Exhibit 4.8
CLIFFORD
CHANCE
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
as Issuing Entity
THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH
as Note 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
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PAYING AGENCY AND AGENT BANK AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Interpretation..................................................................................2
2. Appointment Of Agents...........................................................................2
3. The Notes.......................................................................................3
4. Transfers Of Notes..............................................................................5
5. Exchange Of Global Note Certificates For Individual Note Certificates...........................6
6. Replacement Note Certificates...................................................................6
7. Payments To The Principal Paying Agent..........................................................6
8. Payments To Noteholders.........................................................................8
9. Duties Of The Agent Bank.......................................................................11
10. Duties Of The Custodian........................................................................12
11. Duties Of The Exchange Agent...................................................................13
12. Miscellaneous Duties Of The Agents.............................................................14
13. Fees And Expenses..............................................................................17
14. Terms Of Appointment...........................................................................17
15. Changes In Agents..............................................................................19
16. Time...........................................................................................22
17. Governing Law And Jurisdiction.................................................................22
SCHEDULE 1 REGULATIONS CONCERNING TRANSFERS AND REGISTRATION OF NOTES..............................23
SCHEDULE 2 FORM OF TRANSFER CERTIFICATE............................................................27
SCHEDULE 3 SPECIFIED OFFICES OF THE AGENTS.........................................................30
THIS PAYING AGENCY AND AGENT BANK AGREEMENT 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) 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);
(3) THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH, as principal
paying agent (the "PRINCIPAL PAYING AGENT"), custodian (the
"CUSTODIAN"), agent bank (the "AGENT BANK") and exchange agent
("EXCHANGE AGENT"); and
(4) 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 State as registrar (the "REGISTRAR") and U.S. paying agent
(the "U.S. PAYING AGENT").
INTRODUCTION:
(A) The Issuing Entity has established the Programme.
(B) Each Series will be constituted by, be subject to, and have the benefit
of the Note Trust Deed and the applicable Note Trust Deed Supplement.
(C) Notes issued in accordance with the Programme will be secured in
accordance with the Note Trust Deed and the relevant Note Trust Deed
Supplement executed on or about the time of each such issuance.
(D) Notes issued under the Programme will initially be represented in
registered form in an Authorised Denomination.
(E) The Notes of each Class and Sub-Class of each Series will initially be
represented by one or more Global Note Certificates and will be
registered in the name of a nominee of Euroclear and Clearstream or, as
applicable, DTC or its nominee. Beneficial interests in the Global Note
Certificates will only be exchangeable for Individual Note Certificates
in the limited circumstances specified in the Note Trust Deed and the
relevant Note Trust Deed Supplement and such Global Note Certificates.
(F) Notes may be issued on a listed basis in accordance with the relevant
Prospectus Supplements/Final Terms. The Issuing Entity will make
applications for certain Series of the Notes issued under the Programme
to be admitted to listing in accordance with the relevant Prospectus
Supplements/Final Terms.
(G) The parties to this Paying Agency and Agent Bank Agreement wish to
record certain arrangements, which they have made in relation to
payments in respect of the Notes.
THE PARTIES AGREE as follows:
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1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this Paying Agency and Agent Bank Agreement
or the context requires otherwise, words and expressions used in this
Paying Agency and Agent Bank Agreement 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 Paying Agency
and Agent Bank Agreement, where applicable, and shall be binding on the
parties to this Paying Agency and Agent Bank Agreement as if set out in
full in this Paying Agency and Agent Bank Agreement.
1.3 FURTHER ASSURANCE
Paragraph 1 (Further Assurance) of the Common Terms applies to this
Paying Agency and Agent Bank Agreement as if set out in full in herein,
and as if the Issuing Entity was the Obligor (as defined therein) and
each Agent 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 Paying Agency
and Agent Bank Agreement 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 Paying Agency and Agent Bank Agreement, the
provisions of this Paying Agency and Agent Bank Agreement shall prevail,
save for where any provision of this Paying Agency and Agent Bank
Agreement 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
Agents on the terms set out in the Issuing Entity Warranties.
1.7 COVENANTS
The Issuing Entity covenants with the Agents on the terms of the Issuing
Entity Covenants.
2. APPOINTMENT OF AGENTS
2.1 APPOINTMENT
The Issuing Entity (and, for the purposes of Clause 8.8 (Agents to act
for Note Trustee), the Note Trustee) appoints each of the Agents at
their respective Specified Offices as its agent in relation to each
Series of Notes in respect of which it is named in the relevant
Prospectus Supplements/Final Terms for the purposes specified in this
Paying Agency and Agent Bank Agreement and in the Conditions and all
matters incidental thereto.
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2.2 ACCEPTANCE OF APPOINTMENT
Each of the Agents accepts its appointment as agent of the Issuing
Entity (and, for the purposes of Clause 8.8 (Agents to act for Note
Trustee), the Note Trustee) in relation to the relevant Series of Notes
and shall perform all matters expressed to be performed by it in, and
otherwise comply with, the Conditions and the provisions of this Paying
Agency and Agent Bank Agreement and, in connection therewith, shall take
all such action as may be incidental thereto.
3. THE NOTES
3.1 GLOBAL NOTE CERTIFICATES
Each Global Note Certificate in respect of each Class and/or Sub-Class
of each Series shall:
3.1.1 (in the case of Notes other than Rule 144A Notes or Regulation S
Notes) be in substantially the form set out (in the case of
Class A Notes) in Schedule 2 (Form of Class A SEC Registered
Global Note Certificate) to the Note Trust Deed, (in the case of
Class B Notes) in Schedule 3 (Form of Class B SEC Registered
Global Note Certificate) thereto, (in the case of Class C Notes)
in Schedule 4 (Form of Class C SEC Registered Global Note
Certificate) thereto and (in the case of Class D Notes) in
Schedule 5 (Form of Class D SEC Registered Global Note
Certificate) thereto;
3.1.2 (in the case of Rule 144A Notes) be in substantially the form
set out in Schedule 10 (Form of Rule 144A Global Note
Certificate) to the Note Trust Deed;
3.1.3 (in the case of Regulation S Notes) be in substantially the form
set out in Schedule 12 (Form of Regulation S Global Note
Certificate) to the Note Trust Deed; and
3.1.4 be executed manually or in facsimile by or on behalf of the
Issuing Entity and authenticated manually by or on behalf of the
Registrar.
3.2 INDIVIDUAL NOTE CERTIFICATES
Each Individual Note Certificate in respect of each Class and/or
Sub-Class of each Series shall:
3.2.1 (in the case of Notes other than Rule 144A Notes or Regulation S
Notes) be in substantially the form set out (in the case of
Class A Notes) in Schedule 6 (Form of Class A SEC Registered
Individual Note Certificate) to the Note Trust Deed, (in the
case of Class B Notes) in Schedule 7 (Form of Class B SEC
Registered Individual Note Certificate) thereto, (in the case of
Class C Notes) in Schedule 8 (Form of Class C SEC Registered
Individual Note Certificate) thereto and (in the case of Class D
Notes) in Schedule 9 (Form of Class D SEC Registered Individual
Note Certificate) thereto;
3.2.2 (in the case of Rule 144A Notes) be in substantially the form
set out in Schedule 11 (Form of Rule 144A Individual Note
Certificate) to the Note Trust Deed;
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3.2.3 (in the case of Regulation S Notes) be in substantially the form
set out in Schedule 13 (Form of Regulation S Individual Note
Certificate) to the Note Trust Deed;
3.2.4 be security printed in accordance with all applicable legal and
stock exchange requirements (if any);
3.2.5 have a unique certificate or serial number printed thereon; and
3.2.6 be executed manually or in facsimile by or on behalf of the
Issuing Entity and authenticated manually by or on behalf of the
Registrar.
3.3 SIGNATURES
Any signature on a Note Certificate on behalf of the Issuing Entity
shall be that of a person who at the date of printing of the Note
Certificates is an authorised signatory of the Issuing Entity
notwithstanding that at the time of issue of any of the Note
Certificates he may have ceased, for any reason (including death), to be
such an authorised signatory.
