EXHIBIT 4.6
CLIFFORD
CHANCE
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
as Issuing Entity
BARCLAYCARD FUNDING PLC
as MTN Issuing Entity
THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH
as Note Trustee and Security Trustee
THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH
as Principal Paying Agent, Custodian,
Agent Bank and Exchange Agent
THE BANK OF NEW YORK
as Registrar and U.S. Paying Agent
BARCLAYS BANK PLC
as Swap Counterparty, Issuing Entity Account Bank
and Issuing Entity Bank Account Operator
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SERIES [O]
NOTE TRUST DEED SUPPLEMENT
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CONTENTS
CLAUSE PAGE
1. Interpretation..................................................................................2
2. Provisions Supplemental To The Note Trust Deed..................................................7
3. Amount, Form And Status Of The Notes............................................................8
4. Issuing Entity's Undertaking And Covenant To Pay................................................9
5. Creation Of Fixed Security......................................................................9
6. Representations And Warranties.................................................................10
7. Notice Of Security.............................................................................11
8. Redemption And Release.........................................................................11
9. Continuance Of Security........................................................................12
10. Payments Prior To Enforcement..................................................................12
11. Security Enforceable...........................................................................12
12. Enforcement....................................................................................13
13. Consent To Supplement And Variations...........................................................14
14. Miscellaneous..................................................................................14
15. Accession......................................................................................14
16. Governing Law And Jurisdiction.................................................................15
17. Delivery.......................................................................................15
SCHEDULE 1 SUPPLEMENT TO TERMS AND CONDITIONS OF THE NOTES......................................16
SCHEDULE 2 SUPPLEMENT TO CLAUSE 13 (APPLICATION OF MONEYS) OF THE NOTE TRUST DEED...............17
SCHEDULE 3 NOTICES..............................................................................26
Part A Form Of Notice Of Assignment............................................................26
Part B Form Of Acknowledgement.................................................................27
THIS NOTE TRUST DEED SUPPLEMENT is made on [o]
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");
(2) BARCLAYCARD FUNDING PLC, a public limited liability company incorporated
in England with company number 2530163, whose registered office is
located at 1 Churchill Place, London E14 5HP (the "MTN ISSUING ENTITY");
(3) 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 the
Note Trust Deed) and security trustee ("the "SECURITY TRUSTEE", which
expression shall include such company and all other Persons for the time
being acting as trustee or trustees under the Security Trust Deed and
MTN Cash Management Agreement);
(4) THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH, a New York
banking corporation acting through its London Branch at One Canada
Square, London E14 5AL as principal paying agent (the "PRINCIPAL PAYING
AGENT"), custodian (the "CUSTODIAN"), agent bank (the "AGENT BANK") and
exchange agent (the "EXCHANGE AGENT");
(5) THE BANK OF NEW YORK, a US national banking association acting through
its New York office at 21st Floor West, 101 Barclay Street, New York, NY
10286, United States as registrar (the "REGISTRAR") and U.S. paying
agent (the "U.S. PAYING AGENT"); and
(6) BARCLAYS BANK PLC, a public limited liability company incorporated in
England with company number 1026167, whose registered office is located
at 1 Churchill Place, London E14 5HP as swap counterparty under each of
the Swap Agreements (the "SWAP COUNTERPARTY" and, in such respective
capacities, the "CLASS A SWAP COUNTERPARTY", the "CLASS B SWAP
COUNTERPARTY", the "CLASS C SWAP COUNTERPARTY" and the "CLASS D SWAP
COUNTERPARTY"), account bank (the "ISSUING ENTITY ACCOUNT BANK") and
bank account operator (the "ISSUING ENTITY BANK ACCOUNT OPERATOR").
INTRODUCTION:
(A) The Issuing Entity has established the Programme for the issuance of
Notes pursuant to the terms of the Note Trust Deed.
(B) This Note Trust Deed Supplement is supplemental to the Note Trust Deed.
The Principal Paying Agent, the Custodian, the Agent Bank, the Exchange
Agent, the Registrar, the U.S. Paying Agent and the Swap Counterparty
wish to accede to the Note Trust Deed pursuant to this Note Trust Deed
Supplement.
(C) By virtue of Clause 2 (Amount and Issue of the Series of Notes) of the
Note Trust Deed, the Issuing Entity is at liberty (subject as therein
provided) to create and issue new Series
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of Notes, each Series of Notes to be constituted by a Note Trust Deed
Supplement to the Note Trust Deed upon such terms as the Issuing Entity
may determine.
(D) The Issuing Entity has by resolution of its board of directors
authorised the issue of the Series [o] Notes to be constituted and
secured in accordance with this Note Trust Deed Supplement.
(E) The Principal Paying Agent, Custodian, Agent Bank, Exchange Agent,
Registrar and U.S. Paying Agent have agreed to act as principal paying
agent, custodian, agent bank, exchange agent, registrar and U.S. paying
agent, respectively, in respect of the Series [o] Notes.
(F) The Note Trustee has agreed to act as trustee in relation to the Series
[o] Notes upon and subject to the terms and conditions of this Note
Trust Deed Supplement.
(G) The issue of the Series [o] Notes will not cause the Programme Limit to
be exceeded.
(H) The Security Trustee, the MTN Issuing Entity and the Issuing Entity
Account Bank are each party to this Note Trust Deed Supplement for the
purpose of acknowledging the notice of assignment contained in Clause
5.2 (Notice of assignment) of this Note Trust Deed Supplement.
THIS NOTE TRUST DEED SUPPLEMENT witnesses:
1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this Note Trust Deed Supplement or the
context requires otherwise, words and expressions used in this Note
Trust Deed Supplement have the meanings and constructions ascribed to
them in (a) Schedule 1 (Master Definitions Schedule) of the Issuing
Entity Master Framework Agreement dated [o] 2008, between, among others,
the Issuing Entity and the Note Trustee, (b) the Note Trust Deed (c) the
Terms and Conditions set out in Schedule 1 (Terms and Conditions of the
Notes) to the Note Trust Deed (as amended and supplemented by Schedule 1
(Supplement to the Terms and Conditions of the Notes) (the "CONDITIONS")
hereto and (d) the Trust Master Definitions Schedule. In the case of any
inconsistency between the defined terms in each of the said documents,
such definitions shall take precedence in the following order with
respect to Series [o] only: this Note Trust Deed Supplement, the
Conditions, the Note Trust Deed, the Master Definitions Schedule and the
Trust Master Definitions Schedule.
1.2 INCORPORATION OF COMMON TERMS
Except as provided below, the Common Terms apply to this Note Trust Deed
Supplement, where applicable, and shall be binding on the parties to
this Note Trust Deed Supplement and the Noteholders as if set out in
full in this Note Trust Deed Supplement.
1.3 FURTHER ASSURANCE
Paragraph 1 (Further Assurance) of the Common Terms applies to this Note
Trust Deed Supplement 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).
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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
Supplement and shall be deemed set out in full herein.
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 Supplement, the provisions of
this Note Trust Deed Supplement shall prevail, save for where any
provision of this Note Trust Deed Supplement relates to VAT, in which
case the provisions of the Common Terms shall prevail.
1.6 COVENANTS
The Issuing Entity covenants with the Note Trustee on the terms of the
Issuing Entity Covenants.
