectus supplement/final terms;
"ADDITIONAL FINANCIAL CENTRE(S)" means the city or cities specified as
such in the relevant prospectus supplement/final terms;
"ADDITIONAL INTEREST MARGIN" has the meaning given in the relevant
prospectus supplement/final terms (if applicable);
"ADMINISTRATOR" means Bedell Trust Company Limited;
"AMORTISATION PERIOD" means the Regulated Amortisation Period and/or the
Rapid Amortisation Period or such other period specified as an Amortisation
Period in the relevant prospectus supplement/final terms;
"BANK ACCOUNT OPERATING AGREEMENT" means the bank account operating
agreement between the issuing entity and the Account Bank;
"BANK MANDATE" means any bank mandate in relation to the Issuing Entity
Bank Accounts;
"BASIC TERMS MODIFICATION" means any change to any date fixed for payment
of principal or interest in respect of the notes of any Class or Sub-Class, to
reduce the amount of principal or interest payable on any date in respect of the
notes of any Class or Sub-Class, other than any repricing note reset margin as
contemplated by the applicable market repricing agreement to alter the method of
calculating the amount of any payment in respect of the notes of any Class or
Sub-Class or the date for any such payment, (except in accordance with the
Conditions and the note trust deed) to effect the exchange, conversion or
substitution of the notes of any Class for, or the conversion of such notes
into, shares, bonds or other obligations or securities of the issuing entity or
any other person or body corporate formed or to be formed, to alter the priority
of payment of interest or principal in respect of the notes, to change the
currency of any payment under the notes of any Class or Sub-Class, to change the
quorum requirements relating to meetings or the majority required to pass an
Extraordinary Resolution or to amend this definition;
"BUSINESS DAY", unless otherwise specified in the relevant prospectus
supplement/final terms, means in relation to any sum payable in any currency, a
TARGET Settlement Day and a day on which commercial banks and foreign exchange
markets settle payments generally in London, England; Jersey, Channel Islands;
New York, New York; the Principal Financial Centre of the relevant currency and
in each (if any) Additional Business Centre;
"BUSINESS DAY CONVENTION", in relation to any particular date, has the
meaning given in the relevant prospectus supplement/final terms and, if so
specified in the relevant prospectus supplement/final terms,
- 53 -
may have different meanings in relation to different dates and, in this context,
the following expressions shall have the following meanings:
(a) "FOLLOWING BUSINESS DAY CONVENTION" means that the Relevant Date shall be
postponed to the first following day that is a Business Day;
(b) "MODIFIED FOLLOWING BUSINESS DAY CONVENTION" or "Modified Business Day
Convention" means that the Relevant Date shall be postponed to the first
following day that is a Business Day unless that day falls in the next
calendar month in which case that date will be the first preceding day that
is a Business Day;
(c) "NO ADJUSTMENT" means that the Relevant Date shall not be adjusted in
accordance with any Business Day Convention; and
(d) "PRECEDING BUSINESS DAY CONVENTION" means that the Relevant Date shall be
brought forward to the first preceding day that is a Business Day;
"CALCULATION AGENT" means the Agent Bank or such other Person specified in
the relevant prospectus supplement/final terms as the party responsible for
calculating the Rate(s) of Interest and Interest Amount(s) and/or such other
amount(s) as may be specified in the relevant prospectus supplement/final terms,
including any successor thereto;
"CLASS" means, in respect of a Series, the notes of such Series designated
in the relevant prospectus supplement/final terms as being in the same class;
"CLASS A NOTES" means notes of any Series designated as such in the
relevant prospectus supplement/final terms and, where applicable, a reference to
"Class A Notes" shall be construed mutatis mutandis as a reference to a relevant
Sub-Class thereof;
"CLASS B NOTES" means notes of any Series designated as such in the
relevant prospectus supplement/final terms and, where applicable, a reference to
"Class B Notes" shall be construed mutatis mutandis as a reference to a relevant
Sub-Class thereof;
"CLASS C NOTES" means notes of any Series designated as such in the
relevant prospectus supplement/final terms and, where applicable, a reference to
"Class C Notes" shall be construed mutatis mutandis as a reference to a relevant
Sub-Class thereof;
"CLASS D NOTES" means notes of any Series designated as such in the
relevant prospectus supplement/final terms and, where applicable, a reference to
"Class D Notes" shall be construed mutatis mutandis as a reference to a relevant
Sub-Class thereof;
"CLOSING DATE" has the meaning given in the relevant prospectus
supplement/final terms;
"CONTROLLED ACCUMULATION PERIOD" for any Series has the meaning defined in
the relevant prospectus supplement/final terms;
"CONTROLLED ACCUMULATION PERIOD COMMENCEMENT DATE" has the meaning given in
the relevant prospectus supplement/final terms;
"COUNTERPARTY FAULT SWAP TERMINATION AMOUNT" means any termination payment
under a Swap Agreement where the Swap Agreement is terminated as a result of a
Swap Counterparty Swap Event of Default;
"DAY COUNT FRACTION" means, in respect of the calculation of an amount for
any period of time (the "DAY COUNT CALCULATION PERIOD"), such Day Count Fraction
as may be specified in these Conditions or the relevant prospectus
supplement/final terms and:
(a) if "ACTUAL/ACTUAL (ICMA)" is so specified, means
(i) where the Day Count Calculation Period is equal to or shorter
than the Regular Period during which it falls, the actual number
of days in the Day Count Calculation Period divided by the
product of (1) the actual number of days in such Regular Period
and (2) the number of Regular Periods in any year; and
- 54 -
(ii) where the Day Count Calculation Period is longer than one Regular
Period, the sum of:
(A) the actual number of days in such Day Count Calculation
Period falling in the Regular Period in which it begins
divided by the product of (1) the actual number of days in
such Regular Period and (2) the number of Regular Periods in
any year; and
(B) the actual number of days in such Day Count Calculation
Period falling in the next Regular Period divided by the
product of (a) the actual number of days in such Regular
Period and (2) the number of Regular Periods in any year;
(b) if "ACTUAL/365" or "ACTUAL/ACTUAL (ISDA)" is so specified, means the
actual number of days in the Day Count Calculation Period divided by
365 (or, if any portion of the Day Count Calculation Period falls in a
leap year, the sum of (A) the actual number of days in that portion of
the Day Count Calculation Period falling in a leap year divided by 366
and (B) the actual number of days in that portion of the Day Count
Calculation Period falling in a nonleap year divided by 365);
(c) if "ACTUAL/365/366" is so specified, means the actual number of days
in the Day Count Calculation Period divided by 365 (or, if the Day
Count Calculation Period ends in a leap year, 366);
(d) if "ACTUAL/365 (FIXED)" is so specified, means the actual number of
days in the Day Count Calculation Period divided by 365;
(e) if "ACTUAL/360" is so specified, means the actual number of days in
the Day Count Calculation Period divided by 360; and
(f) if "30/360" is so specified, means the number of days in the Day Count
Calculation Period divided by 360 (the number of days to be calculated
on the basis of a year of 360 days with 12 30day months (unless (i)
the last day of the Day Count Calculation Period is the 31st day of a
month but the first day of the Day Count Calculation Period is a day
other than the 30th or 31st day of a month, in which case the month
that includes that last day shall not be considered to be shortened to
a 30day month, or (ii) the last day of the Day Count Calculation
Period is the last day of the month of February, in which case the
month of February shall not be considered to be lengthened to a 30day
month));
"DISTRIBUTION LEDGER" means a ledger within the relevant Series
Distribution Account in relation to a specific Series and Class or Sub-Class of
notes;
"EXCESS SWAP COLLATERAL" means an amount equal to the value of the
collateral (or the applicable part of any collateral) provided by the swap
counterparty to the issuing entity in respect of the swap counterparty's
obligations to transfer collateral to the issuing entity under the relevant swap
agreement (as a result of the ratings downgrade provisions in that swap
agreement), which is in excess of the swap counterparty's liability to the
issuing entity under the relevant swap agreement, or which the swap counterparty
is otherwise entitled to have returned to it under the relevant swap agreement;
"EXPENSES LOAN DRAWING" means a drawing under the expenses loan agreement
in relation to a specific Series to be dated on or about each issue date between
the issuing entity and Barclays;
"EXTRAORDINARY RESOLUTION" has the meaning given in the Master Framework
Agreement;
"FINAL REDEMPTION DATE" means the date specified as such in, or determined
in accordance with the provisions of, the relevant prospectus supplement/final
terms, and where the Final Redemption Date is not a Business Day, as the same
may be adjusted in accordance with the relevant Business Day Convention;
"FIRST INTEREST PAYMENT DATE" means the date specified as such in, or
determined in accordance with the provisions of, the relevant prospectus
supplement/final terms, and where the First Interest Payment Date is not a
Business Day, as the same may be adjusted in accordance with the relevant
Business Day Convention;
- 55 -
"FLOATING RATE COMMENCEMENT DATE" is specified in the relevant prospectus
supplement/final terms as either the Payment Date of the first month falling in
the Regulated Amortisation Period or the Rapid Amortisation Period (or if such
date has passed, the immediately following Payment Date) or the Scheduled
Redemption Date;
"GLOBAL NOTE CERTIFICATE" means a note certificate in global form;
"INDEBTEDNESS" means any indebtedness of any Person for money borrowed or
raised including (without limitation) any indebtedness for or in respect of:
(a) amounts raised by acceptance under any acceptance credit facility;
(b) amounts raised under any note purchase facility;
(c) the amount of any liability in respect of leases or hire purchase
contracts which would, in accordance with applicable law and generally
accepted accounting principles, be treated as finance or capital
leases;
(d) the amount of any liability in respect of any purchase price for
assets or services the payment of which is deferred for a period in
excess of 60 days; and
(e) amounts raised under any other transaction (including, without
limitation, any forward sale or purchase agreement) having the
commercial effect of a borrowing;
"INDIVIDUAL NOTE CERTIFICATE" means an individual note certificate issued
in the circumstances set out in the relevant Global Note Certificate;
"INITIAL RATE" has the meaning given in the relevant prospectus
supplement/final terms;
"INTEREST AMOUNT" means, in relation to a Note and an Interest Period, the
amount of interest payable in respect of that Note for that Interest Period;
"INTEREST COMMENCEMENT DATE" means the issue date of the notes or such
other date as may be specified as the Interest Commencement Date in the relevant
prospectus supplement/final terms;
"INTEREST DETERMINATION DATE" has the meaning given herein, unless
otherwise specified in the relevant prospectus supplement/final terms;
"INTEREST PAYMENT DATE" has the relevant meaning given to it in Condition
6(a), (b), (c), (d), (e), (f), (g), (h), (i), (j) or (k) (as applicable);
"ISDA DEFINITIONS" means the 2000 ISDA Definitions, as amended and updated
as at the date of issue of the first notes of the relevant Series (as specified
in the relevant prospectus supplement/final terms) as published by the
International Swaps and Derivatives Association, Inc.;
"ISSUE DATE" has the meaning given in the relevant prospectus
supplement/final terms for a Series;
"ISSUING ENTITY BANK ACCOUNTS" means the relevant Series Distribution
Account;
"ISSUING ENTITY FAULT SWAP TERMINATION AMOUNT" means any termination
payment under a Swap Agreement where the Swap Agreement is terminated otherwise
than as a result of a Swap Counterparty Swap Event of Default;
"MARGIN" has the meaning given in the relevant prospectus supplement/final
terms;
"MARKET REPRICING AGENT" means, from the relevant issue date, Barclays
Capital or such other bank appointed thereafter to act as market repricing agent
under the terms of the relevant market repricing agreement;
"MARKET REPRICING AGREEMENT" means the agreement, if any, dated on or about
the relevant issue date among the repricing noteholder, the issuing entity and
the market repricing agent;
"NOTE CERTIFICATE" means a Global Note Certificate or an Individual Note
Certificate;
- 56 -
"NOTICES" means any notices that are required to be given to Noteholders
under these Conditions;
"PARTICIPATING MEMBER STATE" means a member state of the European
Communities which adopts the euro as its lawful currency in accordance with the
Treaty;
"PAYMENT BUSINESS DAY" means, unless otherwise specified in the prospectus
supplement/final terms, a Business Day;
"PAYMENT DATE" means the 15th day in each month or, if such day is not a
Business Day, as the same may be adjusted in accordance with the relevant
Business Day Convention, or any other date as may be specified in the relevant
prospectus supplement/final terms;
"PAY OUT COMMENCEMENT DATE" shall, in respect of a particular Series, have
the meaning specified in the series supplement;
"PAY OUT EVENT" means in respect of a particular Series a "Trust Pay Out
Event" as defined in "The Receivables Trust Trust Pay Out Events" as modified in
respect of such Series by the relevant series supplement of one of the events
listed in "Securitisation Cashflows -- Series Pay Out Events";
"PERSON" means any individual, company, corporation, firm, partnership,
joint venture, association, organisation, state or agency of a state or other
entity, whether or not having separate legal personality;
"PRINCIPAL AMOUNT OUTSTANDING" means, in relation to a Note on any date,
the principal amount of that Note on the issue date less the aggregate amount of
all principal payments in respect of that Note that have become due and payable
by the issuing entity to the Noteholder concerned by virtue of the issuing
entity having received funds in respect thereof from the MTN issuing entity
(whether or not such principal payments have been paid to such Noteholder) prior
to such date in accordance with the terms and conditions of the related medium
term note certificate;
"PRINCIPAL FINANCIAL CENTRE" means, in relation to sterling, London, in
relation to US dollars, New York and in relation to euro, the principal
financial centre of such member state of the European Communities as is selected
(in the case of a payment) by the payee or (in the case of a calculation) by the
Calculation Agent;
"RAPID AMORTISATION PERIOD" means, for any Series, for the purposes of
these Conditions, the period commencing on the day on which a Rapid Amortisation
Trigger Event is deemed to occur for the related Series Investor Interest
pursuant to the provisions of the relevant series supplement, and ending on the
earlier of (i) the day on which the outstanding principal amount of the related
Series Investor Interest is reduced to zero and (ii) the Final Redemption Date
of the relevant Series of notes;
"RAPID AMORTISATION TRIGGER EVENT" shall mean in respect of a particular
Series, the "Pay Out Commencement Date" for that Series (as determined under the
relevant series supplement) other than a Pay Out Commencement Date resulting
solely from a Regulated Amortisation Trigger Event;
"RATE OF INTEREST" means the rate or rates (expressed as a percentage per
year) of interest payable in respect of the notes specified in the relevant
prospectus supplement/final terms or calculated or determined in accordance with
the provisions of these Conditions and/or the relevant prospectus
supplement/final terms;
"REFERENCE BANKS" means the principal London office of each of HSBC, The
Royal Bank of Scotland plc, Deutsche Bank AG London and Barclays Bank PLC or any
duly appointed substitute reference bank(s) as may be appointed by the issuing
entity to provide the Agent Bank with its offered quotation to leading banks in
the London interbank market;
"REGULAR INTEREST PAYMENT DATES" has the meaning given herein unless
otherwise specified in the relevant prospectus supplement/final terms;
"REGULAR PERIOD" means unless specified otherwise in a Condition containing
a specific provision or the relevant prospectus supplement/final terms:
(a) in the case of notes where interest is scheduled to be paid only by
means of regular payments, each period from and including the Interest
Commencement Date to but
- 57 -
excluding the First Interest Payment Date and each successive period
from and including one Interest Payment Date to but excluding the next
Interest Payment Date;
(b) in the case of notes where, apart from the first Interest Period,
interest is scheduled to be paid only by means of regular payments,
each period from and including a Regular Date falling in any year to
but excluding the next Regular Date, where "REGULAR DATE" means the
day and month (but not the year) on which any Interest Payment Date
falls; and
(c) in the case of notes where, apart from one Interest Period other than
the first Interest Period, interest is scheduled to be paid only by
means of regular payments, each period from and including a Regular
Date falling in any year to but excluding the next Regular Date, where
"REGULAR DATE" means the day and month (but not the year) on which any
Interest Payment Date falls other than the Interest Payment Date
falling at the end of the irregular Interest Period. "Regulated
Amortisation Period" means, for any Series, for the purposes of these
Conditions, the period commencing on the day on which a "Regulated
Amortisation Trigger Event" is deemed to occur for the related Series
Investor Interest pursuant to the provisions of the relevant series
supplement, and ending on the earlier of (i) the day on which the
outstanding principal amount of the related Series Investor Interest
is reduced to zero, (ii) the commencement of a Rapid Amortisation
Period for the related medium term note certificate and (iii) the
Final Redemption Date of the notes;
"REGULATED AMORTISATION PERIOD" means, for any Series, for the purposes of
these Conditions, the period commencing on the day on which a "Regulated
Amortisation Trigger Event" is deemed to occur for the related Series Investor
Interest pursuant to the provisions of the relevant series supplement, and
ending on the earlier of (i) the day on which the outstanding principal amount
of the related Series Investor Interest is reduced to zero, (ii) the
commencement of a Rapid Amortisation Period for the related medium term note
certificate and (iii) the Final Redemption Date of the notes;
"REGULATED AMORTISATION TRIGGER EVENT" means any Regulated Amortisation
Trigger Event as set out in the relevant series supplement;
"RELEVANT DATE" means in relation to any payment, whichever is the later of
(a) the date on which the payment in question first becomes due and (b) if the
full amount payable has not been received in London by the Principal Paying
Agent or the Note Trustee on or prior to such due date, the date on which (the
full amount having been so received) notice to that effect has been given to the
Noteholders in accordance with Condition 10;
"RELEVANT INDEBTEDNESS" means any indebtedness which is in the form of or
represented by any bond, note, debenture, debenture stock, loan stock,
certificate or other instrument which is, or is capable of being, listed, quoted
or traded on any stock exchange or in any securities market (including, without
limitation, any over-the-counter market);
"RELEVANT SCREEN PAGE" means the page of the Reuters screen or such other
medium for the electronic display of data as may be approved by the Note Trustee
and notified to the Noteholders of the relevant Series;
"REPRICING NOTE" means any note which is specified as being subject to any
repricing arrangements in the prospectus supplement/final terms;
"REPRICING TERMINATION EVENT" in respect of the repricing arrangements
relating to a series of repricing notes issued by the issuing entity shall occur
if:
(a) the related repricing notes have been redeemed in full; or
(b) an Event of Default under the notes has occurred and is continuing;
"REPRICING TRANSFER DATE" means, in relation to a Series or Class of notes,
any Interest Payment Date as determined between the market repricing agent and
the repricing noteholder;
"REPRICING TRANSFER PRICE" means the Principal Amount Outstanding of a
series of repricing notes on the relevant repricing transfer date;
- 58 -
"RESET MARGIN" means in relation to any repricing notes for each applicable
Reset Period a percentage determined by the market repricing agent in accordance
with the applicable market repricing agreement. For the avoidance of doubt, the
reset margin may be a negative number which may therefore result in the
determination of the Rate of Interest applicable to the repricing notes being a
number lower than the relevant Screen Rate;
"RESET PERIOD" means, in relation to a Series or Class of repricing notes,
the period beginning on the repricing transfer date and ending on the date on
which the Principal Amount Outstanding of the relevant repricing note has been
reduced to zero;
"REVOLVING PERIOD" means for any Series, for the purposes of these
Conditions, any period which is not a Controlled Accumulation Period or a
Regulated Amortisation Period or a Rapid Amortisation Period for such Series;
"SCHEDULED REDEMPTION DATE" has the meaning given in the relevant
prospectus supplement/final terms;
"SECURITY INTEREST" means any mortgage, charge, pledge, lien or other
security interest including, without limitation, anything analogous to any of
the foregoing under the laws of any jurisdiction;
"SERIES" means those notes with the same terms and conditions issued in
accordance with a particular prospectus supplement/final terms;
"SERIES INVESTOR INTEREST" means the total principal amount of the interest
(in respect of amounts held by the Receivables Trustee on an undivided basis) of
an Investor Beneficiary in respect of a particular Series and reflects the total
amount of the proportional entitlement to Principal Receivables calculated as
available to that Series;
"SERIES DISTRIBUTION ACCOUNT" means the accounts, at the Account Bank or
with another bank which meets Rating Agency approval, opened pursuant to the
Series Distribution Account Bank Agreement in relation to all notes of a Series;
"SERIES DISTRIBUTION ACCOUNT BANK AGREEMENT" means the account bank
agreement between the issuing entity, the Note Trustee and the Account Bank;
"SPECIFIED CURRENCY" has the meaning given in the relevant prospectus
supplement/final terms;
"SPECIFIED DENOMINATION(S)" has the meaning given in the relevant
prospectus supplement/final terms;
"SPECIFIED OFFICE" has the meaning given in the Paying Agency and Agent
Bank Agreement;
"SUB-CLASS" has the meaning given in Condition 3(a);
"SUBSIDIARY" means, in relation to any Person (the "FIRST PERSON") at any
particular time, any other Person (the "SECOND PERSON"):
(a) whose affairs and policies the First Person controls or has the power
to control, whether by ownership of share capital, contract, the power
to appoint or remove members of the governing body of the Second
Person or otherwise; or
(b) whose financial statements are, in accordance with applicable law and
generally accepted accounting principles, consolidated with those of
the First Person;
"SWAP COUNTERPARTY SWAP EVENT OF DEFAULT" means either (i) an Event of
Default (as defined in the relevant Swap Agreement) in respect of which the Swap
Counterparty is the Defaulting Party (as defined in the relevant Swap Agreement)
has occurred and is continuing, or (ii) a termination by the issuing entity of
the Swap Agreement as a result of a failure to comply with the requirements set
out in the Swap Agreement following a downgrade occurring with respect to the
rating of the Swap Counterparty which failure is not cured by the Swap
Counterparty, during the requisite cure period pursuant to the terms of the Swap
Agreement.
"TARGET SETTLEMENT DAY" means any day on which the TARGET System is open;
"TARGET SYSTEM" means the TransEuropean Automated RealTime Gross Settlement
Express Transfer (TARGET) System; and
- 59 -
"TREATY" means the Treaty establishing the European Communities, as
amended.
INTERPRETATION
In these Conditions:
(a) any reference to principal shall be deemed to include the redemption
amount, any premium (excluding interest) payable to the holder in
respect of a Note and any other amount in the nature of principal
payable pursuant to these Conditions;
(b) any reference to interest shall be deemed to include any other amount
in the nature of interest payable pursuant to these Conditions;
(c) references to notes being "outstanding" shall be construed in
accordance with the Paying Agency and Agent Bank Agreement and the
note trust deed;
(d) if an expression is stated in Condition 1 to have the meaning given in
the relevant prospectus supplement/final terms, but the relevant
prospectus supplement/final terms gives no such meaning or specifies
that such expression is "not applicable" then such expression is not
applicable to the notes; and
(e) any reference to the Paying Agency and Agent Bank Agreement and the
note trust deed shall be construed with respect to any Series of notes
as a reference to the Paying Agency and Agent Bank Agreement or the
note trust deed, as the case may be, as amended and/or supplemented up
to and including the issue date of the notes of that Series.
(2) FORM, DENOMINATION AND TITLE
Unless otherwise specified in the relevant series note trust deed
supplement, the notes will be issued in registered form ("REGISTERED
NOTES"), in a specified denomination (as specified in the relevant
prospectus supplement/final terms) or an integral multiple thereof PROVIDED
THAT in the case of any notes which are to be admitted to trading on a
regulated market within the European Economic Area or offered to the public
in a Member State of the European Economic Area in circumstances which
require the publication of a prospectus under the prospectus directive, the
minimum denomination shall be US$100,000 (or such amount as shall be at
least equal to its equivalent in any other currency as at the date of issue
of those notes as specified in the relevant prospectus supplement/final
terms). References in these Conditions to "notes" include Registered Notes
and all applicable Classes and Sub-Classes (if any) in the Series.
(a) Register: The relevant Registrar will maintain a register (a
"REGISTER") in respect of the notes in accordance with the provisions
of the Paying Agency and Agent Bank Agreement. The "holder" of a Note
means the Person in whose name such note is for the time being
registered in the Register maintained by the relevant Registrar (or,
in the case of a joint holding, the first named thereof) and
"Noteholder" shall be construed accordingly.
(b) Title: The holder of each note shall (except as otherwise required by
law) be treated as the absolute owner of such note for all purposes
(whether or not it is overdue and regardless of any notice of
ownership, trust or any other interest therein, any writing on the
Note Certificate relating thereto (other than the endorsed form of
transfer) or any notice of any previous loss or theft of such Note
Certificate) and no Person shall be liable for so treating such
holder. A Certificate (each, a "NOTE CERTIFICATE") will be issued to
each Noteholder in respect of its registered holding. Each Note
Certificate will be numbered serially with an identifying number which
will be recorded in the Register maintained by the relevant Registrar.
The register maintained by the Registrar is the sole evidence of
entitlement to the notes.
(c) Transfers: Subject to paragraphs (g) (Closed periods) and (h)
(Regulations concerning transfers and registration) below, a Note may
be transferred upon surrender of the relevant Note Certificate, with
the endorsed form of transfer duly completed, at the Specified Office
of the relevant Registrar, together with such evidence as such
Registrar may reasonably require to prove the title of the holder and
the authority of the
- 60 -
individuals who have executed the form of transfer; provided, however,
that a Note may not be transferred unless the principal amount of
notes transferred and (where not all of the notes held by a holder are
being transferred) the principal amount of the balance of notes not
transferred are an authorised denomination or multiple thereof. Where
not all the notes represented by the surrendered Note Certificate are
the subject of the transfer, a new Note Certificate in respect of the
balance of the notes will be issued to the holder.
(d) Tradable amount: So long as the notes are represented by a Global Note
Certificate and the relevant clearing system(s) so permit, the notes
shall be tradable only in principal amounts of at least (euro)50,000
(or such amount as shall be at least equal to its equivalent in any
other currency as at the date of issue of those notes as specified in
the relevant prospectus supplement/final terms) and integral multiples
of the tradable amount as specified in the relevant prospectus
supplement/ final terms.
(e) Registration and delivery of Note Certificates: Within five Business
Days of the surrender of a Note Certificate in accordance with
paragraph (c) (Transfers) above, the Registrar will register the
transfer in question and deliver a new Note Certificate of a like
principal amount to the notes transferred to each relevant holder at
its Specified Office or (at the request and risk of any such relevant
holder) by uninsured first class mail (airmail if overseas) to the
address specified for the purpose by such relevant holder.