3.4 DEPOSIT OF GLOBAL NOTE CERTIFICATES
The DTC Global Note Certificates shall be registered in the name of Cede
& Co. (as nominee for DTC) and deposited with the DTC Custodian. The
European Global Note Certificates shall be registered in the name of and
deposited with a nominee for Euroclear and Clearstream. Participants in
the Clearing Systems shall have no rights under this Paying Agency and
Agent Bank Agreement with respect to the Global Note Certificates and
the relevant Clearing System or Clearing Systems, or its or their
nominee, may be treated by the Issuing Entity or any Agent as the
absolute owner of each Global Note Certificate for all purposes under
this Paying Agency and Agent Bank Agreement. Notwithstanding the
foregoing, nothing in this Paying Agency and Agent Bank Agreement shall
impair, as between the Clearing Systems and their participants, the
operation of customary practices governing the exercise of the rights of
a Holder of any Note.
3.5 AVAILABILITY OF INDIVIDUAL NOTE CERTIFICATES
If the Issuing Entity is required to deliver Individual Note
Certificates pursuant to the terms of the Global Note Certificates of a
particular Class and/or Sub-Class, the Issuing Entity shall arrange for
such Individual Note Certificates of such Class and/or Sub-Class to be
made available to or to the order of the relevant Registrar by the later
of the expiry of 40 days after the Issue Date of the relevant Series and
the date falling 25 days after the occurrence of the relevant event as
set out in the Note Trust Deed. Such Individual Note Certificates will
be in registered form each in an Authorised Denomination. The Individual
Note Certificates will be held to the Issuing Entity's order pending
delivery. The Issuing Entity shall also arrange, on request, for such
Individual Note Certificates as are required to enable the Registrar to
perform its obligations under Clause 4 (Transfer of Notes), Clause 5
(Exchange of Global Note Certificates for Individual Note Certificates)
and Clause 6 (Replacement Note Certificates) to be made available to or
to the order of that Registrar from time to time.
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3.6 AUTHORITY TO AUTHENTICATE
Each Registrar or its designated agent is authorised and instructed by
the Issuing Entity to authenticate such Note Certificates as may be
required to be authenticated hereunder by the signature of any of its
officers or any other person duly authorised for the purpose by that
Registrar.
3.7 DUTIES OF THE REGISTRAR
It shall be a term of the appointment of the Registrar that it or its
designated agent shall:
3.7.1 hold in safe custody all unauthenticated Note Certificates
delivered to it;
3.7.2 ensure that such Note Certificates are authenticated and
delivered only in accordance with the terms hereof, of the Note
Trust Deed and of the Conditions; and
3.7.3 establish and maintain the Register at its Specified Office in
accordance with Clause 4.1 (Maintenance of the Register).
4. TRANSFERS OF NOTES
4.1 MAINTENANCE OF THE REGISTER
The Registrar shall maintain the Register in relation to the Notes,
which shall be kept at its Specified Office and upon written request be
made available by the Registrar to the Issuing Entity, the Note Trustee
and the other Agents for inspection and for the taking of copies or
extracts therefrom at all reasonable times. The Register shall show the
aggregate principal amount, serial numbers and dates of issue of each
Note Certificate, the names and addresses of the initial holders thereof
and the dates of all transfers to, and the names and addresses of, all
subsequent holders thereof, all cancellations of Note Certificates and
all replacements of Note Certificates.
4.2 REGISTRATION OF TRANSFERS IN THE REGISTER
The Registrar shall receive requests for the transfer of Notes in
accordance with the Conditions and the Regulations and shall make the
necessary entries in the Register.
4.3 REGISTRAR TO EFFECT EXCHANGES OF INTERESTS BETWEEN GLOBAL NOTE
CERTIFICATES
The Registrar shall receive requests for the exchange of interests in
a Regulation S Global Note Certificate for interests in the relevant
Rule 144A Global Note Certificate and for the exchange of interests in
a Rule 144A Global Note Certificate for interests in the relevant
Regulation S Global Note Certificate and, subject to the Registrar
having received all information and certificates required by this
Paying Agency and Agent Bank Agreement, the Note Trust Deed and the
relevant Global Note Certificate, the Registrar shall give effect to
such requests in accordance with the terms of the relevant Global Note
Certificate by making appropriate adjustments to the records maintained
by it and shall procure that appropriate entries are made in the records
of (in the case of a DTC Global Note Certificate) the DTC Custodian or
(in the case of a European Global Note Certificate) the nominee for
Euroclear and Clearstream so as to reflect such adjustments.
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5. EXCHANGE OF GLOBAL NOTE CERTIFICATES FOR INDIVIDUAL NOTE CERTIFICATES
5.1 EXCHANGE OF GLOBAL NOTE CERTIFICATES FOR INDIVIDUAL NOTE CERTIFICATES
If any Global Note Certificate becomes exchangeable for Individual Note
Certificates in accordance with its terms, the Registrar shall, subject
to its having received any certificates required by the terms of the
relevant Global Note Certificate, authenticate and deliver to each
person designated by the Holder of such Global Note Certificate a
Individual Note Certificate in accordance with the terms of this Paying
Agency and Agent Bank Agreement, the Note Trust Deed and the relevant
Global Note Certificate.
5.2 RULE 144A LEGEND
Subject to the Regulations, any Individual Note Certificates issued in
exchange for interests in a Rule 144A Global Note Certificate shall bear
the Rule 144A Legend.
6. REPLACEMENT NOTE CERTIFICATES
6.1 DELIVERY OF REPLACEMENTS
Subject to receipt of replacement Note Certificates, the Registrar
shall, upon and in accordance with the instructions of the Issuing
Entity (which instructions may, without limitation, include terms as to
the payment of expenses and as to evidence, security and indemnity),
complete, authenticate and deliver a Note Certificate as a replacement
for any Note Certificate which has been mutilated or defaced or which is
alleged to have been destroyed, stolen or lost; PROVIDED, HOWEVER, THAT
the Registrar shall not deliver any Note Certificate as a replacement
for any Note Certificate which has been mutilated or defaced otherwise
than against surrender of the same and shall not issue any replacement
Note Certificate until the applicant has furnished the Registrar with
such evidence and indemnity as the Issuing Entity and/or the Registrar
may reasonably require and has paid such costs and expenses as may be
incurred in connection with such replacement.
6.2 REPLACEMENTS TO BE NUMBERED
Each replacement Note Certificate delivered hereunder shall bear a
unique serial number.
6.3 CANCELLATION AND DESTRUCTION
Each Registrar shall cancel and destroy each mutilated or defaced Note
Certificate surrendered to it and in respect of which a replacement has
been delivered.
6.4 NOTIFICATION
The Registrar shall notify the Issuing Entity of the delivery by it in
accordance herewith of any replacement Note Certificate, specifying the
serial number thereof and the serial number (if any and if known) of the
Note Certificate which it replaces and confirming (if such be the case)
that the Note Certificate which it replaces has been cancelled or
destroyed and the Registrar shall as promptly as is practicable, enter
such details in the Register.
7. PAYMENTS TO THE PRINCIPAL PAYING AGENT
7.1 ISSUING ENTITY TO PAY PRINCIPAL PAYING AGENT
In order to provide for the payment of interest and principal in respect
of each Class and/or Sub-Class of Notes of a Series as the same becomes
due and payable, the Issuing Entity shall pay to the Principal Paying
Agent or otherwise cause it to receive on or
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before the date on which such payment becomes due, an amount which is
equal to the amount of principal or interest then falling due in respect
of the relevant Notes on such date.
7.2 MANNER AND TIME OF PAYMENT
Each amount payable by the Issuing Entity under Clause 7.1 (Issuing
Entity to pay Principal Paying Agent) shall be paid unconditionally by
credit transfer in the relevant currency in immediately available,
freely transferable, cleared funds, not later than (in the case of
Sterling Notes) 10.00 a.m. (London time), (in the case of Euro Notes)
12.00 noon (Brussels time), (in the case of Dollar Notes) 10.00 a.m.
(New York City time) or (in the case of Notes other than Sterling Notes,
Euro Notes or Dollar Notes) such time as the Principal Paying Agent has
by notice to the Issuing Entity and the Note Trustee specified, on the
relevant day to such account with such bank as the Principal Paying
Agent has by notice to the Issuing Entity and the Note Trustee specified
from time to time for the purpose. The Issuing Entity shall, before (in
the case of Sterling Notes) 2.00 p.m. (London time), (in the case of
Euro Notes) 10.00 a.m. (Brussels time), (in the case of Dollar Notes)
10.00 a.m. (New York City time) or (in the case of Notes other than
Sterling Notes, Euro Notes or Dollar Notes) such time as the Principal
Paying Agent has by notice to the Issuing Entity and the Note Trustee
specified, on the second Business Day before the due date of each
payment by it under Clause 7.1 (Issuing Entity to pay Principal Paying
Agent), notify the Principal Paying Agent (and, in the case of a payment
on a Note (other than a Dollar Note) represented by a DTC Global Note
Certificate, with a copy to the Exchange Agent) by authenticated SWIFT
message (or such other method as shall be agreed) of its irrevocable
payment instructions to such bank through which such payment to the
Principal Paying Agent is to be made.