1.7 ADDITIONAL DEFINITIONS
In this Note Trust Deed Supplement:
"ADDITIONAL FUNDS LEDGER" means the ledger so named with respect to the
Series [o] Issuing Entity Distribution Account;
"CLASS A ADDITIONAL FINANCE AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS A CREDIT SUPPORT ANNEX" means a 1995 ISDA Credit Support Annex
(Bilateral Form - Transfer) to the Class A Swap Agreement entered into
between the Issuing Entity and the Class A Swap Counterparty in support
of the obligations of the Class A Swap Counterparty under the Class A
Swap Agreement;
"CLASS A DEFICIENCY AMOUNT" has the meaning given to it in the Series
[o] Supplement;
"CLASS A MONTHLY FINANCE AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS A MONTHLY PRINCIPAL AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS A NOTES" means the [currency][amount] Class A [Floating/Fixed]
Rate Asset Backed Notes due [o];
"CLASS A NOTES COUPON LEDGER" means the ledger so named with respect to
the Series [o] Issuing Entity Distribution Account;
"CLASS A NOTES PRINCIPAL LEDGER" means the ledger so named with respect
to the Series [o] Issuing Entity Distribution Account;
"CLASS A SWAP AGREEMENT" means an ISDA Master Agreement between the
Issuing Entity and the Class A Swap Counterparty, including a schedule,
credit support annex and one or more confirmations entered into pursuant
thereto each of which relates to the Class A Notes of Series [o];
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"CLASS B ADDITIONAL FINANCE AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS B CREDIT SUPPORT ANNEX" means a 1995 ISDA Credit Support Annex
(Bilateral Form - Transfer) to the Class B Swap Agreement entered into
between the Issuing Entity and the Class B Swap Counterparty in support
of the obligations of the Class B Swap Counterparty under the Class B
Swap Agreement;
"CLASS B DEFICIENCY AMOUNT" has the meaning given to it in the Series
[o] Supplement;
"CLASS B MONTHLY FINANCE AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS B MONTHLY PRINCIPAL AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS B NOTES" means the [currency][amount] Class B [Floating/Fixed]
Rate Asset Backed Notes due [o];
"CLASS B NOTES COUPON LEDGER" means the ledger so named with respect to
the Series [o] Issuing Entity Distribution Account;
"CLASS B NOTES PRINCIPAL LEDGER" means the ledger so named with respect
to the Series [o] Issuing Entity Distribution Account;
"CLASS B SWAP AGREEMENT" means an ISDA Master Agreement between the
Issuing Entity and the Class B Swap Counterparty, including a schedule,
credit support annex and one or more confirmations entered into pursuant
thereto each of which relates to the Class B Notes of Series [o];
"CLASS C ADDITIONAL FINANCE AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS C CREDIT SUPPORT ANNEX" means a 1995 ISDA Credit Support Annex
(Bilateral Form - Transfer) to the Class C Swap Agreement entered into
between the Issuing Entity and the Class C Swap Counterparty in support
of the obligations of the Class C Swap Counterparty under the Class C
Swap Agreement;
"CLASS C DEFICIENCY AMOUNT" has the meaning given to it in the Series
[o] Supplement;
"CLASS C MONTHLY FINANCE AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS C MONTHLY PRINCIPAL AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS C NOTES" means the [currency][amount] Class C [Floating/Fixed]
Rate Asset Backed Notes due [o];
"CLASS C NOTES COUPON LEDGER" means the ledger so named with respect to
the Series [o] Issuing Entity Distribution Account;
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"CLASS C NOTES PRINCIPAL LEDGER" means the ledger so named with respect
to the Series [o] Issuing Entity Distribution Account;
"CLASS C SWAP AGREEMENT" means an ISDA Master Agreement between the
Issuing Entity and the Class C Swap Counterparty, including a schedule,
credit support annex and one or more confirmations entered into pursuant
thereto each of which relates to the Class C Notes of Series [o];
"CLASS D ADDITIONAL FINANCE AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS D CREDIT SUPPORT ANNEX" means a 1995 ISDA Credit Support Annex
(Bilateral Form - Transfer) to the Class D Swap Agreement entered into
between the Issuing Entity and the Class D Swap Counterparty in support
of the obligations of the Class D Swap Counterparty under the Class D
Swap Agreement;
"CLASS D DEFICIENCY AMOUNT" has the meaning given to it in the Series
[o] Supplement;
"CLASS D MONTHLY FINANCE AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS D MONTHLY PRINCIPAL AMOUNT" has the meaning given to it in the
Series [o] Supplement;
"CLASS D NOTES" means the [currency][amount] Class D [Floating/Fixed]
Rate Asset Backed Notes due [o];
"CLASS D NOTES COUPON LEDGER" means the ledger so named with respect to
the Series [o] Issuing Entity Distribution Account;
"CLASS D NOTES PRINCIPAL LEDGER" means the ledger so named with respect
to the Series [o] Issuing Entity Distribution Account;
"CLASS D SWAP AGREEMENT" means an ISDA Master Agreement between the
Issuing Entity and the Class D Swap Counterparty, including a schedule,
credit support annex and one or more confirmations entered into pursuant
thereto each of which relates to the Class D Notes of Series [o];
"CREDIT SUPPORT ANNEXES" means the Class A Credit Support Annex, the
Class B Credit Support Annex, the Class C Credit Support Annex and the
Class D Credit Support Annex and "CREDIT SUPPORT ANNEX" means any one of
them;
"FURTHER INTEREST" has the meaning given to it in the Supplement to the
Security Trust Deed and MTN Cash Management Agreement;
"ISSUE DATE" means, in respect of Series [o] only, [o];
"ISSUING ENTITY COSTS LEDGER" means the ledger so named with respect to
the Series [o] Issuing Entity Distribution Account;
"ISSUING ENTITY PROFIT LEDGER" means the ledger so named with respect to
the Series [o] Issuing Entity Distribution Account;
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"MONTHLY PERIOD" means the period from and including the first day of a
calendar month to and including the last day of the same calendar month;
"SEC REGISTERED SUBSCRIPTION AGREEMENT" means, in respect of Series [o]
only, the subscription agreement, dated on or about the date hereof,
between [o], relating to the Series [o] Notes;
"SERIES [O]" means the series of Notes constituted by the Note Trust
Deed and this Note Trust Deed Supplement;
"SERIES [O] CHARGED ACCOUNTS" means the Series [o] Issuing Entity
Distribution Account and any bank or other account in which the Issuing
Entity may at any time acquire a Benefit in relation to Series [o] and
over which the Issuing Entity has created an Encumbrance in favour of
the Note Trustee pursuant to the Note Trust Deed or this Note Trust Deed
Supplement in respect of Series [o];
"SERIES [O] DOCUMENTS" means the Series [o] MTN Supplement, each Swap
Agreement, this Note Trust Deed Supplement, the Series [o] Pledge
Agreement, the SEC Registered Subscription Agreement and any other
documents in relation to Series [o] to which the Issuing Entity is a
party;
"SERIES [O] EXTRA AMOUNT" has the meaning given to it in the Series [o]
Supplement;
"SERIES [O] ISSUING ENTITY DISTRIBUTION ACCOUNT" means the account so
named in relation to Series [o] opened pursuant to the Issuing Entity
Account Bank Agreement and the relevant Mandate;
"SERIES [O] MEDIUM TERM NOTE CERTIFICATE" means the Medium Term Note
Certificate issued by the MTN Issuing Entity in relation to Series [o];
"SERIES [O] MTN SUPPLEMENT" means the supplement dated on or about the
date hereof to the Security Trust Deed and MTN Cash Management Agreement
in relation to Series [o];
"SERIES [O] NOTES" means the Class A Notes, the Class B Notes, the Class
C Notes and the Class D Notes;
"SERIES [O] PLEDGE AGREEMENT" means the pledge agreement, dated on or
about the date hereof, between the Issuing Entity and the Note Trustee;
"SERIES [O] SCHEDULED REDEMPTION DATE" means in respect of Series [o]
the Interest Payment Date falling in [o];
"SERIES [O] SECURED CREDITORS" means the Secured Creditors with respect
to the Series [o] Secured Obligations;
"SERIES [O] SECURED OBLIGATIONS" means all amounts due to the Secured
Creditors in accordance with the Series [o] Documents (other than the
SEC Registered Subscription Agreement) and any other amounts payable by
the Issuing Entity under the Note Trust Deed which the Note Trustee
determines in its sole discretion are referable or allocable to Series
[o];
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"SERIES [O] SECURED PROPERTY" means, with respect to Series [o], the
property of the Issuing Entity from time to time subject, or expressed
to be subject, to the Series [o] Security created pursuant to this Note
Trust Deed Supplement and the Series [o] Pledge Agreement and any part
of that property of the Issuing Entity subject to the security created
pursuant to the Note Trust Deed to the extent it is not subject to a
prior charge;
"SERIES [O] SECURITY" means the security created or intended to be
created, or which may at any time be intended to be created, in favour
of the Note Trustee with respect to Series [o], by or pursuant to this
Note Trust Deed Supplement and Clause 4 (Security) of the Note Trust
Deed and the Series [o] Pledge Agreement;
"SERIES [O] SECURITY DOCUMENTS" means, in relation to Series [o], the
Note Trust Deed and this Note Trust Deed Supplement (including the
Conditions) and the Series [o] Pledge Agreement;
"SERIES [O] SUPPLEMENT" means the supplement dated on or about the date
hereof to the declaration of trust and trust cash management agreement,
dated 1 November 1999 as amended and restated on 23 November 1999,
between Gracechurch Receivables Trustee Limited, the MTN Issuing Entity
and Barclays Bank PLC in relation to Series [o];
"SWAP AGREEMENTS" means the Class A Swap Agreement, the Class B Swap
Agreement, the Class C Swap Agreement and the Class D Swap Agreement;
"SWAP COLLATERAL ACCOUNT" means separate accounts opened by the Issuing
Entity in relation to any collateral received from the Class A Swap
Counterparty, Class B Swap Counterparty, the Class C Swap Counterparty
or the Class D Swap Counterparty, as the case may be, pursuant to a
Credit Support Annex;
"SWAP TERMINATION AMOUNT" means any termination amount payable by either
the Issuing Entity or a Swap Counterparty pursuant to the terms of a
Swap Agreement; and
"TRUST MASTER DEFINITIONS SCHEDULE" means the master definitions
schedule, dated 23 November 1999 as amended and restated on 7 July 2000
and on 24 October 2002 between Gracechurch Receivables Trustee Limited,
the MTN Issuing Entity and Barclays Bank PLC.
