EXHIBIT 4.1
[Graphic Omited] LIMITED LIABILITY PARTNERSHIP
EXECUTION VERSION
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
As Receivables Trustee
AND
THE ROYAL BANK OF SCOTLAND PLC
As Transferor Beneficiary, Trust Cash Manager and Transferor
AND
RBS CARDS SECURITISATION FUNDING LIMITED
As Investor Beneficiary
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RECEIVABLES TRUST DEED
AND
TRUST CASH MANAGEMENT AGREEMENT
DATED 27 MARCH 2000
AS AMENDED AND RESTATED
ON 28 SEPTEMBER 2000 AND 27 OCTOBER 2005
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CONTENTS
CLAUSE PAGE
PART 1................................................................................... 3
1. Definitions................................................................... 3
PART 2................................................................................... 6
2. Receivables Trust Deed........................................................ 6
3. Rights Of Beneficiaries....................................................... 7
4. Trust Certificates, Additional Beneficiaries And Tender Of Trust Certificates. 9
5. Distributions And Calculations In Respect Of Collections...................... 18
6. Pay Out Events................................................................ 31
PART 3................................................................................... 36
7. The Receivables Trustee....................................................... 36
8. Termination Of The Receivables Trust And Perpetuity........................... 49
PART 4................................................................................... 50
9. Cash Management Functions..................................................... 50
10. Other Matters Relating To The Trust Cash Manager And Any Co-Trust Cash Manager 58
11. Trust Cash Manager Defaults................................................... 61
PART 5................................................................................... 66
12. Miscellaneous Provisions...................................................... 66
Schedule 1 FORM OF DEFAULTED ACCOUNTS INSTRUCTION NOTICE................................. 71
Schedule 2 TRUST CERTIFICATE REGISTER.................................................... 72
Exhibit A: Form Of RBS Transferor Certificate............................................ 73
Exhibit B: Form Of Additional Transferor Certificate..................................... 76
Exhibit C: Form Of Investor Certificate.................................................. 79
Exhibit D: Form Of Monthly Trust Cash Manager's Report................................... 82
Exhibit E: Form Of Annual Trust Cash Manager's Certificate............................... 85
THIS RECEIVABLES TRUST DEED AND TRUST CASH MANAGEMENT AGREEMENT is made in
Jersey, Channel Islands the 27th day of March 2000 as a Deed and amended and
restated on 28 September 2000 and 27 October 2005
BY AND BETWEEN:
(1) THE ROYAL BANK OF SCOTLAND PLC, (registered number 90312) an institution
authorised under the Banking Xxx 0000, having its registered office at 00
Xx. Xxxxxx Xxxxxx, Xxxxxxxxx XX0 0XX ("RBS" in its capacities as
"TRANSFEROR BENEFICIARY" and "TRUST CASH MANAGER");
(2) SOUTH GYLE RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey,
Channel Islands with registered number 76197 having its registered office
at 00 Xxxxxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands (the
"RECEIVABLES TRUSTEE");
(3) RBS CARDS SECURITISATION FUNDING LIMITED, a private limited company
incorporated in Jersey, Channel Islands, with company number 76199,
having its registered office at Royal Bank House, 00 Xxxx Xxxxxx, Xx.
Xxxxxx, Xxxxxx XX0 0XX, Channel Islands, in its capacities as Loan Note
Issuer (the "LOAN NOTE ISSUER") and Investor Beneficiary (the "INVESTOR
BENEFICIARY").
WHEREAS:
(A) The Transferors are the legal owner of the Receivables (which terms and
certain other capitalised terms used in these recitals bear the meaning
given to them in Part 1 below).
(B) Pursuant to the terms and subject to the conditions of the RSA the
Transferors, and any nominated Affiliate thereof which accedes to the RSA
as an Additional Transferor, may from time to time offer to sell by way
of assignment (without notice to Obligors except following a Notification
Event, which assignment shall, pending the giving of such notice or such
other action as is necessary to perfect the assignment, take effect in
equity only) or holding on trust all Receivables arising on Designated
Accounts (being Receivables and Designated Accounts in existence on the
date of such offer and Receivables arising on such Designated Accounts
thereafter and/or Designated Accounts which come into effect after the
date of the offer which fulfil certain specified criteria, and
Receivables arising thereon) to the Receivables Trustee.
(C) The Receivables Trust is established primarily for the purpose of
enabling the Receivables Trustee to: (i) provide financial investments
(in debts) to existing and prospective Beneficiaries by granting
beneficial interests to them under the Receivables Trust (and issuing new
or annotating existing Trust Certificates to them to evidence the same);
and (ii) receive amounts paid by Obligors in respect of Receivables and
transfer such amounts as appropriate and pay such amounts to the
Beneficiaries in the proportions that they have agreed (as set out herein
and in any related Supplement) and the Receivables Trustee has entered
into this Deed on the terms set out herein in order to place itself in a
position to grant such interests and effect such receipts, transfers and
payments.
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(D) Under the terms of this Deed and any related Supplement, any Person may
become an Additional Beneficiary of, or an existing Beneficiary may
increase its beneficial interest in, the Receivables Trust, if the
consent of all existing Beneficiaries is obtained, in one of three ways:
(i) Firstly, a person may become an Additional Beneficiary or an
existing Beneficiary may increase its beneficial interest by making
payments to the Receivables Trustee as a contribution to the Trust
Property, as set out in this Deed in connection with a Series;
(ii) Secondly, a Transferor Beneficiary upon receiving payment out of
funds raised from the issue of a new Series, may sell some of its
entitlement to Trust Property to new or existing Investor
Beneficiaries. Upon such sale taking place the Transferor
Certificate of the Transferor Beneficiary will be surrendered and
the Receivables Trustee will annotate the Transferor Certificate to
evidence that Transferor Beneficiary's reduced beneficial interest
in the Receivables Trust; and
(iii) Thirdly, the existing Beneficiaries of the Receivables Trust may
agree between themselves to another method of an Additional
Beneficiary becoming a Beneficiary of the Receivables Trust and
jointly direct the Receivables Trustee to implement such method
provided that the Receivables Trustee shall not issue an Investor
Certificate to such Additional Beneficiary unless the requirements
set out herein (including written confirmation from the Rating
Agencies) are met.
(E) The Trust Cash Manager has agreed, upon the terms and subject to the
conditions hereof, to act as Trust Cash Manager in connection with the
Receivables from time to time assigned to or held on trust for the
Receivables Trustee.
NOW IT IS HEREBY AGREED as follows:
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PART 1
INTERPRETATION
1. DEFINITIONS
1.1 DEFINITIONS
Whenever used in this Deed, the words and phrases defined in the Master
Framework Agreement dated 27 March 2000 and amended and restated on 28
September 2000 and 27 October 2005 and signed by the parties hereto
shall, unless otherwise defined herein or the context requires otherwise,
bear the same meanings herein (including the recitals hereto).
1.2 OTHER DEFINITIONAL PROVISIONS
(a) All terms defined in this Deed or any Supplement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or delivered
pursuant hereto or thereto, accounting terms not fully defined in the
manner provided for in Clause 1.1, shall have the respective meanings
given to them under generally accepted accounting principles in the
United Kingdom. To the extent that the definitions of accounting terms
herein are inconsistent with the meanings of such terms under generally
accepted accounting principles in the United Kingdom, the definitions
contained herein shall prevail.
(c) The agreements, representations and warranties of RBS and RBS Advanta in
this Deed and any Supplement in each of their capacities as Transferor,
Transferor Beneficiary and, in the case of RBS, Trust Cash Manager shall
be deemed to be the agreements, representations and warranties of RBS and
RBS Advanta solely in each such capacity for so long as RBS and RBS
Advanta acts in each such capacity under this Deed.
(d) The words "hereof", "herein" and "hereunder" and words of similar import
when used in this Deed shall refer to this Deed and any Supplement as a
whole and not to any particular provision of this Deed or any Supplement;
and Clause, Schedule and Exhibit references contained in this Deed or any
Supplement are references to clauses, schedules and exhibits of this Deed
or any Supplement unless otherwise specified.
(e) A time of day (including opening or closing of business) shall be
construed as a reference to London time unless specified otherwise.
(i) Save where the context otherwise requires:
(A) all sums payable by any party to any other party pursuant
hereto (excluding all sums payable by RBS, RBS Advanta or an
Additional Transferor to the Receivables Trustee pursuant
hereto) are inclusive of any VAT which is chargeable on the
supply or supplies for which such sums (or any part thereof)
are the whole or part of the consideration for VAT purposes and
section 89 of
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the Value Added Tax Act 1994 shall not apply to affect the
amount of such sums; and
(B) all sums payable by RBS, RBS Advanta or an Additional
Transferor (each party being a "PAYER") to the Receivables
Trustee pursuant hereto are exclusive of any VAT which is
chargeable on the supply or supplies for which such sums (or
any part thereof) are the whole or part of the consideration
for VAT purposes. Where the Receivables Trustee makes a supply
to any Payer for VAT purposes pursuant hereto and VAT is or
becomes chargeable on such supply, the relevant Payer shall pay
to the Receivables Trustee (in addition to any other
consideration for such supply) a sum equal to the amount of
such VAT, such payment to be made no later than 2 Business Days
before the last day (as notified to the Payer in writing by the
Receivables Trustee) on which the Receivables Trustee can
account to HM Revenue & Customs for such VAT without incurring
any interest or penalties.
(ii) Any reference herein to any fee, cost, disbursement, expense or
liability incurred by any party and in respect of which such party
is to be reimbursed (or indemnified) by any other person or the
amount of which is to be taken into account in any calculation or
computation shall, save where the context otherwise requires,
include:
(A) where such party is the Receivables Trustee or the Investor
Beneficiary a reference to such part of such cost or expense as
represents VAT; and
(B) where such party is RBS, RBS Advanta or an Additional
Transferor, a reference to such part of such cost or expense as
represents VAT save to the extent that such party is entitled
to obtain credit or repayment in respect of such VAT from HM
Revenue & Customs.
(iii) Any reference herein to a party shall (where appropriate) be
deemed, at any time when such party is treated as a member of a
group for the purposes of section 43 of the Value Added Tax Xxx
0000, to include a reference to the representative member of such
group.
(f) All references herein to any provision of any statute shall be construed
so as to include any statutory modification or re-enactment thereof or
any statutory instrument, order or regulation made thereunder or under
such modification or re-enactment.
(g) Save where the contrary is indicated, any reference in this Deed or any
Supplement to this Deed or any other agreement or document shall be
construed as a reference to this Deed or any Supplement or, as the case
may be, such other agreement or document as the same may have been, or
may from time to time be, amended, varied, novated or supplemented.
(h) In this Deed:.
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(i) references, in relation to any person, to where it "belongs" for
VAT purposes are references to where it belongs for the purposes of
section 9 of the Value Added Tax Xxx 0000 in relation to both
services to be supplied by and services to be supplied to such
person in connection with the transactions contemplated by the
Relevant Documents; and
(ii) references in the context of VAT to "member states of the European
Union" and "the European Union" shall be construed as references to
"member States" and "the territory of the Community" as such terms
are used in the Value Added Tax Xxx 0000 and legislation
supplemental thereto.
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PART 2
RECEIVABLES TRUST DEED AND OPERATION OF TRUST
2. RECEIVABLES TRUST DEED
2.1 RECEIVABLES TRUST DEED
The Receivables Trustee hereby declares that (1) on the date of this
Deed, each of the Transferors and the Investor Beneficiary have
transferred to the Receivables Trustee the sum of [GBP]1 to be held on
trust on an undivided basis for the benefit of the Transferor
Beneficiaries and the Investor Beneficiary as the initial Beneficiaries,
and (2) the Receivables Trustee shall hold all Trust Property absolutely
upon the trusts herein contained and described in this Clause 2.1 (and
for the purposes referred to in this Clause 2.1) for the Investor
Beneficiary and the Transferor Beneficiaries as the initial
Beneficiaries, and for each nominated Affiliate of the Transferor
Beneficiaries which accedes from time to time to the RSA as an Additional
Transferor, and for each other person that becomes a Beneficiary pursuant
to Clause 4. The Receivables Trustee shall hereby declare the following
trusts held on the following basis for the following Beneficiaries:
(a) THE UNDIVIDED BARE TRUST
All Trust Property from time to time assigned or purported to be assigned
to or held on trust for the Receivables Trustee, other than Ineligibles
Bare Trust Property or Segregated Bare Trust Property or Other Trust
Property, shall be held on an undivided basis in the manner described in
this Deed and any Supplement for the benefit of each of the initial
Beneficiaries and each other person that becomes a Beneficiary pursuant
to Clause 4 (the "UNDIVIDED BARE TRUST") and all Trust Property held on
the Undivided Bare Trust shall be hereinafter referred to as "UNDIVIDED
BARE TRUST PROPERTY".
(b) THE INELIGIBLES BARE TRUST OF EACH TRANSFEROR BENEFICIARY
All Trust Property which constitutes Ineligible Receivables, or in the
case of Scottish Receivables a beneficial interest in Ineligible
Receivables, originated by a particular Transferor or Ineligible
Collections related to such Ineligible Receivables from time to time,
shall be held on a segregated separate trust for the benefit of the
relevant Transferor, in accordance with the entitlements described in
Clause 3.2(c) of this Deed (each such trust an "INELIGIBLES BARE TRUST")
and all Trust Property held on an Ineligibles Bare Trust shall
hereinafter be referred to as "INELIGIBLES BARE TRUST PROPERTY".
(c) THE SEGREGATED BARE TRUSTS
All Trust Property which is expressly segregated by or on behalf of the
Receivables Trustee for the benefit of an Investor Beneficiary pursuant
to the terms of this Deed or any Supplement shall be held as segregated
nominee property on absolute bare trust for the sole benefit of such
Investor Beneficiary (a "SEGREGATED BARE TRUST") and all Trust Property
held on a Segregated Bare Trust shall hereinafter be referred to as
"SEGREGATED BARE TRUST PROPERTY".
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(d) OTHER TRUSTS
All Trust Property which is expressly segregated by the Receivables
Trustee for the benefit of any other Beneficiary according to the terms
of any Supplement shall be held on such terms for such Beneficiary (each
an "OTHER TRUST") and all Trust Property held on an Other Trust shall
hereinafter be referred to as "OTHER TRUST PROPERTY".
The Undivided Bare Trust, the Ineligibles Bare Trusts, the Segregated
Bare Trusts, and any Other Trusts shall hereinafter be collectively
referred to as the "RECEIVABLES TRUST". The Receivables Trustee shall
hold the Trust Property for the purpose of receiving amounts arising
therefrom and transferring and distributing such amounts in accordance
with the provisions hereof for the benefit of the Beneficiaries as such
provisions may be amended, supplemented or varied from time to time in
the manner provided herein. The Beneficiaries acknowledge that any other
duties of the Receivables Trustee as set out herein and in any of the
Relevant Documents shall be incidental and ancillary to the foregoing and
to the granting of interests by the Receivables Trustee to the
Beneficiaries in the manner provided in Clause 4.
2.2 APPLICATION OF TRUST PROPERTY
The Receivables Trustee shall make all calculations as may be necessary
or desirable for the purposes of distributing Trust Property in the
manner and order of priority set out in Clause 5.
3. RIGHTS OF BENEFICIARIES
3.1 BENEFICIAL ENTITLEMENT TO TRUST PROPERTY
(a) THE UNDIVIDED BARE TRUST
Each Investor Beneficiary and each Transferor Beneficiary shall be
beneficially entitled to an Undivided Interest in the Undivided Bare
Trust Property in the proportion set out herein.
(b) THE INELIGIBLES BARE TRUST
Each Transferor Beneficiary shall be beneficially entitled to: (1)
Ineligible Receivables originated by such Transferor Beneficiary subject
to the right of the Receivables Trustee to deal with any Ineligible
Receivables in such manner as is necessary to protect the Undivided Bare
Trust beneficiaries; and (2) Ineligible Collections related to such
Ineligible Receivables.
(c) THE SEGREGATED BARE TRUST
Each Investor Beneficiary will be absolutely beneficially entitled to
Trust Property specified in this Deed or any Supplement as being
Segregated Bare Trust Property of such Investor Beneficiary.
(d) OTHER TRUSTS
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Each Other Trust beneficiary will be beneficially entitled to Trust
Property specified in any Supplement as being the beneficial entitlement
of such Other Trust Property of such beneficiary.
3.2 RIGHTS OF BENEFICIARIES
Each Beneficiary of the Receivables Trust will belong to one of the
categories of Beneficiaries set out below for the purposes of this Deed.