7.3 PAYMENT TO EXCHANGE AGENT
In relation to a payment on a Note (other than a Dollar Note)
represented by a DTC Global Note Certificate, subject to receipt of
funds from the Issuing Entity pursuant to Clause 7.2 (Manner and time of
payment) and Clause 11.2 (U.S. dollar conversion), the Principal Paying
Agent shall transfer in immediately available, freely transferable,
cleared funds, not later than 12.00 noon (London time) on the date of
such payment, the Specified Currency Amount to the Exchange Agent.
7.4 EXCLUSION OF LIENS AND INTEREST
The Agents shall not:
7.4.1 exercise any lien, right of set-off or similar claim in respect
of moneys received by the Principal Paying Agent in connection
with its activities hereunder;
7.4.2 be liable to any person for interest thereon; and
7.4.3 be obliged to hold any funds received by them hereunder in a
segregated account or accounts.
7.5 APPLICATION BY PRINCIPAL PAYING AGENT
The Principal Paying Agent shall apply (or direct or cause the
application of) each amount paid to it under this Clause 7 (Payments to
the Principal Paying Agent) in accordance with Clause 8 (Payments to
Noteholders) and shall not be obliged to repay
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any such amount other than as provided herein or unless the claim for
the relevant payment becomes void under Condition 11 (Prescription) in
which event it shall repay to the Issuing Entity such portion of such
amount as relates to such payment by paying the same by credit transfer
into such account with such bank as the Issuing Entity has by notice to
the Principal Paying Agent specified for the purpose.
7.6 FAILURE TO NOTIFY PAYMENT INSTRUCTIONS
If the Principal Paying Agent has not, by 4.30 p.m. (London Time) on the
second Business Day before the due date of any payment to it under
Clause 7.1 (Issuing Entity to pay Principal Paying Agent), received
notification of the relevant irrevocable payment instructions referred
to in Clause 7.2 (Manner and time of payment) it shall forthwith notify
the other Paying Agents, the Note Trustee and the Issuing Entity. If the
Principal Paying Agent subsequently receives notification of such
payment instructions, it shall forthwith notify the other Paying Agents,
the Note Trustee and the Issuing Entity.
7.7 NOTIFICATION OF PARTIAL REDEMPTIONS
In the event there is to be any partial redemption of a Series of Notes
pursuant to Condition 7 (Redemption and Purchase) on any Interest
Payment Date, the Issuing Entity shall give each of the Paying Agents,
the Agent Bank, the Principal Paying Agent and any Swap Counterparty
four Business Days notice of the amount of the Principal Amount
Outstanding of each Note to be redeemed on such Interest Payment Date.
The Agent Bank shall upon receipt of such information (and any
notification under Clause 12.10 (Notification of the Principal Amount
Outstanding) hereunder) make the relevant determinations required under
Condition 7 (Redemption and Purchase).
8. PAYMENTS TO NOTEHOLDERS
8.1 PAYMENTS BY PAYING AGENTS
Each Paying Agent acting through its Specified Office shall make
payments of interest and principal in respect of the Notes (in the event
a Swap Agreement has been terminated without replacement, after
exchanging any amounts due to the currency of the relevant Notes at a
spot rate determined by the Exchange Agent), in accordance with the
Conditions, PROVIDED, HOWEVER, THAT:
8.1.1 if any Note Certificate is presented or surrendered for payment
to any Paying Agent and such Paying Agent has delivered a
replacement therefor or has been notified that the same has been
replaced, such Paying Agent shall forthwith notify the Issuing
Entity and (if such Paying Agent is not the Principal Paying
Agent) the Principal Paying Agent of such presentation or
surrender and shall not make payment against the same until it
is so instructed by the Issuing Entity and the Principal Paying
Agent has received the amount to be so paid;
8.1.2 a Paying Agent shall not be obliged (but shall be entitled) to
make payments of interest or principal in respect of a Series of
Notes:
(a) in the case of the Principal Paying Agent, it has not
received the full amount of any payment due to it under
Clause 7.1 (Issuing Entity to pay Principal Paying
Agent); or
(b) in the case of any other Paying Agent:
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(i) it has been notified in accordance with Clause
7.6 (Failure to notify payment instructions)
that confirmation of the relevant payment
instructions has not been received, unless it is
subsequently notified that confirmation of such
payment instructions has been received; or
(ii) it is not able to establish that the Principal
Paying Agent has received (whether or not at the
due time) the full amount of any payment due to
it under Clause 7.1 (Issuing Entity to pay
Principal Paying Agent);
8.1.3 each Paying Agent shall cancel each Note Certificate against
surrender of which it has made full payment and shall, if
necessary, deliver each Note Certificate so cancelled by it to,
or to the order of, the Registrar; and
8.1.4 notwithstanding any other provision of this Paying Agency and
Agent Bank Agreement, each Paying Agent shall be entitled to
make a deduction or withholding from any payment which it makes
under this Paying Agency and Agent Bank Agreement for or on
account of any present or future taxes, duties or charges if and
to the extent so required by applicable law, in which event such
Paying Agent shall make such payment after such withholding or
deduction has been made and shall account to the relevant
authorities for the amount so withheld or deducted.
8.2 PAYMENTS IN RESPECT OF NOTE CERTIFICATES
The Registrar will notify the Principal Paying Agent, not later than
five Business Days after each Record Date, whether any Noteholder has
elected to receive payments by transfer to a bank account and, if so,
the relevant details of such bank account. For those Noteholders who
have chosen not to receive payments by transfer to a bank account, the
Registrar will notify the Principal Paying Agent of the address of such
Noteholder appearing in the Register to which cheques should be posted.
The Paying Agent shall make or shall procure payments of interest and
principal in respect of the Notes in accordance with the Conditions by
mailing a cheque drawn in the relevant currency of the Notes on a bank
in New York, in the case of a cheque drawn in U.S. dollars, or London,
in the case of a cheque drawn in a currency other than U.S. dollars, to
the address of the Noteholder appearing in the Register on the Record
Date or, if the Noteholder has elected to do so, by transfer to their
specified account denominated in the relevant currency of the Note (as
the case may be).
8.3 EXCLUSIONS OF LIENS AND COMMISSIONS
No Paying Agent shall exercise any lien, right of set-off or similar
claim against any person to whom it makes any payment under Clause 8.1
(Payments by Paying Agents) in respect thereof, nor shall any commission
or expense be charged by it to any such person in respect thereof.
8.4 REIMBURSEMENT BY THE PRINCIPAL PAYING AGENT
If a Paying Agent other than the Principal Paying Agent makes any
payment in accordance with Clause 8.1 (Payments by Paying Agents):
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8.4.1 it shall notify the Principal Paying Agent of the amount so paid
by it and the serial number and principal amount of each Note
Certificate in relation to which payment of principal or
interest was made; and
8.4.2 subject to and to the extent of compliance by the Issuing Entity
with Clause 7.1 (Issuing Entity to pay Principal Paying Agent)
(whether or not at the due time), the Principal Paying Agent
shall pay to such Paying Agent out of the funds received by it
under Clause 7.1 (Issuing Entity to pay Principal Paying Agent),
by credit transfer in the relevant currency and in immediately
available, freely transferable, cleared funds to such account
with such bank as such Paying Agent has by notice to the
Principal Paying Agent specified for the purpose, an amount
equal to the amount so paid by such Paying Agent.
8.5 APPROPRIATION BY THE PRINCIPAL PAYING AGENT
If the Principal Paying Agent makes any payment in accordance with
Clause 8.1 (Payments by Paying Agents), it shall be entitled to
appropriate for its own account out of the funds received by it under
Clause 7.1 (Issuing Entity to pay Principal Paying Agent) an amount
equal to the amount so paid by it.