(f) No charge: The transfer of a Note will be effected without charge by
or on behalf of the issuing entity or the relevant Registrar but
against such indemnity as such Registrar may require in respect of any
tax or other duty of whatsoever nature which may be levied or imposed
in connection with such transfer.
(g) Closed periods: Noteholders may not require transfers to be registered
during the period of 15 days ending on the due date for any payment of
principal or interest in respect of the notes.
(h) Regulations concerning transfers and registration: All transfers of
notes and entries on the relevant Register are subject to the detailed
regulations concerning the transfer of notes scheduled to the Paying
Agency and Agent Bank Agreement. The regulations may be changed by the
issuing entity with the prior written approval of the Note Trustee and
the relevant Registrar. A copy of the current regulations will be
mailed (free of charge) by the relevant Registrar to any Noteholder
who requests in writing a copy of such regulations.
(3) STATUS, SECURITY AND PRIORITY OF PAYMENTS
(a) Status
Each Class and Sub-Class (if any) of notes in each Series are direct,
secured and unconditional obligations of the issuing entity which will at
all times rank pari passu and pro rata without preference or priority
amongst themselves. Each Class may comprise Sub-Classes of notes (each a
"SUB-CLASS"), which may be denominated in any of sterling, US dollars or
euro or any other currency. The Sub-Classes of each Class of notes will
rank pari passu and with no priority or preference among them.
In these Conditions, "MOST SENIOR CLASS" means the Class A Notes while they
remain outstanding and thereafter the Class B Notes while they remain
outstanding and thereafter the Class C Notes while they remain outstanding
and thereafter the Class D Notes. If any proposed action or inaction
affects a particular Sub-Class of notes, this term shall mean the specific
Sub-Class of notes with the greatest aggregate Principal Amount Outstanding
of the Most Senior Class of notes.
The note trust deed contains provisions requiring the Note Trustee to have
regard to the interests of the Noteholders equally as a single Class as
regards all rights, powers, trusts, authorities, duties and discretions of
the Note Trustee (except where expressly provided otherwise) but where
there is, in the Note Trustee's opinion, a conflict among the interests of
the Classes of Noteholders, the Note Trustee is required to have regard
only to the interests of the holders of the Most Senior Class of notes then
outstanding.
- 61 -
The note trust deed contains provisions limiting the powers of the Class B
Noteholders or the Class C Noteholders or the Class D Noteholders (if
relevant) to request or direct the Note Trustee to take any action or to
pass an Extraordinary Resolution which may affect the interests of each of
the other Classes of notes ranking senior to such Class. Except in certain
circumstances, the note trust deed contains no such limitation on the
powers of the holders of the Most Senior Class of notes then outstanding,
the exercise of which will be binding on all Classes of notes, irrespective
of the effect thereof on their interests.
(b) Security
As security for the payment of all monies payable in respect of the notes
of a Series under the note trust deed and the relevant series note trust
deed supplement (including the remuneration, expenses and any other claims
of the Note Trustee and any receiver appointed under the note trust deed),
the issuing entity will pursuant to the note trust deed, the series note
trust deed supplement and the relevant series' pledge agreement for each
Series of notes create the following security (the "SECURITY") in favour of
the Note Trustee for itself and on trust for, among others, the Noteholders
of each Series:
(i) an assignment by way of first fixed security of the issuing entity's
right, title and interest in and to the relevant medium term note
certificate to the extent not pledged in (vi) below;
(ii) a sub-charge by way of first fixed security of all of the issuing
entity's right, title and interest in the security interest created by
the MTN issuing entity in favour of the security trustee in respect of
the relevant medium term note certificate;
(iii) an assignment by way of first fixed security to the Note Trustee as
trustee for itself and on trust for the other Secured Creditors all of
the Issuing Entity's right, title and interest in and to, and the
entire benefit of, the Issuing Entity Master Framework Agreement, the
Paying Agency and Agent Bank Agreement and the Issuing Entity
Distribution Account Bank Agreement (and sums received or recoverable
thereunder);
(iv) an assignment by way of first fixed security of the issuing entity's
right, title, interest and benefit in and to all monies credited to
the Issuing Entity Distribution Account or to any bank or other
account in which the issuing entity may at any time have any right,
title, interest or benefit in respect of the relevant Series;
(v) a first floating charge over the issuing entity's business and assets;
and
(vi) a pledge over the relevant medium term note certificate pursuant to a
pledge agreement between the issuing entity and the note trustee.
The Security is described in detail in the note trust deed, each series
note trust deed supplement and each series' pledge agreement.
The order of priority in respect of liabilities of a particular series if
the Security is enforced is as follows:
(a) in no order of priority between them but in proportion to the respective
amounts due, to pay fees which are due to any receiver appointed under the
note trust deed and all amounts due for legal fees and other costs,
charges, liabilities, expenses, losses, damages, proceedings, claims and
demands which have been incurred by the note trustee under the Issuing
Entity Related Documents and/or in enforcing or perfecting title to the
security together with interest due on these amounts;
(b) towards payment of amounts due and unpaid on the class A notes, to interest
then to principal after, subject to item (m) below, having paid any amounts
due to a swap counterparty, if applicable, under the terms of any class A
swap agreement;
- 62 -
(c) towards payment of amounts due and unpaid on the class B notes, to interest
then to principal after, subject to item (n) below, having paid any amounts
due to a swap counterparty, if applicable, under the terms any class B swap
agreement;
(d) towards payment of amounts of interest due and unpaid under the terms of
the Expenses Loan Agreement, if any;
(e) towards payment of amounts due and unpaid on the class C notes, to interest
then to principal after, subject to item (o) below, having paid any amounts
due to a swap counterparty, if applicable under the terms of any class C
swap agreement;
(f) if the series is specified as having class D notes, towards payment of
amounts due and unpaid on the class D notes, to interest then to principal
after, subject to the item (p) below, having paid any amounts due to a swap
counterparty, if applicable, under the terms of any class D swap agreement;
(g) towards payment of amounts of interest due and unpaid under the terms of
the Expenses Loan Agreement, if any;
(h) towards repayment of amounts of principal then due and unpaid under the
terms of the Expenses Loan Agreement, if any;
(i) towards payment of any sums that the issuing entity must pay to any tax
authority;
(j) towards payment of any sums due to third parties under obligations incurred
in the course of the issuing entity's business;
(k) towards payment of the Deferred Subscription Price in respect of the medium
term note certificate;
(l) towards payment of any dividends due and unpaid to shareholders of the
issuing entity;
(m) towards payment of the amount equal to any termination payment due and
payable to a swap counterparty, if applicable, pursuant to a class A swap
agreement, where the class A swap agreement has been terminated as a result
of a Swap Counterparty Swap Event of Default;
(n) towards payment of the amount equal to any termination payment due and
payable to a swap counterparty, if applicable, pursuant to a class B swap
agreement where the class B swap agreement has been terminated as a result
of a Swap Counterparty Swap Event of Default;
(o) towards payment of the amount equal to any termination payment due and
payable to a swap counterparty, if applicable, pursuant to a class C swap
agreement where the class C swap agreement has been terminated as a result
of a Swap Counterparty Swap Event of Default;
(p) if the series is specified as having class D notes, towards payment of the
amount equal to any termination payment due and payable to a swap
counterparty, if applicable pursuant to a class D swap agreement where the
class D swap agreement has been terminated as a result of a Swap
Counterparty Swap Event of Default; and
(q) in payment of the balance, if any, to the liquidator of the issuing entity.
The security becomes enforceable when an Event of Default occurs. These
events are described in condition number 10 below. If an Event of Default
occurs, the redemption of notes will not necessarily be accelerated as described
in condition number 7 below.
Notwithstanding the order of priority in respect of liabilities of a
particular series if the Security is enforced, as set out above, whether before
or after the delivery of an Enforcement Notice amounts representing Excess Swap
Collateral may be withdrawn from the Issuing Entity Distribution Account from
time to time and returned to the Swap Counterparty in accordance with the
relevant Swap Agreement and such sums are automatically released from the
Security.
- 63 -
(4) SWAP AGREEMENTS
The issuing entity may enter into numerous Swap Agreements, as may be
necessary, in respect of each series, the material terms of which are described
under the heading "The Swap Agreements" in this base prospectus and in the
relevant prospectus supplement/final terms.
(5) NEGATIVE COVENANTS OF THE ISSUING ENTITY
If any note is outstanding, the issuing entity will not, unless it is
permitted by the terms of the Issuing Entity Related Documents or by the written
consent of the note trustee:
(i) create or permit to subsist any mortgage, charge, pledge, lien or other
security interest, including anything which amounts to any of these things
under the laws of any jurisdiction, on the whole or any part of its present
or future business, assets or revenues, including uncalled capital;
(ii) carry on any business other than relating to the issue of the notes, as
described in the base prospectus; in carrying on that business, the issuing
entity will not engage in any activity or do anything at all except:
(1) preserve, exercise or enforce any of its rights and perform and
observe its obligations under the notes, the paying agency and agent
bank agreement, the note trust deed, the Indemnity Agreement, each
swap agreement, the medium term note certificate and the related
purpose trust, the corporate services agreement, the programme dealer
agreement, the relevant series subscription agreement, the relevant
market repricing agreement, the Series Distribution Account Bank
Agreement and any Bank Mandate - collectively called the "ISSUING
ENTITY RELATED DOCUMENTS".
(2) use, invest or dispose of any of its property or assets in the manner
provided in or contemplated by the Issuing Entity Related Documents;
or
(3) perform any act incidental to or necessary in connection with (1) or
(2) above.
(iii) have any subsidiaries, subsidiary business, business of any other kind,
employees, premises or interests in bank accounts other than the Issuing
Entity Distribution Account unless the account is charged to the note
trustee on acceptable terms;
(iv) have any indebtedness, other than indebtedness permitted under the terms of
its articles of association or any of the Issuing Entity Related Documents;
(v) give any guarantee or indemnity for any obligation of any person;
(vi) repurchase any shares of its capital stock or declare or pay any dividend
or other distributions to its shareholders except as otherwise is permitted
by law;
(vii) consolidate with or merge with or into any person or liquidate or dissolve
on a voluntary basis;
(viii) be a member of any group of companies for the purposes of value added
tax;
(ix) waive or consent to the modification or waiver of any of the provisions of
the Issuing Entity Related Documents without the prior written consent of
the note trustee; or
(x) offer to surrender to any company any amounts which are available for
surrender by way of group relief.
(6) INTEREST
(a) Specific Provision: Floating Rate Sterling Notes
This Condition 6(a) is applicable to the notes if the Specified Currency is
sterling and the notes are issued as floating rate notes.
Each Note bears interest at a floating rate on its Principal Amount
Outstanding from (and including) the Interest Commencement Date. Interest in
respect of the notes is payable in arrear in sterling on each Interest Payment
Date.
- 64 -
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on any
class of notes on that Interest Payment Date, that shortfall will be borne by
each note in that class in a proportion equal to the proportion that the
interest outstanding on the relevant note bears to the total amount of interest
outstanding on all the notes of that class. This will be determined on the
Interest Payment Date on which the shortfall arises. Payment of the shortfall
will be deferred and will be due on the next Interest Payment Date on which
funds are available to the issuing entity, or, if earlier, the Final Redemption
Date, from payments made to it from the swap counterparty or otherwise on that
Interest Payment Date, to make the payment The shortfall will accrue interest at
the rate described for each class of note below plus a margin of 2.0 per cent,
per annum, and payment of that interest will also be deferred and will be due on
the next Interest Payment Date on which funds are available to the issuing
entity to make the payment or, if earlier, on the Final Redemption Date.
"INTEREST PAYMENT DATE" means the following dates:
(i) during any period that is not a Regulated Amortisation Period, the First
Interest Payment Date and each Regular Interest Payment Date (being the
third Payment Date following the preceding Interest Payment Date (unless
otherwise specified in the relevant prospectus supplement/final terms));
and
(ii) during an Amortisation Period, each Payment Date.
Each period beginning on (and including) the Interest Commencement Date or
any Interest Payment Date and ending on (but excluding) the next Interest
Payment Date is herein called an "INTEREST PERIOD"; provided, however, that with
respect to an Interest Period that commences during any period that is not an
Amortisation Period and ends during the Regulated or the Rapid Amortisation
Period, such Interest Period will end on the originally scheduled Interest
Payment Date (and for the avoidance of doubt, in the case of an Interest Period
which commences on the Interest Payment Date which falls at the end of the
Interest Period during which the Rapid Amortisation Period or a Rapid
Amortisation Period or Regulated begins, the Interest Period shall end on the
next Payment Date). The first interest payment will be made on the First
Interest Payment Date in respect of the Interest Period from (and including) the
Interest Commencement Date to the First Interest Payment Date.
The Rate of Interest applicable to the notes (the "RATE OF INTEREST") for
each Interest Period will be determined by the Agent Bank as the sum of the then
Margin and LIBOR for the relevant Interest Period (or in the case of the first
Interest Period, a linear interpolation of the LIBOR rates for such periods as
specified in the relevant prospectus supplement/final terms).
LIBOR shall be determined on the following basis:
(i) on the Interest Commencement Date in respect of the first Interest Period
and thereafter on each "INTEREST DETERMINATION DATE", namely the first day
of the Interest Period for which the rate will apply, the Agent Bank will
determine the offered quotation to leading banks in the London interbank
market, in respect of the first Interest Period from (and including) the
Interest Commencement Date to (but excluding) the First Interest Payment
Date, a linear interpolation of the rates for sterling deposits for such
period as specified in the relevant prospectus supplement/final terms and
for each Interest Period thereafter, for sterling deposits for the relevant
Interest Period, by reference to the display designated as the British
Bankers Association LIBOR Rates as quoted on the Moneyline Reuters Monitor
as Moneyline Reuters Screen LIBOR01 or (1) such other page as may replace
Moneyline Reuters Screen LIBOR01 on that service for the purposes of
displaying such information or (2) if that service ceases to display such
information, such page as displays such information on such service (or, if
more than one, that one previously approved in writing by the Note Trustee
in its absolute discretion) as may replace the Moneyline Reuters Monitor)
as at or about 11.00 a.m. (London time) on that date (the "SCREEN RATE");
(ii) if on any Interest Determination Date the Screen Rate is unavailable, the
Agent Bank will:
(A) request each Reference Bank to provide the Agent Bank with its offered
quotation to leading banks in the London interbank market, in respect
of the first Interest Period from (and including) the Interest
Commencement Date to (but
- 65 -
excluding) the First Interest Payment Date, a linear interpolation of
the rates for such periods as specified in the relevant prospectus
supplement/final terms and for each Interest Period thereafter, for
sterling deposits for the relevant Interest Period, as at
approximately 11.00 a.m. (London time) on the Interest Determination
Date in question and in an amount that is representative for a single
transaction in that market at that time; and
(B) determine the arithmetic mean (rounded upwards to four decimal places)
of such quotations;
(iii) if on any Interest Determination Date the Screen Rate is unavailable and
two or three only of the Reference Banks provide offered quotations, LIBOR
for the relevant Interest Period shall be determined in accordance with the
provisions of paragraph (ii) on the basis of the arithmetic mean (rounded
upwards to four decimal places) of the offered quotations of those
Reference Banks providing the offered quotations; and
(iv) if fewer than two such quotations are provided by the Reference Banks as
requested, the Agent Bank will determine the arithmetic mean (rounded
upwards to four decimal places) of the rates quoted by major banks in
London, selected by the Agent Bank, at approximately 11.00 a.m. (London
time) on the first day of the relevant Interest Period for loans in
sterling to leading European banks for a period equal to the relevant
Interest Period and in an amount that is representative for a single
transaction in that market at that time,
PROVIDED THAT if the Agent Bank is unable to determine LIBOR in accordance
with the above provisions in relation to any Interest Period, the
Redemption Rate applicable to the notes in respect of such Interest Period.
The Agent Bank will, as soon as practicable after the Interest
Determination Date in relation to each Interest Period, calculate the
amount of interest (the "INTEREST AMOUNT") payable in respect of the notes
for such Interest Period.
The Interest Amount in respect of the notes will be calculated by applying
the relevant Rate of Interest for such Interest Period to the Principal
Amount Outstanding of the notes during such Interest Period, multiplying by
the relevant Day Count Fraction and rounding the resulting figure to the
nearest penny (half a penny rounded upwards).
(b) Specific Provisions: Floating Rate US Dollar Notes
This Condition 6(b) is applicable to the notes if the Specified Currency is
US dollars and the notes are designated as floating rate notes.
Each Note bears interest at a floating rate on its Principal Amount
Outstanding from (and including) the Interest Commencement Date. Interest
in respect of the notes is payable in arrear in US dollars on each Interest
Payment Date.
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on
any class of notes on that Interest Payment Date, that shortfall will be
borne by each note in that class in a proportion equal to the proportion
that the interest outstanding on the relevant note bears to the total
amount of interest outstanding on all the notes of that class. This will be
determined on the Interest Payment Date on which the shortfall arises.
Payment of the shortfall will be deferred and will be due on the next
Interest Payment Date on which funds are available to the issuing entity,
or, if earlier, the Final Redemption Date, from payments made to it from
the swap counterparty or otherwise on that Interest Payment Date, to make
the payment The shortfall will accrue interest at the rate described for
each class of note below plus a margin of 2.0 per cent, per annum, and
payment of that interest will also be deferred and will be due on the next
Interest Payment Date on which funds are available to the issuing entity to
make the payment or, if earlier, on the Final Redemption Date.
- 66 -
"INTEREST PAYMENT DATE" means the following dates:
(i) during any period that is not an Amortisation Period, the First Interest
Payment Date and each Regular Interest Payment Date (being the third
Payment Date following the preceding Interest Payment Date (unless
otherwise specified in the relevant prospectus supplement/final terms));
and
(ii) during an Amortisation Period, each Payment Date.
Each period beginning on (and including) the Interest Commencement Date or
any Interest Payment Date and ending on (but excluding) the next Interest
Payment Date is herein called an "INTEREST PERIOD"; provided, however, that with
respect to an Interest Period that commences during any period that is not an
Amortisation Period and ends during the Regulated Amortisation Period or the
Rapid Amortisation Period, such Interest Period will end on the originally
scheduled Interest Payment Date (and for the avoidance of doubt, in the case of
an Interest Period which commences on the Interest Payment Date which falls at
the end of the Interest Period during which the Rapid Amortisation Period or
Regulated Amortisation Period or a Rapid Amortisation Period begins, the
Interest Period shall end on the next Payment Date). The first interest payment
will be made on the First Interest Payment Date in respect of the Interest
Period from (and including) the Interest Commencement Date to the First Interest
Payment Date.
The Rate of Interest applicable to the notes for each Interest Period will
be determined by the Agent Bank as the sum of the then Margin and LIBOR for the
relevant interest period (or, in the case of the first Interest Period, a linear
interpretation of the LIBOR rates for such periods as specified in the relevant
prospectus supplement/final terms).
LIBOR shall be determined on the following basis:
(i) on each Quotation Date (as defined below) until the first Quotation Date
during the Regulated Amortisation Period or the Rapid Amortisation Period,
the Agent Bank will determine the offered quotation to leading banks in the
London interbank market - called LIBOR - for onemonth US dollar deposits or
threemonth US dollar deposits (in accordance with the relevant Interest
Period specified in the relevant prospectus supplement/final terms). In the
case of the first Interest Period the Agent Bank will determine LIBOR based
upon the linear interpolation of LIBOR for US dollar deposits as specified
in the relevant prospectus supplement/final terms. On each Quotation Date
during the Regulated Amortisation Period or the Rapid Amortisation Period,
the Agent Bank will determine the offered quotation to leading banks in the
London interbank market for onemonth US dollar deposits.
This will be determined by reference to the British Bankers Association
LIBOR Rates display as quoted on the Bridge Reuters monitor as Reuters
Screen LIBOR01. If the Reuters Screen LIBOR01 stops providing these
quotations, the replacement service for the purposes of displaying this
information will be used. If the replacement service stops displaying the
information, any page showing this information will be used. If there is
more than one service displaying the information, the one approved in
writing by the Note Trustee in its sole discretion will be used.
In each case above, the determination will be made as at or about 11.00
a.m. London time, on that date. These are called the "SCREEN RATES".
A "QUOTATION DATE" means the second London Business Day before the first
day of an Interest Period.
A "LONDON BUSINESS DAY" means a day on which commercial banks and foreign
exchange markets settle payments and are open for general business in
London, England.
- 67 -
(ii) if, on any Quotation Date, a Screen Rate is unavailable, the Agent Bank
will:
(A) request each Reference Bank to provide the Agent Bank with its offered
quotation to leading banks in the London interbank market of the
equivalent of that Screen Rate on that Quotation Date in an amount
that represents a single transaction in that market at that time; and
(B) determine the arithmetic mean rounded upwards to four decimal places,
of those quotations;
(iii) if, on any quotation date, the Screen Rate is unavailable and two or three
only of the Reference Banks provide offered quotations, the Rate of
Interest for that Interest Period will be the arithmetic mean of the
quotations provided by those Reference Banks calculated in the manner
described in (ii) above;
(iv) if fewer than two Reference Banks provide quotations, the Agent Bank will
determine (in its absolute discretion) the arithmetic mean (rounded upwards
to four decimal places) of the leading rates quoted by major banks in
London - selected by the Agent Bank at approximately 11.00 a.m. London time
on the relevant Quotation Date - to leading European banks for a period
equal to the relevant Interest Period and in an amount that is
representative for a single transaction in that market at that time, for
loans in US dollars.
The Agent Bank will, as soon as practicable after the Quotation Date in
relation to each Interest Period, calculate the amount of interest (the
"INTEREST AMOUNT") payable in respect of the notes for such Interest
Period. The Interest Amount in respect of the notes will be calculated by
applying the relevant Rate of Interest for such Interest Period to the
Principal Amount Outstanding of the notes during such Interest Period and
multiplying the product by the relevant Day Count Fraction and rounding the
resulting figure to the nearest US dollar 0.01 (half of a cent being
rounded upwards).
(c) Specific Provision: Floating Rate Euro Notes
This Condition 6(c) is applicable to the notes if the Specified Currency is
euro and the notes are designated to be floating rate notes.
Each Note bears interest at a floating rate on its Principal Amount
Outstanding from (and including) the Interest Commencement Date. Interest
in respect of the notes is payable in arrear in euros on each Interest
Payment Date.
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on
any class of notes on that Interest Payment Date, that shortfall will be
borne by each note in that class in a proportion equal to the proportion
that the interest outstanding on the relevant note bears to the total
amount of interest outstanding on all the notes of that class. This will be
determined on the Interest Payment Date on which the shortfall arises.
Payment of the shortfall will be deferred and will be due on the next
Interest Payment Date on which funds are available to the issuing entity,
or, if earlier, the Final Redemption Date, from payments made to it from
the swap counterparty or otherwise on that Interest Payment Date, to make
the payment The shortfall will accrue interest at the rate described for
each class of note below plus a margin of 2.0 per cent, per annum, and
payment of that interest will also be deferred and will be due on the next
Interest Payment Date on which funds are available to the issuing entity to
make the payment or, if earlier, on the Final Redemption Date.
"INTEREST PAYMENT DATE" means the following dates:
(i) during any period that is not an Amortisation Period, the First
Interest Payment Date and each Regular Interest Payment Date (being
the third Payment Date following the preceding Interest Payment Date
(unless otherwise specified in the relevant prospectus
supplement/final terms)); and
(ii) during an Amortisation Period, each Payment Date.
- 68 -
Each period beginning on (and including) the Interest Commencement Date or
any Interest Payment Date and ending on (but excluding) the next Interest
Payment Date is herein called an "INTEREST PERIOD"; provided, however, that
with respect to an Interest Period that commences during any period that is
not an Amortisation Period and ends during the Regulated Amortisation
Period or the Rapid Amortisation Period, such Interest Period will end on
the originally scheduled Interest Payment Date (and for the avoidance of
doubt, in the case of an Interest Period which commences on the Interest
Payment Date which falls at the end of the Interest Period during which the
Rapid Amortisation Period or Regulated Amortisation Period begins, the
Interest Period shall end on the next Payment Date). The first interest
payment will be made on the First Interest Payment Date in respect of the
Interest Period from (and including) the Interest Commencement Date to the
First Interest Payment Date.
The Rate of Interest applicable to the notes (the "RATE OF INTEREST") for
each Interest Period will be determined by the Agent Bank as the sum of the
then Margin and EURIBOR for the relevant Interest Period (or in the case of
the first Interest Period, a linear interpolation of the EURIBOR rates for
such periods as specified in the relevant prospectus supplement/final
terms).
EURIBOR shall be determined on the following basis:
(i) on the second TARGET Settlement Day before the Interest Commencement
Date in respect of the first Interest Period and thereafter on each
"INTEREST DETERMINATION DATE", namely 11.00 a.m. (Brussels time) on
the second TARGET Settlement Day before the first day of the Interest
Period for which the rate will apply, the Agent Bank will determine
the offered quotation to prime banks in the EuroZone interbank market,
in respect of the first Interest Period from (and including) the
Interest Commencement Date to (but excluding) the First Interest
Payment Date, a linear interpolation of the rates for euro deposits
for such period as specified in the relevant prospectus
supplement/final terms and for each Interest Period thereafter, for
euro deposits for the relevant Interest Period, by reference to (1) on
the display page designated EURIBOR01 on the Dow Jones Reuters Service
(or such other page as may replace that page on that service, or such
other service as may be nominated by the Agent Bank as the information
vendor, for the purpose of displaying comparable rates) as of the
Interest Determination Date or (2) if that service ceases to display
such information, such page as displays such information on such
service (or, if more than one, that one previously approved in writing
by the Note Trustee) as may replace the Dow Jones Reuters Monitor as
at or about 11.00 a.m. (Brussels time) on that date (the "SCREEN
RATE");
(ii) if, on any Interest Determination Date, the Screen Rate is
unavailable, the Agent Bank will:
(A) request the principal eurozone office of each of four major banks
in the EuroZone interbank market to provide a quotation of the
rate at which deposits in euro are offered by it at approximately
11.00 a.m. (Brussels time) on the Interest Determination Date to
prime banks in the EuroZone interbank market for a period equal
to the relevant Interest Period and in an amount that is
representative for a single transaction in that market at that
time; and
(B) determine the arithmetic mean (rounded, if necessary, to the
nearest one hundred thousandth of a percentage point, 0.000005
being rounded upwards) of such quotations; and
(iii) if fewer than two such quotations are provided as requested, the
Agent Bank will determine the arithmetic mean (rounded, if necessary,
as aforesaid) of the rates quoted by major banks in the EuroZone
interbank market, selected by the Agent Bank, at approximately 11.00
a.m. (Brussels time) on the Interest Determination Date for loans in
euro to leading European banks for a period equal to the relevant
Interest Period and in an amount that is representative for a single
transaction in that market at that time,
PROVIDED THAT if the Agent Bank is unable to determine EURIBOR in
accordance with the above provisions in relation to any Interest Period, the
Rate of Interest applicable to the notes during such Interest Period will be the
sum of the then Margin and the EURIBOR last determined in relation to such notes
in respect of a preceding Interest Period.