2. PROVISIONS SUPPLEMENTAL TO THE NOTE TRUST DEED
The Note Trust Deed shall be supplemented and varied in the manner and
to the extent set out below (and shall from the Issue Date be read and
construed for all purposes as so supplemented and varied) and the
security trust in respect of Series [o] shall be constituted in
accordance with the provisions of the Note Trust Deed as supplemented by
this Note Trust Deed Supplement:
(a) Clause 1 (Interpretation) of the Note Trust Deed shall be
interpreted with respect to Series [o] in accordance with the
interpretation provisions set out in Clause 1.1 (Definitions) of
this Note Trust Deed Supplement and supplemented and varied with
respect to Series [o] by the addition of the definitions set out
in this Note Trust Deed Supplement;
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(b) the Conditions set out in Schedule 1 to the Note Trust Deed
shall be supplemented or varied, as applicable, with respect to
Series [o] as provided in Schedule 1 (Supplement to Terms and
Conditions of the Notes); and
(c) Clause 13 (Application of Moneys) of the Note Trust Deed shall
be supplemented by the additional provisions set out in Schedule
2 (Supplement to Clause 13 (Application Of Moneys) of the Note
Trust Deed), which shall be applicable to Series [o] only.
3. AMOUNT, FORM AND STATUS OF THE NOTES
3.1 CONSTITUTION OF THE NOTES
The Series [o] Notes are constituted by and issued in accordance with
the Note Trust Deed and this Note Trust Deed Supplement in the aggregate
sterling equivalent principal amount of (pound)[o]. Each of the Series
[o] Notes shall be in registered form. The Authorised Denomination of
the Class A Notes, the Class B Notes, the Class C Notes and the Class D
Notes is [currency][amount] and amounts in excess thereof which are an
integral multiple of [currency][amount].
3.2 SECURITY FOR SERIES [O] NOTES
The Series [o] Notes shall be secured by the Encumbrances set out in
Clause 5 (Creation of Fixed Security) of this Note Trust Deed
Supplement, Clause 4 (Security) of the Note Trust Deed and the Series
[o] Pledge Agreement.
3.3 NOTE CERTIFICATES
The Series [o] Notes will initially be represented by Global Note
Certificates in the form contained (in the case of the Class A Notes) in
Schedule 2 (Form of Class A SEC Registered Global Note Certificate) to
the Note Trust Deed, (in the case of the Class B Notes) in Schedule 3
(Form of Class B SEC Registered Global Note Certificate) to the Note
Trust Deed, (in the case of the Class C Notes) in Schedule 4 (Form of
Class C SEC Registered Global Note Certificate) to the Note Trust Deed
and (in the case of the Class D Notes) in Schedule 5 (Form of Class D
SEC Registered Global Note Certificate) to the Note Trust Deed.
Interests in the Global Note Certificates shall be exchangeable, in
accordance with their terms for Individual Note Certificates in the form
contained (in the case of the Class A Notes) in Schedule 6 (Form of
Class A SEC Registered Individual Note Certificate) to the Note Trust
Deed, (in the case of the Class B Notes) in Schedule 7 (Form of Class B
SEC Registered Individual Note Certificate) to the Note Trust Deed, (in
the case of the Class C Notes) in Schedule 8 (Form of Class C SEC
Registered Individual Note Certificate) to the Note Trust Deed and (in
the case of the Class D Notes) in Schedule 9 (Form of Class D SEC
Registered Individual Note Certificate) to the Note Trust Deed.
3.4 PRINTING AND EXECUTION
The Individual Note Certificates will be security printed in accordance
with applicable legal and stock exchange requirements and will be
endorsed with the Conditions. The Global Note Certificates and the
Individual Note Certificates will be executed manually or in facsimile
by or on behalf of the Issuing Entity and authenticated manually by or
on behalf of the Registrar. Note Certificates so executed and
authenticated will be binding and valid obligations of the Issuing
Entity.
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3.5 NO DISPOSAL
So long as any of the Series [o] Notes remains outstanding, the Issuing
Entity shall not, save to the extent permitted or contemplated by the
Series [o] Documents or with the prior written consent of the Note
Trustee, sell or otherwise dispose of the Series [o] Secured Property or
any interest therein or purport to do so or create or permit to exist
any Encumbrance whatsoever upon or affecting any of the Series [o]
Secured Property other than as contemplated by this Note Trust Deed
Supplement and the Note Trust Deed.
3.6 DEPOSIT OF PROCEEDS OF NOTES
In order for the issue and due authentication and delivery of the Series
[o] Notes referred to in Clause 3.1 (Constitution of the Notes) to be
effected, payments of subscription moneys for the Series [o] Notes shall
be made in favour of the Issuing Entity or to its order in such account
as specified or directed by the Issuing Entity for value on the Issue
Date by the Relevant Series Dealers, being a sterling equivalent amount
equal to (pound)[o].
3.7 EXERCISE OF RIGHTS
For the purposes of the Note Trust Deed and this Note Trust Deed
Supplement, all rights, obligations and duties of the Issuing Entity
shall be exercised by or at the direction of the Issuing Entity prior to
the service of an Enforcement Notice in respect of Series [o] and, after
the service of an Enforcement Notice in respect of Series [o], shall be
exercised by the Note Trustee.
4. ISSUING ENTITY'S UNDERTAKING AND COVENANT TO PAY
4.1 COVENANT TO PAY
The Issuing Entity undertakes to the Note Trustee (for its own account
and as trustee for the other Series [o] Secured Creditors) that it shall
duly, unconditionally and punctually pay and discharge to each of the
Series [o] Secured Creditors when due all moneys and liabilities
whatsoever constituting the Series [o] Secured Obligations.
4.2 DECLARATION OF TRUST
The Note Trustee shall hold the benefit of the covenant in Clause 3.1
(Covenant to pay) of the Note Trust Deed and the other covenants of the
Issuing Entity set out in the Note Trust Deed, as incorporated herein,
on trust for itself and the holders of the Series [o] Notes according to
their respective interests.