8.6 REIMBURSEMENT BY ISSUING ENTITY
Subject to Clauses 8.1.1 and 8.1.2, if a Paying Agent makes a payment in
respect of Notes on or after the due date for such payment under the
Conditions at a time at which the Principal Paying Agent has not
received the full amount of the relevant payment due to it under Clause
7.1 (Issuing Entity to pay Principal Paying Agent) and the Principal
Paying Agent is not able out of funds received by it under Clause 7.1
(Issuing Entity to pay Principal Paying Agent) to reimburse such Paying
Agent therefor (whether by payment under Clause 8.4 (Reimbursement by
the Principal Paying Agent) or appropriation under Clause 8.5
(Appropriation by the Principal Paying Agent)), the Issuing Entity shall
from time to time on demand pay to the Principal Paying Agent for
account of such Paying Agent:
8.6.1 the amount so paid out by such Paying Agent and not so
reimbursed to it; and
8.6.2 an amount sufficient to indemnify the Principal Paying Agent
against any cost, loss or expense which it incurs as a result of
making such payment and not receiving reimbursement of such
amount until the date of reimbursement of such amount,
PROVIDED, HOWEVER, THAT any payment made under Clause 8.6.1 shall
satisfy pro tanto the obligations of the Issuing Entity under Clause 7.1
(Issuing Entity to pay Principal Paying Agent).
8.7 PARTIAL PAYMENTS
If at any time and for any reason a Paying Agent makes a partial payment
in respect of any Note Certificate presented for payment to it, such
Paying Agent shall enface thereon a statement indicating the amount and
the date of such payment. In addition, if, on any due date for payment,
less than the full amount of any principal or interest is paid in
respect of the Notes, the Registrar will note on the Register a
memorandum of the amount and date of any payment then made and, if a
Note Certificate is presented
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for payment in accordance with the Conditions and no payment is then
made, the date of presentation of such Note Certificate.
8.8 AGENTS TO ACT FOR NOTE TRUSTEE
At any time after an Event of Default or Potential Event of Default in
respect of a Series of Notes shall have occurred, which shall not have
been waived by the Note Trustee or remedied to its satisfaction or at
any time after Individual Note Certificates have not been issued when so
required in accordance with the terms of the Note Trust Deed or the Note
Trustee shall have received any money which it proposes to pay under the
Note Trust Deed to the Noteholders or the relevant Notes shall otherwise
have become due and repayable, the relevant Agent shall, if so required
by notice in writing given by the Note Trustee to the Issuing Entity and
the relevant Agent(s):
8.8.1 thereafter act as the agent of the Note Trustee in relation to
their duties for the Notes of that Series under the terms of the
Note Trust Deed and the relevant Note Trust Deed Supplement on
the terms mutatis mutandis contained herein (save that the Note
Trustee's liability under any provisions herein contained for
the indemnification of any Agent shall be limited to the amount
for the time being held by the Note Trustee on the trusts of the
Note Trust Deed and the relevant Note Trust Deed Supplement
which is available to be applied by the Note Trustee for such
purpose in relation to such Series) and thereafter hold all Note
Certificates and all sums, documents and records held by them in
respect of the Notes of that Series on behalf of the Note
Trustee; and/or
8.8.2 deliver up all Note Certificates and all sums, documents and
records held by them in respect of the Notes of that Series 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 applicable law or regulation.
9. DUTIES OF THE AGENT BANK
9.1 GENERAL DUTIES
The Agent Bank agrees to comply with the provisions of Condition 6
(Interest) and this Paying Agency and Agent Bank Agreement.
9.2 SPECIFIC DUTIES
In particular, the Agent Bank shall:
9.2.1 obtain such quotes and rates and/or make such determinations,
calculations, adjustments, notifications and publications as may
be required to be made by it by the Conditions at the times and
otherwise in accordance with the Conditions;
9.2.2 as soon as practicable after determining the Rate of Interest
applicable to the Notes for any period pursuant to the
Conditions, notify the Issuing Entity, the Paying Agents and the
Note Trustee thereof;
9.2.3 publish the Rate of Interest, Interest Amount and relative
Interest Payment Date in accordance with Condition 6 (Interest);
and
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9.2.4 maintain records of the quotations obtained, and all rates
determined, by it and make such records available for inspection
at all reasonable times by the Issuing Entity, the other Agents
and the Note Trustee.
9.3 LISTING OF NOTES
Notes of any Series, on issue, may be listed on a stock exchange in
accordance with the relevant Prospectus Supplements/Final Terms and/or
Note Trust Deed Supplement. The Issuing Entity will advise the Agent
Bank, if such listing is withdrawn or if the Notes become listed on any
other stock exchange.
10. DUTIES OF THE CUSTODIAN
10.1 CUSTODY SECURITIES ACCOUNT
In respect of each Series, the Custodian shall maintain a Series Custody
Securities Account into which it shall accept for safekeeping and
deposit the Medium Term Note Certificate relating to that Series, which
may from time to time be delivered to it for such purpose. At all times
when a Medium Term Note Certificate is credited to a Series Custody
Securities Account, the Custodian shall deal with such Medium Term Note
Certificate or book entry interests in accordance with the terms of this
Paying Agency and Agent Bank Agreement and the Security Documents.
10.2 CUSTODY CASH ACCOUNT
In respect of each Series, the Custodian shall maintain a Series Custody
Cash Account, which the Custodian will credit with income received from
the Medium Term Note Certificate held in the Series Custody Securities
Account for that Series pursuant to Clause 10.3 (Income from the Medium
Term Note Certificates) and from which the Custodian will debit payments
made in relation to that Series pursuant to Clause 10.4 (Payments).
10.3 INCOME FROM THE MEDIUM TERM NOTE CERTIFICATES
The Custodian shall, on behalf of the Issuing Entity, endeavour to
collect any income from the Medium Term Note Certificate held in each
Series Custody Securities Account and may execute ownership and other
certificates and affidavits for all fiscal and tax purposes from time to
time required in connection with the collection of such income and pay
any taxes which it is required to pay in connection therewith. For the
avoidance of doubt, nothing in this Clause 10.3 shall make the Custodian
liable for any failure of any other person to pay or remit any sum
referred to herein.
10.4 PAYMENTS
The Custodian may from time to time pay from a Series Custody Cash
Account to the relevant party all sums due to that party in respect of
such Series under the terms of the relevant Document. The Custodian
shall only be bound to make payments pursuant to this clause to the
extent that it is satisfied that it has received funds in accordance
with Clause 10.3 (Income from the Medium Term Note Certificates).
10.5 EXCHANGE OF MEDIUM TERM NOTE CERTIFICATES
The Custodian is hereby authorised, without further instruction, to
present and surrender, or procure the presentation and surrender of, any
Medium Term Note Certificate that is under the direct control of the
Custodian on maturity to the Issuing Entity thereof or (as
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the case may be) the appropriate paying agent on each date on which such
presentation is required in order to receive payment in respect thereof.
10.6 DOCUMENTS NECESSARY FOR CUSTODY
Subject as herein provided, the Custodian may execute as agent for the
Issuing Entity all declarations, affidavits and certificates of
ownership now or hereafter required in respect of the Medium Term Note
Certificate held in any Series Custody Securities Account PROVIDED THAT
prior to the occurrence of Event of Default, the Custodian shall not
under any circumstances execute any declaration, affidavit or
certificate which might be construed to mean or imply that it is the
ultimate beneficial owner of any Medium Term Note Certificate or that it
is acting in any capacity other than as custodian of such Medium Term
Note Certificate.
10.7 APPOINTMENT OF SUB-CUSTODIANS
Notwithstanding the provisions of Clause 14 (Terms of Appointment) and
subject to receipt of an opinion of legal counsel that such appointment
will not give rise to any adverse tax consequences, the Custodian may,
having given the Issuing Entity and each relevant Rating Agency at least
ten Business Days' prior written notice, appoint any financial
institution with an office in any jurisdiction (including any reputable
financial institution in the same group as the Custodian) to act as
sub-custodian (a "SUB-CUSTODIAN") of the Medium Term Note Certificate
relating to any Series located in that jurisdiction on substantially the
same terms as contained herein (except that there shall be no equivalent
to this Clause 10.7). The Custodian shall not at any time be liable to
the Issuing Entity or any other person for the proper safekeeping of a
Medium Term Note Certificate and the due performance of the obligations
assumed by any Sub-Custodian but the Custodian accepts the same level of
responsibility for any nominee company controlled by the Custodian or by
any of its affiliated companies as it accepts for itself.
The Custodian may change the appointment of a Sub-Custodian in any
jurisdiction having given at least ten Business Days' prior written
notice to the Issuing Entity, the Note Trustee and each relevant Rating
Agency.
The Custodian hereby warns the Issuing Entity that in relation to the
Medium Term Note Certificate in respect of any Series held by the
Custodian pursuant to this Clause 10.7 or any Sub-Custodian, there may
be settlement, legal and regulatory requirements in the relevant
overseas jurisdictions which are different from those applying in
London, and different practices for separate identification of such
Medium Term Note Certificates.