- 69 -
The Agent Bank will, as soon as practicable after the Interest
Determination Date in relation to each Interest Period, calculate the amount of
interest (the "INTEREST AMOUNT") payable in respect of the notes for such
Interest Period. The Interest Amount in respect of the notes will be calculated
by applying the relevant Rate of Interest for such Interest Period to the
Principal Amount Outstanding of the notes during such Interest Period and
multiplying the product by the relevant Day Count Fraction and rounding the
resulting figure to the nearest euro 0.01 (half of a cent being rounded
upwards).
(d) Specific Provision: Fixed Rate Sterling Notes (Option 1)
This Condition 6(d) is applicable to the notes if the Specified Currency is
sterling and the notes are designated to be fixed rate notes (Option 1).
Each Note bears interest on its Principal Amount Outstanding from (and
including) the Interest Commencement Date. Interest in respect of the notes is
payable in arrear in sterling on each Interest Payment Date.
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on any
class of notes on that Interest Payment Date, that shortfall will be borne by
each note in that class in a proportion equal to the proportion that the
interest outstanding on the relevant note bears to the total amount of interest
outstanding on all the notes of that class. This will be determined on the
Interest Payment Date on which the shortfall arises. Payment of the shortfall
will be deferred and will be due on the next Interest Payment Date on which
funds are available to the issuing entity, or, if earlier, the Final Redemption
Date, from payments made to it from the swap counterparty or otherwise on that
Interest Payment Date, to make the payment The shortfall will accrue interest at
the rate described for each class of note below plus a margin of 2.0 per cent,
per annum, and payment of that interest will also be deferred and will be due on
the next Interest Payment Date on which funds are available to the issuing
entity to make the payment or, if earlier, on the Final Redemption Date.
"INTEREST PAYMENT DATE" means the following dates:
(i) during any period that is not an Amortisation Period, the First Interest
Payment Date and each Regular Interest Payment Date (as specified in the
relevant prospectus supplement/final terms); and
(ii) during an Amortisation Period, each Payment Date.
Each period beginning on (and including) the Interest Commencement Date or
any Interest Payment Date and ending on (but excluding) the next Interest
Payment Date is herein called an "INTEREST PERIOD"; provided, however, that
where the Floating Rate Commencement Date is a date falling prior to the
Scheduled Redemption Date, with respect to an Interest Period that commences
during the Revolving Period or the Controlled Accumulation Period and ends
during the Regulated Amortisation Period or the Rapid Amortisation Period, such
Interest Period will end on, and exclude, the Floating Rate Commencement Date.
Subject to the following paragraph, each Note bears interest at the Initial
Rate on its Principal Amount Outstanding during the period from (and including)
the Interest Commencement Date to, but excluding, the Floating Rate Commencement
Date (the "INITIAL PERIOD"). Interest in respect of the notes during the Initial
Period is payable in arrear in sterling on each Regular Interest Payment Date
and the final Interest Payment Date during the Initial Period shall be the
earlier of the Scheduled Redemption Date or the Payment Date of the first month
falling in the Regulated Amortisation Period or the Rapid Amortisation Period.
The amount of the interest payable (the "INTEREST AMOUNT") in respect of
the notes for any Interest Period during the Initial Period shall be calculated
by applying the Initial Rate to the Principal Amount Outstanding of the notes,
multiplying the resulting product by the relevant Day Count Fraction, and
rounding the resultant figure to the nearest sterling 0.01 (half of a penny
being rounded upwards).
However, in the event that the Regulated Amortisation Period or the Rapid
Amortisation Period has commenced, then from and including the Floating Rate
Commencement Date to, but
- 70 -
excluding, the Final Redemption Date (the "REDEMPTION PERIOD"), each Note bears
interest at a floating rate on its Principal Amount Outstanding to be determined
in accordance with the provisions below, payable in arrear on each Payment Date.
During the Redemption Period, each period beginning on, and including, a Payment
Date to but excluding the next Payment Date is called an "INTEREST PERIOD".
The Rate of Interest applicable to the notes which are the subject of this
Condition 6(d) (the "REDEMPTION RATE") for each Interest Period during the
Redemption Period will be determined by the Agent Bank as the sum of the then
Margin and LIBOR for the relevant Interest Period.
LIBOR shall be determined on the following basis:
(i) on the Floating Rate Commencement Date in respect of the first Interest
Period during the Redemption Period and thereafter on each "INTEREST
DETERMINATION DATE", namely the first day of the Interest Period for which
the Redemption Rate will apply, the Agent Bank will determine the offered
quotation to leading banks in the London interbank market, for sterling
deposits for the relevant Interest Period, by reference to the display
designated as the British Bankers Association LIBOR Rates as quoted on the
Moneyline Reuters Monitor as Moneyline Reuters Screen LIBOR01 or (1) such
other page as may replace Moneyline Reuters Screen LIBOR01 on that service
for the purposes of displaying such information or (2) if that service
ceases to display such information, such page as displays such information
on such service (or, if more than one, that one previously approved in
writing by the Note Trustee) as may replace the Moneyline Reuters Monitor)
as at or about 11.00 a.m. (London time) on that date, (the "SCREEN RATE");
(ii) if, on any Interest Determination Date, the Screen Rate is unavailable, the
Agent Bank will:
(A) request each Reference Bank to provide the Agent Bank with its offered
quotation to leading banks in the London interbank market, for
sterling deposits for the relevant Interest Period, as at
approximately 11.00 a.m. (London time) on the Interest Determination
Date in question and in an amount that is representative for a single
transaction in that market at that time; and
(B) determine the arithmetic mean (rounded upwards to four decimal places)
of such quotations;
(iii) if, on any Interest Determination Date the Screen Rate is unavailable and
two or three of the Reference Banks provide offered quotations, LIBOR for
the relevant Interest Period shall be determined in accordance with the
provisions of paragraph (ii) on the basis of the arithmetic mean (rounded
upwards to four decimal places) of the offered quotations of those
Reference Banks providing the offered quotations; and
(iv) if fewer than two such quotations are provided by the Reference Banks as
requested, the Agent Bank will determine the arithmetic mean (rounded
upwards to four decimal places) of the rates quoted by major banks in
London, selected by the Agent Bank, at approximately 11.00 a.m. (London
time) on the first day of the relevant Interest Period for loans in
sterling to leading European banks for a period equal to the relevant
Interest Period and in an amount that is representative for a single
transaction in that market at that time,
PROVIDED THAT if the Agent Bank is unable to determine LIBOR in accordance
with the above provisions in relation to any Interest Period, the
Redemption Rate applicable to the notes in respect of such Interest Period
during the Redemption Period will be sum of the then Margin in respect of
the notes and LIBOR last determined in relation to the notes in respect of
the preceding Interest Period.
During the Redemption Period, the Agent Bank will, as soon as practicable
after the Interest Determination Date in relation to each Interest Period during
the Redemption Period, calculate the amount of interest (the "INTEREST AMOUNT")
payable in respect of the notes for such Interest Period. The Interest Amount
will be calculated by applying the Redemption Rate for
- 71 -
such Interest Period to the Principal Amount Outstanding of the notes during
such Interest Period and multiplying the product by the relevant Day Count
Fraction, and rounding the resulting figure to the nearest sterling 0.01 (half
of a penny being rounded upwards).
(e) Specific Provision: Fixed Rate Dollar Notes (Option 1)
This Condition 6(e) is applicable to the notes if the Specified Currency is
US dollars and the notes are designated to be fixed rate notes (Option 1).
Each Note bears interest on its Principal Amount Outstanding from (and
including) the Interest Commencement Date. Interest in respect of the notes is
payable in arrear in US dollars on each Interest Payment Date.
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on any
class of notes on that Interest Payment Date, that shortfall will be borne by
each note in that class in a proportion equal to the proportion that the
interest outstanding on the relevant note bears to the total amount of interest
outstanding on all the notes of that class. This will be determined on the
Interest Payment Date on which the shortfall arises. Payment of the shortfall
will be deferred and will be due on the next Interest Payment Date on which
funds are available to the issuing entity, or, if earlier, the Final Redemption
Date, from payments made to it from the swap counterparty or otherwise on that
Interest Payment Date, to make the payment The shortfall will accrue interest at
the rate described for each class of note below plus a margin of 2.0 per cent,
per annum, and payment of that interest will also be deferred and will be due on
the next Interest Payment Date on which funds are available to the issuing
entity to make the payment or, if earlier, on the Final Redemption Date.
"INTEREST PAYMENT DATE" means the following dates:
(i) during any period that is not an Amortisation Period, the First Interest
Payment Date and each Regular Interest Payment Date (as specified in the
relevant prospectus supplement/final terms); and
(ii) during an Amortisation Period, each Payment Date. (ii)
Each period beginning on (and including) the Interest Commencement Date or
any Interest Payment Date and ending on (but excluding) the next Interest
Payment Date is herein called an "INTEREST PERIOD"; provided however, that,
where the Floating Rate Commencement Date is a date falling prior to the
Scheduled Redemption Date, with respect to an Interest Period that commences
during the Revolving Period or the Controlled Accumulation Period and ends
during the Regulated Amortisation Period or the Rapid Amortisation Period, such
Interest Period will end on, and exclude, the Floating Rate Commencement Date.
Subject to the following paragraph, each Note bears interest at the Initial
Rate on its Principal Amount Outstanding during the period from (and including)
the Interest Commencement Date to, but excluding, the Floating Rate Commencement
Date (the "INITIAL PERIOD"). Interest in respect of such Note during the Initial
Period is payable in arrear in US dollars on each Regular Interest Payment Date
and the Final Interest Payment Date during the Initial Period shall be the
Scheduled Redemption Date.
The amount of the interest payable (the "INTEREST AMOUNT") in respect of
the notes for any Interest Period during the Initial Period shall be calculated
by applying the Initial Rate to the Principal Amount Outstanding of the notes,
multiplying the resulting product by the relevant Day Count Fraction, and
rounding the resultant figure to the nearest US dollar 0.01 (half of a cent
being rounded upwards).
However, in the event that the Regulated Amortisation Period or the Rapid
Amortisation Period has commenced, then from and including the Floating Rate
Commencement Date to, but excluding, the Final Redemption Date (the "REDEMPTION
PERIOD"), each Note bears interest at a floating rate on its Principal Amount
Outstanding to be determined in accordance with the provisions below, payable in
arrear on each Payment Date. During the Redemption Period, each period beginning
on, and including, a Payment Date to but excluding the next Payment Date is
called an "INTEREST PERIOD".
- 72 -
The Rate of Interest applicable to the notes which are the subject of this
Condition 6(e) (the "REDEMPTION RATE") for each Interest Period during the
Redemption Period will be determined by the Agent Bank as the sum of the then
Margin and LIBOR for the relevant Interest Period.
LIBOR shall be determined on the following basis:
(i) on each Quotation Date during the Redemption Period, the Agent Bank will
determine the offered quotation to leading banks in the London interbank
market - called LIBOR - for onemonth US dollar deposits.
This will be determined by reference to the British Bankers Association
LIBOR Rates display as quoted on the Bridge Reuters monitor as Reuters Screen
LIBOR01. If the Reuters Screen LIBOR01 stops providing these quotations, the
replacement service for the purposes of displaying this information will be
used. If the replacement service stops displaying the information, any page
showing this information will be used. If there is more than one service
displaying the information, the one approved in writing by the Note Trustee in
its sole discretion will be used.
In each case above, the determination will be made as at or about 11.00
a.m. London time, on that date. These are called the "SCREEN RATES".
A "QUOTATION DATE" means the second London Business Day before the Floating
Rate Commencement Date in respect of the first Interest Period during the
Redemption Period and thereafter the second London Business Day before the first
day of an Interest Period. if, on any Quotation Date, a Screen Rate is
unavailable, the Agent Bank will:
(ii) if, on any Quotation Date, a Screen Rate is unavailable, the Agent Bank
will:
(1) request each Reference Bank to provide the Agent Bank with its offered
quotation to leading banks of the equivalent of that Screen Rate on
that Quotation Date in an amount that represents a single transaction
in that market at that time; and
(2) determine the arithmetic mean rounded upwards to four decimal places,
of those quotations;
(iii) if, on any Quotation Date, the Screen Rate is unavailable and only two or
three of the Reference Banks provide offered quotations, LIBOR for that
Interest Period will be the arithmetic mean of the quotations provided by
those Reference Banks calculated in the manner described in (ii) above; and
(iv) if fewer than two Reference Banks provide quotations, the Agent Bank will
determine (in its absolute discretion) the arithmetic mean (rounded upwards
to four decimal places) of the leading rates quoted by major banks in
London - selected by the Agent Bank at approximately 11.00 a.m. London time
on the relevant Quotation Date - to leading European banks for a period
equal to the relevant Interest Period and in an amount that is
representative for a single transaction in that market at that time, for
loans in US dollars.
During the Redemption Period, the Agent Bank will, as soon as practicable
after the Quotation Date in relation to each Interest Period during the
Redemption Period, calculate the amount of interest (the "INTEREST AMOUNT")
payable in respect of the notes for such Interest Period. The Interest Amount
will be calculated by applying the Redemption Rate for such Interest Period to
the Principal Amount Outstanding of the notes during such Interest Period and
multiplying the product by the relevant Day Count Fraction, and rounding the
resulting figure to the nearest US dollar 0.01 (half of a cent being rounded
upwards).
(f) Specific Provision: Fixed Rate Euro Notes (Option 1)
This Condition 6(f) is applicable to the notes if the Specified Currency
is euro and the notes are designated to be fixed rate notes (Option 1).
- 73 -
Each Note bears interest on its Principal Amount Outstanding from (and
including) the Interest Commencement Date. Interest in respect of the notes is
payable in arrear in euro on each Interest Payment Date.
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on any
class of notes on that Interest Payment Date, that shortfall will be borne by
each note in that class in a proportion equal to the proportion that the
interest outstanding on the relevant note bears to the total amount of interest
outstanding on all the notes of that class. This will be determined on the
Interest Payment Date on which the shortfall arises. Payment of the shortfall
will be deferred and will be due on the next Interest Payment Date on which
funds are available to the issuing entity, or, if earlier, the Final Redemption
Date, from payments made to it from the swap counterparty or otherwise on that
Interest Payment Date, to make the payment The shortfall will accrue interest
at the rate described for each class of note below plus a margin of 2.0 per
cent, per annum, and payment of that interest will also be deferred and will be
due on the next Interest Payment Date on which funds are available to the
issuing entity to make the payment or, if earlier, on the Final Redemption Date.
"INTEREST PAYMENT DATE" means the following dates:
(i) during any period that is not an Amortisation Period, the First Interest
Payment Date and each Regular Interest Payment Date (as specified in the
relevant prospectus supplement/final terms); and
(ii) during an Amortisation Period, each Payment Date.
Each period beginning on (and including) the Interest Commencement Date or
any Interest Payment Date and ending on (but excluding) the next Interest
Payment Date is herein called an "INTEREST PERIOD"; provided, however, that,
where the Floating Rate Commencement Date is a date falling prior to the
Scheduled Redemption Date, with respect to an Interest Period that commences
during the Revolving Period or the Controlled Accumulation Period and ends
during the Regulated Amortisation Period or the Rapid Amortisation Period, such
Interest Period will end on, and exclude, the Floating Rate Commencement Date.
Subject to the following paragraph, each Note bears interest at the Initial
Rate on its Principal Amount Outstanding during the period from (and including)
the Interest Commencement Date to, but excluding, the Floating Rate Commencement
Date (the "INITIAL PERIOD"). Interest in respect of such Note during the Initial
Period is payable in arrear in euro on each Regular Interest Payment Date and
the Final Interest Payment Date during the Initial Period shall be the Scheduled
Redemption Date.
The amount of the interest payable (the "INTEREST AMOUNT") in respect of
the notes for any Interest Period during the Initial Period shall be calculated
by applying the Initial Rate to the Principal Amount Outstanding of the notes,
multiplying the resulting product by the relevant Day Count Fraction, and
rounding the resultant figure to the nearest euro 0.01 (half of a cent being
rounded upwards).
However, in the event that the Regulated Amortisation Period or the Rapid
Amortisation Period has commenced, then from and including the Floating Rate
Commencement Date to, but excluding, the Final Redemption Date (the "REDEMPTION
PERIOD"), each Note bears interest at a floating rate on its Principal Amount
Outstanding to be determined in accordance with the provisions below, payable in
arrear on each Payment Date. During the Redemption Period, each period beginning
on, and including, a Payment Date to but excluding the next Payment Date is
called an "Interest Period".
The Rate of Interest applicable to the notes which are the subject of this
Condition 6(f) (the "REDEMPTION RATE") for each Interest Period during the
Redemption Period will be determined by the Agent Bank as the sum of the then
Margin and EURIBOR for the relevant Interest Period.
- 74 -
EURIBOR shall be determined on the following basis:
(i) on the second TARGET Settlement Day before the Floating Rate Commencement
Date in respect of the first Interest Period during the Redemption Period
and thereafter on each "INTEREST DETERMINATION DATE", namely 11.00 a.m.
(Brussels time) on the second TARGET Settlement Day before the first day of
the Interest Period for which the rate will apply, the Agent Bank will
determine the offered quotation to prime banks in the EuroZone interbank
market for euro deposits for the relevant Interest Period, by reference to
(1) on the display page designated EURIBOR01 on the Dow Jones Reuters
Service (or such other page as may replace that page on that service, or
such other service as may be nominated by the Agent Bank as the information
vendor, for the purpose of displaying comparable rates) as of the Interest
Determination Date or (2) if that service ceases to display such
information, such page as displays such information on such service (or, if
more than one, that one previously approved in writing by the Note Trustee)
as may replace the Dow Jones Monitor as at or about 11.00 a.m. (Brussels
time) on that date (the "SCREEN RATE");
(ii) if, on any Interest Determination Date, the Screen Rate is unavailable, the
Agent Bank will:
(1) request the principal EuroZone office of each of four major banks in
the EuroZone interbank market to provide a quotation of the rate at
which deposits in euro are offered by it at approximately 11.00 a.m.
(Brussels time) on the Interest Determination Date to prime banks in
the eurozone interbank market for a period equal to the relevant
Interest Period and in an amount that is representative for a single
transaction in that market at that time; and
(2) determine the arithmetic mean (rounded, if necessary, to the nearest
one hundred thousandth of a percentage point, 0.000005 being rounded
upwards) of such quotations; and
(iii) if fewer than two such quotations are provided as requested, the Agent
Bank will determine the arithmetic mean (rounded, if necessary, as
aforesaid) of the rates quoted by major banks in the EuroZone interbank
market, selected by the Agent Bank, at approximately 11.00 a.m. (Brussels
time) on the Interest Determination Date for loans in euro to leading
European banks for a period equal to the relevant Interest Period and in an
amount that is representative for a single transaction in that market at
that time,
PROVIDED THAT if the Agent Bank is unable to determine EURIBOR in accordance
with the above provisions in relation to any Interest Period, the Redemption
Rate applicable to the notes during such Interest Period will be the sum of the
then Margin and EURIBOR last determined in relation to such notes in respect
of the preceding Interest Period.
During the Redemption Period, the Agent Bank will, as soon as practicable
after the Interest Determination Date in relation to each Interest Period during
the Redemption Period, calculate the amount of interest (the "INTEREST AMOUNT")
payable in respect of the notes for such Interest Period. The Interest Amount
will be calculated by applying the Redemption Rate for such Interest Period to
the Principal Amount Outstanding of the notes during such Interest Period and
multiplying the product by the relevant Day Count Fraction, and rounding the
resulting figure to the nearest euro 0.01 (half of a cent being rounded
upwards).
(g) Specific Provision: Fixed Rate Sterling Notes (Option 2)
This Condition 6(g) is applicable to the notes if the Specified Currency is
sterling and the notes are designated to be fixed rate notes (Option 2).
- 75 -
Each Note bears interest on its Principal Amount Outstanding from (and
including) the Interest Commencement Date. Interest in respect of the notes is
payable in arrear in sterling on each Interest Payment Date.
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on any
class of notes on that Interest Payment Date, that shortfall will be borne by
each note in that class in a proportion equal to the proportion that the
interest outstanding on the relevant note bears to the total amount of interest
outstanding on all the notes of that class. This will be determined on the
Interest Payment Date on which the shortfall arises. Payment of the shortfall
will be deferred and will be due on the next Interest Payment Date on which
funds are available to the issuing entity, or, if earlier, the Final Redemption
Date, from payments made to it from the swap counterparty or otherwise on that
Interest Payment Date, to make the payment The shortfall will accrue interest at
the rate described for each class of note below plus a margin of 2.0 per cent,
per annum, and payment of that interest will also be deferred and will be due on
the next Interest Payment Date on which funds are available to the issuing
entity to make the payment or, if earlier, on the Final Redemption Date.
"INTEREST PAYMENT DATE" means the First Interest Payment Date and each
Regular Interest Payment Date (as specified in the relevant prospectus
supplement/final terms).
Each period beginning on (and including) any Interest Payment Date and
ending on (but excluding) the next Interest Payment Date is herein called an
"INTEREST PERIOD".
Subject to the following paragraph, each Note bears interest at the Initial
Rate on its Principal Amount Outstanding during the period from (and including)
the Interest Commencement Date. Interest in respect of such Note is payable in
arrear in sterling on each Regular Interest Payment Date.
The amount of the interest payable (the "INTEREST AMOUNT") in respect of
the notes for any Interest Period shall be calculated by applying the Initial
Rate to the Principal Amount Outstanding of the notes, multiplying the resulting
product by the relevant Day Count Fraction, and rounding the resultant figure to
the nearest sterling 0.01 (half of a pence being rounded upwards).
(h) Specific Provision: Fixed Rate Dollar Notes (Option 2)
This Condition 6(h) is applicable to the notes if the Specified Currency is
US dollars and the notes are designated to be fixed rate notes (Option 2).
Each Note bears interest on its Principal Amount Outstanding from (and
including) the Interest Commencement Date. Interest in respect of the notes is
payable in arrear in US dollars on each Interest Payment Date.
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on any
class of notes on that Interest Payment Date, that shortfall will be borne by
each note in that class in a proportion equal to the proportion that the
interest outstanding on the relevant note bears to the total amount of interest
outstanding on all the notes of that class. This will be determined on the
Interest Payment Date on which the shortfall arises. Payment of the shortfall
will be deferred and will be due on the next Interest Payment Date on which
funds are available to the issuing entity, or, if earlier, the Final Redemption
Date, from payments made to it from the swap counterparty or otherwise on that
Interest Payment Date, to make the payment The shortfall will accrue interest at
the rate described for each class of note below plus a margin of 2.0 per cent,
per annum, and payment of that interest will also be deferred and will be due on
the next Interest Payment Date on which funds are available to the issuing
entity to make the payment or, if earlier, on the Final Redemption Date.
"INTEREST PAYMENT DATE" means the First Interest Payment Date and each
Regular Interest Payment Date (as specified in the relevant prospectus
supplement/final terms).
Each period beginning on (and including) any Interest Payment Date and
ending on (but excluding) the next Interest Payment Date is herein called an
"INTEREST PERIOD".
- 76 -
Subject to the following paragraph, each Note bears interest at the Initial
Rate on its Principal Amount Outstanding during the period from (and including)
the Interest Commencement Date. Interest in respect of the such Note is payable
in arrear in US dollars on each Regular Interest Payment Date.
The amount of the interest payable (the "INTEREST AMOUNT") in respect of
the notes for any Interest Period shall be calculated by applying the Initial
Rate to the Principal Amount Outstanding of the notes, multiplying the resulting
product by the relevant Day Count Fraction, and rounding the resultant figure to
the nearest US dollar 0.01 (half of a cent being rounded upwards).
(i) Specific Provision: Fixed Rate Euro Notes (Option 2)
This Condition 6(i) is applicable to the notes if the Specified Currency is
euro and the notes are designated to be fixed rate notes (Option 2).
Each Note bears interest on its Principal Amount Outstanding from (and
including) the Interest Commencement Date. Interest in respect of the notes is
payable in arrear in euro on each Interest Payment Date.
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on any
class of notes on that Interest Payment Date, that shortfall will be borne by
each note in that class in a proportion equal to the proportion that the
interest outstanding on the relevant note bears to the total amount of interest
outstanding on all the notes of that class. This will be determined on the
Interest Payment Date on which the shortfall arises. Payment of the shortfall
will be deferred and will be due on the next Interest Payment Date on which
funds are available to the issuing entity, or, if earlier, the Final Redemption
Date, from payments made to it from the swap counterparty or otherwise on that
Interest Payment Date, to make the payment The shortfall will accrue interest at
the rate described for each class of note below plus a margin of 2.0 per cent,
per annum, and payment of that interest will also be deferred and will be due on
the next Interest Payment Date on which funds are available to the issuing
entity to make the payment or, if earlier, on the Final Redemption Date.
"INTEREST PAYMENT DATE" means the First Interest Payment Date and each
Regular Interest Payment Date (as specified in the relevant prospectus
supplement/final terms).
Each period beginning on (and including) any Interest Payment Date and
ending on (but excluding) the next Interest Payment Date is herein called an
"INTEREST PERIOD".
Subject to the following paragraph, each Note bears interest at the Initial
Rate on its Principal Amount Outstanding during the period from (and including)
the Interest Commencement Date. Interest in respect of the such Note is payable
in arrear in euro on each Regular Interest Payment Date.
The amount of the interest payable (the "INTEREST AMOUNT") in respect of
the notes for any Interest Period shall be calculated by applying the Initial
Rate to the Principal Amount Outstanding of the notes, multiplying the resulting
product by the relevant Day Count Fraction, and rounding the resultant figure to
the nearest euro 0.01 (half of a cent being rounded upwards).
(j) Specific Provision: Fixed Rate Dollar Notes (Option 3)
This Condition 6(j) is applicable to the notes if the Specified Currency is
US dollars and the notes are designated to be fixed rate notes (Option 3).