The beneficial entitlement to Trust Property, and calculations for the
purposes of allocation, unless otherwise specified herein, shall be
specified in any related Supplement. The categories of Beneficiaries are
as follows:
(a) INVESTOR BENEFICIARY
The beneficial entitlement of each Investor Beneficiary to Trust Property
shall be specified in this Deed or in a Supplement related to such
Investor Beneficiary.
(b) ENHANCEMENT PROVIDER
If a Supplement specifies that an Enhancement Provider is to be a
Beneficiary of the Receivables Trust, the beneficial entitlement of such
Enhancement Provider to Trust Property shall be specified in that
Supplement.
(c) TRANSFEROR BENEFICIARIES
The beneficial entitlement of each Transferor Beneficiary to Trust
Property at any time shall be as follows:-
(i) in relation to Undivided Bare Trust Property, excluding Finance
Charge Collections, Acquired Interchange and income on Permitted
Investments, that proportion which the relevant Transferor
Beneficiary's Adjusted Transferor Interest bears to the sum of the
Aggregate Adjusted Investor Interest and the Aggregate Transferor
Interests; and
(ii) in relation to Undivided Bare Trust Property which consists of
Finance Charge Collections, Acquired Interchange, and income on
Permitted Investments the relevant Floating Transferor Percentage
for that Monthly Period of such Finance Charge Collections,
Acquired Interchange and income on Permitted Investments
EXCEPT that if at any time each of the Aggregate Adjusted Investor
Interest and the Aggregate Transferor Interest are zero, and the
Undivided Bare Trust Property at that time includes Principal
Collections, such Principal Collections shall be described as
"UNAVAILABLE PRINCIPAL COLLECTIONS" and will be held for the Transferor
Beneficiaries in equal proportions; and
(iii) in relation to Ineligibles Bare Trust Property, those Ineligible
Receivables originated by such Transferor Beneficiary subject as
provided in Clause 3.1(b) above and all Ineligible Collections
related to such Ineligible Receivables.
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Notwithstanding the beneficial entitlement to Trust Property referred to
in (a) to (c) above, each Beneficiary shall be absolutely beneficially
entitled to all Trust Property from time to time which is expressly held
on bare trust for the sole benefit of such Beneficiary.
4. TRUST CERTIFICATES, ADDITIONAL BENEFICIARIES AND TENDER OF TRUST
CERTIFICATES
4.1 THE TRUST CERTIFICATES
The beneficial entitlement of each Transferor Beneficiary and each
Investor Beneficiary in the Receivables Trust shall be evidenced by a
Trust Certificate substantially in the form set out in Exhibit A, in the
case of each Transferor Beneficiary, and substantially in the form set
out in Exhibit C in the case of each Investor Beneficiary.
4.2 THE TRUST CERTIFICATE REGISTER
(a) The Receivables Trustee shall (i) cause to be kept and maintained at the
registered office or other agency of the Receivables Trustee outside of
the United Kingdom a Trust Certificate Register which shall record the
identity of the Beneficiaries of the Receivables Trust from time to time,
their respective addresses in Jersey, Channel Islands or elsewhere, and
their applicable Acquisition Date, and in addition in respect of Investor
Beneficiaries, their Aggregate Investor Interest and each of the Investor
Interests comprised therein, and any other relevant information in
respect thereof and (ii) register annotations (in respect of increases
and decreases in beneficial entitlements), transfers and exchanges of the
beneficial entitlements of such Beneficiaries under the Receivables
Trust.
(b) The entries in the Trust Certificate Register shall be conclusive
evidence in the absence of manifest error, and the Beneficiaries, the
Receivables Trustee and the Trust Cash Manager (and any Co-Trust Cash
Manager) shall be entitled to treat each person whose identity is
recorded in the Trust Certificate Register as an Investor Beneficiary as
the owner of the related Aggregate Investor Interest and Investor
Interests comprised therein, notwithstanding notice to the contrary or
anything to the contrary contained herein, PROVIDED THAT where an
Investor Beneficiary has granted a security assignment of or security
interest in its beneficial interest in the Receivables Trust and/or its
Investor Certificate to a security trustee for the purpose of securing
funding to purchase such Investor Beneficiary's interest in the
Receivables Trust, and such security assignment requires that the
Investor Certificate be registered in the name of the relevant security
trustee or its nominee, until a notice of enforcement is served by such
security trustee under the relevant supplement to the Security Trust
Deed, the Receivables Trustee shall continue to consider as owner, and
take all instructions from, with respect to the Investor Certificate, the
relevant Investor Beneficiary.
(c) The Trust Certificate Register shall be available for inspection by the
Transferor Beneficiaries, any Investor Beneficiary or any third party on
their respective behalves at any reasonable time upon reasonable prior
notice to the Receivables Trustee. No transfer or assignment of any
Investor Beneficiary's Aggregate Investor Interest or any Investor
Interest
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comprised therein otherwise permitted hereunder shall be effective unless
and until it has been duly recorded in the Trust Certificate Register as
provided in this Clause 4.2.
4.3 DISPOSALS OF BENEFICIAL ENTITLEMENT
(a) The beneficial entitlement of any Beneficiary in the Receivables Trust
shall not be transferred, assigned, exchanged, placed in any custodial
arrangement for security purposes or otherwise conveyed or disposed of (a
"DISPOSAL") or subjected to any Encumbrance except in accordance with
this Clause 4.3 (unless specified otherwise in any Supplement):
(i) any Transferor Beneficiary may make a Disposal of its pro rata
share of the Transferor Interest pursuant to a transfer of the
whole or substantially the whole of its properties and assets to
any person as provided in the RSA PROVIDED, HOWEVER that such
person shall also expressly assume the duties and obligations of
the relevant Transferor, Additional Transferor or Transferor
Beneficiary (as applicable) under the Relevant Documents and shall
be the relevant person in respect of which the occurrence of any
Insolvency Event shall be determined;
(ii) any Transferor Beneficiary may make a Disposal of, or create or
grant any Encumbrance over, the whole or any part of its Transferor
Interest with the prior written consent of Investor Beneficiaries
representing in aggregate more than 50% of the Combined Aggregate
Investor Interests (which consent may be given or withheld without
regard to reasonableness), PROVIDED, HOWEVER that no such Disposal
or Encumbrance will be permitted unless each of the Rating Agencies
confirms that such Disposal or Encumbrance will not result in a
downgrade or withdrawal of its then current rating of any
outstanding Associated Debt;
(iii) any Investor Beneficiary may make a Disposal of the whole or any
part of its beneficial entitlement (including any Investor Interest
comprised therein) or create or grant any Encumbrance in respect of
such beneficial entitlement with the prior written consent of each
Transferor Beneficiary and any other investor beneficiary (which
consent may be given or withheld without regard to reasonableness)
PROVIDED, HOWEVER that (1) where such Disposal is for the purpose
of any security assignment or security interest granted to a
security trustee under a supplement to the Security Trust Deed, the
relevant Investor Beneficiary shall continue to be considered the
Beneficiary of the Receivables Trust, regardless of such
assignment, until a notice of enforcement is served by the Security
Trustee under the terms of the relevant supplement to the Security
Trust Deed, and (2) where such Disposal or Encumbrance is a
Disposal or Encumbrance other than in the case of (1), it shall be
to (or in favour of) a company which is associated with each
Transferor (within the meaning of section 42 of the Finance Act
1930), and PROVIDED FURTHER that no such Disposal or Encumbrance
described in (2) will be permitted unless the Receivables Trustee
shall have received prior written confirmation from the person to
which such Disposal is to be made, or Encumbrance to be granted or
created in its favour, that such person complies with the matter
referred to in Clause 4.5(c)(vi).
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It is a condition of the Receivables Trust (to which, by the execution of
a Supplement or an Accession Notice by a Beneficiary, such Beneficiary
consents and confirms) that each Beneficiary of the Receivables Trust
undertakes to the Receivables Trustee for the benefit of itself and as
trustee for each other Beneficiary that it will not make any Disposal or
create or grant any Encumbrance in respect of its beneficial entitlement
in the Receivables Trust except in accordance with this Clause 4.3
(unless otherwise specified in any Supplement) and acknowledges that any
attempt to do so shall be void.
4.4 ACQUISITIONS AND ADDITIONAL BENEFICIARIES
(a) Subject to the provisions of this Clause 4 and to the Receivables Trustee
receiving the prior written consent of all existing Beneficiaries, a
person may become an Additional Beneficiary, or an existing Investor
Beneficiary may increase its beneficial interest in the Receivables Trust
(in each case an "ACQUISITION"):
(i) by making a payment to the Receivables Trustee as a contribution to
the Trust Property;
(ii) by making a payment to a Transferor Beneficiary to purchase a
portion of that Transferor's beneficial entitlement to Trust
Property, whereupon such interest shall vest in the new or existing
investor beneficiary that has made such payment; or
(iii) by such other method (as approved in writing by the Rating
Agencies) as the existing Beneficiaries of the Receivables Trust
may agree between themselves and jointly direct the Receivables
Trustee to implement.
(b) In order for any Acquisition to be effective, the Receivables Trustee
shall issue an Investor Certificate (in the case of an initial
Acquisition) or shall annotate the relevant Investor Certificate (in the
case of an Acquisition by an existing Investor Beneficiary) evidencing in
each case, in aggregate, the principal amount of the beneficial
entitlement to Trust Property of the relevant Investor Beneficiary
following such Acquisition as set out in the related Supplement.
(c) Such Investor Certificate shall be substantially in the form set out in
Exhibit C to this Deed and shall bear upon its face the name of the
Investor Beneficiary and the names of all Series in respect of which that
Investor Beneficiary holds an Investor Interest.
(d) Except as specified in any Supplement, each Beneficiary shall rank pari
passu and be equally and rateably entitled as provided herein to the
benefits hereof (except that unless specified in the related Supplement,
the Enhancement provided for any Series shall not be available for any
other Series) without preference, priority or distinction on account of
time or times of authentication and delivery, all in accordance with the
terms of this Deed and any related Supplement.
4.5 PROCEDURE FOR ACQUISITIONS
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(a) An Acquisition may only be permitted by the Receivables Trustee in
accordance with directions given pursuant to Clause 4.5(a)(i) or (ii) and
in any event with the prior written consent of each existing Beneficiary
(such consent to be set out in the related Supplement and to be evidenced
by the execution of the relevant Supplement by each such Beneficiary as
set out in this Clause 4.5):
(i) in relation to an Acquisition in accordance with Clause 4.4(a)(ii)
or (iii) above, the Transferor Beneficiaries may direct the
Receivables Trustee that an Acquisition shall be made and deliver
to the Receivables Trustee each Transferor Certificate for
annotation, and any existing Investor Certificate held by the
relevant Investor Beneficiary participating in such Acquisition
(which, by its execution of the relevant Supplement such Investor
Beneficiary agrees to produce (or procure the production of) for
the Transferor Beneficiaries on request). In exchange, the
Receivables Trustee (1) will authenticate and deliver to the
relevant Investor Beneficiary an Investor Certificate (if an
initial Acquisition) or annotate the relevant Investor Certificate,
as applicable, as specified in the relevant Acquisition Notice; and
(2) annotate the relevant Transferor Certificate (any such
Acquisition, permitted in accordance with this paragraph, a
"TRANSFEROR ACQUISITION"); and
(ii) in relation to an Acquisition in accordance with Clause 4.4(a)(i)
or (iii) above, and to the extent permitted in any Supplement
relating to an existing Investor Beneficiary, such Investor
Beneficiary may, in accordance with the terms and conditions of the
relevant Supplement, together with each Transferor Beneficiary,
direct the Receivables Trustee that an Acquisition shall be made
and deliver (or procure the delivery) to the Receivables Trustee
the relevant Investor Certificate and the Transferor Certificates;
in exchange for which the Receivables Trustee will annotate the
relevant Investor Certificate and the Transferor Certificates (any
such Acquisition, permitted in accordance with this paragraph, an
"INVESTOR ACQUISITION").
(b) Each Transferor Beneficiary (in the case of a Transferor Acquisition) or
each Transferor Beneficiary and the relevant Investor Beneficiary (in the
case of an Investor Acquisition) may direct the Receivables Trustee that
an Acquisition shall be made by notifying the Receivables Trustee in
writing (an "ACQUISITION NOTICE"), in the case of an initial Acquisition
on the Initial Closing Date (in the case of the Initial Investor
Beneficiary) or the relevant first closing date of the first contribution
to the Receivables Trust (in the case of Additional Beneficiaries) and,
in the case of subsequent Acquisitions, at least three Business Days in
advance of the date upon which the Acquisition is to occur (an
"ACQUISITION DATE"). Any Acquisition Notice shall state the following:
(i) the names, Classes (if applicable), series designation and any
other relevant identifying information in respect of the Related
Debt to be issued by the relevant Investor Beneficiary in
connection with the Acquisition (such Related Debt comprising a
"SERIES"), such information to be sufficient to enable the Trust
Cash Manager to identify the relevant Related Debt or categories or
Classes thereof for
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the purposes of carrying out the calculations required herein and
in the related Supplement in connection with such Series;
(ii) the Initial Investor Interest to be held by the Investor
Beneficiary in respect of the relevant Series and the amounts of
such Initial Investor Interest to be held in respect of any
notional Classes (if any) within such Series (or the method for
calculating such Initial Investor Interest or Classes (if any)
comprised therein) PROVIDED, HOWEVER, that the Initial Investor
Interest in respect of the relevant Series may not be greater than,
in the case of a Transferor Acquisition, the excess of the
principal amount at the beginning of the day on the Acquisition
Date of the Transferor Interest over the Minimum Transferor
Interest or, in the case of an Investor Acquisition, the aggregate
amount on the Acquisition Date of (A) the principal amount of the
Investor Interest immediately before such Acquisition and (B) the
excess of the principal amount of the Transferor Interest after
such Acquisition over the Minimum Transferor Interest; and
(iii) the Enhancement Provider, if any, with respect to such Series, and
whether such Enhancement Provider is to be a Beneficiary of the
Receivables Trust.
(c) On any Acquisition Date, the Acquisition will only be effective upon the
Receivables Trustee authenticating and delivering (or annotating, as
applicable) the appropriate Investor Certificate to the relevant Investor
Beneficiary (or to the Security Trustee if such certificate has been
previously secured pursuant to the Security Trust Deed) and the
Receivables Trustee shall not authenticate and deliver (or annotate) such
Investor Certificate unless it has received the following:
(i) a Supplement satisfying the criteria set out in Clause 4.6 executed
by each of the parties thereto (including all Transferor
Beneficiaries, all Investor Beneficiaries, and the Receivables
Trustee) and specifying the Principal Terms of the beneficial
entitlement of the relevant Investor Beneficiary to Trust Property
in respect of the Investor Interest being created by the
Acquisition and the supplements, amendments and variations to this
Deed as a consequence thereof;
(ii) the applicable Enhancement, if any;
(iii) the agreement, if any, pursuant to which the Enhancement Provider
agrees to provide its Enhancement, if any;
(iv) a Solvency Certificate from the Transferors and each Additional
Transferor;
(v) written confirmation from each relevant Rating Agency that the
Acquisition will not result in such Rating Agency reducing or
withdrawing its then current rating on any outstanding Associated
Debt;
(vi) written confirmation from the relevant Investor Beneficiary and
Enhancement Provider, if any, that:
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(i) either (A) each of the Investor Beneficiary and Enhancement
Provider (if any) is resident outside the United Kingdom or (B)
such Investor Beneficiary and Enhancement Provider has received
a legal opinion from recognised solicitors in the United
Kingdom that, under then current UK law, payments in respect of
the Investor Certificate will not be subject to United Kingdom
withholding tax; and
(ii)such Investor Beneficiary and Enhancement Provider belong
outside the member states of the European Union for VAT
purposes;
PROVIDED THAT, in the case of any Disposal or Encumbrance described
in Clause 4.3(iii) which has been made for the purpose of any
security assignment or security interest granted by such Investor
Beneficiary or Enhancement Provider (as applicable) the person to
whom such security has been granted may be resident in the United
Kingdom;
(vii) where applicable, the existing Transferor Certificates and the
applicable Investor Certificate as the case may be for annotation;
and
(viii)an Officer's Certificate provided by each Transferor certifying
either (A) that (i) each class of Associated Debt issued in
connection with the Acquisition shall be the subject of a legal
opinion prepared by United States tax counsel with respect to tax
treatment of that debt in the United States, (ii) each Investor
Beneficiary other than any Enhancement Provider shall have
associated with it one or more issues of Associated Debt in respect
of the Series being created in connection with the Acquisition, and
(iii) the Enhancement relating to the Series shall be provided by
any combination of subordination (except subordination by way of a
Collateral Interest), a letter of credit, a cash collateral loan
(other than a cash collateral loan providing for payment from
amounts due with respect to any Enhancement Invested Amount), a
surety bond, an insurance policy, or a spread or reserve account
funded from Available Spread (as defined in the relevant Supplement
for the relevant Series) to the extent not used for Enhancement, or
(B) it has determined that, based on consultation with counsel, the
Acquisition is in the best interests of each Transferor Beneficiary
and its Affiliates.