11. DUTIES OF THE EXCHANGE AGENT
11.1 DETERMINATION OF SPECIFIED CURRENCY AMOUNT
The Exchange Agent shall, before 11.00 a.m. (London time) on the
Business Day prior to the date on which any payment becomes due on any
Class or Sub-Class of Notes (other than Dollar Notes) represented by DTC
Global Note Certificates, determine the aggregate amount of the relevant
currency in respect of such DTC Global Note Certificates (the "SPECIFIED
CURRENCY AMOUNT") payable to Noteholders holding interests in such DTC
Global Note Certificates who have not made an irrevocable election to
receive payment in the relevant currency, as confirmed to the Exchange
Agent by the DTC Custodian and/or DTC.
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11.2 U.S. DOLLAR CONVERSION
The Exchange Agent shall, after having determined the Specified Currency
Amount pursuant to Clause 11.1 (Determination of Specified Currency
Amount), establish its bid quotation for the purchase of U.S. dollars
with the relevant currency, at or before 11.00 a.m. (London time) on the
Business Day prior to the date on which the payment referred to in
Clause 11.1 (Determination of Specified Currency Amount) becomes due. If
such bid quotation is not available, the Exchange Agent shall obtain a
bid quotation from a leading foreign exchange bank in London selected by
the Exchange Agent for such purchase and the Exchange Agent shall enter
into an agreement to purchase U.S. dollars with the Specified Currency
Amount with such foreign exchange bank. In either event, the settlement
date for the exchange of U.S. dollars with the Specified Currency Amount
shall be the relevant payment date as specified in the Conditions. As
early as practicable on each relevant payment date, subject to receipt
of funds from the Principal Paying Agent pursuant to Clause 7.3 (Payment
to Exchange Agent), the Exchange Agent shall effect such exchange. As
promptly as practicable thereafter on such payment date, the Exchange
Agent shall pay, or procure the payment of, the U.S. dollar amount
receivable as a result of the exchange of the Specified Currency Amount
into U.S. dollars by wire transfer of same day funds for value the due
date for payment to DTC for payment pro rata to the relevant
accountholders in accordance with DTC's settlement procedures. All costs
of any such conversion into U.S. dollars shall be borne pro rata by the
relevant Noteholders by deduction from the payment made to DTC to the
relevant accountholder. If the applicable due date for payment is not a
day, other than a Saturday or Sunday, on which commercial banks and
foreign exchange markets are open for business in New York City or in
the Principal Financial Centre of the relevant currency, delivery of the
U.S. dollars will occur on the next succeeding day which is such a
business day in New York City and in such Principal Financial Centre. If
no bids for the purchase of U.S. dollars with the relevant currency are
available on the Business Day prior to the date on which the payment is
due, the Exchange Agent will notify the Principal Paying Agent, which
will (i) not transfer the Specified Currency Amount to the Exchange
Agent in accordance with Clause 7.3 (Payment to Exchange Agent) but will
hold it until the relevant accountholders can make alternative
arrangements for receipt of payment.
12. MISCELLANEOUS DUTIES OF THE AGENTS
12.1 MAINTENANCE OF RECORDS
Each of the Agents shall maintain records of all documents received by
it in connection with its duties hereunder and shall upon written
request make such records available for inspection at all reasonable
times by the Issuing Entity, the Note Trustee and the other Agents and,
in particular the Registrar shall:
12.1.1 maintain a record of all Note Certificates delivered hereunder
and of their redemption, payment, cancellation, mutilation,
defacement, alleged destruction, theft, loss and replacement;
12.1.2 upon written request, make such records available for inspection
at all reasonable times by the Issuing Entity, the Note Trustee
and the other Agents; and
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12.1.3 give to the Note Trustee and the other Agents such further
information with regard to its activities hereunder as may
reasonably be required of them for the proper carrying out of
their respective duties.
12.2 CANCELLATION
The Issuing Entity may from time to time deliver to, or to the order of,
the Registrar, Note Certificates for cancellation whereupon the
Registrar shall cancel the same and shall make the corresponding entries
in the Register.
12.3 NOTES IN ISSUE
As soon as practicable (or in any event within three months) after each
date for the payment of principal or interest in relation to the Notes,
after each date on which Note Certificates are cancelled in accordance
with Clause 12.2 (Cancellation) and after the date on which the Notes
fall due for redemption in accordance with the Conditions, the Registrar
shall notify the Issuing Entity, the Paying Agents and the Note Trustee
(on the basis of the information available to it) of the number of any
Note Certificates against surrender of which payment in full has been
made and of the number of any Note Certificates (and the names and
addresses of the holders thereof) which have not yet been surrendered
for payment and the details of all Notes redeemed and cancelled.
12.4 FORWARDING OF COMMUNICATIONS
Each Agent shall promptly forward to the Issuing Entity, the Note
Trustee and, if not received by the Principal Paying Agent, the
Principal Paying Agent a copy of any notice or communication addressed
to the Issuing Entity which is received by such Agent.
12.5 PUBLICATION OF NOTICES
The Registrar shall, upon and in accordance with the instructions, and
at the expense, of the Issuing Entity but not otherwise, arrange for the
publication in accordance with Condition 15 (Notices) of any notice
which is to be given to the Noteholders and shall promptly supply two
copies thereof to the Note Trustee and a copy thereof to each other
Agent.
12.6 DESTRUCTION
Each Registrar may destroy each Note Certificate delivered to or
cancelled by it in accordance with Clause 14.2 (Extent of duties), in
which case it shall promptly furnish the Issuing Entity and the Note
Trustee with a certificate as to such destruction and specifying the
reason for such destruction and the certificate or serial numbers of the
Note Certificates so destroyed.
12.7 FORMS OF PROXY
The Registrar shall, at the request of any Noteholder in accordance with
the Note Trust Deed, make available uncompleted and unexecuted forms of
proxy in a form and manner which comply with the provisions of Schedule
14 (Provisions Relating to Meetings of Noteholders) to the Note Trust
Deed. The Registrar shall keep a full record of completed and executed
forms of proxy received by it and will give to the Issuing Entity, not
less than twenty-four hours before the time appointed for any Meeting or
adjourned Meeting, full particulars of all duly completed forms of proxy
received by it in respect of such Meeting or adjourned Meeting.
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12.8 ADDITIONAL DUTIES
The Registrar shall carry out such other acts as may reasonably be
necessary to give effect to the relevant Conditions, this Paying Agency
and Agent Bank Agreement and the Regulations. In carrying out its
functions, each Registrar shall act in accordance with the terms of this
Paying Agency and Agent Bank Agreement, the Regulations and the relevant
Conditions.
12.9 REGULATIONS FOR THE DUTIES OF THE REGISTRAR
The Issuing Entity may, from time to time, with the approval of the
Principal Paying Agent, the Registrar and the Note Trustee (such
approval in no case to be unreasonably withheld) promulgate revised
Regulations.
12.10 NOTIFICATION OF THE PRINCIPAL AMOUNT OUTSTANDING
The Registrar shall, on the third Business Day prior to each due date
for payment in respect of the Notes, notify the Principal Paying Agent
of the aggregate Principal Amount Outstanding of Notes as evidenced by
the Global Note Certificate or Individual Note Certificates.
12.11 COPY DOCUMENTS AVAILABLE FOR INSPECTION
The Issuing Entity shall provide to each Agent and the Note Trustee:
12.11.1 conformed copies of this Paying Agency and Agent Bank Agreement,
the Issuing Entity Master Framework Agreement, the Note Trust
Deed, each Note Trust Deed Supplement and the Regulations; and
12.11.2 such other documents as may from time to time be required by the
competent authority, stock exchange or quotation system on which
the Notes are admitted to listing, trading or quotation to be
made available at the Specified Office of the Agent having its
Specified Office in the jurisdiction of the competent authority,
stock exchange or quotation system on which the Notes are
admitted to listing, trading or quotation or such other
jurisdiction as permitted by the competent authority, stock
exchange or quotation system on which the Notes are admitted to
listing, trading or quotation.
Each of the Agents shall make available for inspection during normal
business hours at its Specified Office the documents referred to above
and, upon reasonable request, will allow copies of such documents to be
taken.
12.12 PROCEEDS HELD ON TRUST
Each Paying Agent shall hold on trust for the benefit of the relevant
Noteholders or the Note Trustee all moneys held by such Paying Agent for
the payment of principal or interest on any of the Notes.