Each Note bears interest on its Principal Amount Outstanding from (and
including) the Interest Commencement Date. Interest in respect of the notes is
payable in arrear in US dollars on each Interest Payment Date.
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on any
class of notes on that Interest Payment Date, that shortfall will be borne by
each note in that class in a proportion equal to the proportion that the
interest outstanding on the relevant note bears to the total amount of interest
- 77 -
outstanding on all the notes of that class. This will be determined on the
Interest Payment Date on which the shortfall arises. Payment of the shortfall
will be deferred and will be due on the next Interest Payment Date on which
funds are available to the issuing entity, or, if earlier, the Final Redemption
Date, from payments made to it from the swap counterparty or otherwise on that
Interest Payment Date, to make the payment The shortfall will accrue interest at
the rate described for each class of note below plus a margin of 2.0 per cent,
per annum, and payment of that interest will also be deferred and will be due on
the next Interest Payment Date on which funds are available to the issuing
entity to make the payment or, if earlier, on the Final Redemption Date.
"INTEREST PAYMENT DATE" means the following dates:
(i) during any period that is not an Amortisation Period, the First Interest
Payment Date and each Regular Interest Payment Date (as specified in the
relevant prospectus supplement/final terms); and
(ii) during an Amortisation Period, each Payment Date.
Each period beginning on (and including) the Interest Commencement Date or
any Interest Payment Date and ending on (but excluding) the next Interest
Payment Date is herein called an "INTEREST PERIOD"; provided, however, that,
where the Floating Rate Commencement Date is a date falling prior to the
Scheduled Redemption Date with respect to an Interest Period that commences
during the Revolving Period or the Controlled Accumulation Period and ends
during the Regulated Amortisation Period or the Rapid Amortisation Period, such
Interest Period will end on, and exclude the Floating Rate Commencement Date.
Subject to the second following paragraph, each Note bears interest at the
Initial Rate on its Principal Amount Outstanding during the period from (and
including) the Interest Commencement Date to, but excluding, the Floating Rate
Commencement Date (the "INITIAL PERIOD"). Interest in respect of the such Note
during the Initial Period is payable in arrear in US dollars on each Regular
Interest Payment Date and the Final Interest Payment Date during the Initial
Period shall be the Scheduled Redemption Date.
The amount of the interest payable (the "INTEREST AMOUNT") in respect of
the notes for any Interest Period during the Initial Period shall be calculated
by applying the Initial Rate to the Principal Amount Outstanding of the notes,
multiplying the resulting product by the relevant Day Count Fraction, and
rounding the resultant figure to the nearest US dollar 0.01 (half of a cent
being rounded upwards).
However, in the event that the Regulated Amortisation Period or the Rapid
Amortisation Period has commenced, then from and including the Floating Rate
Commencement Date to, but excluding, the Final Redemption Date (the "REDEMPTION
PERIOD"), each Note bears interest on its Principal Amount Outstanding in
accordance with this Condition 6(j), but subject as provided in the following
paragraph, payable in arrear on each Payment Date. During the Redemption Period,
each period beginning on, and including, a Payment Date to but excluding the
next Payment Date is called an "INTEREST PERIOD". For the avoidance of doubt, a
fixed Rate of Interest shall be payable throughout the Redemption Period.
During the Redemption Period, the obligations of the Issuing Entity to pay
interest on the Principal Amount Outstanding of the notes on each Payment Date
shall be satisfied in full by the Issuing Entity paying to the Principal Paying
Agent amounts equal to all interest amounts standing to the credit of the
relevant Distribution Ledger for the notes on such Payment Date. Interest will
be payable on the relevant notes by the relevant Paying Agent in accordance with
the provisions of the Agency Agreement.
(k) Specific Provision: Fixed Rate Euro Notes (Option 3)
This Condition 6(k) is applicable to the notes if the Specified Currency is
euro and the notes are designated to be fixed rate notes (Option 3).
Each Note bears interest on its Principal Amount Outstanding from (and
including) the Interest Commencement Date. Interest in respect of the notes is
payable in arrear in euro on each Interest Payment Date.
- 78 -
If there is a shortfall between the amounts received by the issuing entity
from the swap counterparty or otherwise and the amount of interest due on any
class of notes on that Interest Payment Date, that shortfall will be borne by
each note in that class in a proportion equal to the proportion that the
interest outstanding on the relevant note bears to the total amount of interest
outstanding on all the notes of that class. This will be determined on the
Interest Payment Date on which the shortfall arises. Payment of the shortfall
will be deferred and will be due on the next Interest Payment Date on which
funds are available to the issuing entity, or, if earlier, the Final Redemption
Date, from payments made to it from the swap counterparty or otherwise on that
Interest Payment Date, to make the payment The shortfall will accrue interest at
the rate described for each class of note below plus a margin of 2.0 per cent,
per annum, and payment of that interest will also be deferred and will be due on
the next Interest Payment Date on which funds are available to the issuing
entity to make the payment or, if earlier, on the Final Redemption Date.
"INTEREST PAYMENT DATE" means the following dates:
(i) during any period that is not an Amortisation Period, the First Interest
Payment Date and each Regular Interest Payment Date (as specified in the
relevant prospectus supplement/final terms); and
(ii) during an Amortisation Period, each Payment Date.
Each period beginning on (and including) the Interest Commencement Date or
any Interest Payment Date and ending on (but excluding) the next Interest
Payment Date is herein called an "INTEREST PERIOD"; provided, however, that,
where the Floating Rate Commencement Date is a date falling prior to the
Scheduled Redemption Date, with respect to an Interest Period that commences
during the Revolving Period or the Controlled Accumulation Period and ends
during the Regulated Amortisation Period or the Rapid Amortisation Period, such
Interest Period will end on, and exclude, the Floating Rate Commencement Date.
Subject to the second following paragraph, each Note bears interest at the
Initial Rate on its Principal Amount Outstanding during the period from (and
including) the Interest Commencement Date to, but excluding, the Floating Rate
Commencement Date (the "INITIAL PERIOD"). Interest in respect of the such Note
during the Initial Period is payable in arrear in euro on each Regular Interest
Payment Date and the Final Interest Payment Date during the Initial Period shall
be the Scheduled Redemption Date.
The amount of the interest payable (the "Interest Amount") in respect of
the notes for any Interest Period during the Initial Period shall be calculated
by applying the Initial Rate to the Principal Amount Outstanding of the notes,
multiplying the resulting product by the relevant Day Count Fraction, and
rounding the resultant figure to the nearest euro 0.01 (half of a cent being
rounded upwards).
However, in the event that the Regulated Amortisation Period or the Rapid
Amortisation Period has commenced, then from and including the Floating Rate
Commencement Date to, but excluding, the Final Redemption Date (the "REDEMPTION
PERIOD"), each Note bears interest on its Principal Amount Outstanding in
accordance with this Condition 6(k), but subject as provided in the following
paragraph, payable in arrear on each Payment Date. During the Redemption Period,
each period beginning on, and including, a Payment Date to but excluding the
next Payment Date is called an "INTEREST PERIOD". For the avoidance of doubt, a
fixed Rate of Interest shall be payable throughout the Redemption Period.
During the Redemption Period, the obligations of the Issuing Entity to pay
interest on the Principal Amount Outstanding of the notes on each Payment Date
shall be satisfied in full by the Issuing Entity paying to the Principal Paying
Agent amounts equal to all interest amounts standing to the credit of the
relevant Distribution Ledger for the notes on such Payment Date. Interest will
be payable on the relevant notes by the relevant Paying Agent in accordance with
the provisions of the Agency Agreement.
(l) General Provision: Deferred Interest and Additional Interest
To the extent that the monies which are deposited in the relevant Series
Issuing Entity Distribution Account to the credit of the relevant Distribution
Ledger for a Series by the medium
- 79 -
term note certificate on an Interest Payment Date in accordance with the
provisions of the related medium term note certificate are insufficient to pay
the full amount of interest on the relevant Class or Sub-Class of notes of such
Series on such Interest Payment Date, payment of the interest shortfall
("DEFERRED INTEREST"), which will be borne by each Note of that class or
Sub-Class of the relevant Series in a proportion equal to the proportion that
the Principal Amount Outstanding of the Note of the relevant Class or Sub-Class
of such Series bears to the aggregate Principal Amount Outstanding of the
relevant notes of the relevant Series (as determined on the Interest Payment
Date on which such Deferred Interest arises), will be deferred until the
Interest Payment Date occurring thereafter on which funds are available to the
Issuing Entity (by being deposited to the relevant Series Issuing Entity
Distribution Account to the credit of the Distribution Ledger of the relevant
Class or Sub-Class for that Series by the MTN issuing entity on such Interest
Payment Date) to pay such Deferred Interest to the extent of such available
funds. Such Deferred Interest will accrue interest ("ADDITIONAL INTEREST") at
the then current Rate of Interest (or in the case of a fixed rate Note which may
become a floating rate Note, the Initial Rate (during the Initial Period) or the
Redemption Rate (during the Redemption Period)) applicable to that Class or
Sub-Class, and payment of any Additional Interest will also be deferred until
the Interest Payment Date thereafter on which funds are available to the Issuing
Entity (by being deposited to the relevant Series Issuing Entity Distribution
Account to the credit of the Distribution Ledger of the relevant Class or
Sub-Class for such a Series by the MTN issuing entity on such Interest Payment
Date in accordance with the provisions of the medium term note certificate) to
pay such Additional Interest to the extent of such available funds.
(m) General Provision: Calculation of Interest Amount
On each Interest Payment Date, the Agent Bank shall determine the actual
amount of interest which will be paid on the notes on that Interest Payment Date
and the amount of Deferred Interest (if any) on the notes in respect of the
related Interest Period and the amount of Additional Interest (if any) which
will be paid on such Interest Payment Date. The amount of Additional Interest
shall be calculated by applying the then current relevant Rate of Interest,
Initial Rate or, as the case may be, Redemption Rate for the notes to the sum of
the Deferred Interest and any Additional Interest from prior Interest Periods
which remains unpaid and multiplying such sum by the relevant Day Count
Fraction.
In the event that, on any Interest Payment Date, the amount of monies which
are deposited to the Series Issuing Entity Distribution Account for a Series by
the MTN issuing entity on such day in accordance with the provisions of the
medium term note certificate is insufficient to pay in full the Interest Amount,
any outstanding Deferred Interest and any Additional Interest due on such
Interest Payment Date in respect of any Class or Sub-Class of notes, such monies
will be applied first to the payment of any Interest Amount, secondly to the
payment of any outstanding Deferred Interest and thereafter to the payment of
any Additional Interest in respect of the relevant Class or Sub-Class.
(n) General Provision: Interest cease to accrue
Interest will cease to accrue on any part of the Principal Amount
Outstanding of a Note from the Scheduled Redemption Date unless, upon due
presentation, payment of principal is improperly withheld or refused or default
is otherwise made in the payment thereof, in which case it will continue to bear
interest in accordance with this Condition (as well after as before judgement)
until whichever is the earlier of (i) the day on which all sums due in respect
of such Note up to that day are received by or on behalf of the relevant
Noteholder and (ii) the day which is seven days after the Principal Paying Agent
or the Note Trustee has notified the relevant Noteholders either in accordance
with Condition 15 or individually that it has received all sums due in respect
of the relevant notes up to such seventh day (except to the extent that there is
any subsequent default in payment).
(o) General Provision: Failure of Agent Bank
If the Agent Bank fails at any time to determine a Rate of Interest or to
calculate an Interest Amount or amount of Deferred Interest (if any) or amount
of Additional Interest (if any), the Note Trustee, or its appointed agent
without any liability therefor, may determine such Rate of Interest as it
considers fair and reasonable in the circumstances (having such regard as it
thinks to the other provisions of these Conditions, including paragraph (l) or
(n) above (as applicable))
- 80 -
or, as the case may be, calculate such Interest Amount or amount of
Deferred Interest (if any) or amount of Additional Interest (if any), in
accordance with paragraph (m) above, and each such determination or calculation
shall be deemed to have been made by the Agent Bank.
(p) General Provision: Publication
The Agent Bank will cause each Rate of Interest, Interest Amount, amount of
Deferred Interest (if any) and amount of Additional Interest (if any) determined
by it, together with the relevant Interest Payment Date, to be notified to the
Issuing Entity, the Paying Agents, the Note Trustee and, for so long as the
respective notes are admitted to trading on the Regulated Market of the London
Stock Exchange plc (the "REGULATED MARKET OF THE LONDON STOCK EXCHANGE"), the
Regulated Market of the London Stock Exchange as soon as practicable after such
determination but in any event not later than the seventh day thereafter or such
earlier day as the Regulated Market of the London Stock Exchange may require and
the Agent Bank will cause the same to be notified to the Noteholders in
accordance with Condition 15 as soon as possible thereafter. The Agent Bank will
be entitled to recalculate any Interest Amount and amount of Additional Interest
(on the basis of the foregoing provisions) without notice in the event of an
extension or shortening of the relevant Interest Period.
(q) General Provision: Notifications etc.
All notifications, opinions, determinations, certificates, calculations,
quotations and decisions given, expressed, made or obtained for the purposes of
this Condition 6, whether by the Agent Bank or the Note Trustee will (in the
absence of wilful default, bad faith or manifest error) be binding on the
Issuing Entity, the Paying Agents, the Note Trustee, the Agent Bank and the
Noteholders and no liability to any such Person will attach to the Agent Bank or
the Note Trustee in connection with the exercise or nonexercise by them or of
them of their powers, duties and discretions for such purposes.
(7) REDEMPTION AND PURCHASE
The issuing entity is only entitled to redeem the notes as provided in
paragraphs (a), (b), (c) and (d) below.
(a) Scheduled Redemption
Class A notes:
Unless previously purchased and cancelled or unless the Regulated
Amortisation Period or Rapid Amortisation Period has already started, all class
A notes will be redeemed on the relevant Series Scheduled Redemption Date,
unless there is a shortfall between the amount in the Issuing Entity
Distribution Account and the total amount payable to class A noteholders in
sterling, if any, and to the swap counterparty under the class A swap agreement.
If there is such a shortfall, the class A notes will be redeemed proportionately
with the amount in the Issuing Entity Distribution Account after being exchanged
under the terms of the class A swap agreement. The Rapid Amortisation Period
will then begin. The payments will be made in no order of preference and
proportionately between all class A notes.
Class B notes:
Unless previously purchased and cancelled or unless the Regulated
Amortisation Period or the Rapid Amortisation Period has already started, the
class B notes will be redeemed on the relevant Series Scheduled Redemption Date
unless there is a shortfall between the amount in the Issuing Entity
Distribution Account, after payment of all interest and principal due and
payable on the class A notes, and the amount due and payable to the class B
noteholders in sterling, if any, and to the swap counterparty under the class B
swap agreement. If there is such a shortfall, the class B notes will be redeemed
proportionately with the amount in the Issuing Entity Distribution Account after
being exchanged under the terms of the class B swap agreement. The Rapid
Amortisation Period will then begin. The payments will be made, in no order of
preference and proportionately between all class B notes.
- 81 -
Class C notes:
Unless previously purchased and cancelled or unless the Regulated
Amortisation Period or the Rapid Amortisation Period has already started, the
class C notes will be redeemed on the Series Scheduled Redemption Date unless
there is a shortfall between the amount in the Issuing Entity Distribution
Account, after payment of all interest and principal due and payable on the
class A notes and the class B notes, and the amount due and payable to the class
C noteholders in sterling, if any, and to the swap counterparty under the class
C swap agreement. If there is such a shortfall, the class C notes will be
redeemed proportionately with the amount in the Issuing Entity Distribution
Account after being exchanged under the terms of the class C swap agreement. The
Rapid Amortisation Period will then begin. The payments will be made, in no
order of preference and proportionately between all class C notes.
Class D notes:
Unless previously purchased and cancelled or unless the Regulated
Amortisation Period or the Rapid Amortisation Period has already started, the
class D notes, if any, will be redeemed on the Series Scheduled Redemption Date
unless there is a shortfall between the amount in the Issuing Entity
Distribution Account, after payment of all interest and principal due and
payable on the class A notes, the class B notes and the class C notes, and the
amount due and payable to the class D noteholders in sterling, if any, and to
the swap counterparty under the class D swap agreement. If there is such a
shortfall, the class D notes will be redeemed proportionately with the amount in
the Issuing Entity Distribution Account after being exchanged under the terms of
the class D swap agreement. The Rapid Amortisation Period will then begin. The
payments will be made, in no order of preference and proportionately between all
class D notes.
If the Rapid Amortisation Period begins as a result of there being
insufficient funds to repay principal and pay interest on the class A notes, the
class B notes, the class C notes or the class D notes, as described above, then
on each Interest Payment Date after that, first the class A notes, second the
class B notes, third the class C notes and fourth the class D notes, will be
redeemed, to the extent of amounts available to the issuing entity, after being
exchanged under the Swap Agreements, for each note of a class in the proportion
that the principal amount outstanding of that note bears to the total Principal
Amount Outstanding of the notes of that class. This will happen until the
earlier of the time when each class of notes has been paid in full and the
Interest Payment Date.
On each Interest Payment Date, the agent bank will determine for each class
of notes the following:
(i) the amount of principal repayable on each note of that class; and
(ii) the Principal Amount Outstanding of each note of that class on the
first day of the next interest period, after deducting any principal
payment due to be made on each note of that class on that Interest Payment
Date.
The amounts and dates determined by the agent bank will be notified to the
issuing entity, the Paying Agents and the note trustee and published in
accordance with condition number 15 as soon as possible after these parties have
been notified.
The issuing entity, the Paying Agents, the note trustee and the Noteholders
will be bound by the determinations properly made as described above and neither
the agent bank nor the note trustee will be liable for the exercise or
nonexercise by it of its powers, duties and discretions for those purposes.
If the agent bank fails to make a determination as described above, the
note trustee will calculate the principal payment or Principal Amount
Outstanding as described above, and each of these determinations or calculations
will be deemed to have been made by the agent bank. If this happens, the
determination will be deemed to have been made by the agent bank.
(b) Mandatory Early Redemption or Mandatory Sale of Class B notes, Class C
notes and Class D notes to the issuing entity
- 82 -
If the Regulated Amortisation Period or the Rapid Amortisation Period
begins before the Series Scheduled Redemption Date, on each subsequent Interest
Payment Date to such event each class A note will be redeemed, then each class B
note will be redeemed, then each class C note will be redeemed and lastly each
class D note will be redeemed, in the proportion that its Principal Amount
Outstanding bears to the total Principal Amount Outstanding of the notes of that
class, to the extent of the amount which is deposited into the Issuing Entity
Distribution Account towards redemption of the medium term note certificate -
after the amount has been exchanged for dollars, euro or other currency, as
applicable, under the relevant swap agreement or by the note trustee in the spot
exchange market if the relevant swap agreement has been terminated. This will
happen until the earliest of:
(i) the date on which the relevant class of notes has been redeemed in full; or
(ii) the Final Redemption Date.
(c) Optional Redemption
The issuing entity may by not less than thirty and not more than sixty days
prior notice to the trustee and without the need to obtain the prior consent of
the note trustee or the Noteholders redeem all of the remaining notes on the
next following Interest Payment Date together with all accrued interest,
deferred interest and additional interest if any if the principal balance of the
remaining notes is less than 10 per cent. of their original principal balance
and the note trustee is satisfied that the issuing entity will have funds
available to it to make the required payment on that Interest Payment Date.
(d) Final Redemption
If the notes have not previously been purchased and cancelled or redeemed
in full as described in this condition number 7, the notes will be finally
redeemed at their then Principal Amount Outstanding on the Final Redemption
Date, together with, in each case, all accrued and unpaid interest, shortfall
and interest on shortfall, if any.
If, on the Final Redemption Date of a Note, the issuing entity is unable to
pay all amounts then due under the relevant Class of notes having used all funds
available to it in accordance with the applicable issuing entity priority of
payments, the issuing entity's obligation to pay any amount left outstanding to
the Noteholders under the relevant Class of notes and any claim that the
Noteholders may have against the issuing entity in respect of such outstanding
amounts will be extinguished. If there is a shortfall in interest, principal
and/or fee payments then due and payable pursuant to the terms of a Class of
Note, the issuing entity may not have sufficient funds to make payments on the
relevant Class of Note and the Noteholders may incur a loss on interest,
principal or other amounts which would otherwise be then due and payable on the
relevant Class of notes.
(e) Repricing Note Transfer
(i) Any repricing notes shall be transferred in accordance with paragraph (ii)
below on each related repricing transfer date prior to the occurrence of an
repricing termination event, in exchange for payment of such Repricing
Transfer Price and the issuing entity will procure payment of such
Repricing Transfer Price to the applicable repricing noteholders on the
relevant repricing transfer date provided that the issuing entity shall not
be liable for the failure to make payment of the Repricing Transfer Price
if such failure is a result of the failure of the market repricing agent to
perform its obligations under the relevant transaction documents.
(ii) Subject to paragraph (i) above, all the applicable repricing noteholders'
interests in the related repricing notes shall be transferred on the
relevant repricing transfer date to the account of the Incoming
Euroclear/Clearstream Repricing Noteholders or Incoming DTC Repricing
Noteholders. If definitive repricing notes have been issued, the applicable
repricing notes will be registered in the names of the Incoming
Euroclear/Clearstream Repricing Noteholders or Incoming DTC Repricing
Noteholders on the repricing transfer date by the Registrar and the
Register will be amended accordingly with effect from the relevant
repricing transfer date.
- 83 -
(8) PAYMENTS
Payments of principal and interest in respect of the notes will be made to
the persons in whose names the Note Certificates are registered on the register
at the opening of business in the place of the Registrar's specified office on
the fifteenth day before the due date for such payment. Such date is called the
"RECORD DATE". Payments will be made by wire transfer of immediately available
funds, if the registered holder has provided wiring instructions no less than
five Business Days prior to the Record Date, or otherwise by cheque mailed to
the address of the registered holder as it appears in the register at the
opening of business on the Record Date. In the case of the final redemption, and
PROVIDED THAT payment is made in full, payment will only be made against
surrender of those Note Certificates to the Registrar.
The note trustee will not be responsible for any deficiency which may arise
because it is liable to tax in respect of the proceeds of any security.
Similar provisions in respect of the indemnification of the security
trustee are set out in the transaction documents.
(9) TAXATION
(a) Principal and Interest
All payments of principal and interest in respect of the notes by or on
behalf of the issuing entity shall be made free and clear of, and without
withholding or deduction for or on account of, any present or future taxes,
duties, assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by or on behalf of Jersey, the United Kingdom or
any other jurisdiction to whose tax laws such payments may be subject or any
political subdivision therein or any authority in or of any of the foregoing
having power to tax, unless the withholding or deduction of such taxes, duties,
assessments, or governmental charges is required by law. In that event, the
issuing entity or the Paying Agents shall make such payment after such
withholding or deduction of such amounts has been made and shall account to the
relevant authorities for the amount so required to be withheld or deducted.
Neither the issuing entity nor the Paying Agents nor any other person will be
required to make any additional payments to any Noteholder in respect of any
amounts deducted or withheld as mentioned in this Condition 9.
(b) General Tax Treatment of Notes
Each holder of notes, by acceptance of such notes, agrees to treat the
notes as indebtedness of the issuing entity and to report all income (or loss)
in accordance with such treatment, and to take no action inconsistent with such
treatment, except as otherwise required by any taxing authority under applicable
law.
(10) EVENTS OF DEFAULT
If any of the following events occurs and is continuing it is called an
"EVENT OF DEFAULT":
(i) the issuing entity fails to pay any amount of principal on the notes within
7 days of the date payment is due or fails to pay any amount of interest on
the notes within 15 days of the date payment is due, provided that, for the
avoidance of doubt, a failure to make or procure any payment required under
Condition 7(e) by reason of any failure on the part of the market repricing
agent to perform its obligations under the relevant transaction documents
shall not constitute a default in respect of the related repricing notes
for the purposes of this Condition 10; or
(ii) the issuing entity fails to perform or observe any of its other obligations
under the notes, the note trust deed or the paying agency and agent bank
agreement other than any obligation to pay any principal or interest on the
notes, and, except where that failure is incapable of remedy, it remains
unremedied for 30 days after the note trustee has given written notice of
it to the issuing entity, certifying that the default is, in its opinion,
materially prejudicial to the interests of the Noteholders; or
- 84 -
(iii) the early termination, without replacement, of any of the Swap Agreements
that are described in the relevant prospectus supplement/final terms; or
(iv) a judgment or order for the payment of any amount is given against the
issuing entity and continues unsatisfied and unstayed for a period of 30
days after it is given or, if a later date is specified for payment, from
that date; or
(v) a secured party or encumbrancer takes possession or a receiver,
administrative receiver, administrator, examiner, manager or other similar
officer is appointed, of the whole or any part of the business, assets and
revenues of the issuing entity or an enforcement action is begun for unpaid
rent or execution is levied against any of the assets of the issuing
entity; or
(vi) the issuing entity becomes insolvent or is unable to pay its debts as they
fall due; or
(vii) an administrator or liquidator of the issuing entity or the whole or any
part of the business, assets and revenues of the issuing entity is
appointed, or an application for an appointment is made; or
(viii) the issuing entity takes any action for a readjustment or deferment of
any of its obligations or makes a general assignment or an arrangement or
composition with or for the benefit of its creditors or declares a
moratorium in respect of any of its indebtedness or any guarantee of
indebtedness given by it; or
(ix) the issuing entity stops or threatens to stop carrying on all or any
substantial part of its business; or
(x) an order is made or an effective resolution is passed for the winding up,
liquidation or dissolution of the issuing entity; or
(xi) any action, condition or thing at any time required to be taken, fulfilled
or done in order:
(1) to enable the issuing entity lawfully to enter into, exercise its
rights and perform and comply with its obligations under and in
respect of the notes and the Issuing Entity Related Documents; or
(2) to ensure that those obligations are legal, valid, binding and
enforceable, except as that enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganisation or other
similar laws affecting the enforcement of the rights of creditors
generally and that that enforceability may be limited by the effect of
general principles of equity, is not taken, fulfilled or done; or
(xii) it is or will become unlawful for the issuing entity to perform or comply
with any of its obligations under or in respect of the notes or the related
documents; or
(xiii) all or any substantial part of the business, assets and revenues of the
issuing entity is condemned, seized or otherwise appropriated by any person
acting under the authority of any national, regional or local government;
or
(xiv) the issuing entity is prevented by any person acting under the authority
of any national, regional or local government from exercising normal
control over all or any substantial part of its business, assets and
revenues.