5. CREATION OF FIXED SECURITY
5.1 SECURITY
As continuing security for the payment or discharge of the Series [o]
Secured Obligations, subject to Clause 8 (Redemption and Release), the
Issuing Entity with full title guarantee, in favour of the Note Trustee
as trustee for itself and on trust for the Series [o] Secured Creditors,
hereby:
5.1.1 assigns by way of first fixed security all the Issuing Entity's
Benefit in the Series [o] Medium Term Note Certificate, to the
extent not validly pledged under the Series [o] Pledge
Agreement, and in and to any payments arising therefrom;
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5.1.2 sub-charges by way of first fixed security all the Issuing
Entity's Benefit in the security interest created in favour of
the Security Trustee by the MTN Issuing Entity pursuant to the
Series [o] MTN Supplement in respect of the Series [o] Medium
Term Note Certificate;
5.1.3 assigns by way of first fixed security all the Issuing Entity's
Benefit in the Series [o] Issuing Entity Distribution Account or
to the relevant ledger of any bank or other account in which the
Issuing Entity may at any time in respect of Series [o] have any
Benefit; and
5.1.4 assigns by way of first fixed security the Issuing Entity's
Benefit in each Series [o] Document (other than the Note Trust
Deed, this Note Trust Deed Supplement and the Series [o] Pledge
Agreement and, in respect of the Swap Agreements, subject to the
application of the netting and set-off provisions contained
therein) and sums received or recoverable thereunder,
including without limitation all rights to receive payment of any amount
which may become payable to the Issuing Entity thereunder (in respect of
Series [o]) or payments received by the Issuing Entity thereunder (in
respect of Series [o]) or rights to serve notices and/or to take such
steps as are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach thereof and
all rights to receive damages or obtain other relief in respect thereto.
For the purposes of perfection and in connection with the creation of
the security interests pursuant hereto the Issuing Entity agrees to give
all notices of assignment necessary to perfect the security interests
(including, but not limited to, any which may from time to time be
deemed necessary by the Note Trustee).
5.2 NOTICE OF ASSIGNMENT
The Issuing Entity hereby gives irrevocable notice to each of the MTN
Issuing Entity, the Security Trustee, the Account Bank and the Swap
Counterparty of the assignment by way of security made by the Issuing
Entity to the Note Trustee on trust (for itself and the other Series [o]
Secured Creditors) under Clause 5.1 (Security), which notice the MTN
Issuing Entity, the Security Trustee, the Account Bank and the Swap
Counterparty each acknowledge by execution of this Note Trust Deed
Supplement.
For the avoidance of doubt, the execution of this Note Trust Deed
Supplement by the Security Trustee, the Principal Paying Agent, the
Custodian, the Agent Bank, the Exchange Agent, the Registrar, the U.S.
Paying Agent, the Swap Counterparty and the Issuing Entity Bank Account
Operator is not intended to modify, alter or change and shall not
modify, alter or change the Issuing Entity's rights and obligations
under any other documents to which it is a party.
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES
The Issuing Entity represents and warrants to the Note Trustee and, in
the case of Clause 6.1.3 below, to each of the Swap Counterparty and the
Note Trustee, that:
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6.1.1 it has taken all necessary steps to enable it to create the
Series [o] Security in respect of the Series [o] Secured
Property in accordance with the Note Trust Deed, this Note Trust
Deed Supplement and the Series [o] Pledge Agreement and has
taken no action or steps which will or may prejudice its right,
title and interest in, to and under the Series [o] Secured
Property;
6.1.2 the Note Trust Deed, this Note Trust Deed Supplement and the
Series [o] Pledge Agreement creates the Series [o] Security it
purports to create and such Series [o] Security is not liable to
be avoided or otherwise set aside in the winding-up of the
Issuing Entity; and
6.1.3 it will keep any collateral received from the Class A Swap
Counterparty, Class B Swap Counterparty, Class C Swap
Counterparty or the Class D Swap Counterparty, as the case may
be, pursuant to a Credit Support Annex in separate accounts and
that it may only make payments or transfers utilising any moneys
and securities held in a Swap Collateral Account if such
payments and transfers are made in accordance with the terms of
the relevant Credit Support Annex.
7. NOTICE OF SECURITY
7.1 ISSUING ENTITY'S NOTICES
The Issuing Entity shall, within seven days of the date hereof, give to
each of the other parties (other than the Note Trustee, the MTN Issuing
Entity, the Security Trustee, the Issuing Entity Account Bank and the
Swap Counterparty) to the Series [o] Documents (other than the Note
Trust Deed, this Note Trust Deed Supplement and the Series [o] Pledge
Agreement), a Notice in the form of Part A (Form of Notice of
Assignment) of Schedule 3 (Notices).
7.2 ACKNOWLEDGEMENTS OF NOTICES
The Issuing Entity shall use all reasonable efforts to procure that each
Transaction Party that receives a Notice in accordance with Clause 7.1
(Issuing Entity's Notices) acknowledges receipt of such notice in the
form of Part B (Form of Acknowledgement) of Schedule 3 (Notices).
8. REDEMPTION AND RELEASE
8.1 RELEASE ON PAYMENT OR DISCHARGE
Upon proof being given to the satisfaction of the Note Trustee as to the
irrevocable and unconditional payment or discharge of the Series [o]
Secured Obligations, the Note Trustee will, at the request and cost of
the Issuing Entity, release, discharge or reassign the Series [o]
Secured Property to the Issuing Entity or any other person entitled
thereto of whom the Note Trustee has notice.
8.2 NO AVOIDANCE
No assurance, security or payment which is avoided under any enactment
relating to bankruptcy or under Sections 238 to 245 or Section 423 of
the Insolvency Act or any equivalent provision of common law and no
release, settlement or discharge given or made by the Note Trustee in
reliance on any such assurance, security or payment shall prejudice or
affect the right of the Note Trustee to enforce the Series [o] Security
to the
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full extent of the Series [o] Secured Obligations. The Issuing Entity
agrees that, notwithstanding any such avoidance release, settlement or
discharge, the Series [o] Security shall be deemed always to have been
and to have remained held by the Note Trustee as and by way of security
for the payment to or to the order of the Note Trustee of the Series [o]
Secured Obligations.
8.3 FORM OF RELEASE
The Series [o] Security shall be released only upon the execution by or
on behalf of the Note Trustee of either an absolute and unconditional
release by way of deed or a receipt, in each case relating to all (and
not part only) of the Series [o] Secured Obligations.
9. CONTINUANCE OF SECURITY
The Series [o] Security and the covenants, undertakings and provisions
contained in this Note Trust Deed Supplement and the Note Trust Deed
shall remain in force as a continuing security to the Note Trustee,
notwithstanding any intermediate payment or satisfaction of any part of
the Series [o] Secured Obligations or any settlement of account or any
other act, event or matter whatsoever, and shall secure the ultimate
balance of the Series [o] Secured Obligations.
10. PAYMENTS PRIOR TO ENFORCEMENT
Notwithstanding the Series [o] Security, the Note Trustee acknowledges
that, until delivery of an Enforcement Notice in relation to the Series
[o] Security:
(a) payments becoming due to the Issuing Entity under any of the
Series [o] Documents, together with all other moneys payable to
the Issuing Entity pursuant to any other documents or
arrangements to which it is a party and which relate to Series
[o], may be made to the Issuing Entity in accordance with the
provisions of the relevant Series [o] Documents or (as the case
may be) the documents or arrangements concerned to the extent
they relate to Series [o];
(b) the Issuing Entity may exercise its rights, powers and
discretions and perform its obligations in relation to the
Series [o] Secured Property and under the Series [o] Documents
in accordance with the provisions of the Series [o] Documents or
(as the case may be) such other documents or arrangements; and
(c) amounts standing to the credit of the Series [o] Charged
Accounts from time to time may be withdrawn therefrom by the
Issuing Entity (or any authorised person on its behalf including
the Issuing Entity Bank Account Operator) but only for
application in accordance with the payments priorities contained
in Schedule 2 (Supplement to Clause 13 (Application of Moneys)
of the Note Trust Deed).
11. SECURITY ENFORCEABLE
The whole of the Series [o] Security shall become enforceable upon the
Note Trustee giving an Enforcement Notice in respect of the Series [o]
Security (or the Security in respect of all Series) pursuant to the
terms of the Note Trust Deed and this Note Trust Deed Supplement.