12.13 NOTICE OF DEFAULT
Each Paying Agent shall give the Note Trustee notice of any default by
the Issuing Entity in the making of any payment of principal or interest
on any of the Notes.
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13. FEES AND EXPENSES
13.1 FEES
The Issuing Entity shall pay to the Principal Paying Agent for its own
account and for the account of the Agents such fees on a
Series-by-Series basis as may have been agreed in writing between the
Issuing Entity and the relevant Agents in respect of the services of
such Agents hereunder.
13.2 FRONT-END EXPENSES
The Issuing Entity shall, after receipt of an account of such expenses,
reimburse the Principal Paying Agent for its own account and for the
account of the Agents for all reasonable out-of-pocket expenses properly
incurred by them in the negotiation, preparation and execution of this
Agreement and for its own account for all reasonable out-of-pocket
expenses (including, without limitation, legal fees and any publication,
advertising, communication, courier, postage and other out-of-pocket
expenses) properly incurred in connection with its services hereunder.
The Principal Paying Agent will be responsible for distributing the
relevant amounts to the Agents and the relevant expenses of such Agents
and the Issuing Entity shall not be responsible for the apportionment of
such payments between such Agents.
13.3 TAXES AND EXPENSES OCCASIONED BY DEFAULT
The Issuing Entity shall pay all stamp, registration and other similar
taxes and duties (including any interest and penalties thereon or in
connection therewith) which are payable upon or in connection with the
execution and delivery of this Paying Agency and Agent Bank Agreement
and shall indemnify each Agent against any claim, demand, action,
liability, damages, cost, loss or expense (including, without
limitation, legal fees) which it incurs as a result or arising out of or
in relation to any failure to pay or delay in paying any of the same.
14. TERMS OF APPOINTMENT
14.1 RIGHTS AND POWERS
Each Agent may, in connection with its services hereunder:
14.1.1 except as ordered by a court of competent jurisdiction or as
required by law (whether or not the relevant Note shall be
overdue and notwithstanding any notice to the contrary or
writing shown thereon or any notice of previous loss or theft or
of trust or other interest therein) be entitled to treat the
person registered in the Register as the absolute owner of such
Note for all purposes and make payments thereon accordingly
PROVIDED THAT where the Registrar has notified the Issuing
Entity of the presentation or surrender of any Note in
accordance with Clause 8.1.3, it shall not make payment thereon
until so instructed by the Issuing Entity;
14.1.2 rely upon the terms of any notice, communication or other
document believed by it to be genuine;
14.1.3 engage, at the expense of the Issuing Entity (pursuant to Clause
13.2 (Front-end expenses)), the advice or services of any
lawyers or other experts whose advice or services it considers
necessary and rely upon any advice so obtained (and
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such Agent shall be protected and shall incur no liability as
against the Issuing Entity in respect of any action taken, or
suffered to be taken, in accordance with such advice except to
the extent that such liability arises out of any fraud, wilful
default or negligence on the part of any such Agent or its
officers, directors or employees);
14.1.4 assume that the terms of each Note Certificate as issued are
correct;
14.1.5 refer any question relating to the ownership of any Note or the
adequacy or sufficiency of any evidence supplied in connection
with the replacement, transfer or exchange of any Note
Certificate to the Issuing Entity for determination by the
Issuing Entity and conclusively rely upon any determination so
made; and
14.1.6 whenever in the administration of this Paying Agency and Agent
Bank Agreement it shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any
action hereunder, in the absence of bad faith, fraud or
negligence on its part, accept a certificate signed by any
person duly authorised on behalf of the Issuing Entity as to any
fact or matter prima facie within the knowledge of the Issuing
Entity as sufficient evidence thereof.
14.2 EXTENT OF DUTIES
Each Agent shall only be obliged to perform the duties set out herein
and such other duties as are necessarily incidental thereto. No Agent
shall:
14.2.1 be under any fiduciary duty towards any person other than the
Issuing Entity or the Note Trustee;
14.2.2 (except to the extent that such liability arises out of any
fraud, wilful default or negligence on the part of any such
Agent or its officers, directors or employees) be responsible
for or liable in respect of any act or omission of any other
person including, without limitation, any other Agent; or
14.2.3 be under any obligation towards any person other than the
Issuing Entity, the other Agents and the Note Trustee.
14.3 FREEDOM TO TRANSACT
Each Agent may purchase, hold and dispose of a beneficial interest in a
Note and may enter into any transaction (including, without limitation,
any depositary, trust or agency transaction) with any holders or owners
of any Notes or with any other party hereto in the same manner as if it
had not been appointed as the agent of the Issuing Entity or the Note
Trustee in relation to the Notes.
14.4 INDEMNITY
The Issuing Entity shall indemnify each Agent against any claim, demand,
action, liability, damages, cost, loss or expense (including, without
limitation, legal fees and, in the case of the Exchange Agent,
conversion spread and costs) which it incurs in respect of a particular
Series, other than such costs and expenses as are:
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14.4.1 separately agreed to be reimbursed out of the fees payable under
Clause 13 (Fees and Expenses); or
14.4.2 incurred by reason of the relevant Agent's own negligence,
fraud or wilful default (or that of its directors, officers or
employees).
14.5 AGENT COMMITMENTS
No provision of this Paying Agency and Agent Bank Agreement shall
require any Agent to expend its own funds or assume a financial
commitment to a person not party to this Paying Agency and Agent Bank
Agreement (other than in the ordinary course of its business) in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers hereunder, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such commitment is not reasonably assured to it and, in particular, no
Agent shall be obliged to incur any expenditure in connection with the
publication of any notices required to be given hereunder unless the
Issuing Entity has given its prior approval.
14.6 SPECIAL DAMAGES AND CONSEQUENTIAL LOSS
Notwithstanding the provisions of Clause 14.2 (Extent of duties) but
subject to the proviso below, the Issuing Entity acknowledges and agrees
that under no circumstances will the Agents (together with their
respective directors, officers, employees and agents) be liable to the
Issuing Entity or any other party to this Paying Agency and Agent Bank
Agreement or any of the Documents for any consequential loss (being loss
of business, goodwill, opportunity or profit) or any special or punitive
damages of any kind whatsoever (in each case, however caused or arising
and whether or not foreseeable, even if advised of the possibility of
such loss or damage) PROVIDED THAT:
14.6.1 in the event of a determination of fraud on the part of the
relevant Agent in a non-appealable judgment by a court having
jurisdiction, this Clause 14.6 shall be deemed not to apply; and
14.6.2 in the event that this Paying Agency and Agent Bank Agreement is
deemed a "qualified" indenture under the TIA and subject to the
terms thereof, then, in the case of a conflict between this
Clause 14.6 and the mandatory terms of the TIA, the relevant
mandatory terms of the TIA will control.
The provisions of this Clause 14.6 (Special damages and consequential
loss) shall survive the resignation or removal of any Agent and the
termination of this Paying Agency and Agent Bank Agreement.
15. CHANGES IN AGENTS
15.1 RESIGNATION
Any Agent may resign its appointment upon giving not less than 60 days'
written notice to the Issuing Entity (with a copy to the Note Trustee
and, in the case of an Agent other than the Principal Paying Agent, to
the Principal Paying Agent) PROVIDED, HOWEVER, THAT:
15.1.1 if such resignation would otherwise take effect less than 10
days before the maturity date of a Series of Notes or any
Interest Payment Date in relation to a
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Series of Notes, it shall not take effect until the first day
following such date; and
15.1.2 such resignation shall not take effect until a successor
(approved in writing by the Note Trustee) has been duly
appointed by the Issuing Entity and notice of such appointment
has been given to the Noteholders.
15.2 REVOCATION
The Issuing Entity may revoke its appointment of any Agent as its agent
in relation to a Series of Notes by giving not less than 60 days' notice
to such Agent (with a copy to the Note Trustee and, in the case of an
Agent other than the Principal Paying Agent, to the Principal Paying
Agent) PROVIDED, HOWEVER, THAT in the case of the Principal Paying
Agent, the Agent Bank, the Registrar or the Custodian, such revocation
shall not take effect until a successor has been duly appointed with the
prior written consent of the Note Trustee and notice of such appointment
has been given to the Noteholders.
15.3 AUTOMATIC TERMINATION
The appointment of any Agent shall terminate forthwith if:
15.3.1 such Agent becomes incapable of acting;
15.3.2 a secured party takes possession, or a receiver, manager or
other similar officer is appointed, of the whole or any part of
the undertaking, assets and revenues of such Agent;
15.3.3 such Agent admits in writing its insolvency or inability to pay
its debts as they fall due;
15.3.4 an administrator or liquidator or any similar official of such
Agent or the whole or any part of the undertaking, assets and
revenues of such Agent is appointed (or application for any such
appointment is made);
15.3.5 such Agent 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;
15.3.6 an order is made or an effective resolution is passed for the
winding up of such Agent; or
15.3.7 any event occurs which has an analogous effect to any of the
foregoing.