If an Event of Default occurs then the note trustee may give an Enforcement
Notice or appoint a receiver if it chooses and if it is indemnified to its
satisfaction.
If an Event of Default occurs then the note trustee shall be bound to give
an Enforcement Notice or appoint a Receiver if it is indemnified to its
satisfaction and it is:
(i) required to by the swap counterparty;
(ii) required to by holders of at least one-quarter of the aggregate Principal
Amount Outstanding of the class A notes, if any remain outstanding, and if
none remain outstanding, the class B notes,
- 85 -
and if none of these remain outstanding, the class C notes, and if none of
these remain outstanding, the class D notes; or
(iii) directed by an extraordinary resolution, as defined in the note trust
deed, of holders of outstanding class A notes, and if there are none, of
holders of outstanding class B notes, and if there are none, of holders of
outstanding class C notes, and if there are none, of holders of outstanding
class D notes.
An "ENFORCEMENT NOTICE" is a written notice to the issuing entity declaring
the notes to be immediately due and payable. When it is given, the notes will
become immediately due and payable at their Principal Amount Outstanding
together with accrued interest without further action or formality. Notice of
the receipt of an Enforcement Notice shall be given to the Noteholders as soon
as possible. A declaration that the notes have become immediately due and
payable will not, of itself, accelerate the timing or amount of redemption of
the notes as described in condition number 7.
(11) Prescription
Your notes will become void if they are not presented within the time limit
for payment. That time limit is ten years from their due date. If there is a
delay in the Principal Paying Agent receiving the funds, the due date, for the
purposes of this time limit, is the date on which it notifies you, in accordance
with condition number 15, that it has received the relevant payment.
(12) REPLACEMENT OF NOTE CERTIFICATES
If any Note Certificates are lost, stolen, mutilated, defaced or destroyed,
you can replace them at the specified office of the Registrar. You will be
required to both pay the expenses of producing a replacement and comply with the
issuing entity's reasonable requests for evidence, security and indemnity. You
must surrender any defaced or mutilated Note Certificates before replacements
will be issued.
(13) NOTE TRUSTEE AND AGENTS
The note trustee is entitled to be indemnified and relieved from
responsibility in certain circumstances and to be paid its costs and expenses in
priority to your claims.
In the exercise of its powers and discretions under the conditions and the
note trust deed, the note trustee will consider the interests of the Noteholders
as a class and will not be responsible for any consequence to you individually
as a result of you being connected in any way with a particular territory or
taxing jurisdiction. The note trust deed contains provisions requiring the Note
Trustee to have regard to the interests of the Noteholders equally as a single
Class as regards all rights, powers, trusts, authorities, duties and discretions
of the Note Trustee (except where expressly provided otherwise) but where there
is, in the Note Trustee's opinion, a conflict among the interests of the Classes
of Noteholders, the Note Trustee is required to have regard only to the
interests of the holders of the Most Senior Class of notes then outstanding.
In acting under the paying agency and agent bank agreement, and in
connection with your notes, the Paying Agents, the exchange agent and the agent
bank act only as agents of the issuing entity and the note trustee and do not
assume any obligations towards or relationship of agency or trust for or with
you.
The note trustee and its related companies are entitled to enter into
business transactions with the issuing entity, Barclays Bank PLC or related
companies of either of them without accounting for any profit resulting from
those transactions.
The issuing entity can, at any time, vary or terminate the appointment of
any Paying Agent or the agent bank and can appoint successor or additional
Paying Agents or a successor agent bank. If the issuing entity does this it must
ensure that it maintains the following:
(i) a Principal Paying Agent;
(ii) a Paying Agent in New York and, if and for so long as any of the notes are
listed on the United Kingdom Official List within the meaning of Part 6 of
the Financial Services and Markets Act 2000 and admitted to trading on the
London Stock Exchange, in London;
- 86 -
(iii) an agent bank; and
(iv) a registrar.
Notice of any change in the Paying Agents, agent bank, registrar or their
specified offices shall be promptly given to you in accordance with condition
number 15.
(14) MEETINGS OF NOTEHOLDERS, MODIFICATION AND WAIVER, SUBSTITUTION AND ADDITION
AND ENFORCEMENT
Meetings of Noteholders
The note trust deed contains provisions for convening meetings of
Noteholders of each Class or Sub-Class of any Series to consider matters
relating to the notes of that Series, including the modification of any
provision of these Conditions or the note trust deed. Any such modification may
be made if sanctioned by an Extraordinary Resolution of the Noteholders of the
relevant Class or Sub-Class. The note trust deed provides that:
(a) an Extraordinary Resolution which in the opinion of the Note Trustee
affects the notes of only one Class or Sub-Class shall be transacted at a
separate meeting of the Noteholders of that Class or Sub-Class;
(b) an Extraordinary Resolution which in the opinion of the Note Trustee
affects the Noteholders of more than one Class or Sub-Class of notes but
does not give rise to an actual or potential conflict of interest between
the Noteholders of one Class or Sub-Class of notes and the holders of
another Class or Sub-Class of notes shall be transacted either at separate
meetings of the Noteholders of each such Class or Sub-Class or at a single
meeting of the Noteholders of all such Classes or Sub-Classes of notes as
the Note Trustee shall determine in its absolute discretion; and
(c) an Extraordinary Resolution which in the opinion of the Note Trustee
affects the Noteholders of more than one Class or Sub-Class and gives rise
to any actual or potential conflict of interest between the Noteholders of
one Class or Sub-Class of notes and the Noteholders of any other Class or
Sub-Class of notes shall be transacted at separate meetings of the
Noteholders of each such Class or Sub-Class.
The quorum for a meeting of a particular Class or Classes or Sub-Class or
Sub-Classes of notes to vote on an Extraordinary Resolution, other than
regarding a Basic Terms Modification, will be two or more Persons holding or
representing a clear majority of the Principal Amount Outstanding of the
outstanding notes in that Class or those Classes or Sub-Class or Sub-Classes or,
at any adjourned meeting, two or more Persons being or representing Noteholders
of that Class or those Classes or Sub-Class or Sub-Classes, whatever the
Principal Amount Outstanding of the outstanding notes so held or represented in
such Class or Classes or Sub-Class or Sub-Classes.
The quorum for a meeting of a particular Class or Classes or Sub-Class or
Sub-Classes of notes to vote on an Extraordinary Resolution relating to a Basic
Terms Modification (which must be proposed separately to each Class or Sub-Class
of Noteholders) will be two or more Persons holding or representing in the
aggregate not less than 75 per cent. of the Principal Amount Outstanding of the
outstanding notes in the relevant Class or Classes, Sub-Class or Sub-Classes or,
at any adjourned meeting, two or more Persons holding or representing not less
than in the aggregate 33? per cent. of the Principal Amount Outstanding of the
outstanding notes in the relevant Class or Classes or Sub-Class or Sub-Classes.
In relation to each Class or Sub-Class of notes:
(a) no Extraordinary Resolution involving a Basic Terms Modification that is
passed by the holders of one Class or Sub-Class of notes shall be effective
unless it is sanctioned by an Extraordinary Resolution of the holders of
each of the other Classes or Sub-Classes of notes (to the extent that there
are outstanding notes in each such other Classes or Sub-Classes);
(b) no Extraordinary Resolution to approve any matter other than a Basic Terms
Modification of any Class or Sub-Class of notes shall be effective unless
it is sanctioned
- 87 -
by an Extraordinary Resolution of the holders of each of the other Classes
or Sub-Classes of notes ranking senior to such Class or Sub-Class (to the
extent that there are outstanding notes ranking senior to such Class or
Sub-Class) unless the Note Trustee considers that none of the holders of
each of the other Classes of notes ranking senior to such Class or
Sub-Class would be materially prejudiced by the absence of such sanction;
and
(c) any Extraordinary Resolution passed at a meeting of Noteholders of one or
more Classes or Sub-Classes of notes duly convened and held in accordance
with the note trust deed shall be binding upon all Noteholders of such
Class or Classes or Sub-Class or Sub-Classes, whether or not present at
such meeting and whether or not voting and, except in the case of a meeting
relating to a Basic Terms Modification, any Extraordinary Resolution passed
at a meeting of the holders of the Most Senior Class or Sub-Class of notes
duly convened and held as aforesaid shall also be binding upon the holders
of all the other Classes or Sub-Classes of notes.
Modification and Waiver
The note trustee may agree, without the consent of the Noteholders, (1) to
any modification - except a Basic Terms Modification - of, or to the waiver or
authorisation of any breach or proposed breach of, the notes or any other
related agreement, which is not, in the opinion of the note trustee, materially
prejudicial to the interests of the holders of the Most Senior Class of notes or
(2) to any modification of any of the provisions of the terms and conditions or
any of the related agreements which, in the opinion of the note trustee, is of a
formal, minor or technical nature or is to correct a manifest error or (3) to
comply with any requirements of the SEC in order to effect and maintain the
qualification of the note trust deed under the Trust Indenture Act. Any of those
modifications, authorisations or waivers will be binding on the Noteholders and,
unless the note trustee agrees otherwise, shall be promptly notified by the
issuing entity to the Noteholders in accordance with condition number 15.
Substitution and Addition
The note trustee may also agree to the substitution of any other body
corporate in place of the issuing entity as principal debtor under the note
trust deed and the notes and in the case of such a substitution or addition the
note trustee may agree, without the consent of the Noteholders, to a change of
the law governing the notes and/or the note trust deed PROVIDED THAT such change
would not in the opinion of the trustee be materially prejudicial to the
interests of the holders of the Most Senior Class of notes. Any such
substitution or addition will be promptly notified to the Noteholders in
accordance with condition number 15.
Enforcement
At any time after the notes become due and repayable and without prejudice
to its rights of enforcement in relation to the security, the note trustee may,
at its discretion and without notice, institute such proceedings as it thinks
fit to enforce payment of the notes, including the right to repayment of the
notes together with accrued interest thereon, and shall be bound to do so only
if it has been so directed by an extraordinary resolution of the Noteholders of
the relevant class and it has been indemnified to its satisfaction against all
fees, costs, expenses and other liabilities which it may incur by so acting.
No Noteholder may institute any proceedings against the issuing entity to
enforce its rights under or in respect of the notes or the note trust deed
unless (1) the note trustee has become bound to institute proceedings and has
failed to do so within a reasonable time and (2) the failure is continuing.
Notwithstanding the previous sentence and notwithstanding any other provision of
the note trust deed, the right of any Noteholder to receive payment of principal
of and interest on its notes on or after the due date for the principal or
interest, or to institute suit for the enforcement of payment of that interest
or principal, may not be impaired or affected without the consent of that
Noteholder.
(15) NOTICES
Any notice to you will be deemed to have been validly given if published in
a leading English language daily newspaper in London - which is expected to be
the Financial Times -- and will be deemed to have been given on the day it is
first published.
- 88 -
Any notice specifying a Rate of Interest, an interest amount, an amount of
shortfall or interest on it, principal payment or a Principal Amount Outstanding
will be treated as having been duly given if the information contained in that
notice appears on the relevant page of the Reuters Screen or other similar
service approved by the note trustee and notified to you. The notice will be
deemed given when it first appears on the screen. If it cannot be displayed in
this way, it will be published as described in the previous paragraph.
Copies of all notices given in accordance with these provisions will be
sent to the London Stock Exchange Company Announcements Office, Clearstream,
Luxembourg, Euroclear and DTC.
(16) CURRENCY INDEMNITY
You can be indemnified against losses you suffer from the use of an
exchange rate to convert sums recovered by you in litigation against the issuing
entity, which is different to the rate you ordinarily use. You must request this
indemnity in writing from the issuing entity.
This indemnity constitutes a separate and independent obligation of the
issuing entity and shall give rise to a separate and independent cause of
action.
(17) LIMITED RECOURSE
Each of the Noteholders agrees with the issuing entity that notwithstanding
any other provision of the transaction documents, all obligations of the issuing
entity to the Noteholders, including its obligations under the notes and the
transaction documents, are limited in recourse as set out below:
(a) [it (and the security trustee on its behalf) will not be entitled to
enforce its rights in respect of the Notes against any assets of the
issuing entity other than those comprised in the Security]; and
(b) upon the Note Trustee giving written notice to the Noteholders that it has
determined in its sole opinion that there is no reasonable likelihood of
there being any further realisations in respect of the Security (whether
arising from an enforcement of the Security or otherwise) which would be
available to pay amounts outstanding under the transaction documents and
the notes, the Noteholders shall have no further claim against the issuing
entity in respect of any such unpaid amounts and such unpaid amounts shall
be discharged in full.
(18) GOVERNING LAW AND JURISDICTION
The notes, any Swap Agreements and the note trust deed are governed by
English law and the English courts have nonexclusive jurisdiction in connection
with the notes.
- 89 -
SCHEDULE 2
FORM OF CLASS A SEC REGISTERED GLOBAL NOTE CERTIFICATE
Registered Number: ............. . CUSIP: .................. ISIN: ...........
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUING
ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
EUROCLEAR BANK S.A./N.V. ("EUROCLEAR") AND CLEARSTREAM BANKING, SOCIETE ANONYME
("CLEARSTREAM") TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR IN SUCH OTHER NAME AS
ITS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR AND CLEARSTREAM (AND
ANY PAYMENT IS MADE TO THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR TO
SUCH OTHER
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
- 90 -
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR AND
CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE
BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED, HAS AN INTEREST HEREIN.]**
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE ACCOUNT OF THE
ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN THE MTN
SUPPLEMENT) ARE NOT SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS OBLIGATIONS IN
RESPECT OF THE NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE ISSUING ENTITY
WILL BE AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
- --------------------------------------------------------------------------------
** Include on European Global Note Certificates only.
- 91 -
GRACECHURCH CARD PROGRAMME FUNDING LIMITED (the "ISSUING ENTITY")
(incorporated with limited liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class A Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES")
SEC REGISTERED GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This SEC Registered Global Note Certificate is issued in respect of the
above captioned Notes. The Notes are constituted by, are subject to, and
have the benefit of the Note Trust Deed and are the subject of the
Paying Agency and Agent Bank Agreement and the other Documents.
2. INTERPRETATION
2.1 REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Notes attached hereto and any reference to a numbered "CONDITION"
is to the correspondingly numbered provision thereof.
2.2 DEFINITIONS
In this SEC Registered Global Note Certificate, unless otherwise defined
herein or the context requires otherwise, words and expressions have the
meanings and constructions ascribed to them in the Conditions.
3. REGISTERED HOLDER
This is to certify that:
[Cede & Co.]* [Nominee]** (the "NOMINEE")
is the person Registered in the Register maintained by the Registrar in
relation to the Notes as the duly registered holder (the "HOLDER") of
the Notes represented from time to time by this SEC Registered Global
Note Certificate.
4. PROMISE TO PAY
The Issuing Entity, for value received, promises to pay to the Holder
such principal sum as is noted on the Register at the time of payment as
being the Principal Amount Outstanding of this SEC Registered Global
Note Certificate for the time being on the dates and in the amounts
specified in the Conditions or on such earlier date or dates as the same
may become payable in accordance with the Conditions, and to pay
interest on the unpaid balance of such principal sum in arrear on the
dates and at the rate specified in the Conditions, together with any
additional amounts payable in accordance with the Conditions, all
subject to and in accordance with the Conditions.
5. TRANSFER OF THIS SEC REGISTERED GLOBAL NOTE CERTIFICATE
This SEC Registered Global Note Certificate is registered in the name of
the Nominee, as nominee for (i) Euroclear Bank S.A./N.V., as operator of
the Euroclear system, ("EUROCLEAR") and Clearstream Banking, societe
anonyme, Luxembourg ("CLEARSTREAM") or (ii) The Depository Trust Company
("DTC") or its nominee Cede & Co. Transfer of this SEC Registered Global
Note Certificate shall be limited to transfers in whole, but not in
part, to nominees of Euroclear and Clearstream or DTC or to their
successors or to such successors' respective nominees.
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 92 -
6. EXCHANGE FOR SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES
This SEC Registered Global Note Certificate will be exchanged in whole
but not in part only for duly authenticated and completed individual
note certificates ("SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES") in
substantially the form (subject to completion) set out in Schedule 6
(Form of Class A SEC Registered Individual Note Certificate) to the Note
Trust Deed if [(i) DTC notifies the Note Trustee or the Principal Paying
Agent that it is unwilling or unable to continue as depositary for the
SEC Registered Global Note Certificate or DTC ceases to be a "clearing
agency" registered under the United States Securities and Exchange Act
of 1934, as amended, and a successor depositary or clearing system is
not appointed by the Note Trustee or the Principal Paying Agent within
90 days of receiving such notice; or (ii) the Notes become immediately
due and payable by reason of an Event of Default (each, an "EXCHANGE
EVENT").]* [(i) Euroclear or Clearstream is closed for business for a
continuous period of 14 days (other than by reason of holiday, statutory
or otherwise) or announces an intention permanently to cease business or
does in fact do so or (ii) the Notes become immediately due and payable
by reason of an Event of Default (each, an "EXCHANGE EVENT").]**
Such exchange shall be effected in accordance with paragraph 7 (Delivery
of SEC Registered Individual Note Certificates). The Issuing Entity
shall notify the Holder of the occurrence of any such event as soon as
practicable thereafter.
7. DELIVERY OF SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES
Whenever this SEC Registered Global Note Certificate is to be exchanged
for SEC Registered Individual Note Certificates, such SEC Registered
Individual Note Certificates shall be issued in an aggregate principal
amount equal to the Principal Amount Outstanding of this SEC Registered
Global Note Certificate against the surrender of this SEC Registered
Global Note Certificate at the Specified Office of the Registrar within
five business days of the delivery to the Registrar, by or on behalf of
the Holder, or Euroclear and/or Clearstream or DTC, of such information
as is required to complete and deliver such SEC Registered Individual
Note Certificates (including, without limitation, the names and
addresses of the persons in whose names the SEC Registered Individual
Note Certificates are to be registered and the principal amount of each
such person's holding). Such exchange shall be effected in accordance
with the provisions of the Paying Agency and Agent Bank Agreement and
the regulations concerning the transfer and registration of Notes
scheduled thereto and, in particular, shall be effected without charge
to any Holder, but against such indemnity as the Registrar may require
in respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"BUSINESS DAY" means a day on which commercial banks are open for
business (including dealings in foreign currencies) in the city in which
the Registrar has its Specified Office.
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 93 -
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this SEC Registered
Global Note Certificate shall have the benefit of, and be subject to,
the Conditions and, for the purposes of this SEC Registered Global Note
Certificate, any reference in the Conditions to ["Note Certificate"] or
["Individual Note Certificate"] shall, except where the context
otherwise requires, be construed so as to include this SEC Registered
Global Note Certificate.
9. NOTICES
Notwithstanding Condition 15 (Notices), so long as this SEC Registered
Global Note Certificate is held on behalf of Euroclear and/or
Clearstream or DTC or any other clearing system (an "ALTERNATIVE
CLEARING SYSTEM"), notices to Holders of Notes represented by this SEC
Registered Global Note Certificate may be given by delivery of the
relevant notice to Euroclear and/or Clearstream or DTC or such
Alternative Clearing System (as the case may be).
10. LEGENDS
The statements set out in the legends above are an integral part of this
SEC Registered Global Note Certificate and, by acceptance hereof, each
Holder of this SEC Registered Global Note Certificate agrees to be
subject to and bound by such legends.
11. DETERMINATION OF ENTITLEMENT
This SEC Registered Global Note Certificate is evidence of entitlement
only and is not a document of title. Entitlements are determined by the
Register and only the Holder is entitled to payment in respect of this
SEC Registered Global Note Certificate.
12. AUTHENTICATION
This SEC Registered Global Note Certificate shall not be valid for any
purpose until it has been authenticated for and on behalf of the
Registrar.
13. GOVERNING LAW
This SEC Registered Global Note Certificate, and all matters arising
from or connected with it are governed by, and shall be construed in
accordance with, English law.
- 94 -
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
Gracechurch Card Programme Funding Limited
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By: ...................................
[manual signature]
(duly authorised)
- 95 -
FORM OF TRANSFER
FOR VALUE RECEIVED ..................., being the registered holder of this SEC
Registered Global Note Certificate, hereby transfers to........................
................................................................................
of.............................................................................
................................................................................
...................,
[currency] ..................................... in principal amount of the
[currency][amount] Class A Asset Backed [Floating/Fixed] Rate Notes due [o] (the
"NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING ENTITY")
and irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Notes (or any successor to The Bank of New York, in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this SEC Registered Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
- 96 -
[Attached to each Class A SEC Registered Global Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 97 -
SCHEDULE 3
FORM OF CLASS B SEC REGISTERED GLOBAL NOTE CERTIFICATE
Registered Number: ............. CUSIP: ................ ISIN: ...............
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUING
ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
EUROCLEAR BANK S.A./N.V. ("EUROCLEAR") AND CLEARSTREAM BANKING, SOCIETE ANONYME
("CLEARSTREAM") TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR IN SUCH OTHER NAME AS
ITS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR AND CLEARSTREAM (AND
ANY PAYMENT IS MADE TO THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR TO
SUCH OTHER
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
- 98 -
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR
AND CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED, HAS AN INTEREST
HEREIN.]**
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE ACCOUNT OF THE
ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN THE MTN
SUPPLEMENT) ARE NOT SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS OBLIGATIONS IN
RESPECT OF THE NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE ISSUING ENTITY
WILL BE AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
- --------------------------------------------------------------------------------
** Include on European Global Note Certificates only.
- 99 -
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
(the "ISSUING ENTITY") (incorporated with limited
liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class B Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES")
SEC REGISTERED GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This SEC Registered Global Note Certificate is issued in respect of the
above captioned Notes. The Notes are constituted by, are subject to, and
have the benefit of the Note Trust Deed and are the subject of the
Paying Agency and Agent Bank Agreement and the other Documents.
2. INTERPRETATION
2.1 REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Notes attached hereto and any reference to a numbered "CONDITION"
is to the correspondingly numbered provision thereof.
2.2 DEFINITIONS
In this SEC Registered Global Note Certificate, unless otherwise defined
herein or the context requires otherwise, words and expressions have the
meanings and constructions ascribed to them in the Conditions.
3. REGISTERED HOLDER
This is to certify that:
[Cede & Co.]* [Nominee]** (the "NOMINEE")
is the person Registered in the Register maintained by the Registrar in
relation to the Notes as the duly registered holder (the "HOLDER") of
the Notes represented from time to time by this SEC Registered Global
Note Certificate.
4. PROMISE TO PAY
The Issuing Entity, for value received, promises to pay to the Holder
such principal sum as is noted on the Register at the time of payment as
being the Principal Amount Outstanding of this SEC Registered Global
Note Certificate for the time being on the dates and in the amounts
specified in the Conditions or on such earlier date or dates as the same
may become payable in accordance with the Conditions, and to pay
interest on the unpaid balance of such principal sum in arrear on the
dates and at the rate specified in the Conditions, together with any
additional amounts payable in accordance with the Conditions, all
subject to and in accordance with the Conditions.
5. TRANSFER OF THIS SEC REGISTERED GLOBAL NOTE CERTIFICATE
This SEC Registered Global Note Certificate is registered in the name of
the Nominee, as nominee for (i) Euroclear Bank S.A./N.V., as operator of
the Euroclear system, ("EUROCLEAR") and Clearstream Banking, societe
anonyme, Luxembourg ("CLEARSTREAM") or (ii) The Depository Trust Company
("DTC") or its nominee Cede & Co. Transfer of this SEC Registered Global
Note Certificate shall be limited to transfers in whole, but not in
part, to nominees of Euroclear and Clearstream or DTC or to their
successors or to such successors' respective nominees.
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 100 -
6. EXCHANGE FOR SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES
This SEC Registered Global Note Certificate will be exchanged in whole
but not in part only for duly authenticated and completed individual
note certificates ("SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES") in
substantially the form (subject to completion) set out in Schedule 7
(Form of Class B SEC Registered Individual Note Certificate) to the Note
Trust Deed if [(i) DTC notifies the Note Trustee or the Principal Paying
Agent that it is unwilling or unable to continue as depositary for the
SEC Registered Global Note Certificate or DTC ceases to be a "clearing
agency" registered under the United States Securities and Exchange Act
of 1934, as amended, and a successor depositary or clearing system is
not appointed by the Note Trustee or the Principal Paying Agent within
90 days of receiving such notice; or (ii) the Notes become immediately
due and payable by reason of an Event of Default (each, an "EXCHANGE
EVENT").]* [(i) Euroclear or Clearstream is closed for business for a
continuous period of 14 days (other than by reason of holiday, statutory
or otherwise) or announces an intention permanently to cease business or
does in fact do so or (ii) the Notes become immediately due and payable
by reason of an Event of Default (each, an "EXCHANGE EVENT").]**
Such exchange shall be effected in accordance with paragraph 7 (Delivery
of SEC Registered Individual Note Certificates). The Issuing Entity
shall notify the Holder of the occurrence of any such event as soon as
practicable thereafter.
7. DELIVERY OF SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES
Whenever this SEC Registered Global Note Certificate is to be exchanged
for SEC Registered Individual Note Certificates, such SEC Registered
Individual Note Certificates shall be issued in an aggregate principal
amount equal to the Principal Amount Outstanding of this SEC Registered
Global Note Certificate against the surrender of this SEC Registered
Global Note Certificate at the Specified Office of the Registrar within
five business days of the delivery to the Registrar, by or on behalf of
the Holder, or Euroclear and/or Clearstream or DTC, of such information
as is required to complete and deliver such SEC Registered Individual
Note Certificates (including, without limitation, the names and
addresses of the persons in whose names the SEC Registered Individual
Note Certificates are to be registered and the principal amount of each
such person's holding). Such exchange shall be effected in accordance
with the provisions of the Paying Agency and Agent Bank Agreement and
the regulations concerning the transfer and registration of Notes
scheduled thereto and, in particular, shall be effected without charge
to any Holder, but against such indemnity as the Registrar may require
in respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"BUSINESS DAY" means a day on which commercial banks are open for
business (including dealings in foreign currencies) in the city in which
the Registrar has its Specified Office.
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 101 -
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this SEC Registered
Global Note Certificate shall have the benefit of, and be subject to,
the Conditions and, for the purposes of this SEC Registered Global Note
Certificate, any reference in the Conditions to ["Note Certificate"] or
["Individual Note Certificate"] shall, except where the context
otherwise requires, be construed so as to include this SEC Registered
Global Note Certificate.