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12. ENFORCEMENT
12.1 CONSEQUENCES OF ENFORCEABLE SECURITY
From the date on which the Series [o] Security becomes enforceable in
accordance with Clause 11 (Security Enforceable) above and subject to
the provisions of the Conditions and the Note Trust Deed including,
without limitation, Clause 12.2 (Enforcement Notice) of the Note Trust
Deed and its rights at all times to be indemnified and/or secured to its
satisfaction:
12.1.1 the Note Trustee on behalf of the Series [o] Secured Creditors
may enforce its rights in respect of the Series [o] Secured
Property;
12.1.2 if it has not already crystallised, the floating charge, created
pursuant to the Clause 4.1.2 of the Note Trust Deed, shall
crystallise;
12.1.3 the Note Trustee may institute such proceedings against the
Issuing Entity and take such action as it may think fit to
enforce all or any part of the Series [o] Security;
12.1.4 the Note Trustee shall hold upon trust and apply all moneys
received by it under the Note Trust Deed and this Note Trust
Deed Supplement in connection with the realisation of the Series
[o] Secured Property or enforcement of the security interest in
respect of Series [o] in accordance with the priority of
payments upon enforcement as contained in Condition 3(b)
(Security);
12.1.5 amounts may be withdrawn from the Series [o] Charged Accounts
and each and every Ledger thereto only by the Note Trustee and
shall be applied only in accordance with the priority of
payments upon enforcement as contained in Condition 3(b)
(Security);
12.1.6 the Note Trustee may appoint a Receiver in relation to the
Series [o] Security in accordance with Clause 6 (Appointment and
Removal of Administrator and Receiver) of the Note Trust Deed;
and
12.1.7 whether or not it has appointed a Receiver, the Note Trustee may
exercise all or any of the powers, authorities and discretions:
(a) conferred by the Series [o] Security Documents on any
Receiver;
(b) conferred by the Law of Property Act 1925 (as varied or
extended by the Series [o] Security Documents) on
mortgagees; or
(c) otherwise conferred by law on mortgagees or receivers.
12.2 RIGHT OF APPROPRIATION
To the extent that any of the Series [o] Secured Property constitutes
"financial collateral" and the Note Trust Deed, as supplemented by this
Note Trust Deed Supplement, and the obligations of the Issuing Entity
thereunder and hereunder constitute a "security financial collateral
arrangement" (in each case as defined in, and for the purposes of, the
Financial Collateral Arrangements (No. 2) Regulations 2003 (SI 2003 No.
3226) (the "FINANCIAL COLLATERAL REGULATIONS") the Note Trustee shall
have the right to appropriate all or any
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part of such financial collateral in or towards discharge of the Series
[o] Secured Obligations. For this purpose, the parties agree that the
value of such financial collateral so appropriated shall be (a) in the
case of cash, the amount standing to the credit of the Series [o]
Issuing Entity Distribution Account or to the relevant ledger of any
bank or other account in which the Issuing Entity may at any time in
respect of Series [o] have any Benefit, together with any accrued but
unposted interest, at the time the right of appropriation is exercised;
and (b) in the case of the Series [o] Medium Term Note Certificate, the
market price of the Series [o] Medium Term Note Certificate determined
by the Note Trustee by reference to a public index or by such other
process as the Note Trustee may select, including independent valuation.
In each case, the parties agree that the method of valuation provided
for in this Note Trust Deed Supplement shall constitute a commercially
reasonable method of valuation for the purposes of the Financial
Collateral Regulations.
13. CONSENT TO SUPPLEMENT AND VARIATIONS
Each Series [o] Secured Creditor (other than the holders of the Series
[o] Notes) consents and confirms, and the holders of the Series [o]
Notes, by purchasing or subscribing for Series [o] Notes, acknowledge,
that, subject to Clause 2.4 (Note Trust Deed Supplement) of the Note
Trust Deed, the Note Trust Deed may be supplemented and varied from time
to time in accordance with the terms of this Note Trust Deed Supplement
or any other Note Trust Deed Supplement. In accordance with the Note
Trust Deed as supplemented hereby, such supplement or variation may be
made without the consent of the Series [o] Secured Creditors and the
interests of any Series [o] Secured Creditors shall be subject to any
supplement or variation so made.
14. MISCELLANEOUS
The Note Trust Deed shall, in relation to the Series [o] Notes,
henceforth be read and construed as one document with this Note Trust
Deed Supplement.
15. ACCESSION
Each of the Principal Paying Agent, the U.S. Paying Agent, the
Custodian, the Agent Bank, the Exchange Agent, the Registrar, the Swap
Counterparty and the Issuing Entity Bank Account Operator hereby agrees
with each other person who is party to the Note Trust Deed that with
effect on and from the date hereof it will be bound by the Note Trust
Deed in respect of the Series [o] Notes as Principal Paying Agent, the
U.S. Paying Agent, the Custodian, the Agent Bank, the Exchange Agent,
the Registrar, the Swap Counterparty and the Issuing Entity Bank Account
Operator, respectively, as if it had been originally party to the Note
Trust Deed in that capacity.
The address for notice of each of the Principal Paying Agent, the U.S.
Paying Agent, the Custodian, the Agent Bank, the Exchange Agent, the
Registrar, the Swap Counterparty and the Issuing Entity Bank Account
Operator is that specified in the Issuing Entity Master Framework
Agreement.
- 14 -
16. GOVERNING LAW AND JURISDICTION
This Note Trust Deed Supplement 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 Supplement is a "qualified" indenture for the purposes
of the TIA, this Note Trust Deed Supplement shall be subject to the
provisions of the TIA that are required to be part of this Note Trust
Deed Supplement and shall, to the extent applicable, be governed by such
provisions. Paragraph 26 (Jurisdiction) of the Common Terms applies to
this Note Trust Deed Supplement as if set out in full in this Note Trust
Deed Supplement.
17. DELIVERY
This Note Trust Deed Supplement is delivered as a deed on the date
written at the start of this Note Trust Deed Supplement.
- 15 -
SCHEDULE 1
SUPPLEMENT TO TERMS AND CONDITIONS OF THE NOTES
[Intentionally left blank]
- 16 -
SCHEDULE 2
SUPPLEMENT TO CLAUSE 13 (APPLICATION OF MONEYS) OF THE NOTE TRUST DEED
13.6 LEDGERS IN RESPECT OF SERIES [O]
The following ledgers in respect of Series [o] have been created in the
books of the Issuing Entity in relation to the Series [o] Issuing Entity
Distribution Account, each a "LEDGER":
13.6.1 the Class A Notes Coupon Ledger;
13.6.2 the Class B Notes Coupon Ledger;
13.6.3 the Class C Notes Coupon Ledger;
13.6.4 the Class D Notes Coupon Ledger;
13.6.5 the Class A Notes Principal Ledger;
13.6.6 the Class B Notes Principal Ledger;
13.6.7 the Class C Notes Principal Ledger;
13.6.8 the Class D Notes Principal Ledger;
13.6.9 the Issuing Entity Costs Ledger;
13.6.10 the Issuing Entity Profit Ledger; and
13.6.11 the Additional Funds Ledger.
13.7 USE OF LEDGERS IN RESPECT OF SERIES [O]
13.7.1 The Class A Notes Coupon Ledger shall reflect the amount of
moneys from time to time held by the Issuing Entity in respect
of interest payments (including Additional Interest and Deferred
Interest, if any) due on the Class A Notes in the Series [o]
Issuing Entity Distribution Account.
13.7.2 The Class B Notes Coupon Ledger shall reflect the amount of
moneys from time to time held by the Issuing Entity in respect
of interest payments (including Additional Interest and Deferred
Interest, if any) due on the Class B Notes in the Series [o]
Issuing Entity Distribution Account.
13.7.3 The Class C Notes Coupon Ledger shall reflect the amount of
moneys from time to time held by the Issuing Entity in respect
of interest payments (including Additional Interest and Deferred
Interest, if any) due on the Class C Notes in the Series [o]
Issuing Entity Distribution Account.