Upon satisfaction of the above, the Receivables Trustee shall annotate
the existing Transferor Certificate and/or the relevant Investor
Certificate, as the case may be, issue or return to the relevant Investor
Beneficiary (or to the Security Trustee if such certificate has been
previously secured pursuant to the Security Trust Deed) a new or
annotated Investor Certificate and return to the Transferor Beneficiaries
and, following its execution of an Accession Notice, any further
Transferor Beneficiary (or, in each case, as it may direct) a new or
annotated Transferor Certificate, in each case dated the Acquisition
Date.
4.6 SUPPLEMENTS
(a) A Supplement shall be executed in order to effect each Acquisition which
shall:
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(i) be executed by each Transferor Beneficiary, the Receivables
Trustee, all existing Investor Beneficiaries, and if the Investor
Beneficiary making the Acquisition is not an existing Beneficiary,
that Investor Beneficiary;
(ii) set out the consent of each existing Beneficiary to such
Acquisition;
(iii) constitute, after the issuance or annotation of the relevant
Investor Certificate a Supplement by the Receivables Trustee to
this Deed which shall thereafter be read and construed as
supplemented, amended and varied by such Supplement;
(iv) specify the name and category of the Related Debt to be issued by
the relevant Investor Beneficiary and, if there is more than one
type or Class of Related Debt, the rights and priorities of each
such type or Class thereof vis-a-vis the other types or Classes of
Related Debt constituting the new Series;
(v) set out the principal terms of such Series (all such terms the
"PRINCIPAL TERMS") which may include, without limitation, the
following:
(A) the Initial Investor Interest (or the method for calculating
such Initial Investor Interest) to be held by the relevant
Investor Beneficiary in respect of such Series;
(B) the face value of the relevant Related Debt, and (if
applicable) each type or Class thereof, to be issued in respect
of such Series;
(C) the method of determining any Adjusted Investor Interest, if
applicable;
(D) the nature and amount of any Associated Debt issued or to be
issued in connection with such Series;
(E) the Closing Date;
(F) each Rating Agency rating the Associated Debt referred to in
(D) above;
(G) the rights of each Transferor Beneficiary (if any) that have
been transferred to the Investor Beneficiary in respect of such
Series pursuant to such Acquisition (including any rights to
Finance Charge Collections and Principal Collections);
(H) the method of calculating an Investor Beneficiary's
proportionate beneficial entitlement to Finance Charge
Collections and Acquired Interchange held or the beneficial
interest in which is held for that Investor Beneficiary in the
Undivided Bare Trust in respect of such Series, and the method
of determining the amount of Finance Charge Collections and
Acquired Interchange that will be distributed to the Segregated
Bare Trust held for the benefit of such Investor Beneficiary in
respect of such Series on any day;
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(I) the method of determining the Investor Beneficiary's
proportionate beneficial entitlement to Principal Collections
and the date or dates on which Principal Collections are
expected to be distributed to the Investor Beneficiary in
respect of such Series and, if applicable, in respect of other
Series and the method by which the Investor Interests held by
the Investor Beneficiary in respect of such other Series shall
amortise or accrete if applicable;
(J) the method of allocating Receivables in Defaulted Accounts for
such Series and, in respect of the Related Debt, and each type
or Class thereof, within such Series;
(K) any other Collections with respect to Receivables or other
amounts to which the Investor Beneficiary may have rights in
respect of the Investor Interest relating to such Series and
the method by which such Collections will be proportionally
held and distributed to the Investor Beneficiary in respect of
such Investor Interest and allocated in respect of the Related
Debt and each type or Class thereof within such Series;
(L) the names of any accounts to be used by the Investor
Beneficiary in respect of such Series and the terms governing
the operation of any such accounts and use of moneys therein;
(M) the Series Trust Cash Management Fee Percentage;
(N) the percentage to be applied in calculating Minimum Transferor
Interest and the Series Termination Date;
(O) the terms of any Enhancement with respect to such Series, and
the Enhancement Provider, if applicable;
(P) the terms governing any deposit into any account provided for
such Series;
(Q) whether Acquired Interchange or other fees will be included in
the funds available to be distributed with respect to the
Investor Interest relating to such Series;
(R) the priority of such Series with respect to any other Series;
(S) which Group, if any, such Series will be part of;
(T) the Minimum Aggregate Principal Receivables;
(U) whether such Series will or may be a Companion Series and the
Series with which it will be paired, if applicable (subject to
the Receivables Trustee having received any legal opinions or
other conditions precedent which it may require in order to
establish that the addition of such Companion Series or
16
terms thereof will not prejudice the United Kingdom tax
treatment of the Receivables Trust or any of the
Beneficiaries); and
(V) any other relevant terms of such Series (including whether or
not the beneficial entitlement of the Series will be pledged as
collateral for an issuance of any other securities, including
commercial paper); and
(vi) contain undertakings from the Investor Beneficiary in respect of
such Series, in accordance with Clause 4.9, and a confirmation from
the Investor Beneficiary in respect of such Series, in accordance
with Clause 4.5(c)(vi) and Clause 4.6(c), and any other undertaking
and confirmation as reasonably requested by the Transferor
Beneficiaries.
(b) Subject to (1) obtaining the consent of all existing Beneficiaries of the
Receivables Trust; and (2) receipt of an Acquisition Notice from each
Transferor Beneficiary and, in the case of an Investor Acquisition, the
relevant Investor Beneficiary, pursuant to Clause 4.5(b), the Receivables
Trustee shall arrange for a Supplement to be executed in accordance with
Clause 4.6(a).
(c) no supplement, amendment or variation to or of any trust comprising the
Receivables Trust shall be effective unless and until the Receivables
Trustee has obtained the written consent of all persons which are
Beneficiaries of that trust at the time of such supplement, amendment or
variation.
4.7 AMOUNTS PAID PURSUANT TO AN ACQUISITION
The amount paid by an Investor Beneficiary (and any Enhancement in
respect of such Series) pursuant to an Acquisition as a contribution to
Trust Property shall be held on the Undivided Bare Trust for the
Beneficiaries of the Undivided Bare Trust in the manner and in the
amounts as set out in the relevant Supplement.
4.8 ACCESSION OF ADDITIONAL TRANSFEROR AS TRANSFEROR BENEFICIARY
(a) Each person which becomes an Additional Transferor pursuant to Clause 2.7
of the RSA shall, subject to compliance with this Clause 4.8 and subject
to the prior written consent of all existing Beneficiaries of the
Receivables Trust, and on terms approved by such existing Beneficiaries
in writing, become a Transferor Beneficiary of the Receivables Trust.
(b) In order for any accession of an Additional Transferor to be effective
the Receivables Trustee shall issue to the Additional Transferor a
Transferor Certificate substantially in the form attached as Exhibit A to
this Deed, authenticated and delivered in accordance with Clause 4.8(d)
below.
(c) Except as may be specified herein in respect of the Transferor
Beneficiaries or, in respect of any other Transferor Beneficiary, in the
relevant Accession Notice, each Transferor Beneficiary shall rank pari
passu with each other Transferor Beneficiary and be equally and rateably
entitled as provided herein to the benefits hereof without preference,
priority or
17
distinction on account of time or times of authentication and delivery,
all in accordance with the terms of this Deed and any relevant Accession
Notice.
(d) No accession of an Additional Transferor shall be effective unless and
until the Receivables Trustee has authenticated and delivered a
Transferor Certificate to such additional Transferor Beneficiary
evidencing the share of the Aggregate Transferor Interest which is held
by such Transferor Beneficiary, PROVIDED THAT the Receivables Trustee
shall not so authenticate and deliver unless it has received such
documents as it shall have required pursuant to Clause 2.7 of the RSA.
(e) Upon receipt of the documents referred to in Clause 4.8(d), the
Receivables Trustee shall cancel the existing Transferor Certificate and
issue to each Transferor Beneficiary (or as it may direct) an appropriate
new Transferor Certificate dated the date of the Accession Notice.
4.9 NON-PETITION UNDERTAKING OF BENEFICIARIES
It is a condition of the Receivables Trust (to which by the execution of
a Supplement or an Accession Notice by a Beneficiary, such Beneficiary
consents and confirms) that each Beneficiary of the Receivables Trust
undertakes to the Receivables Trustee for the benefit of itself and as
trustee for each other Beneficiary that:
(a) it will not take any corporate action or other steps or legal proceedings
for the winding up, dissolution or re-organisation or for the appointment
of a receiver, administrator, administrative receiver, trustee,
liquidator, sequestrator or similar officer of any Investor Beneficiary
(unless specified otherwise in relation to such Investor Beneficiary),
the Receivables Trustee or any successor trustee or the Receivables Trust
nor in relation to an Investor Beneficiary participate in any ex parte
proceedings nor seek to enforce any judgement against any of such
persons;
(b) the obligations of the Receivables Trustee under this Deed at any time
are limited to the lesser, at such time, of (i) the nominal amount
thereof (the "NOMINAL AMOUNT") and (ii) an amount (the "AVAILABLE
AMOUNT") equivalent to the value of the Trust Property at such time. No
Beneficiary shall have a right to have recourse to, or make demand or
initiate proceedings against the Receivables Trustee at any time whilst
the nominal amount exceeds the available amount. The Receivables Trustee
shall incur no liability and be under no additional duty to any person
solely as a result of any inability on its part to make payments or to
perform other obligations under this Deed, which inability results from
the operation of the foregoing provisions of this Clause 4.9; and
(c) it shall have no recourse, in respect of any obligation, covenant or
agreement of the Receivables Trustee, against any shareholder, officer,
agent or director of the Receivables Trustee.
5. DISTRIBUTIONS AND CALCULATIONS IN RESPECT OF COLLECTIONS
5.1 ESTABLISHMENT OF TRUST ACCOUNTS
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(a) TRUSTEE COLLECTION ACCOUNT
(i) The Receivables Trustee has opened a bank account in its name, the
Trustee Collection Account, which it will hold and operate for the
benefit of the Undivided Bare Trust beneficiaries, at the Operating
Bank, bearing a designation clearly indicating that the funds
deposited therein are held on trust for the beneficiaries of the
Receivables Trust.
(ii) The Receivables Trustee, as trustee of the Undivided Bare Trust,
shall possess all legal right, title and interest in all funds on
deposit from time to time in the Trustee Collection Account and in
all proceeds thereof.
(iii) The Receivables Trustee shall establish two ledgers relating to the
Trustee Collection Account entitled (1) "PRINCIPAL COLLECTIONS
LEDGER" and (2) "FINANCE CHARGE COLLECTIONS LEDGER". The
Receivables Trustee shall hold all amounts allocated to the
Principal Collections Ledger and the Finance Charge Collections
Ledger on an undivided basis on trust for the benefit of the
Undivided Bare Trust beneficiaries. The Receivables Trustee shall,
from time to time, promptly upon their identification, allocate
amounts identified as representing Principal Collections to the
Principal Collections Ledger and amounts identified as representing
Finance Charge Collections to the Finance Charge Collections
Ledger.
(iv) The Receivables Trustee at all times shall maintain accurate
records reflecting each transaction in the Trustee Collection
Account and each debit or credit recorded in each ledger relating
thereto (including, without limitation, the Principal Collections
Ledger).
(b) TRUSTEE ACQUISITION ACCOUNT
(i) The Receivables Trustee has opened a bank account in its name which
it will hold and operate for the benefit of the Undivided Bare
Trust beneficiaries of the Receivables Trust, at the Operating Bank
(the "TRUSTEE ACQUISITION ACCOUNT") bearing a designation clearly
indicating that the funds deposited therein are held on trust for
the benefit of the beneficiaries of the Receivables Trust.
(ii) The Receivables Trustee, as trustee of the Receivables Trust, shall
possess all legal right, title and interest in all funds on deposit
from time to time in the Trustee Acquisition Account and in all
proceeds thereof.
(iii) The Receivables Trustee at all times shall maintain accurate
records reflecting each transaction in the Trustee Acquisition
Account and all debits and credits recorded in any ledger relating
thereto.
(c) SERIES COLLECTION ACCOUNT
(i) The Receivables Trustee has opened a bank account in its name which
it will hold and operate for the benefit of the Initial Investor
Beneficiary of the Receivables
19
Trust and the Receivables Trustee will open a bank account which it
will hold and operate for the benefit of any Additional Investor
Beneficiary of the Receivables Trust, at the Operating Bank (each,
a "SERIES COLLECTION ACCOUNT") each bearing a designation clearly
indicating that the funds deposited therein are held on a
Segregated Bare Trust for the benefit of the Initial Investor
Beneficiary or such Additional Investor Beneficiary (as the case
may be).
(ii) The Receivables Trustee, as trustee of the Receivables Trust, shall
possess all legal right, title and interest in all funds on deposit
from time to time in each Series Collection Account and in all
proceeds thereof.
(iii) In respect of each Series the Receivables Trustee shall establish
two ledgers (with sub-ledgers for each Series, as appropriate)
relating to the Series Collection Account held for the relevant
Investor Beneficiary entitled (1) "SERIES PRINCIPAL COLLECTIONS
LEDGER" and (2) "SERIES FINANCE CHARGE COLLECTIONS LEDGER". The
Receivables Trustee shall hold all amounts credited to the Series
Principal Collections Ledger and the Series Finance Charge
Collections Ledger on a Segregated Bare Trust for the benefit of
the relevant Investor Beneficiary. The Receivables Trustee shall,
from time to time, promptly upon their identification, credit
amounts held in the Series Collection Account which are identified
as representing Principal Collections to the relevant Series
Principal Collections Ledger and amounts identified as representing
Finance Charge Collections and Acquired Interchange to the relevant
Series Finance Charge Collections Ledger. The relevant Investor
Beneficiary shall at all times be entitled to make demand for all
or any portion of the monies held on any of the bare trusts
referred to in this Clause 5.1(c)(iii). Any monies not so demanded
shall be distributed in accordance with the terms of this Deed and
the related Supplement.
(iv) The Receivables Trustee at all times shall maintain accurate
records reflecting each transaction in each Series Collection
Account and each debit or credit recorded in each ledger or sub-
ledger relating thereto (including, without limitation, the
respective Series Principal Collections Ledger and the respective
Series Finance Charge Collections Ledger).
(d) ADDITIONAL TRUST ACCOUNTS
(i) The Receivables Trustee may from time to time open Additional Trust
Accounts in its name which it will hold and operate for the benefit
of the Beneficiaries (on an undivided or a segregated basis) of the
Receivables Trust at the Operating Bank or at any other Qualified
Institution as specified in any Supplement which shall bear a
designation clearly indicating that the funds deposited therein are
held on a separate trust for the benefit of the Beneficiaries of
the Receivables Trust or any one or more of them on an undivided
basis or segregated separate trust as the case may be.
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(ii) The Receivables Trustee, as trustee of the Receivables Trust, shall
possess all legal right, title and interest in all funds on deposit
from time to time in such Additional Trust Accounts and in all
proceeds thereof.
(iii) The Receivables Trustee at all times shall maintain accurate
records reflecting each transaction in any Additional Trust Account
and all debits and credits recorded in any ledger relating thereto.
(e) REPLACEMENT OF OPERATING BANK
If at any time the existing Operating Bank ceases to be a Qualified
Institution, the Trust Cash Manager or, if applicable, any Co-Trust Cash
Manager shall notify the Receivables Trustee and the Receivables Trustee
shall within 10 Business Days of being notified establish (or direct the
Trust Cash Manager or Co-Trust Cash Manager to establish) new Trust
Accounts meeting the conditions specified with respect to each such Trust
Account with a Qualified Institution outside the United Kingdom which
shall become the new Operating Bank, and shall transfer any cash or any
investments to such new Trust Accounts. If the Receivables Trustee shall
fail to establish the new Trust Accounts as required by this Clause
5.1(e) the Trust Cash Manager or any Co-Trust Cash Manager shall be
authorised to establish the Trust Accounts itself.
(f) POWER OF INVESTMENT
(i) The Receivables Trustee shall deposit all monies received by it in
respect of Trust Property in the Trust Accounts in accordance with
the provisions of this Clause 5 and shall invest funds on deposit
in such Trust Accounts allocable to any Series in accordance with
Clause 5.1(g).