9. NOTICES
Notwithstanding Condition 15 (Notices), so long as this SEC Registered
Global Note Certificate is held on behalf of Euroclear and/or
Clearstream or DTC or any other clearing system (an "ALTERNATIVE
CLEARING SYSTEM"), notices to Holders of Notes represented by this SEC
Registered Global Note Certificate may be given by delivery of the
relevant notice to Euroclear and/or Clearstream or DTC or such
Alternative Clearing System (as the case may be).
10. LEGENDS
The statements set out in the legends above are an integral part of this
SEC Registered Global Note Certificate and, by acceptance hereof, each
Holder of this SEC Registered Global Note Certificate agrees to be
subject to and bound by such legends.
11. DETERMINATION OF ENTITLEMENT
This SEC Registered Global Note Certificate is evidence of entitlement
only and is not a document of title. Entitlements are determined by the
Register and only the Holder is entitled to payment in respect of this
SEC Registered Global Note Certificate.
12. AUTHENTICATION
This SEC Registered Global Note Certificate shall not be valid for any
purpose until it has been authenticated for and on behalf of the
Registrar.
13. GOVERNING LAW
This SEC Registered Global Note Certificate, and all matters arising
from or connected with it are governed by, and shall be construed in
accordance with, English law.
- 102 -
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
Gracechurch Card Programme Funding Limited
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By: ...................................
[manual signature]
(duly authorised)
- 103 -
FORM OF TRANSFER
FOR VALUE RECEIVED .........., being the registered holder of this SEC
Registered Global Note Certificate, hereby transfers to........................
................................................................................
..................of............................................................
................................................................................
...................,
[currency] ..................................... in principal amount of the
[currency][amount] Class B Asset Backed [Floating/Fixed] Rate Notes due [o] (the
"NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING ENTITY")
and irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Notes (or any successor to The Bank of New York, in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this SEC Registered Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
- 104 -
[Attached to each Class B SEC Registered Global Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 105 -
SCHEDULE 4
FORM OF CLASS C SEC REGISTERED GLOBAL NOTE CERTIFICATE
Registered Number: ........... CUSIP: ............... ISIN: ..................
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUING
ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
EUROCLEAR BANK S.A./N.V. ("EUROCLEAR") AND CLEARSTREAM BANKING, SOCIETE ANONYME
("CLEARSTREAM") TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR IN SUCH OTHER NAME AS
ITS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR AND CLEARSTREAM (AND
ANY PAYMENT IS MADE TO THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR TO
SUCH OTHER
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
- 106 -
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR
AND CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED, HAS AN INTEREST
HEREIN.]**
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE ACCOUNT OF THE
ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN THE MTN
SUPPLEMENT) ARE NOT SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS OBLIGATIONS IN
RESPECT OF THE NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE ISSUING ENTITY
WILL BE AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
- --------------------------------------------------------------------------------
** Include on European Global Note Certificates only.
- 107 -
GRACECHURCH CARD PROGRAMME FUNDING LIMITED (the "ISSUING ENTITY")
(incorporated with limited liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class C Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES")
SEC REGISTERED GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This SEC Registered Global Note Certificate is issued in respect of the
above captioned Notes. The Notes are constituted by, are subject to, and
have the benefit of the Note Trust Deed and are the subject of the
Paying Agency and Agent Bank Agreement and the other Documents.
2. INTERPRETATION
2.1 REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Notes attached hereto and any reference to a numbered "CONDITION"
is to the correspondingly numbered provision thereof.
2.2 DEFINITIONS
In this SEC Registered Global Note Certificate, unless otherwise defined
herein or the context requires otherwise, words and expressions have the
meanings and constructions ascribed to them in the Conditions.
3. REGISTERED HOLDER
This is to certify that:
[Cede & Co.]* [Nominee]** (the "NOMINEE")
is the person Registered in the Register maintained by the Registrar in
relation to the Notes as the duly registered holder (the "HOLDER") of
the Notes represented from time to time by this SEC Registered Global
Note Certificate.
4. PROMISE TO PAY
The Issuing Entity, for value received, promises to pay to the Holder
such principal sum as is noted on the Register at the time of payment as
being the Principal Amount Outstanding of this SEC Registered Global
Note Certificate for the time being on the dates and in the amounts
specified in the Conditions or on such earlier date or dates as the same
may become payable in accordance with the Conditions, and to pay
interest on the unpaid balance of such principal sum in arrear on the
dates and at the rate specified in the Conditions, together with any
additional amounts payable in accordance with the Conditions, all
subject to and in accordance with the Conditions.
5. TRANSFER OF THIS SEC REGISTERED GLOBAL NOTE CERTIFICATE
This SEC Registered Global Note Certificate is registered in the name of
the Nominee, as nominee for (i) Euroclear Bank S.A./N.V., as operator of
the Euroclear system, ("EUROCLEAR") and Clearstream Banking, societe
anonyme, Luxembourg ("CLEARSTREAM") or (ii) The Depository Trust Company
("DTC") or its nominee Cede & Co. Transfer of this SEC Registered Global
Note Certificate shall be limited to transfers in whole, but not in
part, to nominees of Euroclear and Clearstream or DTC or to their
successors or to such successors' respective nominees.
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 108 -
6. EXCHANGE FOR SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES
This SEC Registered Global Note Certificate will be exchanged in whole
but not in part only for duly authenticated and completed individual
note certificates ("SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES") in
substantially the form (subject to completion) set out in Schedule 8
(Form of Class C SEC Registered Individual Note Certificate) to the Note
Trust Deed if [(i) DTC notifies the Note Trustee or the Principal Paying
Agent that it is unwilling or unable to continue as depositary for the
SEC Registered Global Note Certificate or DTC ceases to be a "clearing
agency" registered under the United States Securities and Exchange Act
of 1934, as amended, and a successor depositary or clearing system is
not appointed by the Note Trustee or the Principal Paying Agent within
90 days of receiving such notice; or (ii) the Notes become immediately
due and payable by reason of an Event of Default (each, an "EXCHANGE
EVENT").]* [(i) Euroclear or Clearstream is closed for business for a
continuous period of 14 days (other than by reason of holiday, statutory
or otherwise) or announces an intention permanently to cease business or
does in fact do so or (ii) the Notes become immediately due and payable
by reason of an Event of Default (each, an "EXCHANGE EVENT").]**
Such exchange shall be effected in accordance with paragraph 7 (Delivery
of SEC Registered Individual Note Certificates). The Issuing Entity
shall notify the Holder of the occurrence of any such event as soon as
practicable thereafter.
7. DELIVERY OF SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES
Whenever this SEC Registered Global Note Certificate is to be exchanged
for SEC Registered Individual Note Certificates, such SEC Registered
Individual Note Certificates shall be issued in an aggregate principal
amount equal to the Principal Amount Outstanding of this SEC Registered
Global Note Certificate against the surrender of this SEC Registered
Global Note Certificate at the Specified Office of the Registrar within
five business days of the delivery to the Registrar, by or on behalf of
the Holder, or Euroclear and/or Clearstream or DTC, of such information
as is required to complete and deliver such SEC Registered Individual
Note Certificates (including, without limitation, the names and
addresses of the persons in whose names the SEC Registered Individual
Note Certificates are to be registered and the principal amount of each
such person's holding). Such exchange shall be effected in accordance
with the provisions of the Paying Agency and Agent Bank Agreement and
the regulations concerning the transfer and registration of Notes
scheduled thereto and, in particular, shall be effected without charge
to any Holder, but against such indemnity as the Registrar may require
in respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"BUSINESS DAY" means a day on which commercial banks are open for
business (including dealings in foreign currencies) in the city in which
the Registrar has its Specified Office.
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 109 -
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this SEC Registered
Global Note Certificate shall have the benefit of, and be subject to,
the Conditions and, for the purposes of this SEC Registered Global Note
Certificate, any reference in the Conditions to ["Note Certificate"] or
["Individual Note Certificate"] shall, except where the context
otherwise requires, be construed so as to include this SEC Registered
Global Note Certificate.
9. NOTICES
Notwithstanding Condition 15 (Notices), so long as this SEC Registered
Global Note Certificate is held on behalf of Euroclear and/or
Clearstream or DTC or any other clearing system (an "ALTERNATIVE
CLEARING SYSTEM"), notices to Holders of Notes represented by this SEC
Registered Global Note Certificate may be given by delivery of the
relevant notice to Euroclear and/or Clearstream or DTC or such
Alternative Clearing System (as the case may be).
10. LEGENDS
The statements set out in the legends above are an integral part of this
SEC Registered Global Note Certificate and, by acceptance hereof, each
Holder of this SEC Registered Global Note Certificate agrees to be
subject to and bound by such legends.
11. DETERMINATION OF ENTITLEMENT
This SEC Registered Global Note Certificate is evidence of entitlement
only and is not a document of title. Entitlements are determined by the
Register and only the Holder is entitled to payment in respect of this
SEC Registered Global Note Certificate.
12. AUTHENTICATION
This SEC Registered Global Note Certificate shall not be valid for any
purpose until it has been authenticated for and on behalf of the
Registrar.
13. GOVERNING LAW
This SEC Registered Global Note Certificate, and all matters arising
from or connected with it are governed by, and shall be construed in
accordance with, English law.
- 110 -
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
Gracechurch Card Programme Funding Limited
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By: ...................................
[manual signature]
(duly authorised)
- 111 -
FORM OF TRANSFER
FOR VALUE RECEIVED .................., being the registered holder of this
SEC Registered Global Note Certificate, hereby transfers to.................
................................................................................
.................of.............................................................
................................................................................
.........................,
[currency] ..................................... in principal amount of the
[currency][amount] Class C Asset Backed [Floating/Fixed] Rate Notes due [o] (the
"NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING ENTITY")
and irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Notes (or any successor to The Bank of New York, in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this SEC Registered Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
- 112 -
[Attached to each Class C SEC Registered Global Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 113 -
SCHEDULE 5
FORM OF CLASS D SEC REGISTERED GLOBAL NOTE CERTIFICATE
Registered Number: ............ CUSIP: ................ ISIN: ..................
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUING
ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
EUROCLEAR BANK S.A./N.V. ("EUROCLEAR") AND CLEARSTREAM BANKING, SOCIETE ANONYME
("CLEARSTREAM") TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR IN SUCH OTHER NAME AS
ITS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR AND CLEARSTREAM (AND
ANY PAYMENT IS MADE TO THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR TO
SUCH OTHER
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
- 114 -
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR
AND CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED, HAS AN INTEREST
HEREIN.]**
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE ACCOUNT OF THE
ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN THE MTN
SUPPLEMENT) ARE NOT SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS OBLIGATIONS IN
RESPECT OF THE NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE ISSUING ENTITY
WILL BE AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
- --------------------------------------------------------------------------------
** Include on European Global Note Certificates only.
- 115 -
GRACECHURCH CARD PROGRAMME FUNDING LIMITED (the "ISSUING ENTITY")
(incorporated with limited liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class D Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES")
SEC REGISTERED GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This SEC Registered Global Note Certificate is issued in respect of the
above captioned Notes. The Notes are constituted by, are subject to, and
have the benefit of the Note Trust Deed and are the subject of the
Paying Agency and Agent Bank Agreement and the other Documents.
2. INTERPRETATION
2.1 REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Notes attached hereto and any reference to a numbered "CONDITION"
is to the correspondingly numbered provision thereof.
2.2 DEFINITIONS
In this SEC Registered Global Note Certificate, unless otherwise defined
herein or the context requires otherwise, words and expressions have the
meanings and constructions ascribed to them in the Conditions.
3. REGISTERED HOLDER
This is to certify that:
[Cede & Co.]* [Nominee]** (the "NOMINEE")
is the person Registered in the Register maintained by the Registrar in
relation to the Notes as the duly registered holder (the "HOLDER") of
the Notes represented from time to time by this SEC Registered Global
Note Certificate.
4. PROMISE TO PAY
The Issuing Entity, for value received, promises to pay to the Holder
such principal sum as is noted on the Register at the time of payment as
being the Principal Amount Outstanding of this SEC Registered Global
Note Certificate for the time being on the dates and in the amounts
specified in the Conditions or on such earlier date or dates as the same
may become payable in accordance with the Conditions, and to pay
interest on the unpaid balance of such principal sum in arrear on the
dates and at the rate specified in the Conditions, together with any
additional amounts payable in accordance with the Conditions, all
subject to and in accordance with the Conditions.
5. TRANSFER OF THIS SEC REGISTERED GLOBAL NOTE CERTIFICATE
This SEC Registered Global Note Certificate is registered in the name of
the Nominee, as nominee for (i) Euroclear Bank S.A./N.V., as operator of
the Euroclear system, ("EUROCLEAR") and Clearstream Banking, societe
anonyme, Luxembourg ("CLEARSTREAM") or (ii) The Depository Trust Company
("DTC") or its nominee Cede & Co. Transfer of this SEC Registered Global
Note Certificate shall be limited to transfers in whole, but not in
part, to nominees of Euroclear and Clearstream or DTC or to their
successors or to such successors' respective nominees.
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 116 -
6. EXCHANGE FOR SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES
This SEC Registered Global Note Certificate will be exchanged in whole
but not in part only for duly authenticated and completed individual
note certificates ("SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES") in
substantially the form (subject to completion) set out in Schedule 9
(Form of Class D SEC Registered Individual Note Certificate) to the Note
Trust Deed if [(i) DTC notifies the Note Trustee or the Principal Paying
Agent that it is unwilling or unable to continue as depositary for the
SEC Registered Global Note Certificate or DTC ceases to be a "clearing
agency" registered under the United States Securities and Exchange Act
of 1934, as amended, and a successor depositary or clearing system is
not appointed by the Note Trustee or the Principal Paying Agent within
90 days of receiving such notice; or (ii) the Notes become immediately
due and payable by reason of an Event of Default (each, an "EXCHANGE
EVENT").]* [(i) Euroclear or Clearstream is closed for business for a
continuous period of 14 days (other than by reason of holiday, statutory
or otherwise) or announces an intention permanently to cease business or
does in fact do so or (ii) the Notes become immediately due and payable
by reason of an Event of Default (each, an "EXCHANGE EVENT").]**
Such exchange shall be effected in accordance with paragraph 7 (Delivery
of SEC Registered Individual Note Certificates). The Issuing Entity
shall notify the Holder of the occurrence of any such event as soon as
practicable thereafter.
7. DELIVERY OF SEC REGISTERED INDIVIDUAL NOTE CERTIFICATES
Whenever this SEC Registered Global Note Certificate is to be exchanged
for SEC Registered Individual Note Certificates, such SEC Registered
Individual Note Certificates shall be issued in an aggregate principal
amount equal to the Principal Amount Outstanding of this SEC Registered
Global Note Certificate against the surrender of this SEC Registered
Global Note Certificate at the Specified Office of the Registrar within
five business days of the delivery to the Registrar, by or on behalf of
the Holder, or Euroclear and/or Clearstream or DTC, of such information
as is required to complete and deliver such SEC Registered Individual
Note Certificates (including, without limitation, the names and
addresses of the persons in whose names the SEC Registered Individual
Note Certificates are to be registered and the principal amount of each
such person's holding). Such exchange shall be effected in accordance
with the provisions of the Paying Agency and Agent Bank Agreement and
the regulations concerning the transfer and registration of Notes
scheduled thereto and, in particular, shall be effected without charge
to any Holder, but against such indemnity as the Registrar may require
in respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"BUSINESS DAY" means a day on which commercial banks are open for
business (including dealings in foreign currencies) in the city in which
the Registrar has its Specified Office.
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 117 -
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this SEC Registered
Global Note Certificate shall have the benefit of, and be subject to,
the Conditions and, for the purposes of this SEC Registered Global Note
Certificate, any reference in the Conditions to ["Note Certificate"] or
["Individual Note Certificate"] shall, except where the context
otherwise requires, be construed so as to include this SEC Registered
Global Note Certificate.
9. NOTICES
Notwithstanding Condition 15 (Notices), so long as this SEC Registered
Global Note Certificate is held on behalf of Euroclear and/or
Clearstream or DTC or any other clearing system (an "ALTERNATIVE
CLEARING SYSTEM"), notices to Holders of Notes represented by this SEC
Registered Global Note Certificate may be given by delivery of the
relevant notice to Euroclear and/or Clearstream or DTC or such
Alternative Clearing System (as the case may be).
10. LEGENDS
The statements set out in the legends above are an integral part of this
SEC Registered Global Note Certificate and, by acceptance hereof, each
Holder of this SEC Registered Global Note Certificate agrees to be
subject to and bound by such legends.
11. DETERMINATION OF ENTITLEMENT
This SEC Registered Global Note Certificate is evidence of entitlement
only and is not a document of title. Entitlements are determined by the
Register and only the Holder is entitled to payment in respect of this
SEC Registered Global Note Certificate.
12. AUTHENTICATION
This SEC Registered Global Note Certificate shall not be valid for any
purpose until it has been authenticated for and on behalf of the
Registrar.
13. GOVERNING LAW
This SEC Registered Global Note Certificate, and all matters arising
from or connected with it are governed by, and shall be construed in
accordance with, English law.
- 118 -
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
Gracechurch Card Programme Funding Limited
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By: ...................................
[manual signature]
(duly authorised)
- 119 -
FORM OF TRANSFER
FOR VALUE RECEIVED ................., being the registered holder of this SEC
Registered Global Note Certificate, hereby transfers to........................
................................................................................
...........of...................................................................
................................................................................
.......................,
[currency] ..................................... in principal amount of the
[currency][amount] Class D Asset Backed [Floating/Fixed] Rate Notes due [o] (the
"NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING ENTITY")
and irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Notes (or any successor to The Bank of New York, in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this SEC Registered Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
- 120 -
[Attached to each Class D SEC Registered Global Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 121 -
SCHEDULE 6
FORM OF CLASS A SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE
Registered Number: ........ CUSIP: .............. ISIN: ......................
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE ACCOUNT OF THE
ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN THE MTN
SUPPLEMENT) ARE NOT
- 122 -
SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS OBLIGATIONS IN RESPECT OF THE
NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE ISSUING ENTITY WILL BE
AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
(incorporated with limited liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class A Asset Backed [Floating/Fixed] Rate Notes due [o]
SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE
This Individual Note Certificate is issued in respect of the above captioned
Notes (the "NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING
ENTITY"). The Notes are constituted by, are subject to, and have the benefit of
the Note Trust Deed and are the subject of the Paying Agency and Agent Bank
Agreement and the other Documents.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Notes attached hereto and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof.
In this Individual Note Certificate, unless otherwise defined herein or the
context requires otherwise, words and expressions have the meanings and
constructions ascribed to them in the Conditions.
This is to certify that:
......................................................
of ..................................................
......................................................
is the person registered in the Register maintained by the Registrar in relation
to the Notes as the duly registered holder or, if more than one person is so
registered, the first-named of such persons (the "HOLDER") of:
[currency][amount] ............................................................
(.............................................. [CURRENCY AND AMOUNT IN WORDS])
in aggregate principal amount of the Notes.
The Issuing Entity, for value received, promises to pay such principal sum to
the Holder on the dates and in the amounts specified in the Conditions or on
such earlier date or dates as the same may become payable in accordance with the
Conditions, and to pay interest on the unpaid balance of such principal sum in
arrear on the dates and at the rate specified in the Conditions,
- 123 -
together with any additional amounts payable in accordance with the Conditions,
all subject to and in accordance with the Conditions.
The statements set out in the legend above are an integral part of this
Individual Note Certificate and, by acceptance hereof, each Holder of this
Individual Note Certificate agrees to be subject to and bound by such legends.
This Individual Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Individual Note Certificate.
This Individual Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of the Registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
Gracechurch Card Programme Funding Limited
By:...................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By:........................................
[manual signature]
(duly authorised)
- 124 -
FORM OF TRANSFER
FOR VALUE RECEIVED ............., being the registered holder of this
Individual Note Certificate, hereby transfers to ..............................
...............................................................................of
.................................................................................
.................................................................................
.......................................................................[currency]
...................................... in principal amount of the [currency]
[amount] Class A Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES")
of Gracechurch Card Programme Funding Limited (the "ISSUING ENTITY") and
irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Notes (or any successor to The Bank of New York, in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated: .........................................
By: ............................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Individual Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Notes shall be in an amount equal to [currency][amount]
or any integral multiple of [currency][amount] in excess thereof.
- 125 -
[Attached to each Individual Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 126 -
SCHEDULE 7
FORM OF CLASS B SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE
Registered Number: .......... CUSIP: ............... ISIN: ...................
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE ACCOUNT OF THE
ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN THE MTN
SUPPLEMENT) ARE NOT
- 127 -
SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS OBLIGATIONS IN RESPECT OF THE
NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE ISSUING ENTITY WILL BE
AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
(incorporated with limited liability under
the laws of Jersey, Channel Islands)
[currency][amount]
Class B Asset Backed [Floating/Fixed] Rate Notes due [o]
SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE
This Individual Note Certificate is issued in respect of the above captioned
Notes (the "NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING
ENTITY"). The Notes are constituted by, are subject to, and have the benefit of
the Note Trust Deed and are the subject of the Paying Agency and Agent Bank
Agreement and the other Documents.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Notes attached hereto and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof.
In this Individual Note Certificate, unless otherwise defined herein or the
context requires otherwise, words and expressions have the meanings and
constructions ascribed to them in the Conditions.
This is to certify that:
......................................................
of ..................................................
......................................................
is the person registered in the Register maintained by the Registrar in relation
to the Notes as the duly registered holder or, if more than one person is so
registered, the first-named of such persons (the "HOLDER") of:
[currency][amount] ............................................................
(............................................... [CURRENCY AND AMOUNT IN WORDS])
in aggregate principal amount of the Notes.
The Issuing Entity, for value received, promises to pay such principal sum to
the Holder on the dates and in the amounts specified in the Conditions or on
such earlier date or dates as the same may become payable in accordance with the
Conditions, and to pay interest on the unpaid balance of such principal sum in
arrear on the dates and at the rate specified in the Conditions,
- 128 -
together with any additional amounts payable in accordance with the Conditions,
all subject to and in accordance with the Conditions.
The statements set out in the legend above are an integral part of this
Individual Note Certificate and, by acceptance hereof, each Holder of this
Individual Note Certificate agrees to be subject to and bound by such legends.
This Individual Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Individual Note Certificate.
This Individual Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of the Registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
Gracechurch Card Programme Funding Limited
By: ...............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By: ........................................
[manual signature]
(duly authorised)
- 129 -
FORM OF TRANSFER
FOR VALUE RECEIVED ............., being the registered holder of this
Individual Note Certificate, hereby transfers to ...........................
............................................................................. of
................................................................................
................................................................................
.......................................................................[currency]
...................................... in principal amount of the [currency]
[amount] Class B Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES")
of Gracechurch Card Programme Funding Limited (the "ISSUING ENTITY") and
irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Notes (or any successor to The Bank of New York, in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated: .........................................
By: ............................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Individual Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Notes shall be in an amount equal to [currency][amount]
or any integral multiple of [currency][amount] in excess thereof.
- 130 -
[Attached to each Individual Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 131 -
SCHEDULE 8
FORM OF CLASS C SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE
Registered Number: .............. CUSIP: ............... ISIN: ................
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE ACCOUNT OF THE
ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN THE MTN
SUPPLEMENT) ARE NOT
- 132 -
SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS OBLIGATIONS IN RESPECT OF THE
NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE ISSUING ENTITY WILL BE
AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
(incorporated with limited liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class C Asset Backed [Floating/Fixed] Rate Notes due [o]
SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE
This Individual Note Certificate is issued in respect of the above captioned
Notes (the "NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING
ENTITY"). The Notes are constituted by, are subject to, and have the benefit of
the Note Trust Deed and are the subject of the Paying Agency and Agent Bank
Agreement and the other Documents.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Notes attached hereto and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof.
In this Individual Note Certificate, unless otherwise defined herein or the
context requires otherwise, words and expressions have the meanings and
constructions ascribed to them in the Conditions.
This is to certify that:
......................................................
of ..................................................
......................................................
is the person registered in the Register maintained by the Registrar in relation
to the Notes as the duly registered holder or, if more than one person is so
registered, the first-named of such persons (the "HOLDER") of:
[currency][amount] ............................................................
(............................................... [CURRENCY AND AMOUNT IN WORDS])
in aggregate principal amount of the Notes.
The Issuing Entity, for value received, promises to pay such principal sum to
the Holder on the dates and in the amounts specified in the Conditions or on
such earlier date or dates as the same may become payable in accordance with the
Conditions, and to pay interest on the unpaid balance of such principal sum in
arrear on the dates and at the rate specified in the Conditions,
- 133 -
together with any additional amounts payable in accordance with the Conditions,
all subject to and in accordance with the Conditions.
The statements set out in the legend above are an integral part of this
Individual Note Certificate and, by acceptance hereof, each Holder of this
Individual Note Certificate agrees to be subject to and bound by such legends.
This Individual Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Individual Note Certificate.
This Individual Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of the Registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
Gracechurch Card Programme Funding Limited
By: ...................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By: ......................................
[manual signature]
(duly authorised)
- 134 -
FORM OF TRANSFER
FOR VALUE RECEIVED ............., being the registered holder of this
Individual Note Certificate, hereby transfers to ..............................
..............................................................................of
................................................................................
................................................................................
.......................................................................[currency]
...................................... in principal amount of the [currency]
[amount] Class C Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES")
of Gracechurch Card Programme Funding Limited (the "ISSUING ENTITY") and
irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Notes (or any successor to The Bank of New York, in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated:.........................................
By:............................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Individual Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Notes shall be in an amount equal to [currency][amount]
or any integral multiple of [currency][amount] in excess thereof.
- 135 -
[Attached to each Individual Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 136 -
SCHEDULE 9
FORM OF CLASS D SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE
Registered Number: ............. CUSIP: .............. ISIN: ..................
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE ACCOUNT OF THE
ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN THE MTN
SUPPLEMENT) ARE NOT
- 137 -
SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS OBLIGATIONS IN RESPECT OF THE
NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE ISSUING ENTITY WILL BE
AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
(incorporated with limited liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class D Asset Backed [Floating/Fixed] Rate Notes due [o]
SEC REGISTERED INDIVIDUAL NOTE CERTIFICATE
This Individual Note Certificate is issued in respect of the above captioned
Notes (the "NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING
ENTITY"). The Notes are constituted by, are subject to, and have the benefit of
the Note Trust Deed and are the subject of the Paying Agency and Agent Bank
Agreement and the other Documents.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Notes attached hereto and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof.