13.7.4 The Class D Notes Coupon Ledger shall reflect the amount of
moneys from time to time held by the Issuing Entity in respect
of interest payments (including Additional Interest and Deferred
Interest, if any) due on the Class D Notes in the Series [o]
Issuing Entity Distribution Account.
- 17 -
13.7.5 The Class A Notes Principal Ledger shall reflect the amount of
moneys from time to time held by the Issuing Entity in respect
of principal payments due on the Class A Notes in the Series [o]
Issuing Entity Distribution Account and shall also be credited
or debited with any Swap Termination Amounts received or paid by
the Issuing Entity with respect to the Class A Swap Agreement.
13.7.6 The Class B Notes Principal Ledger shall reflect the amount of
moneys from time to time held by the Issuing Entity in respect
of principal payments due on the Class B Notes in the Series [o]
Issuing Entity Distribution Account and shall also be credited
or debited with any Swap Termination Amounts received or paid by
the Issuing Entity with respect to the Class B Swap Agreement.
13.7.7 The Class C Notes Principal Ledger shall reflect the amount of
moneys from time to time held by the Issuing Entity in respect
of principal payments due on the Class C Notes in the Series [o]
Issuing Entity Distribution Account and shall also be credited
or debited with any Swap Termination Amounts received or paid by
the Issuing Entity with respect to the Class C Swap Agreement.
13.7.8 The Class D Notes Principal Ledger shall reflect the amount of
moneys from time to time held by the Issuing Entity in respect
of principal payments due on the Class D Notes in the Series [o]
Issuing Entity Distribution Account and shall also be credited
or debited with any Swap Termination Amounts received or paid by
the Issuing Entity with respect to the Class D Swap Agreement.
13.7.9 The Issuing Entity Costs Ledger shall reflect the amount of
moneys from time to time held by the Issuing Entity in respect
of the costs and expenses of the Issuing Entity in the Series
[o] Issuing Entity Distribution Account.
13.7.10 The Additional Funds Ledger shall reflect the amount of moneys
from time to time held by the Issuing Entity in respect of the
Further Interest received under the Series [o] Medium Term Note
Certificate in the Series [o] Issuing Entity Distribution
Account.
13.7.11 The Issuing Entity Profit Ledger shall reflect the amount of
moneys from time to time held by the Issuing Entity in respect
of the Series [o] Extra Amount in the Series [o] Issuing Entity
Distribution Account.
13.7.12 The Issuing Entity shall at all times maintain accurate records,
or shall procure that accurate records are maintained,
reflecting each transaction in each Ledger in respect of the
Series [o] Issuing Entity Distribution Account.
13.7.13 The Issuing Entity shall record all moneys received or payments
made by it in respect of the Series [o] Notes, the Series [o]
Medium Term Note Certificate and each Swap Agreement in the
manner set out in this Note Trust Deed Supplement and shall
cause each Ledger of the Series [o] Issuing Entity Distribution
Account to be credited or debited with amounts corresponding to
those records. If at any time the Issuing Entity is in any doubt
as to which ledger or account a particular amount should be
credited to or debited from, it shall consult with the Issuing
Entity Bank Account Operator and the Issuing
- 18 -
Entity Bank Account Operator shall be entitled to consult any
person it deems appropriate in this regard.
13.7.14 To the extent required, the Issuing Entity Bank Account Operator
(and any other person so authorised by the Issuing Entity),
shall be authorised to make transfers to and from the Series [o]
Issuing Entity Distribution Account on the Issuing Entity's
behalf in accordance with the terms of this Note Trust Deed
Supplement.
13.8 PAYMENTS CREDITED TO LEDGERS IN RESPECT OF SERIES [O]
13.8.1 On each Distribution Date, payments by the MTN Issuing Entity of
interest amounts due and unpaid on the Series [o] Medium Term
Note Certificate shall be allocated by the Issuing Entity
Account Bank Operator (on behalf of the Issuing Entity) in
accordance with the following instructions of the Issuing Entity
for Series [o], which are irrevocable:
(a) an amount relating to the sum of the Class A Monthly
Finance Amount, the Class A Deficiency Amount and the
Class A Additional Finance Amount shall be credited to
the Class A Notes Coupon Ledger together with any Swap
Termination Amounts received by the Issuing Entity
pursuant to the Class A Swap Agreement;
(b) an amount relating to the sum of the Class B Monthly
Finance Amount, the Class B Deficiency Amount and the
Class B Additional Finance Amount shall be credited to
the Class B Notes Coupon Ledger together with any Swap
Termination Amounts received by the Issuing Entity
pursuant to the Class B Swap Agreement;
(c) an amount relating to the sum of the Class C Monthly
Finance Amount, the Class C Deficiency Amount and the
Class C Additional Finance Amount shall be credited to
the Class C Notes Coupon Ledger together with any Swap
Termination Amounts received by the Issuing Entity
pursuant to the Class C Swap Agreement;
(d) an amount relating to the sum of the Class D Monthly
Finance Amount, the Class D Deficiency Amount and the
Class D Additional Finance Amount shall be credited to
the Class D Notes Coupon Ledger together with any Swap
Termination Amounts received by the Issuing Entity
pursuant to the Class D Swap Agreement;
(e) an amount relating to the costs and expenses of the
Issuing Entity for the relevant Monthly Period, if any,
shall be credited into the Issuing Entity Costs Ledger;
(f) an amount equal to 1/2 of the Series [o] Extra Amount,
if any, shall be credited into the Issuing Entity Profit
Ledger; and
(g) an amount relating to Further Interest paid in relation
to the Series [o] Medium Term Note Certificate, if any,
shall be credited into the Additional Funds Ledger.
- 19 -
13.8.2 On each Interest Payment Date during an Amortisation Period, or
on the relevant Series [o] Scheduled Redemption Date, payments
by the MTN Issuing Entity of principal amounts due and unpaid on
the Series [o] Medium Term Note Certificate shall be allocated
by the Issuing Entity Account Bank Operator (on behalf of the
Issuing Entity) in accordance with the following instructions of
the Issuing Entity for Series [o], which are irrevocable:
(a) an amount relating to the Class A Monthly Principal
Amount, if any, shall be credited to the Class A Notes
Principal Ledger;
(b) an amount relating to the Class B Monthly Principal
Amount, if any, shall be credited to the Class B Notes
Principal Ledger;
(c) an amount relating to the Class C Monthly Principal
Amount, if any, shall be credited to the Class C Notes
Principal Ledger; and
(d) an amount relating to the Class D Monthly Principal
Amount, if any, shall be credited to the Class D Notes
Principal Ledger.