(ii) The power of investment of the Receivables Trustee shall be limited
to the power set out in Clause 5.1(f)(i) and the Trustee
Investments Act 1961 shall not apply to the Receivables Trustee.
(iii) The Receivables Trustee acknowledges that subject to the
obligations of the Receivables Trustee to distribute funds in
accordance with this Deed and any Supplement, the Trust Cash
Manager and any Co-Trust Cash Manager may give the Receivables
Trustee advice consistent with the terms of this Deed and any
Supplement with regard to undertaking the investments referred to
in Clause 5.1(f)(i) in accordance with the provisions of this Deed.
(g) ADMINISTRATION OF THE TRUST ACCOUNTS
Funds on deposit in the Trust Accounts which are not to be utilised on
any Business Day in providing consideration for new Receivables or
otherwise paid out shall be invested in accordance with the following
provisions of this Clause 5.1(g).
(i) Unless specified otherwise in any Supplement, the administration
and investment of such funds shall be undertaken on the advice of
the Trust Cash Manager or any Co-Trust
21
Cash Manager and shall be in the name of and for and on behalf of
the Receivables Trustee as trustee of the Receivables Trust. All
normal costs incurred by making and changing investments will be
paid out of investment interest and earnings. The funds will be
invested in Permitted Investments only.
(ii) Permitted Investments purchased or otherwise acquired for and on
behalf of the Receivables Trustee shall be denominated in the same
currency as the funds utilised and shall be on terms such that they
would be available on the next Business Day or, otherwise, (A) they
would be available on or prior to the Transfer Date related to the
Monthly Period in which such funds were processed for collection or
such other date as may be specified in the related Supplement and
that (B) the amounts invested will be re-credited to the relevant
Trust Account together with any investment earnings thereon.
(iii) If any Permitted Investments are made for and on behalf of the
Receivables Trustee in accordance with the provisions of this Deed
or any Supplement, the deposit receipt, contract, confirmation or
equivalent document or evidence that the transaction has occurred
will be retained by or on behalf of the Receivables Trustee.
Except as provided in any Supplement, with respect to Trust Accounts
specified in such Supplement, for the purposes of determining the
availability of funds or the balances in the Trust Accounts for any
reason, all investment earnings on such funds shall be deemed not to be
available or to be on deposit and the beneficial entitlement to such
investment earnings and will:
(i) in the case of investment earnings on funds deposited in a Trust
Account held on the Undivided Bare Trust, be held on the Undivided
Bare Trust; and
(ii) in the case of investment earnings on funds deposited in a Trust
Account held on a Segregated Bare Trust, be held on that Segregated
Bare Trust for the benefit of the relevant Segregated Bare Trust
beneficiary.
(h) ACKNOWLEDGEMENT OF THE BENEFICIARIES
The Beneficiaries acknowledge that:
(i) it is not intended that the Receivables Trustee should have any
discretion with respect to the investment of funds as referred to
in Clause 5.1(f) and (g) or that the duties of the Receivables
Trustee should include any form of fund management;
(ii) accordingly the provisions of Clause 5.1(f) and (g) (and all
related provisions of the Relevant Documents) have been drawn so as
to specify to the maximum extent practicable the manner in which
the Trust Cash Manager is to advise the Receivables Trustee from
time to time to invest the funds referred to in Clause 5.1(f) and
(g);
22
(iii) subject to and in accordance with Clause 7.1(g), the duties of the
Receivables Trustee with regard to the making of any such
investments will be fully discharged by the Receivables Trustee's
acting on the advice of the Trust Cash Manager or, if applicable,
any Co-Trust Cash Manager in relation thereto; and
(iv) the investment of any funds by the Receivables Trustee in
accordance with Clause 5.1(f) and (g) shall be wholly incidental
and ancillary to the functions of the Receivables Trustee as
described in Clause 2.1.
5.2 COLLECTIONS
(a) RBS SECURITISATION OPERATING ACCOUNT AND RBSA SECURITISATION OPERATING
ACCOUNT
(i) The Receivables Trustee shall direct the Transferors and each
Additional Transferor that Collections held by the Transferors or,
as the case may be, such Additional Transferor on trust in the RBS
Securitisation Operating Account, RBSA Securitisation Operating
Account or Additional Transferor Operating Account for the benefit
of the Receivables Trustee shall be transferred to the Trustee
Collection Account as promptly as possible after the Date of
Processing of such Collections but in no event later than the
second Business Day following such Date of Processing. The date of
any such transfer shall be referred to hereinafter as the "RELEVANT
DATE".
(ii) Notwithstanding Clause 5.2(a)(i), if any Transferor or any
Additional Transferor or any of their respective subsidiaries or
Affiliates is Trust Cash Manager or Co-Trust Cash Manager, the
Receivables Trustee shall seek to ensure that such monies held on
trust in the RBS Securitisation Operating Account, RBSA
Securitisation Operating Account or the relevant Additional
Transferor Operating Account that are identified as representing
Ineligible Collections, shall not be transferred to the Trustee
Collection Account but shall be distributed to the relevant
Transferor Beneficiary or as such Transferor Beneficiary may direct
whereupon such monies shall cease to be Trust Property and shall be
owned by the relevant Transferor Beneficiary absolutely.
(b) APPLICATION OF MONIES IN THE TRUSTEE COLLECTION ACCOUNT
On the Relevant Date the Receivables Trustee shall, based on the Daily
Report maintained by the Trust Cash Manager or, if applicable, any Co-
Trust Cash Manager pursuant to Clause 9.5(a) with respect to the related
Date of Processing, promptly following the transfer of monies from the
RBS Securitisation Operating Account or the RBSA Securitisation Operating
Account or Additional Transferor Operating Account as referred to in
Clause 5.2(a) on such Relevant Date, identify amounts, if any, included
in such transfer representing the following:
- Incorrect Payments;
23
- Principal Collections;
- Unavailable Principal Collections;
- Finance Charge Collections and Acquired Interchange; and
- Ineligible Collections (not distributed to the Transferor
Beneficiaries pursuant to Clause 5.2(a)(ii) above);
- investment earnings accrued on the Trustee Collection Account,
and apply such amounts on the Relevant Date, or in respect of the amounts
set out in (vi) and (viii) below on the Transfer Date next following such
Relevant Date, in accordance with this Clause 5. In particular, the
Receivables Trustee shall instruct the Operating Bank to make the
following distributions from the Trustee Collection Account in a manner
consistent with the principles set out in this Deed as modified by any
Supplement:
(i) the amount of any Incorrect Payments notified to the Receivables
Trustee which have not previously been allocated as Collections
representing Trust Property, to the RBS Proceeds Account, RBSA
Proceeds Account or, if applicable, the relevant Additional
Transferor Proceeds Account, whereupon such monies shall cease to
be Trust Property and shall be owned by the relevant Transferor
Beneficiary absolutely;
(ii) the amount of Ineligible Collections notified to the Receivables
Trustee which have not previously been allocated as Principal
Collections to the RBS Proceeds Account, RBSA Proceeds Account or,
if applicable, the relevant Additional Transferor Proceeds Account,
whereupon such monies shall cease to be Trust Property and shall be
owned by the relevant Transferor Beneficiary absolutely;
(iii) the aggregate amount of Cash Available for Acquisition and the
aggregate amount of Unavailable Principal Collections which are
utilised as determined pursuant to the related Supplement, to the
extent required, from the Trustee Collection Account to the Trustee
Acquisition Account (and a corresponding adjustment shall be made
to the Undivided Principal Collections Ledger);
(iv) the relevant amount of Principal Collections to the relevant Series
Collection Account, as specified in or pursuant to the related
Supplement for each Series;
(v) subject to Clause 5.2(e), an amount equal to the product of (1) the
sum of the Floating Transferor Percentages for the Monthly Period
in which the Date of Processing of such Finance Charge Collections
falls and (2) the aggregate amount of Finance Charge Collections
processed on such Date of Processing (the "TRANSFEROR FINANCE
CHARGE AMOUNT") from the Trustee Collection Account to the RBS
Proceeds Account, RBSA Proceeds Account or, if applicable, the
relevant Additional Transferor Proceeds Account or as each
Transferor Beneficiary may direct (and a corresponding adjustment
shall be made to the Finance Charge
24
Collections Ledger) whereupon such monies shall cease to be Trust
Property and shall be owned by the relevant Transferor Beneficiary
absolutely;
(vi) on each Transfer Date an amount equal to the product of (1) the sum
of the Transferor Floating Percentages for the Monthly Period
preceding such Transfer Date and (2) the aggregate amount of
Acquired Interchange deposited by the Transferors and each
Additional Transferor in the Trustee Collection Account (the
"TRANSFEROR ACQUIRED INTERCHANGE AMOUNT") from the Trustee
Collection Account to the RBS Proceeds Account, RBSA Proceeds
Account or, if applicable, the relevant Additional Transferor
Proceeds Account or as each Transferor Beneficiary may direct (and
a corresponding adjustment shall be made to the Finance Charge
Collections Ledger) whereupon such monies shall cease to be Trust
Property and shall be owned by the Transferor Beneficiaries
absolutely to the extent of their pro rata shares; and
(vii) subject to Clause 5.2(f), an amount equal to the product of (1) the
sum of the Floating Investor Percentages in respect of all
Outstanding Series for the Monthly Period in which the relevant
Date of Processing of such Finance Charge Collections falls and (2)
the aggregate amount of Finance Charge Collections processed on
such Date of Processing (the "INVESTOR FINANCE CHARGE AMOUNT") from
the Trustee Collection Account to the relevant Series Collection
Account or as each Investor Beneficiary may direct in relation to
the amounts thereof referable to the Series in respect of which
that relevant Investor Beneficiary is the Investor Beneficiary (and
a corresponding adjustment shall be made to the Finance Charge
Collections Ledger) whereupon such monies shall cease to be
Undivided Bare Trust Property;
(viii)on each Transfer Date an amount equal to (1) the sum of the
Floating Investor Percentages in respect of all Outstanding Series
for the Monthly Period preceding the Transfer Date and (2) the
aggregate amount of Acquired Interchange deposited by the
Transferors and each Additional Transferor in the Trustee
Collection Account that month (the "INVESTOR ACQUIRED INTERCHANGE
AMOUNT"), from the Trustee Collection Account to the relevant
Series Collection Account or as each Investor Beneficiary may
direct in relation to the amounts thereof referable to the Series
in respect of which that relevant Investor Beneficiary is the
Investor Beneficiary (and a corresponding adjustment shall be made
to the Finance Charge Collections Ledger) whereupon such monies
shall cease to be Undivided Bare Trust Property.
Amounts remaining in the Trustee Collection Account after the application
of monies referred to above and in any Supplement shall either remain
deposited in the Trustee Collection Account until such time as they are
utilised on succeeding Business Days in accordance with this Deed and any
Supplement or are invested in Permitted Investments in accordance with
Clause 5.1(g).
(c) APPLICATION OF MONIES IN THE TRUSTEE ACQUISITION ACCOUNT
25
On the Relevant Date the Receivables Trustee shall, promptly following
the transfers of monies from the Trustee Collection Account as referred
to in Clause 5.2(b) apply such amounts transferred to the Trustee
Acquisition Account in accordance with this Clause 5. In particular the
Receivables Trustee shall instruct the Operating Bank to make the
following transfers from the Trustee Acquisition Account which will be
made in a manner consistent with this Deed as modified by any Supplement:
(i) (1) if the Receivables Trustee has decided to accept an Offer, the
amount of Acceptance Price required to fund acceptance of such
Offer (pursuant to the terms and subject to the conditions of
the RSA) to the RBS Proceeds Account, RBSA Proceeds Account or
the Additional Transferor Proceeds Account whereupon such
monies shall cease to be Trust Property and shall be owned by
the relevant Transferor or, as the case may be, the Additional
Transferor absolutely;
(2) if the Receivables Trustee has accepted an Offer, the amount
(if any) required to meet the obligation of the Receivables
Trustee to pay the Cash Price stipulated in such Offer in
accordance with Clause 5.1 of the RSA, to the RBS Proceeds
Account, RBSA Proceeds Account or the Additional Transferor
Proceeds Account whereupon such monies shall cease to be Trust
Property and shall be owned by the relevant Transferor or, as
the case may be, the Additional Transferor absolutely;
PROVIDED HOWEVER that each Transferor Beneficiary shall be obliged
to fund the Receivables Trustee in respect of payments to be made
to the Transferors and each Additional Transferor on any Business
Day in excess of the Investor Cash Available for Acquisition to the
extent of its pro rata share. The Receivables Trustee acknowledges
(and the Transferors by their execution of this Deed and each
Additional Transferor by its execution of an Accession Notice also
acknowledges) that to the extent the Investor Cash Available for
Acquisition is less than the aggregate amount of the payments to
the Transferors and each Additional Transferor to be funded out of
Cash Available for Acquisition by the Beneficiaries on any Business
Day, such shortfall shall be met by a reduction by the amount of
such shortfall in the aggregate amount payable to the Transferors
and each Additional Transferor (as set out in Clause 13.3 of the
RSA) and an increase in each relevant Transferor Interest in each
case by the amount by which the amount payable to the relevant
Transferor or Additional Transferor has been so reduced;
(ii) the amount required to meet the obligation of the Receivables
Trustee to make payments in respect of Future Receivables in
accordance with Clause 5.2 of the RSA (and pursuant to the terms
and subject to the conditions of the RSA), to the RBS Proceeds
Account, RBSA Proceeds Account or the relevant Additional
Transferor Proceeds Account whereupon such monies shall cease to be
Trust Property and shall be owned by the relevant Transferor or, as
the case may be, the Additional Transferor absolutely PROVIDED
HOWEVER that each Transferor
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Beneficiary shall be obliged to fund the Receivables Trustee in
respect of payments to be made to the Transferors and each
Additional Transferor on any Business Day in excess of the Investor
Cash Available for Acquisition to the extent of its pro rata share.
The Receivables Trustee acknowledges (and the Transferors by their
execution of this Deed and each Additional Transferor by its
execution of an Accession Notice also acknowledges) that to the
extent the Investor Cash Available for Acquisition is less than the
aggregate amount of the payments to the Transferors and each
Additional Transferor to be funded out of Cash Available for
Acquisition by the Beneficiaries on any Business Day, such
shortfall shall be met by a reduction by the amount of such
shortfall in the aggregate amount payable to the Transferors and
each Additional Transferor (as set out in Clause 13.3 of the RSA)
and an increase in each relevant Transferor Interest in each case
by the amount by which the amount payable to the relevant
Transferor or Additional Transferor has been so reduced;
(iii) on behalf of any Series in accordance with the related Supplement,
the amount of Cash Available for Acquisition required to be applied
to the Transferor Interest in order to increase the proportion of
the beneficial interest of the Investor Beneficiaries in the
Eligible Receivables Pool, to the RBS Proceeds Account, RBSA
Proceeds Account and any Additional Transferor Proceeds Account(s)
pro rata to each Transferor Beneficiary's entitlement to such
monies whereupon such monies shall cease to be Trust Property and
shall be owned by each Transferor Beneficiary absolutely to the
extent of its pro rata share.
(iv) amounts held in the Trustee Acquisition Account on any day as
representing Cash Available for Acquisition which are not to be
utilised on that day in funding the purchase of Eligible
Receivables shall be distributed to the Transferor Beneficiaries in
order to increase the proportion of the beneficial interest of the
Investor Beneficiaries in the Eligible Receivables Pool (of the
Undivided Bare Trust) and to decrease the proportion of the
beneficial interest of each Transferor Beneficiary in the Eligible
Receivables Pool (of the Undivided Bare Trust) pro tanto.
(d) APPLICATION OF MONIES IN THE SERIES COLLECTION ACCOUNT
On each Transfer Date the Receivables Trustee shall, based on the Monthly
Report maintained by the Trust Cash Manager or, if applicable, any Co-
Trust Cash Manager pursuant to Clause 9.5(a) with respect to the related
Date of Processing, promptly following the transfer of monies from the
Trustee Collection Account instruct the Operating Bank to make the
following distributions which shall be distributed as specified in any
Supplement:
(i) the relevant amount of Principal Collections credited to the
relevant Series Principal Collections Ledger for credit to the
relevant Series in the relevant account or ledger specified in or
pursuant to the related Supplement for such Series (and a
corresponding adjustment shall be made to the relevant Series
Principal Collections Ledger); and
27
(ii) the relevant amount of Finance Charge Collections and Acquired
Interchange from the relevant Series Finance Charge Collections
Ledger to such account or ledger as may be specified in or pursuant
to such related Supplement for such Series (and a corresponding
adjustment shall be made to the relevant Series Finance Charge
Collections Ledger).