In this Individual Note Certificate, unless otherwise defined herein or the
context requires otherwise, words and expressions have the meanings and
constructions ascribed to them in the Conditions.
This is to certify that:
......................................................
of ..................................................
......................................................
is the person registered in the Register maintained by the Registrar in relation
to the Notes as the duly registered holder or, if more than one person is so
registered, the first-named of such persons (the "HOLDER") of:
[currency][amount] ............................................................
(............................................... [CURRENCY AND AMOUNT IN WORDS])
in aggregate principal amount of the Notes.
The Issuing Entity, for value received, promises to pay such principal sum to
the Holder on the dates and in the amounts specified in the Conditions or on
such earlier date or dates as the same may become payable in accordance with the
Conditions, and to pay interest on the unpaid balance of such principal sum in
arrear on the dates and at the rate specified in the Conditions,
- 138 -
together with any additional amounts payable in accordance with the Conditions,
all subject to and in accordance with the Conditions.
The statements set out in the legend above are an integral part of this
Individual Note Certificate and, by acceptance hereof, each Holder of this
Individual Note Certificate agrees to be subject to and bound by such legends.
This Individual Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Individual Note Certificate.
This Individual Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of the Registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
Gracechurch Card Programme Funding Limited
By: ...................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By: ........................................
[manual signature]
(duly authorised)
- 139 -
FORM OF TRANSFER
FOR VALUE RECEIVED ............., being the registered holder of this Individual
Note Certificate, hereby transfers to .........................................
..............................................................................of
................................................................................
................................................................................
......................................................................[currency]
...................................... in principal amount of the [currency]
[amount] Class D Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES")
of Gracechurch Card Programme Funding Limited (the "ISSUING ENTITY") and
irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Notes (or any successor to The Bank of New York, in
its capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated:.........................................
By:............................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Individual Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Notes shall be in an amount equal to [currency][amount]
or any integral multiple of [currency][amount] in excess thereof.
- 140 -
[Attached to each Individual Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 141 -
SCHEDULE 10
FORM OF RULE 144A GLOBAL NOTE CERTIFICATE
Registered Number: .............. CUSIP: .............. ISIN: .................
THE NOTES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR ANY SECURITIES
LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THE
NOTES REPRESENTED HEREBY, AGREES FOR THE BENEFIT OF THE ISSUING ENTITY THAT THE
NOTES REPRESENTED HEREBY MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS
AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (4) TO THE ISSUING ENTITY, OR ITS AFFILIATES.
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUING
ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
NOTE
- 142 -
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
EUROCLEAR BANK S.A./N.V. ("EUROCLEAR") AND CLEARSTREAM BANKING, SOCIETE ANONYME
("CLEARSTREAM") TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR IN SUCH OTHER NAME AS
ITS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR AND CLEARSTREAM (AND
ANY PAYMENT IS MADE TO THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR
AND CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED, HAS AN INTEREST
HEREIN.]**
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 143 -
BY OR FOR THE ACCOUNT OF THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY
(AS DEFINED IN THE MTN SUPPLEMENT) ARE NOT SUFFICIENT FOR THE ISSUING ENTITY TO
MEET ITS OBLIGATIONS IN RESPECT OF THE NOTES AND OTHER DOCUMENTS, NO OTHER
ASSETS OF THE ISSUING ENTITY WILL BE AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
(incorporated with limited liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class [A/B/C/D] Asset Backed [Floating/Fixed] Rate Notes due [o]
RULE 144A GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This Rule 144A Global Note Certificate is issued in respect of the
[currency][amount] Class [A/B/C/D] Asset Backed [Floating/Fixed] Rate
Notes due [o] (the "NOTES") of Gracechurch Card Programme Funding
Limited (the "ISSUING ENTITY"). The Notes are constituted by, are
subject to, and have the benefit of, a note trust deed dated [o] (as
amended or supplemented from time to time, the "NOTE TRUST DEED")
between the Issuing Entity and The Bank of New York, London Branch as
note trustee (the "NOTE TRUSTEE", which expression includes all persons
for the time being appointed trustee or trustees under the Trust Deed)
and are the subject of a paying agency and agent bank agreement dated
[o] (as amended or supplemented from time to time, the "PAYING AGENCY
AND AGENT BANK AGREEMENT") and made between, among others, the Issuing
Entity, The Bank of New York as registrar (the "REGISTRAR", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), The Bank of New York, London Branch as
principal paying agent (the "PRINCIPAL PAYING AGENT"), the other paying
agents named therein and the Note Trustee.
2. REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Notes attached hereto and any reference to a numbered "CONDITION"
is to the correspondingly numbered provision thereof.
3. REGISTERED HOLDER
This is to certify that:
[Cede & Co.]* [Nominee]** (the "NOMINEE")
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 144 -
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder
(the "HOLDER") of the Notes represented from time to time by this Rule
144A Global Note Certificate.
4. PROMISE TO PAY
The Issuing Entity, for value received, hereby promises to pay to the
Holder such principal sum as is noted in the Register as being the
principal amount of this Rule 144A Global Note Certificate for the time
being on [o] or on such earlier date or dates as the same may become
payable in accordance with the Conditions, and to pay interest on such
principal sum in arrear on the dates and at the rate specified in the
Conditions, together with any additional amounts payable in accordance
with the Conditions, all subject to and in accordance with the
Conditions.
5. TRANSFERS IN WHOLE
Transfers of this Rule 144A Global Note Certificate shall be limited to
transfers in whole, but not in part.
6. EXCHANGE FOR RULE 144A INDIVIDUAL NOTE CERTIFICATES
This Rule 144A Global Note Certificate will be exchanged in whole (but
not in part) for duly authenticated and completed individual note
certificates ("RULE 144A INDIVIDUAL NOTE CERTIFICATES") in substantially
the form (subject to completion) set out in Schedule 11 (Form of Rule
144A Individual Note Certificate) to the Note Trust Deed if: [(i) DTC
notifies the Note Trustee or the Principal Paying Agent that it is
unwilling or unable to continue as depositary for this Rule 144A Global
Note Certificate or DTC ceases to be a "clearing agency" registered
under the United States Securities and Exchange Act of 1934, as amended,
and a successor depositary or clearing system is not appointed by the
Note Trustee or the Principal Paying Agent within 90 days of receiving
such notice; or (ii) the Notes become immediately due and payable by
reason of an Event of Default.]* [(i) Euroclear or Clearstream is closed
for business for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or announces an intention permanently
to cease business or does in fact do so or (ii) the Notes become
immediately due and payable by reason of an Event of Default.]**
Such exchange shall be effected in accordance with paragraph 7 (Delivery
of Rule 144A Individual Note Certificates). The Issuing Entity shall
notify the Holder of the occurrence of any of the events specified in
(i) or (ii) as soon as practicable thereafter.
7. DELIVERY OF RULE 144A INDIVIDUAL NOTE CERTIFICATES
Whenever this Rule 144A Global Note Certificate is to be exchanged for
Rule 144A Individual Note Certificates, such Rule 144A Individual Note
Certificates shall be issued in an aggregate principal amount equal to
the principal amount of this Rule 144A Global Note Certificate against
the surrender of this Rule 144A Global Note Certificate at the
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 145 -
Specified Office (as defined in the Conditions) of the Registrar within
five business days of:
(a) the delivery to the Registrar, by or on behalf of the Holder,
DTC, Euroclear Bank S.A./N.V. ("EUROCLEAR") and/or Clearstream
Banking, societe anonyme, Luxembourg ("CLEARSTREAM,
LUXEMBOURG"), as applicable, of such information as is required
to complete and deliver such Rule 144A Individual Note
Certificates (including, without limitation, the names and
addresses of the persons in whose names the Rule 144A
Individual Note Certificates are to be registered and the
principal amount of each such person's holding); and
(b) the delivery to the Registrar of a certificate given by or on
behalf of the holder of each beneficial interest in this Rule
144A Global Note Certificate stating either (i) that such
holder is not transferring its interest at the time of such
exchange or (ii) that the transfer or exchange of such interest
has been made in compliance with the transfer restrictions
applicable to the Notes and that the person transferring such
interest reasonably believes that the person acquiring such
interest is a qualified institutional buyer (as defined in Rule
144A under the United States Securities Act of 1933 (the
"SECURITIES ACT")) and is obtaining such beneficial interest in
a transaction meeting the requirements of Rule 144A.
Such exchange shall be effected in accordance with the provisions of the
Paying Agency and Agent Bank Agreement and the regulations concerning
the transfer and registration of Notes scheduled thereto and, in
particular, shall be effected without charge to any Holder or the Note
Trustee, but against such indemnity as the Registrar may require in
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"BUSINESS DAY" means a day on which commercial banks are open for
business (including dealings in foreign currencies) in the city in which
the Registrar has its Specified Office.
8. TRANSFER AND EXCHANGE FOR AN INTEREST IN THE REGULATION S GLOBAL NOTE
CERTIFICATE
If a holder of a beneficial interest in the Notes represented by this
Rule 144A Global Note Certificate wishes at any time to transfer such
beneficial interest to a person who wishes to take delivery thereof in
the form of a beneficial interest in the unrestricted global note
certificate issued in relation to the Notes (the "REGULATION S GLOBAL
NOTE CERTIFICATE"), such holder may transfer such beneficial interest in
accordance with the rules and operating procedures of DTC, Euroclear
and/or Clearstream, Luxembourg, as applicable, and the terms of this
paragraph. Upon receipt by the Registrar of:
(a) notification by DTC, Euroclear and/or Clearstream, Luxembourg,
as applicable, or their respective custodians or depositaries,
that the appropriate debit and credit entries have been made in
the accounts of the relevant participants of DTC, Euroclear
and/or Clearstream, Luxembourg, as the case may be; and
(b) a certificate in the form of Schedule 2 (Form of Transfer
Certificate) to the Paying Agency and Agent Bank Agreement
given by the holder of such beneficial interest stating that
the transfer or exchange of such interest has been
- 146 -
made in compliance with the transfer restrictions applicable to
the Notes and that (i) such transfer or exchange has been made
pursuant to and in accordance with Regulation S ("REGULATION
S") under the United States Securities Act of 1933 (the
"SECURITIES ACT") or (ii) the Notes are being exchanged or
transferred pursuant to an exemption from registration provided
by Rule 144 under the Securities Act,
the Issuing Entity shall procure that (1) the Registrar decreases the
aggregate principal amount of this Rule 144A Global Note Certificate by
the principal amount of Notes the subject of such transfer and increases
the aggregate principal amount of the Regulation S Global Note
Certificate by such principal amount and (2) appropriate entries are
made in the records of the [custodian for The Depository Trust Company]*
[Nominee]** so as to reflect such decrease and increase.
9. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this Rule 144A Global
Note Certificate shall have the benefit of, and be subject to, the
Conditions and, for the purposes of this Rule 144A Global Note
Certificate, any reference in the Conditions to "Note Certificate" or
"Note Certificates" shall, except where the context otherwise requires,
be construed so as to include this Rule 144A Global Note Certificate.
10. NOTICES
Notwithstanding Condition 15 (Notices), so long as this Rule 144A Global
Note Certificate is held on behalf of DTC, Euroclear or Clearstream,
Luxembourg or any other clearing system (an "ALTERNATIVE CLEARING
SYSTEM"), notices to Holders of Notes represented by this Rule 144A
Global Note Certificate may be given by delivery of the relevant notice
to DTC or Euroclear and Clearstream, Luxembourg or such Alternative
Clearing System (as the case may be).
11. LEGENDS
The statements set out in the legends above are an integral part of this
Rule 144A Global Note Certificate and, by acceptance hereof, each Holder
of this Rule 144A Global Note Certificate agrees to be subject to and
bound by such legends.
12. DETERMINATION OF ENTITLEMENT
This Rule 144A Global Note Certificate is evidence of entitlement only
and is not a document of title. Entitlements are determined by the
Register and only the Holder is entitled to payment in respect of this
Rule 144A Global Note Certificate.
13. AUTHENTICATION
This Rule 144A Global Note Certificate shall not be valid for any
purpose until it has been authenticated for and on behalf of The Bank of
New York as registrar.
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 147 -
14. GOVERNING LAW
This Rule 144A Global Note Certificate is governed by, and shall be
construed in accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
Gracechurch Card Programme Funding Limited
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By: ...................................
[manual signature]
(duly authorised)
- 148 -
FORM OF TRANSFER
FOR VALUE RECEIVED ..................................................., being
the registered holder of this Rule 144A Global Note Certificate, hereby
transfers to ..................................................................
............................................................................. of
................................................................................
................................................................................
......................................................................[currency]
...................................... in principal amount of the [currency
amount] Class [A/B/C/D] Asset Backed [Floating/Fixed] Rate Notes due [o] (the
"NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING ENTITY")
and irrevocably requests and authorises The Bank of New York, in its capacity as
registrar in relation to the Notes (or any successor to The Bank of New York,
in its capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Rule 144A Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g., executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorized specimen signatures supplied by the registered
holder or be certified by a recognized bank, notary public or in such
other manner as the Registrar may require.
- 149 -
[Attached to each Rule 144A Global Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 150 -
SCHEDULE 11
FORM OF RULE 144A INDIVIDUAL NOTE CERTIFICATE
Registered Number: ............ CUSIP: ............. ISIN: ...................
THE NOTES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR ANY SECURITIES
LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THE
NOTES REPRESENTED HEREBY, AGREES FOR THE BENEFIT OF THE ISSUING ENTITY THAT THE
NOTES REPRESENTED HEREBY MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS
AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER WHOM THE HOLDER HAS INFORMED, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (4) TO THE ISSUING ENTITY, OR ITS AFFILIATES.
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE
- 151 -
FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL
AMOUNT BY INQUIRY OF THE BANK OF NEW YORK, LONDON BRANCH AS THE PRINCIPAL PAYING
AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE ACCOUNT OF THE
ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN THE MTN
SUPPLEMENT) ARE NOT SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS OBLIGATIONS IN
RESPECT OF THE NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE ISSUING ENTITY
WILL BE AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
(incorporated with limited liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class [A/B/C/D] Asset Backed [Floating/Fixed] Rate Notes due [o]
RULE 144A INDIVIDUAL NOTE CERTIFICATE
This Rule 144A Individual Note Certificate is issued in respect of the
[currency][amount] Class [A/B/C/D] Asset Backed [Floating/Fixed] Rate Notes due
[o] (the "NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING
ENTITY"). The Notes are constituted by, are subject to, and have the benefit of,
a note trust deed dated [o] (as amended or supplemented from time to time, the
"NOTE TRUST DEED") between the Issuing Entity and The Bank of New York, London
Branch as note trustee (the "NOTE TRUSTEE", which expression includes all
persons for the time being appointed trustee or trustees under the Trust Deed)
and are the subject of a paying agency and agent bank agreement dated [o] (as
amended or supplemented from time to time, the "PAYING AGENCY AND AGENT BANK
AGREEMENT") and made between, among others, the Issuing Entity, The Bank of New
York as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Notes), The Bank of
New York, London Branch as principal paying agent (the "PRINCIPAL PAYING
AGENT"), the other paying agents named therein and the Note Trustee.
- 152 -
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Notes endorsed hereon and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof.
This is to certify that:
......................................................
of ..................................................
......................................................
is the person registered in the Register maintained by the Registrar in relation
to the Notes as the duly registered holder or, if more than one person is so
registered, the first-named of such persons (the "HOLDER") of:
[currency][amount] .............................................................
(............................................... [CURRENCY AND AMOUNT IN WORDS])
in aggregate principal amount of the Notes.
The Issuing Entity, for value received, hereby promises to pay such principal
sum to the Holder on [o] or on such earlier date or dates as the same may become
payable in accordance with the Conditions, and to pay interest on such principal
sum in arrear on the dates and at the rate specified in the Conditions, together
with any additional amounts payable in accordance with the Conditions, all
subject to and in accordance with the Conditions.
The statements set out in the legend above are an integral part of this Rule
144A Individual Note Certificate and, by acceptance hereof, each Holder of this
Rule 144A Individual Note Certificate agrees to be subject to and bound by such
legends.
This Rule 144A Individual Note Certificate is evidence of entitlement only and
is not a document of title. Entitlements are determined by the Register and only
the Holder is entitled to payment in respect of this Rule 144A Individual Note
Certificate.
This Rule 144A Individual Note Certificate shall not be valid for any purpose
until it has been authenticated for and on behalf of The Bank of New York as
registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
- 153 -
Gracechurch Card Programme Funding Limited
By:...................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By:........................................
[manual signature]
(duly authorised)
- 154 -
FORM OF TRANSFER
FOR VALUE RECEIVED ...................., being the registered holder of this
Rule 144A Individual Note Certificate, hereby transfers to .................
......................................................................... of
.........................................................................
........................................................................
..................................................................... [currency]
..................in principal amount of the [currency][amount] Class [A/B/C/D]
Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES") of Gracechurch
Card Programme Funding Limited (the "ISSUING ENTITY") and irrevocably requests
and authorises The Bank of New York, in its capacity as registrar in relation
to the Notes (or any successor to The Bank of New York, in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
We, as transferor of the Notes represented by this Rule 144A Individual Note
Certificate, hereby certify that such Notes are being transferred in accordance
with the transfer restrictions set forth in the prospectus supplement/final
terms relating to the Notes dated [o] and in accordance with the terms of any
legend on this Note Certificate and that we are transferring such Notes:
1. |_| to a person whom we reasonably believe is purchasing for its own
account or accounts as to which it exercises sole investment discretion;
such person and each such account is a qualified institutional buyer (as
defined in Rule 144A under the United States Securities Act of 1933 (the
"SECURITIES ACT")); the purchaser is aware that the sale to it is being
made in reliance upon Rule 144A and such transaction meets the
requirements of Rule 144A and is in accordance with any applicable
securities laws of any state of the United States or any other
jurisdiction; or
2. |_| to the Issuer or any of its affiliates; or
3. |_| in accordance with Regulation S under the Securities Act, and,
accordingly, we hereby certify that:
(a) the offer of the Notes was not made to a person in the United
States;
(b) |_| (i) at the time the buy order was originated, the buyer was
outside the United States or we or any person acting on
our behalf reasonably believed that the buyer was outside
the United States; or
|_| (ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither we nor any person acting on our behalf know that
the transaction was prearranged with a buyer in the
United States;
(c) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable;
- 155 -
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(e) with regard to transfers occurring within the period prior to
and including the fortieth day after the issue date of the
Notes, the Notes to which this form of transfer relates shall be
held through either Euroclear Bank S.A./N.V. or Clearstream
Banking, societe anonyme, Luxembourg; or
4. |_| pursuant to an exemption from registration provided by Rule 144 under
the Securities Act, if available.
If none of the foregoing boxes is ticked, the Registrar shall not be obliged to
register the transfer of the Notes.
Dated: .......................................
By: .......................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Rule 144A Individual Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorized specimen signatures supplied by the registered
holder or be certified by a recognized bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Notes shall be in an amount equal to US$[o] (or its
equivalent in another currency) or any integral multiple of US$[o] in
excess thereof.
- 156 -
[Attached to each Rule 144A Individual Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 157 -
SCHEDULE 12
FORM OF REGULATION S GLOBAL NOTE CERTIFICATE
Registered Number: ............... ISIN: ............................
THIS REGULATION S GLOBAL NOTE CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR WITH
ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT.
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUING
ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
- 158 -
[UNLESS THIS NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
EUROCLEAR BANK S.A./N.V. ("EUROCLEAR") AND CLEARSTREAM BANKING, SOCIETE ANONYME
("CLEARSTREAM") TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY NOTE CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR IN SUCH OTHER NAME AS
ITS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR AND CLEARSTREAM (AND
ANY PAYMENT IS MADE TO THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR
AND CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, THE BANK OF NEW YORK DEPOSITARY (NOMINEES) LIMITED, HAS AN INTEREST
HEREIN.]**
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS
DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE SECURITY TRUST DEED
AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999 BETWEEN BARCLAYCARD
FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE BANK OF NEW YORK,
LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")). IF THE AGGREGATE
AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE ACCOUNT OF THE
ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN THE MTN
SUPPLEMENT) ARE NOT SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS OBLIGATIONS IN
RESPECT OF THE NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE ISSUING ENTITY
WILL BE AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
- --------------------------------------------------------------------------------
** Include on European Global Note Certificates only.
- 159 -
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
(incorporated with limited liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class [A/B/C/D] Asset Backed [Floating/Fixed] Rate Notes due [o]
REGULATION S GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This Regulation S Global Note Certificate is issued in respect of the
[currency][amount] Class [A/B/C/D] Asset Backed [Floating/Fixed] Rate
Notes due [o] (the "NOTES") of Gracechurch Card Programme Funding
Limited (the "ISSUING ENTITY"). The Notes are constituted by, are
subject to, and have the benefit of, a note trust deed dated [o] (as
amended or supplemented from time to time, the "NOTE TRUST DEED")
between the Issuing Entity and The Bank of New York, London Branch as
note trustee (the "NOTE TRUSTEE", which expression includes all persons
for the time being appointed trustee or trustees under the Trust Deed)
and are the subject of a paying agency and agent bank agreement dated
[o] (as amended or supplemented from time to time, the "PAYING AGENCY
AND AGENT BANK AGREEMENT") and made between, among others, the Issuing
Entity, The Bank of New York as registrar (the "REGISTRAR", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), The Bank of New York, London Branch as
principal paying agent (the "PRINCIPAL PAYING AGENT"), the other paying
agents named therein and the Note Trustee.
2. REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Notes attached hereto and any reference to a numbered "CONDITION"
is to the correspondingly numbered provision thereof.
3. REGISTERED HOLDER
This is to certify that:
[Cede & Co.]* [Nominee]** (the "NOMINEE")
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "REGISTER") as the duly registered holder
(the "HOLDER") of the Notes represented from time to time by this
Regulation S Global Note Certificate.
4. PROMISE TO PAY
The Issuing Entity, for value received, hereby promises to pay to the
Holder such principal sum as is noted in the Register as being the
principal amount of this Regulation S Global Note Certificate for the
time being on [o] or on such earlier date or dates as the same may
become payable in accordance with the Conditions, and to pay interest on
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 160 -
such principal sum in arrear on the dates and at the rate specified in
the Conditions, together with any additional amounts payable in
accordance with the Conditions, all subject to and in accordance with
the Conditions.
5. TRANSFERS IN WHOLE
Transfers of this Regulation S Global Note Certificate shall be limited
to transfers in whole, but not in part.
6. EXCHANGE FOR REGULATION S INDIVIDUAL NOTE CERTIFICATES
This Regulation S Global Note Certificate will be exchanged in whole
(but not in part) for duly authenticated and completed individual note
certificates ("REGULATION S INDIVIDUAL NOTE CERTIFICATES") in
substantially the form (subject to completion) set out in Schedule 13
(Form of Regulation S Individual Note Certificate) to the Note Trust
Deed if: [(i) DTC notifies the Note Trustee or the Principal Paying
Agent that it is unwilling or unable to continue as depositary for this
Rule 144A Global Note Certificate or DTC ceases to be a "clearing
agency" registered under the United States Securities and Exchange Act
of 1934, as amended, and a successor depositary or clearing system is
not appointed by the Note Trustee or the Principal Paying Agent within
90 days of receiving such notice; (ii) Euroclear or Clearstream is
closed for business for a continuous period of 14 days (other than by
reason of holiday, statutory or otherwise) or announces an intention
permanently to cease business or does in fact do so; or (iii) the Notes
become immediately due and payable by reason of an Event of Default.]*
[(i) Euroclear or Clearstream is closed for business for a continuous
period of 14 days (other than by reason of holiday, statutory or
otherwise) or announces an intention permanently to cease business or
does in fact do so; or (ii) the Notes become immediately due and payable
by reason of an Event of Default.]**
Such exchange shall be effected in accordance with paragraph 7 (Delivery
of Regulation S Individual Note Certificates). The Issuing Entity shall
notify the Holder of the occurrence of any of the events specified above
as soon as practicable thereafter.
7. DELIVERY OF UNRESTRICTED INDIVIDUAL NOTE CERTIFICATES
Whenever this Regulation S Global Note Certificate is to be exchanged
for Regulation S Individual Note Certificates, such Regulation S
Individual Note Certificates shall be issued in an aggregate principal
amount equal to the principal amount of this Regulation S Global Note
Certificate against surrender of this Regulation S Global Note
Certificate at the Specified Office (as defined in the Conditions) of
the Registrar within five business days of the delivery to the
Registrar, by or on behalf of the Holder, DTC, Euroclear and/or
Clearstream, Luxembourg, as applicable, of such information as is
required to complete and deliver such Regulation S Individual Note
Certificates (including, without limitation, the names and addresses of
the persons in whose names the Regulation S Individual Note Certificates
are to be registered and the principal
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 161 -
amount of each such person's holding). Such exchange shall be effected
in accordance with the provisions of the Paying Agency and Agent Bank
Agreement and the regulations concerning the transfer and registration
of Notes scheduled thereto and, in particular, shall be effected without
charge to any Holder or the Note Trustee, but against such indemnity as
the Registrar may require in respect of any tax or other duty of
whatsoever nature which may be levied or imposed in connection with such
exchange. In this paragraph, "BUSINESS DAY" means a day on which
commercial banks are open for business (including dealings in foreign
currencies) in the city in which the Registrar has its Specified Office.