On the occurrence of any of the above the relevant Agent shall forthwith
notify the Issuing Entity and the remaining Agents and the Issuing
Entity shall give notice thereof to the Note Trustee and to the
Noteholders in accordance with Condition 13 (Note Trustee and Agents).
15.4 ADDITIONAL AND SUCCESSOR AGENTS
The Issuing Entity may (with the prior written approval of the Note
Trustee) appoint a successor registrar, principal paying agent, agent
bank, custodian and additional or successor paying agents and exchange
agents and shall forthwith give notice of any such
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appointment to the continuing Agents, the Noteholders and the Note
Trustee, whereupon the Issuing Entity, the continuing Agents, the Note
Trustee and the additional or successor registrar, principal paying
agent, agent bank, custodian, paying agent or exchange agent shall
acquire and become subject to the same rights and obligations between
themselves as if they had entered into an agreement in the form mutatis
mutandis of this Agreement.
15.5 AGENT MAY APPOINT SUCCESSOR
If any Agent gives notice of its resignation in accordance with Clause
15.1 (Resignation) and by the tenth day before the expiration of such
notice a successor has not been duly appointed, such Agent may itself,
following such consultation with the Issuing Entity as is practicable in
the circumstances and with the prior written approval of the Issuing
Entity (provided such failure to appoint was not due to default by the
Issuing Entity) and the Note Trustee, appoint as its successor any
reputable and experienced bank or financial institution and give notice
of such appointment to the Issuing Entity, the remaining Agents and the
Noteholders whereupon the Issuing Entity, the remaining Agents and such
successor agent shall acquire and become subject to the same rights and
obligations between themselves as if they had entered into an agreement
in the form mutatis mutandis of this Agreement.
15.6 RELEASE
Upon any resignation or revocation taking effect under Clause 15.1
(Resignation) or 15.2 (Revocation) or any termination under Clause 15.3
(Automatic termination), the relevant Agent shall:
15.6.1 without prejudice to any accrued liabilities and obligations, be
released and discharged from any further obligations under this
Agreement (save that it shall remain entitled to the benefit of,
and subject to, Clause 13.3 (Taxes and expenses occasioned by
default), Clause 14 (Terms of Appointment) and this Clause 15);
15.6.2 repay to the Issuing Entity following any resignation taking
effect under Clause 15.1 (Resignation) or any termination under
Clause 15.3 (Automatic termination), such part of any fee paid
to it in accordance with Clause 13.1 (Fees) as shall relate to
any period thereafter;
15.6.3 deliver to the Issuing Entity and to its successor a copy,
certified as true and up-to-date, of the records maintained by
it in accordance with Clause 12.1 (Maintenance of records) and,
in the case of a Registrar, Clause 4.1 (Maintenance of the
Register); and
15.6.4 forthwith (upon payment to it of any amount due to it in
accordance with Clause 13 (Fees and Expenses) or Clause 14.4
(Indemnity)) transfer all moneys and papers (including any
unissued Note Certificates held by it hereunder) to its
successor in that capacity and, upon appropriate notice, provide
reasonable assistance to its successor for the discharge by it
of its duties and responsibilities hereunder.
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15.7 MERGER
Any legal entity into which any Agent is merged or converted or any
legal entity resulting from any merger or conversion to which such Agent
is a party shall, to the extent permitted by applicable law, be the
successor to such Agent without any further formality, whereupon the
Issuing Entity, the Note Trustee, the other Agents and such successor
shall acquire and become subject to the same rights and obligations
between themselves as if they had entered into an agreement in the form
mutatis mutandis of this Paying Agency and Agent Bank Agreement. Notice
of any such merger or conversion shall forthwith be given by such
successor to the Issuing Entity, the Note Trustee and the other Agents.
16. TIME
Any date or period specified herein may be postponed or extended by
mutual agreement among the parties but, as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
17. GOVERNING LAW AND JURISDICTION
This Paying Agency and Agent Bank Agreement 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. Paragraph 26
(Jurisdiction) of the Common Terms applies to this Paying Agency and
Agent Bank Agreement as if set out in full in this Paying Agency and
Agent Bank Agreement.
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SCHEDULE 1
REGULATIONS CONCERNING TRANSFERS AND REGISTRATION OF NOTES
1. The Notes may only be held in holdings in the aggregate principal amount
of the minimum denomination specified in the relevant Prospectus
Supplements/Final Terms and integral multiples of such amount in excess
thereof (each, an "AUTHORISED HOLDING").
2. Subject to paragraph 4 and paragraph 11, Notes may be transferred by
execution of the relevant form of transfer under the hand of the
transferor or, where the transferor is a corporation, under its common
seal or under the hand of two of its officers duly authorised in
writing. Where the form of transfer is executed by an attorney or, in
the case of a corporation, under seal or under the hand of two of its
officers duly authorised in writing, a copy of the relevant power of
attorney certified by a financial institution in good standing or a
notary public or in such other manner as the Registrar may require or,
as the case may be, copies certified in the manner aforesaid of the
documents authorizing such officers to sign and witness the affixing of
the seal must be delivered with the form of transfer. In this Schedule,
"TRANSFEROR" shall, where the context permits or requires, include joint
transferors and shall be construed accordingly.
3. The Note Certificate issued in respect of the Notes to be transferred
must be surrendered for registration, together with the form of transfer
(including any certification as to compliance with restrictions on
transfer included in such form of transfer) endorsed thereon, duly
completed and executed, at the Specified Office of the Registrar, and
together with such evidence as the Registrar may reasonably require to
prove the title of the transferor and the authority of the persons who
have executed the form of transfer. The signature of the person
effecting a transfer of a Note shall conform to any list of duly
authorised specimen signatures supplied by the Holder of such Note or be
certified by a financial institution in good standing, notary public or
in such other manner as the Registrar may require.
4. No Noteholder may require the transfer of a Note to be registered during
the period of 15 calendar days ending on the due date for any payment of
principal or interest in respect of such Notes.
5. No Noteholder which has executed a Form of Proxy (as defined in Schedule
14 (Provisions Relating to Meetings of Noteholders) to the Note Trust
Deed) in relation to a Meeting may require the transfer of a Note
covered by such Form of Proxy to be registered until the earlier of the
conclusion of the Meeting and its adjournment for want of a quorum.
6. The executors or administrators of a deceased Holder of a Note (not
being one of several joint Holders) and, in the case of the death of one
or more of several joint Holders, the survivor or survivors of such
joint Holders, shall be the only persons recognised by the Issuing
Entity as having any title to such Note.
7. Any person becoming entitled to any Notes in consequence of the death or
bankruptcy of the Holder of such Notes may, upon producing such evidence
that he holds the position in respect of which he proposes to act under
this paragraph or of his title as the Registrar
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may require (including legal opinions), become registered himself as the
Holder of such Notes or, subject to the provisions of these Regulations,
the Notes and the Conditions as to transfer, may transfer such Notes.
The Issuing Entity, the Registrar and the Paying Agents shall be at
liberty to retain any amount payable upon the Notes to which any person
is so entitled until such person is so registered or duly transfers such
Notes.
8. Unless otherwise required by him and agreed by the Issuing Entity and
the Registrar, the Holder of any Notes shall be entitled to receive only
one Note Certificate in respect of his holding.
9. The joint Holders of any Note shall be entitled to one Note Certificate
only in respect of their joint holding which shall, except where they
otherwise direct, be delivered to the joint Holder whose name appears
first in the Register in respect of the joint holding.
10. Where there is more than one transferee (to hold other than as joint
Holders), separate forms of transfer (obtainable from the Specified
Office of the Registrar) must be completed in respect of each new
holding.
11. A Holder of Notes may transfer all or part only of his holding of Notes
PROVIDED THAT both the principal amount of Notes transferred and the
principal amount of the balance not transferred are an Authorised
Holding. Where a Holder of Notes has transferred part only of his
holding of Notes, a new Note Certificate in respect of the balance of
such holding will be delivered to him.