Amounts remaining in the Series Collection Account after the application
of monies referred to above and in any Supplement shall either remain
deposited in the Series Collection Account until such time as they are
utilised on succeeding Business Days in accordance with this Deed and any
Supplement or are invested in Permitted Investments in accordance with
Clause 5.1(g).
(e) APPLICATION OF MONIES IN ADDITIONAL TRUST ACCOUNTS
Amounts deposited in Additional Trust Accounts shall be applied in
accordance with the provisions of any related Supplement and Clause
5.1(f).
(f) ANNUAL FEES
Notwithstanding any provision of the RSA which provides that Receivables
representing Annual Fees assigned to or held on trust for the Receivables
Trustee ("ANNUAL FEE RECEIVABLES") constitute Finance Charge Receivables
or Principal Receivables for the purpose of calculating the consideration
payable for Receivables assigned to or held on trust for the Receivables
Trustee, the Receivables Trustee shall, if so directed by each Transferor
Beneficiary by prior notice in writing to the Trust Cash Manager or, if
applicable, any Co-Trust Cash Manager, the Receivables Trustee and the
Rating Agencies, treat such Annual Fee Receivables (and Collections in
respect thereof) for the purposes of this Deed and any Supplement in such
manner as specified in a certificate to the Receivables Trustee,
PROVIDED, HOWEVER, that (i) any such certificate shall have effect only
in relation to Receivables which are acquired by or held on trust for the
Receivables Trustee (whether as Existing Receivables or as Future
Receivables) after the time when such certificate is issued; and (ii) in
the absence of such certificate, such Annual Fee Receivables shall be
treated as Finance Charge Receivables and Collections in respect thereof
shall be treated as Finance Charge Collections, PROVIDED FURTHER,
HOWEVER, that any direction by any Transferor Beneficiary as to the
treatment of Annual Fee Receivables pursuant to this Clause 5.2(f) shall
not be of any effect unless such Transferor Beneficiary certifies in such
certificate that it has received an Opinion of Counsel that the treatment
specified for Annual Fees and Collections in respect thereof will not
have any material adverse effect on the treatment of the Receivables
Trust and the Beneficiaries for United Kingdom tax purposes.
(g) EARNINGS ON PERMITTED INVESTMENTS
The Receivables Trustee shall from time to time, acting on the advice of
the Trust Cash Manager or any Co-Trust Cash Manager, on each Transfer
Date transfer monies credited to Trust Accounts which represent
investment earnings accrued on Permitted Investments made using monies
deposited in such Trust Accounts and to which the Transferor
Beneficiaries are
28
beneficially entitled pursuant to Clause 3.2(c)(ii) and to which the
Investor Beneficiaries are beneficially entitled pursuant to Clause
3.2(a) (less any amount deducted to meet costs incurred in making and
changing investments as provided in Clause 5.1(g)(i)) to each Transferor
Beneficiary or to the Investor Beneficiary, as applicable, to the extent
of its pro rata share as it may direct, whereupon such monies shall cease
to be Trust Property and shall be owned by such Transferor Beneficiary or
Investor Beneficiary, as applicable, absolutely.
5.3 ADJUSTMENTS
(a) RECEIVABLES IN DEFAULTED ACCOUNTS, CREDIT ADJUSTMENTS AND REDUCTIONS IN
RECEIVABLES
If at any time prior to the dissolution of the Receivables Trust for any
reason whatsoever, any Principal Receivable becomes a Receivable in a
Defaulted Account or a Reduction or a Credit Adjustment is required in
relation to any Principal Receivable the amount of such Receivable in a
Defaulted Account or the subject of a Credit Adjustment or a Reduction
shall be applied against the Transferor Interest and each Investor
Interest as follows:
(i) in the case of a Receivable in a Defaulted Account which was an
Eligible Receivable prior to such time such Account became a
Defaulted Account, by allocating such amount between each
Transferor Beneficiary and each Investor Beneficiary in respect of
each Series in accordance with their respective Floating
Percentages for the Monthly Period in which such Account become a
Defaulted Account (as distributed in a manner consistent with this
Deed as amended by any Supplement)), reducing the Transferor
Interest accordingly and treating the resulting Investor Default
Amount for each Series as provided in the related Supplement;
(ii) in the case of a Credit Adjustment or a Reduction by allocating
such amount to each Transferor Beneficiary to the extent of its pro
rata share and reducing the relevant Transferor Interest
accordingly until such time as the Transferor Interest shall be
zero, PROVIDED, HOWEVER, that if the amount of such Credit
Adjustment or Reduction is greater than the amount of the
Transferor Interest on such date of determination then the
Receivables Trustee shall seek to enforce its remedy against the
Transferors and each Additional Transferor under Clause 10.3 of the
RSA which provides that the Transferors or relevant Additional
Transferor shall make a payment to the Receivables Trustee in
accordance with Clause 10.4 of the RSA; and
(iii) in the case of a Receivable in a Defaulted Account which was an
Ineligible Receivable prior to such time as such Account became a
Defaulted Account, by reducing the Transferor Ineligible Interest
by the amount of such Receivable in a Defaulted Account until such
time as the Ineligible Receivables Pool reaches zero;
and the entitlement of the Beneficiaries to Trust Property shall be
adjusted accordingly. The Receivables Trustee shall maintain at all times
accurate records reflecting Receivables in
29
Defaulted Accounts, Credit Adjustments or Reductions and the allocation
thereof amongst the Beneficiaries.
(b) INCORRECT PAYMENTS
If from time to time payments of monies are incorrectly deemed to be
Trust Property and paid into the Trustee Collection Account ("INCORRECT
PAYMENTS"), such monies may be deemed to be Collections representing
Trust Property and allocated in a manner consistent with this Deed
(as amended by any Supplement) unless prior to such allocation the
Receivables Trustee is notified by the Trust Cash Manager or any Co-Trust
Cash Manager that such monies are Incorrect Payments. Notwithstanding the
above, promptly following the notification to the Receivables Trustee by
the Trust Cash Manager or Co-Trust Cash Manager that such payments were
incorrectly deemed to be Trust Property and, if applicable, have been
incorrectly allocated, the Receivables Trustee shall:
(i) apply Trust Property in a manner consistent with this Deed (as
amended by any Supplement) to repay such Incorrect Payments; and
(ii) amend its books of account to record that (A) the pool of
Ineligibles Bare Trust Property has been increased by the amount of
Principal Receivables, if any, equal to the amount of Incorrect
Payments incorrectly allocated as Principal Collections (and such
amount of Incorrect Payments shall be treated as having been
repaid), (B) the Transferor Interest has been increased by the same
amount of Principal Receivables, if any, which were incorrectly
added to the Eligible Receivables Pool and (C) following any
reduction of an amount of Incorrect Payments incorrectly allocated
as Finance Charge Collections from Finance Charge Collections, such
amount of Incorrect Payments incorrectly allocated as Finance
Charge Collections, if any, shall be treated as having been repaid;
and the entitlement of the Beneficiaries to Trust Property shall be
adjusted accordingly.
(c) ALLOCATED INELIGIBLE COLLECTIONS
If from time to time payments of monies into the Trustee Collection
Account representing Ineligible Collections are incorrectly deemed to be
Principal Collections in respect of Eligible Receivables such monies may
be allocated as such in accordance with this Deed (as amended by any
Supplement) unless prior to such allocation the Receivables Trustee is
notified by the Trust Cash Manager or any Co-Trust Cash Manager that such
monies are Ineligible Collections ("ALLOCATED INELIGIBLE COLLECTIONS").
Notwithstanding the above, promptly following the notification to the
Receivables Trustee by the Trust Cash Manager or such Co-Trust Cash
Manager that Allocated Ineligible Collections have been so allocated as
Principal Collections in respect of Eligible Receivables, the Receivables
Trustee shall:
(i) apply Trust Property in a manner consistent with the principles set
out in this Deed (as amended by any Supplement) to re-apply such
Allocated Ineligible Collections correctly; and
30
(ii) amend its books of account to record that (A) the Ineligible
Receivables Pool has been decreased by the amount of Allocated
Ineligible Collections previously incorrectly allocated as
Principal Collections and the Eligible Receivables Pool has been
increased by the same amount and (B) the Transferor Ineligible
Interest has been decreased by the same amount so subtracted from
the Ineligible Receivables Pool and the Transferor Interest has
been increased by the amount so added to the Eligible Receivables
Pool;
and the entitlement of the Beneficiaries to Trust Property shall be
adjusted accordingly.
(d) INELIGIBLE RECEIVABLES
If from time to time Ineligible Receivables are assigned to or held on
trust for the Receivables Trustee as a result of:
(a) a breach of representation by the Transferors or any Additional
Transferor pursuant to Clause 16.2 or 16.3 of the RSA; or
(b) a Receivable being identified by the Servicer as a Non-Conforming
Receivable and, as such, an Ineligible Receivable,
and payments to the Transferors or such Additional Transferor in respect
thereof were incorrectly funded by the Beneficiaries on the basis that
such Receivables were Principal Receivables which are Eligible
Receivables, notwithstanding the remedies available to the Receivables
Trustee pursuant to the RSA, in such circumstances the Receivables
Trustee shall ensure that such error is corrected by:
(i) reducing the relevant Transferor Interest by the amount of such
Ineligible Receivables until such time as it reaches zero PROVIDED,
HOWEVER, that if the amount of such Ineligible Receivables exceeds
the amount of such Transferor Interest on such date of
determination then the Receivables Trustee shall also require the
relevant Transferors or such relevant Additional Transferor to make
a payment of cash to the Receivables Trustee equal to the amount of
such excess in order to comply with the provisions of Clause 11.1
of the RSA; and
(ii) amending its books of account to record that (A) the Eligible
Receivables Pool has been decreased by the amount of Ineligible
Receivables previously incorrectly added to the Eligible
Receivables Pool and, subject to Clause 11.3 of the RSA, the
Ineligible Receivables Pool has been increased by the same amount,
and (B) the relevant Transferor Ineligible Interest has been
increased by the same amount so added to the Ineligible Receivables
Pool;
and the entitlement of the Beneficiaries to Trust Property shall be
adjusted accordingly.
6. PAY OUT EVENTS
6.1 TRUST PAY OUT EVENTS
31
If any one of the following events (each a "TRUST PAY OUT EVENT") shall
occur:
(a) the Transferors or any Additional Transferor shall consent or take any
corporate action in relation to the appointment of a receiver,
administrator, administrative receiver, liquidator, trustee or similar
officer of it or relating to all or substantially all of its revenues and
assets;
(b) proceedings shall be initiated against any Transferor or any Additional
Transferor under any applicable liquidation, insolvency, composition, re-
organisation or similar laws for its winding up, dissolution,
administration or re-organisation and such proceedings are not discharged
within 60 days or a receiver, administrator, administrative receiver,
liquidator, trustee or similar officer of it or relating to all or
substantially all of its revenues and assets is legally and validly
appointed and such appointment is not discharged within 14 days;
(c) a duly authorised officer of any Transferor or any Additional Transferor
shall admit in writing that the relevant Transferor or relevant
Additional Transferor is unable to pay its debts as they fall due within
the meaning of Section 123(1) of the Insolvency Xxx 0000 or any
Transferor or any Additional Transferor makes a general assignment for
the benefit of or a composition with its creditors or voluntarily
suspends payment of its obligations with a view to the general
readjustment or rescheduling of its indebtedness;
(d) any Transferor or any Additional Transferor shall become unable for any
reason to transfer Receivables arising on Designated Accounts to the
Receivables Trust in the manner contemplated in the RSA;
(e) any Transferor or any Additional Transferor ceases to be resident for tax
purposes in the United Kingdom or otherwise ceases to be within the
charge to United Kingdom corporation tax; or
(f) either
(i) a change in law or its interpretation or administration results in
the Receivables Trustee becoming liable to make any payment on
account of tax (other than stamp duty payable in the United Kingdom
in respect of the transfer of Receivables pursuant to the RSA); or
(ii) any tax authority asserts a tax liability against, or takes any
other action in relation to, any Transferor or any Additional
Transferor or any of their respective subsidiaries in connection
with the transactions provided for in the Relevant Documents and as
a result of any of the foregoing there could be an adverse effect
on the position of all or any of such companies which is more than
trivial, Provided that:
(A) without prejudice to the generality of this Clause 6.1(f)(ii),
it will be established for the purposes hereof that there could
be such an adverse effect which is more than trivial if the
Transferors or such Additional Transferor obtains an Opinion of
Counsel to that effect; and
32
(B) an event falling within this Clause 6.1(f)(ii) shall be treated
as occurring on the date on which the relevant Transferor or
relevant Additional Transferor (in either case in its capacity
as a Transferor Beneficiary) gives notice in writing thereof to
the Receivables Trustee.
then:
(1) in the case of a Trust Pay Out Event under paragraph (a), (b)
or (c) (any such event an "INSOLVENCY EVENT") above, a Series
Pay Out Event will occur in respect of each Series and each
Beneficiary within such Series and each Transferor Beneficiary
(and the provisions of Clause 6.2 and 6.3 will become
applicable); or
(2) in the case of any other Trust Pay Out Event a Series Pay Out
Event will occur in respect of each Series and each Beneficiary
within such Series (and the provisions of Clause 6.2 will
become applicable),
in each case without any notice or other action on the part of the
Receivables Trustee or any Beneficiary immediately upon the occurrence of
such event.
6.2 SERIES PAY OUT EVENTS
Subject to Clause 6.1, Series Pay Out Events with respect to any Series
and each Beneficiary within such Series will be specified in any related
Supplement.
6.3 ADDITIONAL RIGHTS UPON THE OCCURRENCE OF CERTAIN EVENTS
(a) If a Trust Pay Out Event under Clause 6.1(a), (b) or (c) above occurs in
respect of any Transferor or any Additional Transferor on such day (the
"APPOINTMENT DAY"), the following effects shall occur:
(i) the relevant Transferor or relevant Additional Transferor shall
immediately give notice to the Receivables Trustee of the
occurrence of such Insolvency Event;
(ii) subject to (iii) below, Future Receivables coming into existence on
or following the Appointment Day will not be assigned to or held on
trust for the Receivables Trustee;
(iii) Finance Charge Receivables, whenever created, accrued in respect of
Principal Receivables which have been assigned to or held on trust
for the Receivables Trustee shall continue to form part of the
Trust Property of the Receivables Trust and Collections with
respect thereto shall continue to be allocated and applied in
accordance with Clause 5;
(iv) the Receivables Trustee shall not be entitled to accept any further
Offers to purchase Receivables from the Transferors or any
Additional Transferor; and
33
(v) subject to completion of the liquidation, winding-up and
dissolution procedures described below the Receivables Trust will
be dissolved.
(b) Within 15 days of the Appointment Day, the Receivables Trustee shall:
(i) cause to be published a notice in an Authorised Newspaper that an
Insolvency Event has occurred, that the Receivables Trustee intends
to sell, dispose of or otherwise liquidate the Receivables which
constitute Trust Property in a commercially reasonable manner and
that subject to completion of such sale, disposal or other
liquidation, the Receivables Trust will be dissolved; and
(ii) send written notice to the Beneficiaries describing the provisions
of this Clause 6.3 and requesting instructions from such
Beneficiaries. Unless within 60 days from the day notice pursuant
to sub-paragraph (i) above is first published, the Receivables
Trustee shall have received written instructions from Beneficiaries
representing more than 50 per cent. of the Combined Aggregate
Investor Interest and each Transferor Beneficiary (in each case if
not subject to an Insolvency Event) and any other person specified
as so entitled in any Supplement to the effect that such
Beneficiaries and persons, if any, disapprove of the liquidation of
the Receivables which constitute Trust Property and any other
assets and wish to continue with the Receivables Trustee accepting
Offers and purchasing Receivables pursuant to the terms and subject
to the conditions of the RSA as before such Insolvency Event, the
Receivables Trustee shall promptly sell, dispose of or otherwise
liquidate the Receivables and other assets in a commercially
reasonable manner and on commercially reasonable terms, which shall
include the solicitation of competitive bids. The Receivables
Trustee may obtain a prior determination from any such insolvency
officer referred to in paragraph (a) of Clause 6.1 that the terms
and manner of any proposed sale, disposition or liquidation are
commercially reasonable (which determination the Receivables
Trustee shall be entitled to regard as conclusive). The provisions
of Clause 6.1 and Clause 6.3 shall not be deemed to be mutually
exclusive.