8. TRANSFER AND EXCHANGE FOR AN INTEREST IN THE RULE 144A GLOBAL NOTE
CERTIFICATE
If a holder of a beneficial interest in the Notes represented by this
Regulation S Global Note Certificate wishes at any time to transfer such
beneficial interest to a person who wishes to take delivery thereof in
the form of a beneficial interest in the restricted global note
certificate issued in relation to the Notes (the "RULE 144A GLOBAL NOTE
CERTIFICATE"), such holder may transfer such beneficial interest in
accordance with the rules and operating procedures of DTC, Euroclear
and/or Clearstream, Luxembourg, as applicable, and the terms of this
paragraph. Upon receipt by the Registrar of:
(a) notification by DTC, Euroclear and/or Clearstream, Luxembourg,
as applicable, or their respective custodians or depositaries,
that the appropriate debit and credit entries have been made in
the accounts of the relevant participants of DTC, Euroclear
and/or Clearstream, Luxembourg, as the case may be; and
(b) a certificate in the form of Schedule 2 (Form of Transfer
Certificate) to the Paying Agency and Agent Bank Agreement given
by the holder of such beneficial interest requesting such
transfer or exchange and, in the case of transfer or exchange on
or prior to the fortieth day after the date of issue of this
Regulation S Global Note Certificate, stating that the transfer
or exchange of such interest has been made in compliance with
the transfer restrictions applicable to the Notes and that the
person transferring such interest in this Regulation S Global
Note Certificate reasonably believes that the person acquiring
such interest in the Rule 144A Global Note Certificate is a
qualified institutional buyer (as defined in Rule 144A under the
United States Securities Act of 1933) and is obtaining such
beneficial interest in a transaction meeting the requirements of
Rule 144A,
the Issuing Entity shall procure that (i) the Registrar decreases the
aggregate principal amount of this Regulation S Global Note Certificate
by the principal amount of Notes the subject of such transfer and
increases the aggregate principal amount of the Rule 144A Global Note
Certificate by such principal amount and (ii) appropriate entries are
made in the records of the [custodian for The Depository Trust Company]*
[Nominee]** so as to reflect such decrease and increase.
- --------------------------------------------------------------------------------
* Include on DTC Global Note Certificates only.
** Include on European Global Note Certificates only.
- 162 -
9. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this Regulation S
Global Note Certificate shall have the benefit of, and be subject to,
the Conditions and, for the purposes of this Regulation S Global Note
Certificate, any reference in the Conditions to "Note Certificate" or
"Note Certificates" shall, except where the context otherwise requires,
be construed so as to include this Regulation S Global Note Certificate.
10. NOTICES
Notwithstanding Condition 15 (Notices), so long as this Regulation S
Global Note Certificate is held on behalf of DTC, Euroclear or
Clearstream, Luxembourg or any other clearing system (an "ALTERNATIVE
CLEARING SYSTEM"), notices to Holders of Notes represented by this
Regulation S Global Note Certificate may be given by delivery of the
relevant notice to DTC or Euroclear and Clearstream, Luxembourg or such
Alternative Clearing System (as the case may be).
11. LEGENDS
The statements set out in the legends above are an integral part of this
Regulation S Global Note Certificate and, by acceptance hereof, each
Holder of this Regulation S Global Note Certificate agrees to be subject
to and bound by such legends.
12. DETERMINATION OF ENTITLEMENT
This Regulation S Global Note Certificate is evidence of entitlement
only and is not a document of title. Entitlements are determined by the
Register and only the Holder is entitled to payment in respect of this
Regulation S Global Note Certificate.
13. AUTHENTICATION
This Regulation S Global Note Certificate shall not be valid for any
purpose until it has been authenticated for and on behalf of The Bank of
New York as registrar.
14. GOVERNING LAW
This Regulation S Global Note Certificate is governed by, and shall be
construed in accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
- 163 -
Gracechurch Card Programme Funding Limited
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By: ...................................
[manual signature]
(duly authorised)
- 164 -
FORM OF TRANSFER
FOR VALUE RECEIVED ........................., being the registered holder of
this Regulation S Global Note Certificate, hereby transfers to ................
..............................................................................of
................................................................................
................................................................................
.......................................................................currency]
...............in principal amount of the [currency][amount] Class [A/B/C/D]
Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES") of Gracechurch
Card Programme Funding Limited (the "ISSUING ENTITY") and irrevocably requests
and authorises The Bank of New York, in its capacity as registrar in relation
to the Notes (or any successor to The Bank of New York, in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
Dated: .......................................
By: .......................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Regulation S Global Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g., executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorized specimen signatures supplied by the registered
holder or be certified by a recognized bank, notary public or in such
other manner as the Registrar may require.
- 165 -
[Attached to each Regulation S Global Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 166 -
SCHEDULE 13
FORM OF REGULATION S INDIVIDUAL NOTE CERTIFICATE
Registered Number: ............... ISIN: ............................
THIS REGULATION S INDIVIDUAL NOTE CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR WITH
ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT.
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), A "PLAN" AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY
WHOSE ASSETS INCLUDE THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY
REASON OF 29 C.F.R. 2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN
SUBJECT TO ANY FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY
SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT
PURCHASING THIS NOTE ON BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING
AND SUBSEQUENT DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE
CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO SIMILAR LAW, IS NOT AND
WILL NOT BE IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE NOTE TRUST DEED, DATED [O]
2008, BETWEEN THE ISSUING ENTITY AND THE BANK OF NEW YORK (THE "NOTE TRUST
DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE
MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE BANK OF NEW YORK,
LONDON BRANCH AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE NOTE TRUST DEED OR ANY OTHER DOCUMENT, ALL PAYMENTS OF PRINCIPAL, INTEREST
OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUING ENTITY IN RESPECT OF THE NOTES OR
UNDER ANY OTHER DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF PAYMENTS
AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS RECOVERED
BY OR ON BEHALF OF, THE ISSUING ENTITY IN RESPECT OF THE
- 167 -
SECURED PROPERTY (AS DEFINED IN THE SERIES [O] MTN SUPPLEMENT DATED [O] TO THE
SECURITY TRUST DEED AND MTN CASH MANAGEMENT AGREEMENT DATED 23 NOVEMBER 1999
BETWEEN BARCLAYCARD FUNDING PLC, GRACECHURCH RECEIVABLES TRUSTEE LIMITED, THE
BANK OF NEW YORK, LONDON BRANCH AND BARCLAYS BANK PLC (THE "MTN SUPPLEMENT")).
IF THE AGGREGATE AMOUNTS RECEIVED, REALISED OR OTHERWISE RECOVERED BY OR FOR THE
ACCOUNT OF THE ISSUING ENTITY IN RESPECT OF THE SECURED PROPERTY (AS DEFINED IN
THE MTN SUPPLEMENT) ARE NOT SUFFICIENT FOR THE ISSUING ENTITY TO MEET ITS
OBLIGATIONS IN RESPECT OF THE NOTES AND OTHER DOCUMENTS, NO OTHER ASSETS OF THE
ISSUING ENTITY WILL BE AVAILABLE TO MEET SUCH INSUFFICIENCY.
THIS NOTE CANNOT BE TRANSFERRED TO A PERSON RESIDENT FOR JERSEY INCOME TAX
PURPOSES IN JERSEY OTHER THAN A FINANCIAL INSTITUTION ACTING IN THE ORDINARY
COURSE OF ITS BUSINESS.
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
(incorporated with limited liability under the laws of Jersey, Channel Islands)
[currency][amount]
Class [A/B/C/D] Asset Backed [Floating/Fixed] Rate Notes due [o]
REGULATION S INDIVIDUAL NOTE CERTIFICATE
This Regulation S Individual Note Certificate is issued in respect of the
[currency][amount] Class [A/B/C/D] Asset Backed [Floating/Fixed] Rate Notes due
[o] (the "NOTES") of Gracechurch Card Programme Funding Limited (the "ISSUING
ENTITY"). The Notes are constituted by, are subject to, and have the benefit of,
a note trust deed dated [o] (as amended or supplemented from time to time, the
"NOTE TRUST DEED") between the Issuing Entity and The Bank of New York, London
Branch as note trustee (the "NOTE TRUSTEE", which expression includes all
persons for the time being appointed trustee or trustees under the Trust Deed)
and are the subject of a paying agency and agent bank agreement dated [o] (as
amended or supplemented from time to time, the "PAYING AGENCY AND AGENT BANK
AGREEMENT") and made between, among others, the Issuing Entity, The Bank of New
York as registrar (the "REGISTRAR", which expression includes any successor
registrar appointed from time to time in connection with the Notes), The Bank of
New York, London Branch as principal paying agent (the "PRINCIPAL PAYING
AGENT"), the other paying agents named therein and the Note Trustee.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Notes endorsed hereon and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof.
This is to certify that:
......................................................
of ..................................................
......................................................
- 168 -
is the person registered in the Register maintained by the Registrar in relation
to the Notes as the duly registered holder or, if more than one person is so
registered, the first-named of such persons (the "HOLDER") of:
[currency][amount] ............................................................
(.......................[CURRENCY AND AMOUNT IN WORDS])
in aggregate principal amount of the Notes.
The Issuing Entity, for value received, hereby promises to pay such principal
sum to the Holder on [o] or on such earlier date or dates as the same may become
payable in accordance with the Conditions, and to pay interest on such principal
sum in arrear on the dates and at the rate specified in the Conditions, together
with any additional amounts payable in accordance with the Conditions, all
subject to and in accordance with the Conditions.
The statements set out in the legend above are an integral part of this
Regulation S Individual Note Certificate and, by acceptance hereof, each Holder
of this Regulation S Individual Note Certificate agrees to be subject to and
bound by such legends.
This Regulation S Individual Note Certificate is evidence of entitlement only
and is not a document of title. Entitlements are determined by the Register and
only the Holder is entitled to payment in respect of this Regulation S
Individual Note Certificate.
This Regulation S Individual Note Certificate shall not be valid for any purpose
until it has been authenticated for and on behalf of The Bank of New York as
registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuing Entity.
Gracechurch Card Programme Funding Limited
By:...................................
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
- 169 -
AUTHENTICATED for and on behalf of
The Bank of New York as Registrar
without recourse, warranty or liability
By:........................................
[manual signature]
(duly authorised)
- 170 -
FORM OF TRANSFER
FOR VALUE RECEIVED ......................, being the registered holder of this
Regulation S Individual Note Certificate, hereby transfers to..................
..............................................................................of
................................................................................
................................................................................
......................................................................[currency]
.................. in principal amount of the [currency][amount] Class [A/B/C/D]
Asset Backed [Floating/Fixed] Rate Notes due [o] (the "NOTES") of Gracechurch
Card Programme Funding Limited (the "ISSUING ENTITY") and irrevocably requests
and authorises The Bank of New York, in its capacity as registrar in relation to
the Notes (or any successor to The Bank of New York, in its capacity as such) to
effect the relevant transfer by means of appropriate entries in the register
kept by it.
Dated:.........................................
By:............................................
(duly authorised)
Notes
(a) The name of the person by or on whose behalf this form of transfer is
signed must correspond with the name of the registered holder as it
appears on the face of this Regulation S Individual Note Certificate.
(b) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform to any
list of duly authorized specimen signatures supplied by the registered
holder or be certified by a recognized bank, notary public or in such
other manner as the Registrar may require.
(d) Any transfer of Notes shall be in an amount equal to US$[o] (or its
equivalent in another currency) or any integral multiple of US$[o] in
excess thereof.
- 171 -
[Attached to each Regulation S Individual Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 (Terms and Conditions of the Notes) to the Note Trust
Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND U.S. PAYING AGENT]
THE BANK OF NEW YORK
One Wall Street
New York, New York 10286
United States of America
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London E14 5AL
United Kingdom
- 172 -
SCHEDULE 14
PROVISIONS RELATING TO MEETINGS OF NOTEHOLDERS
1. ISSUE OF BLOCK VOTING INSTRUCTIONS AND FORMS OF PROXY
The holder of a Note may require the Registrar to issue a Block Voting
Instruction by arranging (to the satisfaction of the Registrar) for such
Note to be blocked in an account with a Clearing System not later than
48 hours before the time fixed for the relevant Meeting. The holder of a
Note may require the Registrar to issue a Block Voting Instruction by
delivering to the Registrar written instructions not later than 48 hours
before the time fixed for the relevant Meeting. Any holder of a Note may
obtain an uncompleted and unexecuted Form of Proxy from the Registrar. A
Block Voting Instruction and a Form of Proxy cannot be outstanding
simultaneously in respect of the same Note.
2. REFERENCES TO BLOCKING/RELEASE OF NOTES
Where Notes are represented by a Global Note Certificate or are held in
definitive form within a Clearing System, references to the blocking, or
release, of Notes shall be construed in accordance with the usual
practices (including blocking the relevant account) of such Clearing
System.
3. VALIDITY OF BLOCK VOTING INSTRUCTIONS AND FORMS OF PROXY
Block Voting Instructions in relation to Notes and Forms of Proxy shall
be valid only if deposited at the specified office of the Registrar or
at some other place approved by the Note Trustee, at least 24 hours
before the time fixed for the relevant Meeting or the Chairman decides
otherwise before the Meeting proceeds to business. If the Note Trustee
requires, a notarised copy of each Block Voting Instruction and
satisfactory proof of the identity of each Proxy named therein shall be
produced at the Meeting, but the Note Trustee shall not be obliged to
investigate the validity of any Block Voting Instruction or the
authority of any Proxy.
4. RECORD DATE
The Issuing Entity may fix a record date for the purposes of any Meeting
or any resumption thereof following its adjournment for want of a quorum
provided that such record date is not more than 10 days prior to the
time fixed for such Meeting or (as the case may be) its resumption. The
person in whose name a Note is registered in the Register on the record
date at close of business in the city in which the Registrar has its
Specified Office shall be deemed to be the holder of such Note for the
purposes of such Meeting and notwithstanding any subsequent transfer of
such Note or entries in the Register.
5. CONVENING OF MEETING
The Issuing Entity or the Note Trustee may convene a Meeting at any
time, and the Note Trustee shall be obliged to do so subject to its
being indemnified and/or secured to its satisfaction upon the request in
writing of Noteholders holding not less than one tenth of the aggregate
Principal Amount Outstanding of the Notes. Every Meeting shall be held
on a date, and at a time and place, approved by the Note Trustee.
- 173 -
6. NOTICE
At least 21 days' notice (exclusive of the day on which the notice is
given and of the day on which the relevant Meeting is to be held)
specifying the date, time and place of the Meeting shall be given to the
Noteholders and the Registrar with a copy to the Issuing Entity (where
the Meeting is convened by the Note Trustee) or the Note Trustee (where
the Meeting is convened by the Issuing Entity).
The notice shall set out the full text of any resolutions to be proposed
unless the Note Trustee agrees that the notice shall instead specify the
nature of the resolutions without including the full text and shall
state that Notes may be blocked in Clearing Systems for the purposes of
appointing Proxies under Block Voting Instructions until 48 hours before
the time fixed for the Meeting and a Noteholder may appoint a Proxy
either under a Block Voting Instruction by delivering written
instructions to the Registrar or by executing and delivering a Form of
Proxy to the Specified Office of the Registrar, in either case until 48
hours before the time fixed for the Meeting.
7. CHAIRMAN
An individual (who may, but need not, be a Noteholder) nominated in
writing by the Note Trustee may take the chair at any Meeting but, if no
such nomination is made or if the individual nominated is not present
within 15 minutes after the time fixed for the Meeting, those present
shall elect one of themselves to take the chair failing which, the
Issuing Entity may appoint a Chairman. The Chairman of an adjourned
Meeting need not be the same person as was the Chairman of the original
Meeting.
8. QUORUM
The quorum at any Meeting shall be at least two Voters representing or
holding not less than the Relevant Fraction of the aggregate Principal
Amount Outstanding of the outstanding Notes; PROVIDED, HOWEVER, THAT so
long as at least the Relevant Fraction of the aggregate Principal Amount
Outstanding of the outstanding Notes is represented by the Global Note
Certificate or Global Note Certificates or a single Individual Note
Certificate, a Voter appointed in relation thereto or being the holder
of the Notes represented thereby shall be deemed to be two Voters for
the purpose of forming a quorum.
9. ADJOURNMENT FOR WANT OF QUORUM
If within 15 minutes after the time fixed for any Meeting a quorum is
not present, then:
(a) in the case of a Meeting requested by Noteholders, it shall be
dissolved; and
(b) in the case of any other Meeting (unless the Issuing Entity and
the Note Trustee otherwise agree), it shall be adjourned for
such period (which shall be not less than 14 days and not more
than 42 days) and to such place as the Chairman determines (with
the approval of the Note Trustee) PROVIDED, HOWEVER, THAT the
Meeting shall be dissolved if the Issuing Entity and the Note
Trustee together so decide and no Meeting may be adjourned more
than once for want of a quorum.
10. ADJOURNED MEETING
The Chairman may, with the consent of, and shall if directed by, any
Meeting adjourn such Meeting from time to time and from place to place,
but no business shall be
- 174 -
transacted at any adjourned Meeting except business which might lawfully
have been transacted at the Meeting from which the adjournment took
place.
11. NOTICE FOLLOWING ADJOURNMENT
Paragraph 6 (Notice) shall apply to any Meeting which is to be resumed
after adjournment for want of a quorum save that:
(a) 10 days' notice (exclusive of the day on which the notice is
given and of the day on which the Meeting is to be resumed)
shall be sufficient; and
(b) the notice shall specifically set out the quorum requirements
which will apply when the Meeting resumes.
It shall not be necessary to give notice of the resumption of a Meeting
which has been adjourned for any other reason.
12. PARTICIPATION
The following may attend and speak at a Meeting:
(a) Voters;
(b) representatives of the Issuing Entity and the Note Trustee;
(c) the financial advisers of the Issuing Entity and the Note
Trustee;
(d) the legal counsel to the Issuing Entity and the Note Trustee and
such advisers;
(e) any other person approved by the Meeting or the Note Trustee;
and
(f) the Registrar.
13. SHOW OF HANDS
Every question submitted to a Meeting shall be decided in the first
instance by a show of hands. Unless a poll is validly demanded before or
at the time that the result is declared, the Chairman's declaration that
on a show of hands a resolution has been passed, passed by a particular
majority, rejected or rejected by a particular majority shall be
conclusive, without proof of the number of votes cast for, or against,
the resolution. Where there is only one Voter, this paragraph shall not
apply and the resolution will immediately be decided by means of a poll.
14. POLL
A demand for a poll shall be valid if it is made by the Chairman, the
Issuing Entity, the Note Trustee or one or more Voters representing or
holding not less than one fiftieth of the aggregate Principal Amount
Outstanding of the outstanding Notes. The poll may be taken immediately
or after such adjournment as the Chairman directs, but any poll demanded
on the election of the Chairman or on any question of adjournment shall
be taken at the Meeting without adjournment. A valid demand for a poll
shall not prevent the continuation of the relevant Meeting for any other
business as the Chairman directs.
15. VOTES
Every Voter shall have:
- 175 -
(a) on a show of hands, one vote; and
(b) on a poll, the number of votes obtained by dividing the
aggregate principal amount of the outstanding Notes represented
or held by him by the unit of currency in which the Notes are
denominated.
In the case of a voting tie the Chairman shall have a casting vote.
Unless the terms of any Block Voting Instruction or Form of Proxy state
otherwise, a Voter shall not be obliged to exercise all the votes to
which he is entitled or to cast all the votes which he exercises in the
same way.
In the case of any Meeting of holders of more than one Series or Class
or Sub-Class of Notes where not all such Series or Class or Sub-Class
are in the same currency, the principal amount of such Notes shall for
all purposes in this Schedule 14 (whether, among other things, in
respect of the Meeting or any poll resulting therefrom), be the
equivalent in U.S. dollars translated at the spot rate of a bank
nominated by the Note Trustee for the sale of the relevant currency or
currencies for U.S. dollars on the seventh dealing day prior to such
Meeting, or in the case of a written request pursuant to paragraph 5
(Convening of Meeting), the date of such request. In such circumstances,
on any poll each person present shall have one vote for each Unit of
Notes (converted as above) that he holds.
In this paragraph, a "UNIT" means the lowest denomination of the Notes
as stated in the applicable Note Trust Deed Supplement or in the case of
a meeting of Noteholders of more than one Series or Class or Sub-Class,
shall be the lowest common denominator of the lowest denomination of the
Notes.
16. VALIDITY OF VOTES BY PROXIES
Any vote by a Proxy in accordance with the relevant Block Voting
Instruction or Form of Proxy shall be valid even if such Block Voting
Instruction or Form of Proxy or any instruction pursuant to which it was
given has been amended or revoked PROVIDED THAT neither the Issuing
Entity, the Note Trustee nor the Chairman has been notified in writing
of such amendment or revocation by the time which is 24 hours before the
time fixed for the relevant Meeting.
Unless revoked, any appointment of a Proxy under a Block Voting
Instruction or Form of Proxy in relation to a Meeting shall remain in
force in relation to any resumption of such Meeting following an
adjournment PROVIDED, HOWEVER, THAT no such appointment of a Proxy in
relation to a Meeting originally convened which has been adjourned for
want of a quorum shall remain in force in relation to such Meeting when
it is resumed. Any person appointed to vote at such a Meeting must be
re-appointed under a Block Voting Instruction or Form of Proxy to vote
at the Meeting when it is resumed.
17. POWERS
A Meeting shall have power (exercisable only by Extraordinary
Resolution), without prejudice to any other powers conferred on it or
any other person:
(a) to approve any Basic Terms Modification;
- 176 -
(b) to approve any proposal by the Issuing Entity for any
modification, abrogation, variation or compromise of any
provisions of the Note Trust Deed or the Conditions or any
arrangement in respect of the obligations of the Issuing Entity
under or in respect of the Notes;
(c) (other than as permitted under Clause 11 (Substitution) of the
Note Trust Deed) to approve the substitution of any person for
the Issuing Entity (or any previous substitute) as principal
obligor under the Notes;
(d) (other than as permitted under Clause 10.1 (Waiver) of the Note
Trust Deed) to waive any breach or authorise any proposed breach
by the Issuing Entity of its obligations under or in respect of
the Note Trust Deed or the Notes or any act or omission which
might otherwise constitute an Event of Default under the Notes;
(e) to remove any Note Trustee;
(f) to approve the appointment of a new Note Trustee;
(g) to authorise the Note Trustee (subject to its being indemnified
and/or secured to its satisfaction) to enforce the Security in
accordance with Clause 12 (Enforcement) of the Note Trust Deed;
(h) to authorise the Note Trustee (subject to its being indemnified
and/or secured to its satisfaction) or any other person to
execute all documents and do all things necessary to give effect
to any Extraordinary Resolution;
(i) to discharge or exonerate the Note Trustee from any liability in
respect of any act or omission for which it may become
responsible under the Security Documents or the Notes;
(j) to give any other authorisation or approval which under the
Security Documents or the Notes is required to be given by
Extraordinary Resolution; and
(k) to appoint any persons as a committee to represent the interests
of the Noteholders and to confer upon such committee any powers
which the Noteholders could themselves exercise by Extraordinary
Resolution.
18. EXTRAORDINARY RESOLUTION BINDS ALL NOTEHOLDERS
An Extraordinary Resolution shall be binding, subject as provided in
paragraph 22 (Several Series) and paragraph 23 (Several Classes or
Sub-Classes) below, upon all Noteholders and each of the Noteholders
shall be bound to give effect to it accordingly. Notice of the result of
every vote on an Extraordinary Resolution shall be given to the
Noteholders and the Registrar with a copy to the Issuing Entity, and the
Note Trustee within 14 days of the conclusion of the Meeting.
19. MINUTES
Minutes of all resolutions and proceedings at each Meeting shall be
made. The Chairman shall sign the minutes, which shall be prima facie
evidence of the proceedings recorded therein. Unless and until the
contrary is proved, every such Meeting in respect of the proceedings of
which minutes have been summarised and signed shall be deemed to have
- 177 -
been duly convened and held and all resolutions passed or proceedings
transacted at it to have been duly passed and transacted.
20. WRITTEN RESOLUTION
A Written Resolution shall take effect as if it were an Extraordinary
Resolution.
21. FURTHER REGULATIONS
Subject to all other provisions contained in the Note Trust Deed, the
Note Trustee may without the consent of the Issuing Entity or the
Noteholders prescribe such further regulations regarding the holding of
Meetings of Noteholders and attendance and voting at them as the Note
Trustee may in its sole discretion determine.
22. SEVERAL SERIES
The following provisions shall apply where outstanding Notes belong to
more than one Series:
(a) business which in the opinion of the Note Trustee affects the
Notes of only one Series shall be transacted at a separate
Meeting of the holders of the Notes of that Series;
(b) business which in the opinion of the Note Trustee affects the
Notes of more than one Series but does not give rise to an
actual or potential conflict of interest between the holder of
Notes or one such Series and the holders of Notes of any other
such Series shall be transacted either at separate Meetings of
the holders of the Notes of each such Series or at a single
Meeting of the holders of the Notes of all such Series, as the
Note Trustee shall in its absolute discretion determine;
(c) business which in the opinion of the Note Trustee affects the
Notes of more than one Series and gives rise to an actual or
potential conflict of interest between the holders of Notes of
one such Series and the holders of Notes of any other such
Series shall be transacted at separate Meetings of the holders
of the Notes of each such Series; and
(d) the preceding paragraphs of this Schedule 14 shall be applied as
if references to the Notes and Noteholders were to the Notes of
the relevant Series and to the holders of such Notes.
In this paragraph, "BUSINESS" includes (without limitation) the passing
or rejection of any resolution.
23. SEVERAL CLASSES OR SUB-CLASSES
Without prejudice to paragraph 22 (Several Series), the following
provisions shall apply where outstanding Notes belong to more than one
Class or Sub-Class:
(a) business which in the opinion of the Note Trustee affects the
Notes of only one Class or Sub-Class shall be transacted at a
separate Meeting of the holders of the Notes of that Class or
Sub-Class;
- 178 -
(b) business which in the opinion of the Note Trustee affects the
Notes of more than one Class or Sub-Class but does not give rise
to an actual or potential conflict of interest between the
holder of Notes or one such Class or Sub-Class and the holders
of Notes of any other such Class or Sub-Class shall be
transacted either at separate Meetings of the holders of the
Notes of each such Class or Sub-Class or at a single Meeting of
the holders of the Notes of all such Classes or Sub-Classes, as
the Note Trustee shall in its absolute discretion determine;
(c) business which in the opinion of the Note Trustee affects the
Notes of more than one Class or Sub-Class and gives rise to an
actual or potential conflict of interest between the holders of
Notes of one such Class or Sub-Class and the holders of Notes of
any other such Class or Sub-Class shall be transacted at
separate Meetings of the holders of the Notes of each such Class
or Sub-Class; and
(d) the preceding paragraphs of this Schedule 14 shall be applied as
if references to the Notes and Noteholders were to the Notes of
the relevant Class or Sub-Class and to the holders of such
Notes.
In this paragraph, "BUSINESS" includes (without limitation) the passing
or rejection of any resolution.
- 179 -
EXECUTED by the parties as a deed
Issuing Entity
Executed as a deed by )
GRACECHURCH CARD FUNDING )
PROGRAMME LIMITED )
acting by a duly authorised signatory )
Note Trustee
Executed as a deed )
for and on behalf of )
THE BANK OF NEW YORK )
by )
------------------------------
Authorised Signatory
- 180 -