12. The Issuing Entity and the Registrar shall, save in the case of the
issue of replacement Notes pursuant to Condition 12 (Replacement of Note
Certificates), make no charge to the Holders for the registration of any
holding of Notes or any transfer thereof or for the issue of any Notes
or for the delivery thereof at the Specified Office of the Registrar or
by uninsured post to the address specified by the Holder, but such
registration, transfer, issue or delivery shall be effected against such
indemnity from the Holder or the transferee thereof as the Registrar may
require in respect of any tax or other duty of whatever nature which may
be levied or imposed in connection with such registration, transfer,
issue or delivery.
13. Provided a transfer of a Note is duly made in accordance with all
applicable requirements and restrictions upon transfer and the Note(s)
transferred are presented to the Registrar in accordance with the Paying
Agency and Agent Bank Agreement and these Regulations, and subject to
unforeseen circumstances beyond the control of the Registrar arising,
the Registrar will, within five business days of the request for
transfer being duly made, deliver at its Specified Office to the
transferee or despatch by uninsured post (at the request and risk of the
transferee) to such address as the transferee entitled to the Notes in
relation to which such Note Certificate is issued may have specified, a
Note Certificate in respect of which entries have been made in the
Register, all formalities complied with and the name of the transferee
completed on the Note Certificate by or on behalf of the Registrar; and,
for the purposes of this paragraph, "BUSINESS DAY" means a day on which
commercial banks are open for business (including dealings in foreign
currencies) in the cities in which the Registrar has its Specified
Office.
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14. No transfer of a Note may be effected unless:
(a) (in the case of Rule 144A Notes or Regulation S Notes only) such
Note is transferred in a transaction that does not require
registration under the Securities Act;
(b) such Note is transferred in a transaction that is not in
violation of the United States Investment Company Act of 1940;
(c) such transfer is effected in accordance with the provisions of
any restrictions on transfer specified in the legends (if any)
set forth on the face of the Note Certificate issued in relation
to such Note;
(d) the transferee delivers to the Registrar a form of transfer
(including any certification as to compliance with restrictions
on transfer included in such form of transfer) endorsed on the
Note Certificate issued in relation to such Note; and
(e) if the Issuing Entity so requests, the Registrar receive an
opinion of counsel satisfactory to all of them.
15. If Note Certificates are issued upon the transfer or replacement of Note
Certificates not bearing the Rule 144A Legend, the Note Certificates so
issued shall not bear the Rule 144A Legend. If Note Certificates are
issued upon the transfer, exchange or replacement of Note Certificates
bearing the Rule 144A Legend, or if a request is made to remove the Rule
144A Legend from a Note Certificate, the Note Certificates so issued
shall bear the Rule 144A Legend, or the Rule 144A Legend shall not be
removed (as the case may be) unless there is delivered to the Issuing
Entity and the Registrar such evidence (which may include an opinion of
counsel reasonably satisfactory to the Issuing Entity) as may be
reasonably required by the Issuing Entity that neither the Rule 144A
Legend nor the restrictions on transfer set forth therein are required
to ensure that transfers thereof comply with the provisions of Rule
144A, Rule 144 or Regulation S under the Securities Act or that the
Notes in relation to which such Note Certificates are issued are not
"restricted securities" within the meaning of Rule 144 under the
Securities Act. Upon receipt of written notification from the Issuing
Entity that the evidence presented is satisfactory, the Registrar shall
authenticate and deliver a Note Certificate that does not bear the Rule
144A Legend. If:
(a) the Rule 144A Legend is removed from the face of a Note
Certificate and the Note in respect of which such Note
Certificate is issued is subsequently held by the Issuing Entity
or an Affiliate of the Issuing Entity; and
(b) the Registrar is notified in writing by the Issuing Entity that
the Note in respect of which such Note Certificate is issued is
so held,
then the Rule 144A Legend shall be reinstated and the Issuing Entity
and/or the Replacement Agent shall, upon its acquisition of such a Note
or upon obtaining actual knowledge that such Note is held by such
Affiliate, notify the Registrar thereof in writing.
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16. Notwithstanding any provision to the contrary herein, so long as Notes
are represented by a Global Note Certificate which are held by or on
behalf of DTC, transfers, exchanges or replacements of the Notes
represented by such Global Note Certificates shall only be made in
accordance with the legends relating to DTC set forth thereon.
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SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
The Bank of New York
as Registrar
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]
TRANSFER CERTIFICATE
We refer to the paying agency and agent bank agreement dated [o] (as amended or
supplemented from time to time, the "PAYING AGENCY AND AGENT BANK AGREEMENT") in
relation to 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 made between, among other, the Issuing Entity, The
Bank of New York as registrar (the "REGISTRAR" and The Bank of New York as note
trustee (the "NOTE TRUSTEE"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Paying Agency and Agent Bank
Agreement. Other terms shall have the meanings given to them in Regulation S
under the United States Securities Act of 1933 (the "SECURITIES ACT").
We, as transferor (the "TRANSFEROR") of [currency][amount] in principal amount
of our beneficial interest in Notes represented by the [Rule 144A/Regulation S]
(delete as appropriate) Global Note Certificate, hereby request a transfer of
(tick one of the following boxes):
1. [ ] our beneficial interest in the Regulation S Global Note Certificate
(ISIN: [o]) to a purchaser wanting to receive a beneficial interest in
the Rule 144A Global Note Certificate (CUSIP Number: [o]) (on or prior
to the fortieth day following the date of issue of the notes: tick box a
below; after the fortieth day following the date of issue of the notes,
no further boxes need be ticked); or
2. [ ] our beneficial interest in the Rule 144A Global Note Certificate
to a purchaser wanting to receive a beneficial interest in the
Regulation S Global Note Certificate (tick box B or C below, as
applicable).
In connection with such request, and in respect of such Notes, we, the
Transferor, 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 any legend on the relevant Global Note
Certificate and that we are transferring such Note(s) (tick one of the following
boxes):
(A) [ ] to a person whom the Transferor reasonably believes 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 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
- 27 -
Rule 144A and is in accordance with any applicable securities laws of
any state of the United States;
OR
(B) [ ] in accordance with Regulation S under the Securities Act, and,
accordingly, we hereby certify that:
(i) the offer of the Notes was not made to a person in the
United States;
(tick box for one of alternative sub-paragraphs (ii) as appropriate)
[ ] (ii) at the time the buy order was originated, the buyer was
outside the United States or the Transferor or any
person acting on its behalf reasonably believed that the
buyer was outside the United States;
OR
[ ] (ii) the transaction was executed in or on or through the
facilities of a designated offshore securities market
and neither the Transferor nor any person acting on its
behalf knows that the transaction was prearranged with a
buyer in the United States;
(iii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or
904(b) of Regulation S, as applicable;
(iv) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(v) with regard to transfers occurring within the period
prior to and including the fortieth day after the issue
date of the Notes, any beneficial interest in the
Regulation S Global Note Certificate shall be held
through either Euroclear or Clearstream.
OR
(C) [ ] pursuant to an exemption from registration provided by Rule 144 under
the Securities Act, if available.
If none of the foregoing boxes is checked, the Registrar shall not be obliged to
effect the exchange of interests in the Global Note Certificates to reflect the
transfer of the beneficial interests in the Global Note Certificate contemplated
by this transfer certificate.
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This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuing Entity and the Trustee.
............................................
for and on behalf of
[Transferor]
Date: ...........................................
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SCHEDULE 3
SPECIFIED OFFICES OF THE AGENTS
NOTE TRUSTEE, PRINCIPAL PAYING AGENT, CUSTODIAN, AGENT BANK AND EXCHANGE AGENT
Address: 40th Floor, One Canada Square, London E14 5AL, United Kingdom
Fax: + 44 20 7964 2533
Attention: Corporate Trust - ABS/MBS/PF
REGISTRAR AND U.S. PAYING AGENT
Address: 101 Barclay Street, Floor 21W, New York, NY 10286, United States
Fax: + 1 212 815 5802/3
Attention: Corporate Trust Administration - ABS/MBS/PF
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EXECUTED by the parties
Issuing Entity
Executed for an on behalf of )
GRACECHURCH CARD )
PROGRAMME FUNDING LIMITED )
acting by a duly authorised signatory )
Note Trustee
Executed for and on behalf of )
THE BANK OF NEW YORK )
by )
------------------------------
Authorised Signatory
Principal Paying Agent, Custodian, Agent Bank and Exchange Agent
Executed for and on behalf of )
THE BANK OF NEW YORK )
by
------------------------------
Authorised Signatory
Registrar and U.S. Paying Agent
Executed for and on behalf of )
THE BANK OF NEW YORK )
by )
------------------------------
Authorised Signatory
- 31 -