13.9 APPLICATION OF AMOUNTS PAYABLE ON DISTRIBUTION DATES
13.9.1 Prior to the service of an Enforcement Notice, on each
Distribution Date, the amounts (including revenue and principal)
transferred by the MTN Issuing Entity (or the Issuing Entity
Bank Account Operator on its behalf) on such Distribution Date,
pursuant to the Series [o] MTN Supplement, to the Series [o]
Issuing Entity Distribution Account together with any interest
or investment proceeds earned on each Ledger (net of losses and
investment expenses) and any amount received from any Swap
Counterparty on or prior to such Distribution Date (and not
previously utilised) but excluding any collateral posted by any
Swap Counterparty pursuant to the terms of the Swap Agreements
(which shall be returned to such Swap Counterparty in accordance
with the relevant Swap Agreement) shall, subject to Clause 13.10
(Withholding tax), be applied by the Issuing Entity in the order
of priority set out as follows:
(a) from Further Interest received from the MTN Issuing
Entity, the costs and expenses of the Issuing Entity
(including, for the avoidance of doubt, those in
relation to the Note Trustee and any corporate services
provider) for the relevant Interest Period will be paid
or reserved for within the Issuing Entity;
(b) from funds which had been credited to the Class A Notes
Coupon Ledger, the Class B Notes Coupon Ledger, the
Class C Notes Coupon Ledger and the Class D Notes Coupon
Ledger, the costs and expenses of the Issuing Entity
(including, for the avoidance of doubt, those in
relation to the Note Trustee and any corporate services
provider) to the extent not satisfied under the
immediately preceding item for the relevant Interest
Period will be paid or reserved for within the Issuing
Entity pro rata and pari passu in accordance with the
proportion that the Principal Amount Outstanding of each
Class bears to the Principal Amount Outstanding of the
Notes of this Series;
- 20 -
(c) from funds which had been credited to the Class A Notes
Coupon Ledger and the Class A Notes Principal Ledger:
(1) (if the Class A Notes are denominated in
Sterling) the amount credited to the Class A
Notes Coupon Ledger and the Class A Notes
Principal Ledger after paying or reserving for
the Class A Notes' proportionate share of the
Issuing Entity's costs and expenses will be paid
to the Class A Noteholders in accordance with
the Conditions; or
(2) (if the Class A Notes are denominated in a
currency other than Sterling) the lesser of (1)
the amount credited to the Class A Notes Coupon
Ledger and the Class A Notes Principal Ledger
after paying or reserving for the Class A Notes'
proportionate share of the Issuing Entity's
costs and expenses and (2) the expenses and the
amounts due and payable to the Class A Swap
Counterparty under the Class A Swap Agreement
for the relevant Interest Period (other than
Swap Termination Amounts payable under item (k)
below) will be paid to the Class A Swap
Counterparty and, upon payment to the Issuing
Entity by the Class A Swap Counterparty in
exchange therefor, to the Class A Noteholders in
accordance with the Conditions (or, to the
extent that the Class A Swap Agreement has been
terminated and not replaced, the lesser of (i)
the spot equivalent in the currency of the Class
A Notes of (1) above and (ii) the amount due
under the Class A Notes will be paid to the
Class A Noteholders in accordance with the
Conditions);
(d) from funds which had been credited to the Class B Notes
Coupon Ledger and the Class B Notes Principal Ledger:
(1) (if the Class B Notes are denominated in
Sterling) the amount credited to the Class B
Notes Coupon Ledger and the Class B Notes
Principal Ledger after paying or reserving for
the Class B Notes' proportionate share of the
Issuing Entity's costs will be paid to the Class
B Noteholders in accordance with the Conditions;
or
(2) (if the Class B Notes are denominated in a
currency other than Sterling) the lesser of (1)
the amount credited to the Class B Notes Coupon
Ledger and the Class B Notes Principal Ledger
after paying or reserving for the Class B Notes'
proportionate share of the Issuing Entity's
costs and (2) the expenses and the amounts due
and payable to the Class B Swap Counterparty
under the Class B Swap Agreement for the
relevant Interest Period (other than Swap
Termination Amounts payable under item (l)
below) to the Class B Swap Counterparty and,
upon payment to the Issuing Entity by the Class
B Swap Counterparty in exchange therefor, to the
Class B Noteholders in accordance with the
Conditions (or, to the extent that the Class B
Swap Agreement has been terminated and not
replaced,
- 21 -
the lesser of (i) the spot equivalent in the
currency of the Class B Notes of (1) above and
(ii) the amount due under the Class B Notes to
the Class B Noteholders in accordance with the
Conditions);
(e) from funds which had been credited to the Class C Notes
Coupon Ledger and the Class C Notes Principal Ledger:
(1) (if the Class C Notes are denominated in
Sterling) the amount credited to the Class C
Notes Coupon Ledger and the Class C Notes
Principal Ledger after paying or reserving for
the Class C Notes' proportionate share of the
Issuing Entity's costs will be paid to the Class
C Noteholders in accordance with the Conditions;
or
(2) (if the Class C Notes are denominated in a
currency other than Sterling) the lesser of (1)
the amount credited to the Class C Notes Coupon
Ledger and the Class C Notes Principal Ledger
after paying or reserving for the Class C Notes'
proportionate share of the Issuing Entity's
costs and (2) the expenses and the amounts due
and payable to the Class C Swap Counterparty
under the Class C Swap Agreement for the
relevant Interest Period (other than Swap
Termination Amounts payable under item (m)
below) to the Class C Swap Counterparty and,
upon payment to the Issuing Entity by the Class
C Swap Counterparty in exchange therefor, to the
Class C Noteholders in accordance with the
Conditions (or, to the extent that the Class C
Swap Agreement has been terminated and not
replaced, the lesser of (i) the spot equivalent
in the currency of the Class C Notes of (1)
above and (ii) the amount due under the Class C
Notes to the Class C Noteholders in accordance
with the Conditions);
(f) from funds which had been credited to the Class D Notes
Coupon Ledger and the Class D Notes Principal Ledger:
(1) (if the Class D Notes are denominated in
Sterling) the amount credited to the Class D
Notes Coupon Ledger and the Class D Notes
Principal Ledger after paying or reserving for
the Class D Notes' proportionate share of the
Issuing Entity's costs will be paid to the Class
D Noteholders in accordance with the Conditions;
or
(2) (if the Class D Notes are denominated in a
currency other than Sterling) the lesser of (1)
the amount credited to the Class D Notes Coupon
Ledger and the Class D Notes Principal Ledger
after paying or reserving for the Class D Notes'
proportionate share of the Issuing Entity's
costs and (2) the expenses and the amounts due
and payable to the Class D Swap Counterparty
under the Class D Swap Agreement for the
relevant Interest Period (other than Swap
Termination Amounts payable under item (n)
below) to the Class D Swap Counterparty and,
upon payment to the Issuing Entity by the Class
D Swap Counterparty in exchange therefor, to the
Class D Noteholders in accordance with the
Conditions (or, to the extent that
- 22 -
the Class D Swap Agreement has been terminated
and not replaced, the lesser of (i) the spot
equivalent in the currency of the Class D Notes
of (1) above and (ii) the amount due under the
Class D Notes to the Class D Noteholders in
accordance with the Conditions);
(g) from funds which had been credited to the Class A Notes
Coupon Ledger, the Class B Notes Coupon Ledger, the
Class C Notes Coupon Ledger and the Class D Notes Coupon
Ledger, the lesser of the remaining amount on deposit in
the Series [o] Issuing Entity Distribution Account and
an amount equal to 1/2 of the Series [o] Extra Amount,
will be paid to the Issuing Entity;
(h) from funds which had been credited to the Class A Notes
Coupon Ledger, the Class B Notes Coupon Ledger, the
Class C Notes Coupon Ledger, the Class D Notes Coupon
Ledger and the Additional Funds Ledger, any amounts due
from or required to be provided for by the Issuing
Entity to meet its liabilities to any taxation
authority, will be paid to the Issuing Entity;
(i) from funds which had been credited to the Class A Notes
Coupon Ledger, the Class B Notes Coupon Ledger, the
Class C Notes Coupon Ledger, the Class D Notes Coupon
Ledger and the Additional Funds Ledger, any amounts due
to third parties (other than amounts payable under items
(k), (l) and (m) below) under obligations incurred in
the course of the Issuing Entity's business will be paid
to the Issuing Entity;
(j) from funds which had been credited to the Class A Notes
Coupon Ledger, the Class B Notes Coupon Ledger, the
Class C Notes Coupon Ledger, the Class D Notes Coupon
Ledger and the Additional Funds Ledger, the amount
needed to cover any shortfall with respect to the Notes
caused by the imposition of withholding taxes on
payments made under the Series [o] Medium Term Note
Certificate or a Swap Agreement;
(k) funds which had been credited to the Class A Notes
Coupon Ledger and the Class A Notes Principal Ledger,
the amount equal to any Swap Termination Amount due and
payable to the Class A Swap Counterparty pursuant to the
Class A Swap Agreement where the Class A Swap Agreement
has been terminated as a result of a Swap Counterparty
Swap Event of Default, to be paid to the Class A Swap
Counterparty pursuant to the Class A Swap Agreement;
(l) funds which had been credited to the Class B Notes
Coupon Ledger and the Class B Notes Principal Ledger,
the amount equal to any Swap Termination Amount due and
payable to the Class B Swap Counterparty pursuant to the
Class B Swap Agreement where the Class B Swap Agreement
has been terminated as a result of a d Swap Counterparty
Swap Event of Default, to be paid to the Class B Swap
Counterparty pursuant to the Class B Swap Agreement;
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(m) funds which had been credited to the Class C Notes
Coupon Ledger and the Class C Notes Principal Ledger,
the amount equal to any Swap Termination Amount due and
payable to the Class C Swap Counterparty pursuant to the
Class C Swap Agreement where the Class C Swap Agreement
has been terminated as a result of a Swap Counterparty
Swap Event of Default, to be paid to the Class C Swap
Counterparty pursuant to the Class C Swap Agreement;
(n) funds which had been credited to the Class D Notes
Coupon Ledger and the Class D Notes Principal Ledger,
the amount equal to any Swap Termination Amount due and
payable to the Class D Swap Counterparty pursuant to the
Class D Swap Agreement where the Class D Swap Agreement
has been terminated as a result of a Swap Counterparty
Swap Event of Default, to be paid to the Class D Swap
Counterparty pursuant to the Class D Swap Agreement; and
(o) any amounts remaining and which had been credited to the
Additional Funds Ledger, Class A Notes Coupon Ledger,
the Class B Notes Coupon Ledger, the Class C Notes
Coupon Ledger and the Class D Notes Coupon Ledger will
constitute the Deferred Subscription Price Amount and
will be paid to the MTN Issuing Entity,
PROVIDED THAT where the full amount of any payment described
above cannot be made due to insufficiency in the funds credited
to any relevant Ledger of the Series [o] Issuing Entity
Distribution Account, such deficiency in payment of such Ledger
shall be deferred to the next and succeeding Distribution Date.