(c) The proceeds from the sale, disposition or liquidation of the Receivables
and other assets of the Receivables Trust pursuant to paragraph (b) above
("INSOLVENCY PROCEEDS") shall be treated as Collections in respect of the
Receivables and other assets of the Receivables Trust and shall be
allocated and applied in accordance with the provisions of Clause 5.
Insolvency Proceeds shall be allocated to Finance Charge Receivables and
Principal Receivables in the same proportion such Receivables bore to one
another on the immediately preceding Determination Date.
(d) Unless the Receivables Trustee receives written instructions from
Beneficiaries and other persons as provided in Clause 6.3(b)(ii), on the
day following the last Transfer Date following the Monthly Period during
which the proceeds referred to in paragraph (c) above are distributed to
the Beneficiaries, and subject to the condition that the Investor
Interest shall have been reduced to zero as a result of such
distributions, the Receivables Trustee
34
shall take any and all necessary additional steps to ensure that the
Receivables Trust is dissolved. To this intent if any Trust Property
exists following the distribution of the proceeds referred to in the
previous sentence, the Receivables Trustee shall execute and deliver such
instruments of transfer and assignment, in each case without recourse to
the Receivables Trustee, as shall be necessary to vest in each Transferor
Beneficiary as residuary beneficiary or, as it may direct, all right,
title and interest of the Receivables Trustee in such Trust Property and
the Receivables Trustee shall follow any reasonable direction of the
Transferor Beneficiaries in that regard. The Receivables Trustee shall be
entitled to be indemnified from the proceeds referred to above and Trust
Property allocated to the Transferor Beneficiaries for any expenses
incurred in connection with the performance by the Receivables Trustee of
its obligations under this paragraph (d).
(e) The Receivables Trustee may appoint a sub-agent or agents and such other
professional advisers as it deems necessary or prudent to assist with its
responsibilities pursuant to this Clause 6 with respect to competitive
bids.
35
PART 3
THE RECEIVABLES TRUSTEE AND THE RECEIVABLES TRUST
7. THE RECEIVABLES TRUSTEE
7.1 DUTIES OF THE RECEIVABLES TRUSTEE
(a) The Receivables Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Deed to the extent required
or permitted under and in compliance with applicable law and regulations.
All of the following provisions of this Clause 7.1 are subject and
without prejudice to Clause 2.1 and shall be construed having regard to
Clause 2.1.
(b) The duties of the Receivables Trustee shall be to operate the Trust
Accounts and purchase Receivables in accordance with the provisions of
this Deed and any Relevant Document in a manner consistent with this
Deed. The Receivables Trustee shall take those reasonable steps available
to it to ensure that any movements of monies into and out of the Trust
Accounts on any Business Day shall be for value on the same day.
(c) The Receivables Trustee shall, if it has actual knowledge of the same,
act promptly to exercise its rights under any bank mandate relating to a
bank account in respect of which it is a beneficiary of a trust declared
over such account to prevent monies representing Trust Property being
paid from such bank account to a bank account which is not a Trust
Account and which was overdrawn at the close of business on the preceding
Business Day in London only (unless the Receivables Trustee shall have
received evidence satisfactory to it that such overdraft has been
satisfied). The Receivables Trustee shall cease to exercise such rights
at such time as the relevant bank account ceases to be overdrawn.
(d) The Receivables Trustee shall (or shall procure that its agent shall, on
its behalf) maintain proper books of account in respect of its duties as
trustee of the Receivables Trust and shall (or shall procure that its
agent shall, on its behalf) maintain records of all assets held by it and
all payments made by it in such capacity.
(e) The Receivables Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Receivables Trustee which are specifically required to
be furnished pursuant to any provision of this Deed or any Relevant
Document, shall cause them to be examined to determine whether they
substantially conform to the requirements of this Deed or such Relevant
Document.
(f) On receipt of an Offer in accordance with Clause 2 of the RSA, the
Receivables Trustee shall consider whether it would be in the best
interests of the Beneficiaries to accept such Offer, and, subject to
Clause 7.16 below and notwithstanding Clause 7.13(c) below shall only
accept such Offer if it considers that to do so would be in the best
interests of the Beneficiaries.
(g) The Receivables Trustee shall from time to time, subject to it having
received a Defaulted Accounts Instruction Notice from each Beneficiary,
which notice has not been withdrawn by
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the Beneficiaries on the instructions of the Security Trustee, enter into
agreements to assign or release from trust the Receivables in any
Defaulted Account which has been notified to the Receivables Trustee as a
Defaulted Account by the Servicer or any Co-Servicer and in respect of
which any Transferor or any Additional Transferor has notified the
Servicer or relevant Co-Servicer that it is willing to purchase the
Receivables on such Defaulted Account. The Receivables Trustee shall take
any action or execute any document or documents which shall be required
in order to give effect to such assignment or release.
(h) The appointment of the Trust Cash Manager pursuant to Clause 9.1(a), and
any Co-Trust Cash Manager pursuant to Clause 9.1(b) and the
implementation of advice received from the Trust Cash Manager or any Co-
Trust Cash Manager, shall (unless and until terminated) be deemed to
constitute performance by the Receivables Trustee of its fiduciary
obligations hereunder or pursuant to any fiduciary duties on trustees
implied by law in respect of such matters. Without prejudice to the
foregoing, it is expressly agreed and acknowledged that no delegation by
the Receivables Trustee will absolve or release the Receivables Trustee
from its liabilities or obligations hereunder in the event that the Trust
Cash Manager or any Co-Trust Cash Manager shall default in the
performance of its obligations as Trust Cash Manager or Co-Trust Cash
Manager, as the case may be.
(i) The Receivables Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of any Investor Beneficiary relating to the time,
method and place of conducting any proceeding for any remedy available to
the Receivables Trustee, or exercising any trust, discretion or power
conferred upon the Receivables Trustee in relation to such Investor
Beneficiary, under this Deed or any Relevant Document.
(j) The Receivables Trustee shall not be charged with knowledge of any
failure by the Trust Cash Manager or any Co-Trust Cash Manager referred
to in Clause 11.1 unless the Receivables Trustee receives written notice
of such failure from the Trust Cash Manager, any Co-Trust Cash Manager or
any Investor Beneficiary adversely affected thereby.
(k) The Receivables Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers,
if it believes that the repayment of such funds or adequate indemnity
against such risk or liability is not assured to it to its reasonable
satisfaction, and none of the provisions contained in this Deed or any
Relevant Document shall in any event require the Receivables Trustee to
perform or procure the performance of, or be responsible for the manner
of the performance of, any of the obligations of the Trust Cash Manager
or any Co-Trust Cash Manager under this Deed.
(l) Except for actions expressly authorised herein or in any Supplement, the
Receivables Trustee shall take no action to impair the interests of the
Beneficiaries of the Receivables Trust in any Receivable now existing or
hereafter created or to impair the value of any Receivable now existing
or hereafter created.
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(m) Other than as expressly contemplated in this Deed or any Relevant
Document, the Receivables Trustee shall have no power to deal with Trust
Property or supplement, amend or vary the Receivables Trust.
(n) If at any time the Receivables Trustee shall have reasonable grounds to
believe that advice received from the Trust Cash Manager or any Co-Trust
Cash Manager is incorrect, it shall promptly notify the Trust Cash
Manager or such Co-Trust Cash Manager of such matter PROVIDED, HOWEVER,
that if the Trust Cash Manager or Co-Trust Cash Manager disagrees that
such advice is incorrect the Receivables Trustee shall promptly act in
accordance with the advice given by the Trust Cash Manager or Co-Trust
Cash Manager and shall be entitled so to do.
(o) Each month the Receivables Trustee will provide the Investor
Beneficiaries in respect of each Series with a certificate detailing the
information and calculations specified to be included in such certificate
in the relevant Supplement for each such Series (each such certificate a
"SCHEDULE OF CALCULATIONS").
(p) The Receivables Trustee undertakes to the Investor Beneficiary that it
shall (or shall procure that the Trust Cash Manager or, if applicable,
any Co-Trust Cash Manager shall) deliver or make available to the Jersey
Bank Account Operator each certificate and report required to be
prepared, forwarded or delivered pursuant to Clause 9.5 and 9.6.
7.2 CERTAIN MATTERS AFFECTING THE RECEIVABLES TRUSTEE
EXCEPT AS OTHERWISE PROVIDED IN CLAUSE 7.1:
(a) the Receivables Trustee may rely on and shall be protected in acting, or
in refraining from acting in accordance with, any Offer, the initial
report, the Daily Report, the Monthly Trust Cash Manager's Report, the
Annual Trust Cash Manager's Report, the monthly payment instructions and
notification to the Receivables Trustee, the monthly Investor
Beneficiaries statement, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been
signed or presented to it pursuant to this Deed or any Relevant Document
by the proper party or parties;
(b) the Receivables Trustee may rely on any Opinion of Counsel addressed to
it, and any such Opinion of Counsel shall be full and complete
authorisation and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel;
(c) the Receivables Trustee shall be entitled to assume, for the purposes of
exercising any power, trust, authority, duty or discretion under or in
relation to any Relevant Document that such exercise will not adversely
affect the interest of the Investor Beneficiaries if each Rating Agency
has given written confirmation that such Rating Agency would not, as a
result of such exercise, reduce or withdraw its then current rating of
any outstanding Associated Debt;
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(d) the Receivables Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Deed or the RSA or any
agreement relating to any Enhancement, or to institute, conduct or defend
any litigation hereunder or in relation hereto, at the request, order or
direction of an Investor Beneficiary, pursuant to the provisions of this
Deed, unless such Investor Beneficiary shall have offered to the
reasonable satisfaction of the Receivables Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing contained herein shall, however,
relieve the Receivables Trustee of the obligations, upon the occurrence
of any Trust Cash Manager Default (which has not been cured), to exercise
such of the rights and powers vested in it by this Deed or the RSA and
any agreement relating to any Enhancement, and to use the same degree of
care and skill in its exercise as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs;
(e) the Receivables Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorised or within the discretion or rights or powers conferred upon it
by this Deed or any Relevant Document;
(f) the Receivables Trustee shall not be bound to make any investigation into
any facts or matters stated in any Offer, the initial report, the Monthly
Trust Cash Manager's Report, the Daily Report, the Annual Trust Cash
Manager's Report, the Schedule of Calculations, the monthly payment
instructions and notification to the Receivables Trustee, the monthly
Investor Beneficiaries statement, any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
any Investor Beneficiary which could be adversely affected if the
Receivables Trustee does not perform such acts;
(g) the Receivables Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys or a custodian, and the Receivables Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent, attorney or custodian appointed with all due care by it hereunder;
and
(h) the Receivables Trustee shall not be required to make any initial or
periodic examination of any documents or records related to the
Receivables or the Designated Accounts for the purpose of establishing
the presence or absence of defects, the compliance by RBS, RBS Advanta,
or any Additional Transferor or Co-Trust Cash Manager with its
representations and warranties or for any other purpose.
7.3 RECEIVABLES TRUSTEE NOT LIABLE FOR VALIDITY OR SUFFICIENCY
Except as set forth in Clause 7.12, the Receivables Trustee makes no
representations as to the validity or sufficiency of this Deed or any
Relevant Document or of the beneficial entitlement of the Beneficiaries
to Trust Property as evidenced by the Trust Certificates (other than the
certificate of authentication on the Trust Certificates) or of any
Receivable or related document. The Receivables Trustee shall not be
accountable for the use or application by any Transferor or any
Additional Transferor of any of its beneficial entitlement to Trust
Property or of the proceeds of any transfer of its beneficial
39
entitlement, or for the use or application of any funds paid to the
Transferors or any Additional Transferor in respect of the Receivables or
deposited in or withdrawn from any Trust Account by the Trust Cash
Manager or any Co-Trust Cash Manager.
7.4 RESIGNATION OR REMOVAL OF THE RECEIVABLES TRUSTEE
(a) The Receivables Trustee may at any time resign and be discharged from the
Receivables Trust hereby created by giving written notice thereof to the
Transferor Beneficiaries and the Investor Beneficiary (and any other
beneficiaries). Upon receiving such notice of resignation, each
Transferor Beneficiary shall be vested jointly with the power to appoint
a successor trustee and shall promptly appoint such successor trustee as
detailed in Clause 7.5 by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Receivables Trustee
and one copy to the successor trustee. If no successor trustee shall have
been so appointed and have accepted within 30 days after the giving of
such notice of resignation, the resigning Receivables Trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time the Receivables Trustee shall be legally unable to act, or
shall be adjudged insolvent, or a receiver of the Receivables Trustee or
of its property shall be appointed, or any public officer shall take
charge or control of the Receivables Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then the Transferor Beneficiaries may collectively, but shall not be
required to, remove the Receivables Trustee and promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Receivables Trustee so removed and
one copy to the successor trustee.
(c) The Beneficiaries may at any time by unanimous vote resolve to remove the
Receivables Trustee as trustee of the Receivables Trust and shall do so
by giving written notice thereof to the Receivables Trustee. Upon such
notice of removal being given each Transferor Beneficiary shall be vested
jointly with the power to appoint a successor trustee and shall promptly
appoint such successor trustee as detailed in Clause 7.5 by written
instrument, in duplicate, one copy of which instrument shall be delivered
to the Receivables Trustee being removed and one copy to the successor
trustee.
(d) Any resignation or removal of the Receivables Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Clause 7.4
shall not become effective until:
(i) acceptance of appointment by the successor trustee as provided in
Clause 7.5 hereof and any liability of the Receivables Trustee
arising hereunder shall survive such appointment of a successor
trustee; and
(ii) confirmation has been received from each Rating Agency that the
appointment of the successor trustee will not result in such Rating
Agency reducing or withdrawing its then current rating on any
outstanding Associated Debt.
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7.5 SUCCESSOR RECEIVABLES TRUSTEE
(a) Any successor trustee appointed as provided in Clause 7.4 hereof shall,
unless each Transferor Beneficiary requires otherwise, be a person
belonging outside the member states of the European Union for VAT
purposes and shall execute, acknowledge and deliver to each Transferor
Beneficiary and to its predecessor Receivables Trustee an instrument
accepting such appointment hereunder and transferring the Trust Property
to such successor trustee, and thereupon the resignation or removal of
the predecessor Receivables Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall
become fully vested with the Trust Property and all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect
as if originally named as Receivables Trustee herein. The predecessor
Receivables Trustee shall deliver to the successor trustee all documents
and statements held by it hereunder, and each Transferor Beneficiary and
the predecessor Receivables Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor trustee all
Trust Property and such rights, powers, duties and obligations.
(b) Upon acceptance of appointment by a successor trustee as provided in this
Clause 7.5, such successor trustee shall mail notice of such succession
hereunder to all Beneficiaries.
7.6 APPOINTMENT OF CO-RECEIVABLES TRUSTEE OR SEPARATE RECEIVABLES TRUSTEE
(a) Notwithstanding any other provisions of this Deed, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Property may at the time be located, the
Receivables Trustee shall have the power and may execute and deliver all
instruments to appoint one or more persons to act as a co-trustee or co-
trustees, or separate trustee or separate trustees, of all or any part of
the Receivables Trust, and to vest in such person or persons, in such
capacity and for the benefit of the Beneficiaries, such title to the
Receivables Trust or any Trust Property or any part thereof, and, subject
to the other provisions of this Clause 7.6, such powers, duties,
obligations, rights and trusts as the Receivables Trustee may consider
necessary or desirable. No notice to Beneficiaries of the appointment of
any co-trustee or separate trustee shall be required under Clause 7.5
hereof. The Receivables Trustee shall be required to obtain the prior
written consent of the Transferor Beneficiaries before making any
appointment pursuant to this Clause 7.6(a) and no such appointment shall
be valid unless such consent has been obtained PROVIDED, HOWEVER that the
Transferor Beneficiaries shall be entitled to withhold their consent only
if it is not established to their reasonable satisfaction that (so far as
is consistent with the legal requirements referred to in this Clause
7.6(a)) the relevant co-trustee or co-trustees or separate trustee or
separate trustees will belong outside the member states of the European
Union for VAT purposes or (if the foregoing is not consistent with the
said legal requirements) within the member states of the European Union
but outside the United Kingdom for the purposes of the Value Added Tax
Xxx 0000.
41
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Receivables Trustee shall be conferred or imposed upon and
exercised or performed by the Receivables Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorised to act separately
without the Receivables Trustee joining in such act), except to the
extent that under any laws of any jurisdiction in which any
particular act or acts are to be performed (whether as Receivables
Trustee hereunder or as successor to the Trust Cash Manager or any
Co-Trust Cash Manager hereunder), the Receivables Trustee shall be
incompetent or unqualified to perform such act or acts, in which
events such rights, powers, duties and obligations (including the
holding of title to the Receivables Trust or any Trust Property or
any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Receivables Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Receivables Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Receivables Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Deed and the conditions of this Clause 7. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested
with the estates or property specified in its instrument of appointment,
either jointly with the Receivables Trustee or separately, as may be
provided therein, subject to all the provisions of this Deed,
specifically including every provision of this Deed relating to the
conduct of, affecting the liability of, or affording protection to, the
Receivables Trustee. Every such instrument shall be filed with the
Receivables Trustee and a copy thereof given to the Trust Cash Manager
and any Co-Trust Cash Manager.
(d) Any separate trustee or co-trustee may at any time constitute the
Receivables Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act
under or in respect to this Deed or any Relevant Document on its behalf
and in its name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by
the Receivables Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
7.7 TAX RETURNS
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In the event that the Receivables Trustee shall be required to file tax
returns in respect of the Receivables Trust, the Receivables Trustee, as
soon as practicable after it is made aware of such requirement, shall
prepare or cause to be prepared any tax returns required to be filed by
the Receivables Trust and, to the extent possible, shall file such
returns at least five days before such returns are due to be filed. The
Receivables Trustee is hereby authorised to sign any such return on
behalf of the Receivables Trust. The Receivables Trustee will instruct
the Trust Cash Manager or, if applicable, any Co-Trust Cash Manager to
prepare or cause to be prepared all tax information required by law to be
delivered to Beneficiaries and to deliver such information to the
Receivables Trustee at least five Business Days prior to the date it is
required by law to be delivered to Beneficiaries. The Receivables Trustee
will instruct the Trust Cash Manager or, if applicable, any Co-Trust Cash
Manager, upon request, to furnish the Receivables Trustee with all such
information known to the Trust Cash Manager or Co-Trust Cash Manager as
may be reasonably required in connection with the preparation of all tax
returns of the Receivables Trust. In no event shall the Receivables
Trustee, the Trust Cash Manager or any Co-Trust Cash Manager be
contractually liable in respect of any liabilities, costs or expenses of
the Receivables Trust, the Investor Beneficiaries or any other person
arising under any tax law (or any interest or penalty with respect
thereto or arising from a failure to comply therewith).
7.8 RECEIVABLES TRUSTEE MAY ENFORCE CLAIMS WITHOUT BENEFICIARIES
To the extent permitted by law, all rights of action and claims under
this Deed or any Relevant Document or with respect to any Beneficiary
(including any Enhancement Provider) and any related Supplement may be
prosecuted and enforced by the Receivables Trustee without the joining of
any Beneficiary (including any Enhancement Provider) in any proceeding
relating thereto, and any such proceeding instituted by the Receivables
Trustee shall be brought in its own name as trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Receivables
Trustee, its agents and legal advisers, constitute Trust Property and be
for the rateable benefit of any Beneficiaries in respect of which such
judgement has been obtained.
7.9 SUITS FOR ENFORCEMENT
If a Trust Cash Manager Default shall occur and be continuing, the
Receivables Trustee shall, if it is so directed by Investor Beneficiaries
representing in aggregate more than 50% of the Combined Aggregate
Investor Interest, subject to the provisions of Clause 7.1, proceed to
protect and enforce its rights and the rights of any Investor
Beneficiaries under this Deed or any Relevant Document by a suit, action
or proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Deed or any
Relevant Document or in aid of the execution of any power granted in this
Deed or for the enforcement of any other legal, equitable or other remedy
as the Receivables Trustee, being advised by counsel, shall deem most
effective to protect and enforce any of the rights of the Receivables
Trustee or any Investor Beneficiary.
43
7.10 CONSIDERATION OF THE INTERESTS OF THE BENEFICIARIES
(a) The Receivables Trustee shall, as regards all the powers, trusts,
authorities, duties and discretions vested in it under this Deed or other
Relevant Documents, except where expressly provided otherwise, have
regard to the interests of the Investor Beneficiaries and the Transferor
Beneficiaries.
(b) Where, in the opinion of the Receivables Trustee, there is a conflict
between the interests of certain Beneficiaries and the interests of any
of the other Beneficiaries, the Receivables Trustee shall,
notwithstanding anything to the contrary contained in this Deed or other
Relevant Documents, have regard first to the interests of the Investor
Beneficiaries (excluding any Enhancement Providers), then to the
Transferor Beneficiaries and then to the interests of the Enhancement
Providers and, subject to any other claims it may otherwise have against
the Receivables Trustee including, without limitation, pursuant to
Clauses 7.12 and 7.13, no Transferor Beneficiary or Enhancement Provider
shall have a claim against the Receivables Trustee for so doing.
(c) Notwithstanding (a) and (b) above, where the Receivables Trustee is
required under this Deed or other Relevant Documents to have regard to
the interests of an Investor Beneficiary in respect of any relevant
Series (whether or not the Series in question relate to a single Investor
Beneficiary or whether two or more of the Series in question relate to
different Investor Beneficiaries) and where, in the opinion of the
Receivables Trustee, there is a conflict between the interests of such
Series, the Receivables Trustee shall be entitled to act in accordance
with directions received from such Investor Beneficiaries pursuant to
Clause 7.11 and no Investor Beneficiaries shall have any claim against
the Receivables Trustee for so doing.
7.11 RIGHTS OF INVESTOR BENEFICIARIES TO DIRECT THE RECEIVABLES TRUSTEE
Investor Beneficiaries representing in aggregate more than 50% of the
Combined Aggregate Investor Interest (or, with respect to any remedy,
trust or power that does not relate to all Investor Beneficiaries, 50% of
the Investor Interest represented by the affected Series (or Classes
comprised therein if applicable) to which such remedy, trust or power
relates) shall have the right to direct the Receivables Trustee in the
exercise of any discretion, conferred on the Receivables Trustee and also
the time, method and place of conducting any proceeding for any remedy
available to the Receivables Trustee, PROVIDED, HOWEVER, that subject to
Clause 7.1, the Receivables Trustee shall have the right to decline to
follow any such direction if the Receivables Trustee being advised by
counsel determines that the action so directed may not lawfully be taken,
or if the Receivables Trustee in good faith shall determine that the
proceedings so directed would be illegal or involve it in personal
liability or be unduly prejudicial to the rights of Investor
Beneficiaries in respect of Series not parties to such direction; and
provided further that nothing in this Deed shall impair the right of the
Receivables Trustee to take any action deemed proper by the Receivables
Trustee and which is not inconsistent with such direction of such Series.
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7.12 REPRESENTATIONS AND WARRANTIES OF THE RECEIVABLES TRUSTEE
The Receivables Trustee represents and warrants on the date hereof and on
each Acquisition Date that:
(i) the Receivables Trustee has full power, authority and right to
execute, deliver and perform this Deed and each Relevant Document
to which it is a party, and has taken all necessary action to
authorise the execution, delivery and performance by it of this
Deed and each such Relevant Document; and
(ii) each of this Deed and each Relevant Document to which it is a party
has been duly executed and delivered by the Receivables Trustee.
7.13 COVENANTS BY THE RECEIVABLES TRUSTEE
(a) Save as provided for or as contemplated in this Deed and the Receivables
Trust constituted hereby, the Receivables Trustee hereby covenants in
favour of the Beneficiaries in its capacity as Receivables Trustee and
also in its capacity as purchaser of the Receivables pursuant to the RSA
that it shall not, without the prior written consent of each of the
Beneficiaries:
(A) carry on any business other than as trustee of the Receivables
Trust and in respect of that business shall not engage in any
activity or do anything whatsoever except:
(i) hold, and exercise its rights in respect of, the Trust Property
and perform its obligations in respect of the Trust Property;
(ii)preserve and/or exercise and/or enforce any of its rights and
perform and observe its obligations under the Relevant
Documents;
(iii)pay dividends or make other distributions to the extent
required by applicable law;
(iv)use, invest or dispose of any of its property or assets in the
manner provided in or contemplated by the Relevant Documents;
and
(v) perform any and all acts incidental to or otherwise necessary
in connection with (i), (ii), (iii) or (iv) above;
(B) incur any indebtedness whatsoever (other than as expressly
contemplated herein or in any Supplement) or give any guarantee or
indemnity in respect of any indebtedness;
(C) create any Encumbrance whatsoever over any of its assets, or use,
invest, sell or otherwise dispose of any part of its assets
(including any uncalled capital) or undertaking, present or future,
other than as expressly contemplated by this Deed and any Relevant
Document;
45
(D) consolidate or merge with any other person or convey or transfer
its properties or assets to any person;
(E) permit the validity or effectiveness of the Receivables Trust to be
supplemented, amended, varied, terminated, postponed or discharged
(other than as expressly contemplated herein or in any Supplement);
(F) have an interest in any bank account in the United Kingdom or have
an interest in any bank account other than a Trust Account and the
bank accounts in Jersey referred to in Clause 7.13(b)(ii);
(G) enter into any contracts in the United Kingdom;
(H) maintain a branch registration in the United Kingdom; or
(I) maintain or carry on any business through any office,
establishment, branch or agency in the United Kingdom for United
Kingdom tax purposes.
(b) The Receivables Trustee hereby covenants in favour of the Beneficiaries
that it shall:
(i) (1) maintain all necessary licences, authorisations and covenants
and do all other such things necessary to ensure its continued
corporate existence and carry out its obligations under the
Relevant Documents to which it is party; and
(2) use all reasonable efforts to maintain its status as an "EXEMPT
COMPANY" within the meaning of the Income Tax (Jersey) Law
1961, as amended from time to time;
(ii) unless agreed otherwise by each Transferor Beneficiary in writing,
open and maintain a bank account in Jersey in its own name for the
purpose of receiving and making payments to be made otherwise than
in its capacity as Receivables Trustee (including making payments
of Cash Management Fee to the Trust Cash Manager or any Co-Trust
Cash Manager);
(iii) ensure that all instructions given by or on behalf of the
Receivables Trustee for:
(1) the transfer of moneys into;
(2) the allocation (for the purposes of making transfers and
distributions referred to in (3) and (4) below) of moneys held
in;
(3) the transfer of moneys between; or (as the case may be)
(4) the distribution of moneys out of,
the Trust Accounts are given in Jersey and that no such
transfers, allocations or distributions are made without such
instructions first having been given in Jersey by
46
the Receivables Trustee with respect to the transfer,
allocation or distribution in question;
(iv) procure that any agent who executes any contract on behalf of the
Receivables Trustee shall be resident outside the United Kingdom
for United Kingdom tax purposes and will not act through a United
Kingdom branch or agency; and
(v) co-operate with the Transferors in facilitating any required sales
of Defaulted Receivables (in accordance with the terms of the
Receivables Securitisation Agreement and the terms of this Deed, as
modified by any Supplement).
(c) Save as otherwise provided or as otherwise contemplated in this Deed
(including the proviso to Clause 7.11) the Receivables Trustee hereby
covenants in favour of the Beneficiaries that it will not exercise any
discretion (whether to consent or request or otherwise) vested in it
pursuant to the terms of this Deed or the RSA unless it is so directed in
accordance with Clause 7.11.
7.14 SUPPLEMENT TO TRUSTEE ACT 1925
The rights, powers, duties and obligations conferred or imposed upon the
Receivables Trustee by this Deed shall, unless otherwise specified herein
or in any Supplement, be supplemental to any rights, powers, duties and
obligations conferred or imposed upon the Receivables Trustee under the
law generally and in particular the Trustee Xxx 0000.
7.15 FEES, COSTS AND EXPENSES OF THE RECEIVABLES TRUSTEE
(a) As full compensation for its duties and activities as Receivables Trustee
(as provided in Clause 2.1) and as reimbursement for any costs and
expenses incurred by it in connection therewith (including, without
limitation, amounts in respect of stamp duty (if applicable) but
excluding amounts in respect of Cash Management Fee and any tax on
profits) the Receivables Trustee shall be entitled to be indemnified by
the Beneficiaries for such costs and expenses with respect to each
Monthly Period, as provided in this Deed and any Supplement, on the
related Transfer Date (each such fee and reimbursement of costs and
expenses, a Trustee Payment Amount and the aggregate of such fees and
reimbursement of such costs and expenses payable on a Transfer Date,
together with the amount of any Trustee Fee payable on such date in
accordance with Clause 7.16, shall be the "AGGREGATE TRUSTEE PAYMENT
AMOUNT").
(b) The share of the Aggregate Trustee Payment Amount allocable to and borne
by an Investor Beneficiary in respect of a particular Series with respect
to any Monthly Period (the "INVESTOR TRUSTEE PAYMENT AMOUNT") will be
determined in accordance with the relevant Supplement and paid to the
Receivables Trustee by way of additional consideration for the grant of
their interest in the Receivables Trust.
7.16 TRUSTEE FEE
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In consideration of the undertaking and performance by the Receivables
Trustee of its fiduciary duties pursuant to Clause 2.1 the Beneficiaries
shall pay to the Receivables Trustee a fee as calculated in accordance
with each Supplement per annum (the "TRUSTEE FEE"). The said fee shall be
payable in 12 equal instalments on each Transfer Date commencing with the
first Transfer Date and, for the purposes of the Relevant Documents, the
amount so payable on any Transfer Date shall be included in the Aggregate
Trustee Payment Amount for the Transfer Date in question.
7.17 LIMITATION
It is acknowledged that:-
(a) the Receivables Trustee shall have no power and no duty to carry
out (or procure the carrying out of) any of the functions which the
Servicer agrees to carry out under the Beneficiaries Servicing
Agreement; and
(b) the Trust Cash Manager and, by its execution of the relevant
Accession Notice, any Co-Trust Cash Manager agrees to perform its
functions hereunder solely in order to enable the Receivables
Trustee to perform its functions pursuant to Clause 2.1 and, for so
long as the Receivables Trust continues, neither the Trust Cash
Manager nor any Co-Trust Cash Manager shall be obliged or entitled
to act on behalf of or on the instructions of the Beneficiaries.
7.18 DISCLOSURE OF INFORMATION
(a) The Receivables Trustee and, by its execution of a Supplement, each
Investor Beneficiary agrees not to disclose to any person any information
which it receives pursuant to or in connection with any Relevant Document
("RELEVANT INFORMATION") except and only to the extent permitted by
applicable law:
(i) if required in connection with the performance of its duties under
such Relevant Document;
(ii) if required in order to enforce the rights of any Beneficiary;
(iii) with the consent of the Transferors and each Additional Transferor,
in connection with any security interest any Investor Beneficiary
has created or is proposing to create over its beneficial interest
in the Receivables Trust in connection with an issue of Associated
Debt; or
(iv) pursuant to any Requirement of Law.
(b) The Receivables Trustee and, by its execution of a Supplement, each
Investor Beneficiary agrees to take such measures as shall be reasonably
requested by the Transferors or any Additional Transferor, to protect and
maintain the security and confidentiality of all Relevant Information
and, in connection therewith, shall allow the Transferors and any
Additional
48
Transferor to inspect its security and confidentiality arrangements from
time to time during normal business hours and upon reasonable notice
being given.
(c) If the Receivables Trustee or any Investor Beneficiary is required by any
Requirement of Law to disclose any Relevant Information, the Receivables
Trustee or such Investor Beneficiary shall provide the Transferors and
each Additional Transferor with prompt written notice, unless such notice
is prohibited by law, of any such request or requirement. The Receivables
Trustee or relevant Investor Beneficiary shall make reasonable efforts to
provide the Transferors and each Additional Transferor with written
notice no later than five days prior to any such disclosure unless
compliance with this requirement would or might breach any law.
8. TERMINATION OF THE RECEIVABLES TRUST AND PERPETUITY
8.1 TERMINATION OF THE RECEIVABLES TRUST
If the Receivables Trust has not otherwise been dissolved pursuant to
Clause 6.3 hereof, and subject to obtaining the written consent of each
existing Beneficiary of the Receivables Trust, on any Business Day on
which (i) the Aggregate Investor Interest in respect of each Investor
Beneficiary is reduced to zero, (ii) there are no Finance Charge
Collections or other Trust Property allocated to any Beneficiaries other
than any Transferor Beneficiary and (iii) there is no commitment on the
part of any Beneficiary to make contributions to meet payments in respect
of the assignment or holding on trust of Receivables to or for the
Receivables Trustee, then the Transferor Beneficiaries may jointly by
written notice to the Receivables Trustee direct that the Receivables
Trust be dissolved.