13.9.2 All amounts paid from each Ledger pursuant to the priority of
payments specified in Clause 13.9.1 shall be debited accordingly
from each such Ledger.
13.10 WITHHOLDING TAX
If any withholding or deduction for any taxes, duties, assessments or
government charges is imposed, levied, collected, withheld or assessed
on payments of principal or interest on any Series [o] Note by any
jurisdiction or any political subdivision or authority in or of any
jurisdiction having power to tax the Issuing Entity or relevant Paying
Agent (as the case may be) shall make the relevant payment subject to
such withholding or deduction and the amount paid to the relevant
Noteholder will be reduced accordingly and neither the Issuing Entity,
nor the Note Trustee, will be required to make any additional payments
to the holders of the Series [o] Notes affected for that withholding or
deduction. The shortfall in the amount paid to the relevant Noteholder
as a result of such withholding or deduction will not be treated as
Deferred Interest and, accordingly, will not bear Additional Interest.
13.11 ADDITIONAL PROVISION RELATING TO POST ENFORCEMENT PAYMENTS
Notwithstanding the security rights created in respect of Series [o] by
this Note Trust Deed Supplement or the Note Trust Deed, the Note
Trustee, each of the Series [o] Secured Creditors (other than the
holders of the Series [o] Notes) and the Issuing Entity hereby agrees,
and the holders of the Series [o] Notes, by purchasing or subscribing
for Series [o] Notes, acknowledge, that any moneys whatsoever recovered
by each of them
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or on their behalf whether by the Note Trustee or otherwise after the
giving of an Enforcement Notice in relation to Series [o], shall be held
on trust by them and forthwith paid to the Note Trustee (and pending
such payment shall be held on trust for the Note Trustee) for
application in accordance with the provisions of, and, where applicable,
the order of priorities set out in Condition 3(b) (Security).
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SCHEDULE 3
NOTICES
PART A
FORM OF NOTICE OF ASSIGNMENT
From: Gracechurch Card Programme Funding Limited (as Issuing Entity)
To: [Name of each party (other than the Issuing Entity, the Note Trustee,
MTN Issuing Entity, the Security Trustee and the Issuing Entity Account
Bank) to the Series [o] Documents (other than the Note Trust Deed, this
Note Trust Deed Supplement and the Series [o] Pledge Agreement)]
[date]
Dear Sirs
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
We hereby give you notice that, by a Note Trust Deed Supplement dated [o] and
made between, among others, Gracechurch Card Programme Funding Limited (the
"ISSUING ENTITY") and The Bank of New York, London Branch (the "NOTE TRUSTEE")
(the "NOTE TRUST DEED SUPPLEMENT"), the Issuing Entity assigned to the Note
Trustee by way of security the Issuing Entity's Benefit in the Series [o]
Documents.
Subject to any other instructions given to any of you by the Note Trustee, you
are instructed to deal with the Issuing Entity in relation to the Series [o]
Documents as if the assignment referred to in the preceding paragraph had not
taken place, save that you are not authorised to recognise the exercise by the
Issuing Entity of any right to vary or terminate the Series [o] Documents unless
the prior written consent of the Note Trustee to such exercise has been
obtained.
This notice is irrevocable. Please acknowledge receipt of this notice to the
Note Trustee on the enclosed acknowledgement of assignment. Words and
expressions used in this Notice shall have the meanings assigned to them in
either Schedule 1 (Master Definitions Schedule) of the Issuing Entity Master
Framework Agreement, dated [o], between, among others, the Issuing Entity and
the Note Trustee or the Note Trust Deed Supplement.
This notice shall be governed by and construed in accordance with English law.
Yours faithfully
...........................................
for and on behalf of
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
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PART B
FORM OF ACKNOWLEDGEMENT
From: [Name of relevant party to Series [o] Document]
To: Gracechurch Card Programme Funding Limited (as Issuing Entity)
[date]
Dear Sirs
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
We hereby acknowledge receipt of the Notice of Assignment dated [o] (the
"NOTICE") relating to the Note Trust Deed Supplement dated [o] (the "NOTE TRUST
DEED SUPPLEMENT"). We further acknowledge that the assignment is effective to
confer on the Note Trustee the Benefit of the Series [o] Documents made between,
among others, the Issuing Entity and us.
We confirm that as at the date of this acknowledgement of assignment we have not
received from any other person any notice of assignment or charge of, or of any
interest in, the Series [o] Documents.
We confirm that we accept the authorisation and instructions contained in the
Notice and we undertake to act in accordance with and to comply with the terms
of this Notice.
We agree not to recognise the exercise by the Issuing Entity of any right to
vary or terminate the Series [o] Documents without the Note Trustee's written
consent and to give the Note Trustee notice forthwith of any attempt by the
Issuing Entity to do so. We further agree not to amend or modify the Series [o]
Documents without the Note Trustee's prior written approval.
Words and expressions used in this Notice shall have the meanings assigned to
them in either Schedule 1 (Master Definitions Schedule) of the Issuing Entity
Master Framework Agreement, dated [o], between, among others, the Issuing Entity
and the Note Trustee or the Note Trust Deed Supplement.
This acknowledgement shall be governed by and construed in accordance with
English law.
Yours faithfully
................................................
for and on behalf of
[NAME OF RELEVANT PARTY TO SERIES [O] DOCUMENT]
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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 )
MTN Issuing Entity
Executed as a deed by )
BARCLAYCARD FUNDING PLC )
acting through two directors or )
a director and the secretary )
Note Trustee and Security Trustee
Executed as a deed )
for and on behalf of )
THE BANK OF NEW YORK )
by )
------------------------------
Authorised Signatory
Principal Paying Agent, Custodian, Agent Bank and Exchange Agent
Executed as a deed )
for and on behalf of )
THE BANK OF NEW YORK )
by )
------------------------------
Authorised Signatory
Registrar, U.S. Paying Agent
Executed as a deed )
for and on behalf of )
THE BANK OF NEW YORK )
by )
------------------------------
Authorised Signatory
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Class A Swap Counterparty, Class B Swap Counterparty, Class C Swap Counterparty
and Class D Swap Counterparty
Executed as a deed )
for and on behalf of )
BARCLAYS BANK PLC )
by a duly authorised attorney )
In the presence of:
Signature:
Print name:
Address:
Occupation:
Issuing Entity Account Bank and Issuing Entity Bank Account Operator
Executed as a deed )
for and on behalf of )
BARCLAYS BANK PLC )
by a duly authorised attorney )
In the presence of:
Signature:
Print name:
Address:
Occupation:
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