8.2 TERMINATION RIGHTS OF TRANSFEROR BENEFICIARIES
(a) Following the delivery of a notice of dissolution in the circumstances
contemplated in Clause 8.1 and the surrender of all outstanding Trust
Certificates, the Receivables Trustee shall distribute the Trust Property
to the Beneficiaries according to their beneficial entitlements at that
time.
(b) Following the conveyance of the Trust Property to each Beneficiary or as
such Beneficiary may direct pursuant to this Clause 8.2, the Receivables
Trust shall be dissolved.
8.3 PERPETUITY PERIOD
The perpetuity period for the purposes of this Deed is the period of 80
years from the date hereof.
49
PART 4
APPOINTMENT AND DUTIES OF TRUST CASH MANAGER AND CO-TRUST CASH
MANAGERS
9. CASH MANAGEMENT FUNCTIONS
9.1 Acceptance of Appointment and Other Matters Relating to the Trust Cash
Manager
(a) The Receivables Trustee hereby appoints RBS and RBS agrees to act as the
Trust Cash Manager for the Receivables Trustee under this Deed. By its
execution of a Supplement each Investor Beneficiary consents to RBS
acting as Trust Cash Manager. For the avoidance of doubt, it is
understood and acknowledged that obligations of the Trust Cash Manager
herein described are only obligations undertaken in favour of the
Receivables Trustee.
(b) Any Additional Transferor may, if the relevant Accession Notice so
specifies, be appointed by the Receivables Trustee to carry out Cash
Management under this Deed (a "CO-TRUST CASH MANAGER") (and by its
execution of a Supplement each Investor Beneficiary consents to the
appointments of Co-Trust Cash Managers being made in accordance with this
Clause 9.1(b)). If any Accession Notice in respect of an Additional
Transferor does not specify that such Additional Transferor is to be
appointed a Co-Trust Cash Manager then the Trust Cash Manager shall be
deemed to be appointed by the Receivables Trustee as cash manager in
respect of all cash management functions set out in this Deed as the same
apply to such Additional Transferor.
(c) The Trust Cash Manager shall make the calculations referred to in Clause
2.2 and Clause 5 of this Deed (and any Co-Trust Cash Manager shall make
such calculations and perform such functions which it is authorised to
make and perform pursuant to the terms of its appointment) for the
purpose of enabling the Receivables Trustee to make the calculations
referred to herein and shall give such advice as may be necessary to
enable the Receivables Trustee to effect all transfers which are to be
made, in relation to such calculations and allocations, in accordance
with this Deed. The Trust Cash Manager and any Co-Trust Cash Manager
shall further undertake any other Cash Management or related functions
necessary or desirable to enable the Receivables Trustee to exercise the
rights and perform the duties and obligations of the Receivables Trustee
under this Deed. In carrying out its duties and obligations under this
Deed the Trust Cash Manager and any Co-Trust Cash Manager shall follow
such instructions in regard to the exercise of its power and authority as
the Receivables Trustee may from time to time direct. Provided that
nothing herein shall be taken to constitute the Trust Cash Manager or any
Co-Trust Cash Manager as an agent of the Receivables Trustee
Without limiting the generality of the foregoing, and subject to Clause
11.1, the Trust Cash Manager and (to the extent authorised by the
relevant Accession Notice) any Co-Trust Cash Manager is hereby obliged,
authorised and empowered:
(i) to advise the Receivables Trustee to direct the Transferors to make
transfers from the RBS Securitisation Operating Account, the RBSA
Securitisation Operating
50
Account or any Additional Transferor Operating Account as set forth
in Clause 5.2(a)(i) of this Deed;
(ii) (unless such power and authority is revoked by the Receivables
Trustee on account of the occurrence of a Trust Cash Manager
Default pursuant to Clause 11.1) to advise the Receivables Trustee
to transfer moneys between the Trust Accounts, and make withdrawals
and payments from the Trust Accounts, in accordance with this Deed
and any Supplement;
(iii) (unless such power and authority is revoked by the Receivables
Trustee on account of an occurrence of a Trust Cash Manager Default
pursuant to Clause 11.1) to maintain proper books of account in
respect of the Receivables Trustee's duties as trustee of the
Receivables Trust and to maintain records of all assets held by the
Receivables Trust and all payments made by the Receivables Trust in
such capacity; and
(iv) (unless such power and authority is revoked by the Receivables
Trustee on account of the occurrence of a Trust Cash Manager
Default pursuant to Clause 11.1), to advise the Receivables Trustee
in writing, as set forth in this Deed.
The Receivables Trustee agrees that it shall promptly act in accordance
with advice given by the Trust Cash Manager or any Co-Trust Cash Manager
to transfer moneys between the Trust Accounts and withdraw and pay funds
from any Trust Account and to take any action required under any
Enhancement at such time as required under this Deed and any Supplement.
The Receivables Trustee shall execute at the Trust Cash Manager's or any
Co-Trust Cash Manager's written request such documents prepared by the
Transferors and acceptable to the Receivables Trustee as may be
reasonably necessary or appropriate to enable the Trust Cash Manager or
Co-Trust Cash Manager to carry out its Trust Cash Management duties
hereunder.
(d) Without prejudice to the provisions of Clause 6.1(d), in the event that
any Transferor is unable for any reason duly to assign or hold on trust
Receivables arising on a Designated Account to or for the Receivables
Trustee in accordance with the provisions of the RSA then, in any such
event:
(i) the Trust Cash Manager and/or, if applicable, any Co-Trust Cash
Manager shall advise the Receivables Trustee to apply, after the
date of the purported assignment or holding on trust, all Principal
Collections in respect of Receivables and all amounts which would
have constituted Principal Collections which would have been
assigned to or held on trust for the Receivables Trustee but for
the Transferors' (or as the case may be, any Additional
Transferor's) inability duly to assign or hold on trust such
Receivables, in accordance with the provisions of the Relevant
Documents as though such amounts are Principal Collections;
(ii) the Trust Cash Manager and/or, if applicable, any Co-Trust Cash
Manager shall advise the Receivables Trustee to apply such amounts
as Principal Collections on
51
Receivables assigned to or held on trust for the Receivables
Trustee in accordance with Clause 5; and
(iii) for only so long as all Principal Collections and all amounts which
would have constituted Principal Collections are applied in
accordance with paragraphs (i) and (ii) above, Principal
Collections and all amounts which would have constituted Principal
Collections but for the Transferors' (or as the case may be, any
Additional Transferor's) inability duly to assign or hold on trust
for Receivables to or for the Receivables Trustee that are charged-
off in accordance with this Deed and the Lending Guidelines, shall
continue to be applied in accordance with Clause 5 and all
Principal Receivables which would have been assigned to or held on
trust for the Receivables Trustee but for the Transferors' (or as
the case may be, any Additional Transferor's) inability duly to
assign or hold on trust Receivables to or for the Receivables
Trustee shall be deemed to be Principal Receivables for the purpose
of calculating the applicable Investor Percentage thereunder.
If the Receivables Trustee is unable pursuant to any Requirement of Law
to apply payments on the Designated Accounts as described above in
accordance with the instructions of the Trust Cash Manager or any Co-
Trust Cash Manager, as applicable, the Trust Cash Manager or Co-Trust
Cash Manager shall, if such Requirement of Law thereafter ceases to
prevent such allocation, advise the Receivables Trustee to allocate
payments on each Designated Account with respect to the principal balance
of such Designated Account first to the oldest principal balance of such
Designated Account and to apply such payments as Collections in
accordance with Clause 5.
The parties hereto agree that Finance Charge Receivables (whenever
created) accrued in respect of Principal Receivables which have been
conveyed or, in the case of Scottish Receivables, the beneficial interest
in which has been conveyed to the Receivables Trustee as trustee of the
Receivables Trust, or which would have been conveyed to the Receivables
Trustee as trustee of the Receivables Trust but for the above described
inability duly to assign or hold on trust such Receivables, shall
continue to be a part of the Trust Property notwithstanding any cessation
of the assignment or holding on trust of additional Principal Receivables
to the Receivables Trustee and Collections with respect thereto shall
continue to be allocated and paid in accordance with Clause 5.
9.2 CASH MANAGEMENT FEES
(a) As full compensation for its duties as provided for in Clause 9.1. and as
reimbursement for any expense (but not including any part thereof which
represents VAT in respect of which it is entitled to repayment or credit
from HM Customs & Excise) incurred by it in connection therewith, the
Trust Cash Manager and any Co-Trust Cash Manager shall be entitled to
receive from the Receivables Trustee (solely to the extent of payments
received from the Beneficiaries (utilising Trust Property allocated with
respect thereto) as provided in this Deed and in any Supplement) a cash
management fee (the "CASH MANAGEMENT FEE") with respect to each Monthly
Period, payable monthly on the related Transfer Date, in an amount
52
equal to the aggregate of the Investor Cash Management Fees and the
Transferor Cash Management Fee. The aggregate of the Investor Cash
Management Fees for any Monthly Period shall be an amount equal to one-
twelfth of the product of (i) the weighted average of the Series Cash
Management Fee Percentages with respect to each Applicable Series (based
upon the Series Cash Management Fee Percentage for each Series and the
Investor Interests (or such other amount as specified in the related
Supplement) of such Series, in each case as of the last day of such
Monthly Period (or as otherwise provided in the related Supplement) and
(ii) the average daily aggregate Outstanding Face Amount of Principal
Receivables during such Monthly Period. Any amount payable under this
Clause 9.2(a) shall be inclusive of VAT thereon, if applicable, and the
application of section 89 of the Value Added Tax Act 1994 shall be
excluded in relation thereto. Any Co-Trust Cash Manager shall be entitled
to such portion of the Cash Management Fee as shall be specified in the
relevant Accession Notice pursuant to which such Co-Trust Cash Manager is
appointed.
(b) The share of the Cash Management Fee payable by the Receivables Trustee
to the Trust Cash Manager and any Co-Trust Cash Manager in respect of
which the Receivables Trustee is to be reimbursed from payments made by
any Investor Beneficiary in respect of a particular Series with respect
to each Monthly Period (the "INVESTOR CASH MANAGEMENT FEE" with respect
to such Series) will each be determined in accordance with the relevant
Supplement. The Investor Beneficiary will pay it to the Receivables
Trustee, in respect of such Series, by way of additional consideration
for the grant of the relevant Series Investor Interest.
(c) The portion of the Cash Management Fee (the "TRANSFEROR CASH MANAGEMENT
FEE") with respect to any Monthly Period in respect of which the
Receivables Trustee is not to be reimbursed from payments made by the
Investor Beneficiaries of a particular Series pursuant to any related
Supplement shall be paid to the Receivables Trustee by each Transferor
Beneficiary to the extent of its pro rata share from the Transferor
Finance Charge Amount and Transferor Acquired Interchange Amount or other
Trust Property allocable to such Transferor Beneficiary on the related
Transfer Date. In no event shall the Investor Beneficiaries of any Series
be liable to the Trust Cash Manager or any Co-Trust Cash Manager for the
share of the Cash Management Fee with respect to any Monthly Period in
respect of which the Receivables Trustee is to be reimbursed from
payments to be made by any Transferor Beneficiary from Trust Property
allocated to such Transferor Beneficiary PROVIDED, HOWEVER, that the
amount of Transferor Cash Management Fee to be reimbursed to the
Receivables Trustee by the Transferor Beneficiaries in any Monthly Period
shall not exceed the aggregate amount of the Transferor Finance Charge
Amount and Transferor Acquired Interchange Amount for such Monthly
Period.
(d) It is a condition of the Receivables Trust (to which by the execution of
a Supplement by a Beneficiary, such Beneficiary consents and confirms)
that each Beneficiary of the Receivables Trust undertakes to the
Receivables Trustee for the benefit of itself and as trustee for each
other Beneficiary that it will reimburse to the Receivables Trustee for
the share of the Cash Management Fee payable by the Receivables Trustee
to the Trust Cash
53
Manager and any Co-Trust Cash Manager pursuant to Clause 9.2(a) which is
to be met by the Receivables Trustee from payments to be made by such
Beneficiary to the Receivables Trustee as distributed and specified in
such Supplement.
9.3 REPRESENTATIONS AND WARRANTIES OF THE TRUST CASH MANAGER AND CO-TRUST
CASH MANAGERS
(a) (i) RBS as initial Trust Cash Manager hereby makes, (ii) any Co-Trust
Cash Manager, by its appointment pursuant to the relevant Accession
Notice, shall be deemed to make, and (iii) any Successor Cash Manager by
its appointment hereunder shall make, (in the case of (ii) and (iii) with
appropriate modifications to Clause 9.3(a) to reflect the Co-Trust Cash
Manager's or Successor Cash Manager's organisation), the following
representations and warranties on which the Receivables Trustee has
relied in appointing RBS as the initial Trust Cash Manager and, whenever
appropriate, any Co-Trust Cash Manager or Successor Cash Manager.
(b) ORGANISATION It is either (A) an institution authorised under the Banking
Xxx 0000; or (B) a corporation duly incorporated under the laws of
England with full corporate power, authority and legal right to own its
assets and conduct its business as such assets are presently owned and
its business as presently conducted and with power to enter into the
Relevant Documents and to exercise its rights and perform its obligations
thereunder and all corporate and other action required to authorise its
execution of each Relevant Document and its performance of its
obligations thereunder has been duly taken or will be taken prior to the
execution of such Relevant Document.
(c) DUE AUTHORISATION All acts, conditions and things required to be done,
fulfilled and performed in order (i) to enable it lawfully to enter into,
exercise its rights under and perform and comply with the obligations
expressed to be assumed by it in each Relevant Document, (ii) to ensure
that the obligations expressed to be assumed by it in each Relevant
Document are legal, valid and binding on it and (iii) to make each
Relevant Document admissible in evidence in England have been done,
fulfilled and performed prior to the execution of such Relevant Document
other than, where applicable, the payment of any stamp duty.
(d) NO VIOLATION The execution and delivery of each Relevant Document by the
Trust Cash Manager or Co-Trust Cash Manager, as the case may be, and the
exercise of its rights and the performance of its obligations thereunder
will not conflict with or violate any Requirement of Law.
(e) BINDING OBLIGATION The obligations expressly to be assumed by it in each
Relevant Document are legal and valid obligations binding on it and
enforceable against it in accordance with its terms (or will be so upon
execution of each such Relevant Document), subject to applicable
bankruptcy laws, other similar laws affecting creditors' rights, general
equitable principles and other limitations on enforcement in the
jurisdiction of the Obligor.
(f) NO PROCEEDINGS There are no proceedings or investigations pending or, to
the best of its knowledge threatened against it before any court,
regulatory body, arbitral tribunal or public or administrative body or
agency (i) asserting the invalidity of any Relevant Document; (ii)
54
seeking to prevent the entering into of any of the transactions
contemplated by any Relevant Document; (iii) seeking any determination or
ruling that, in the reasonable opinion of the Trust Cash Manager or Co-
Trust Cash Manager, as the case may be, would materially and adversely
affect the performance by it of its obligations under any Relevant
Document; or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of any
Relevant Document.
(g) NO CONFLICT The execution and delivery of each Relevant Document and the
exercise by the Trust Cash Manager or Co-Trust Cash Manager, as the case
may be, of its rights and the performance of its obligations thereunder
will not conflict with, result in any breach of the material terms and
provisions of, or constitute (with or without notice or lapse of time or
both) a default under, any agreement, indenture, contract, mortgage,
trust deed or other instrument to which it is a party or by which it or
any of its assets is otherwise bound.
9.4 COMPLIANCE WITH REQUIREMENTS OF LAW
The Trust Cash Manager and any Co-Trust Cash Manager shall maintain any
qualifications or consents required under Requirements of Law for it to
carry out its duties as Trust Cash Manager or Co-Trust Cash Manager under
this Deed, the failure to comply with which would have a Material Adverse
Effect on the interests of the Receivables Trustee, any Investor
Beneficiary or any Enhancement Provider.
9.5 REPORTS AND RECORDS FOR THE RECEIVABLES TRUSTEE
(a) DAILY REPORTS:
On each Business Day, the Trust Cash Manager or, if applicable, any Co-
Trust Cash Manager, shall prepare and make available, with reasonable
prior notice, at the office of the Trust Cash Manager or, if applicable,
the Co-Trust Cash Manager for inspection by the Receivables Trustee or
its agents and the Jersey Bank Account Operator during normal business
hours, a record (a "DAILY REPORT") with respect to the preceding Date of
Processing setting out:
(i) the aggregate amount of Collections representing Trust Property
processed by the Trust Cash Manager or, if applicable, Co-Trust
Cash Manager, on such Date of Processing;
(ii) the aggregate amount of Collections representing Trust Property to
be transferred (or to be distributed pursuant to Clause 5.2(a)(ii))
with respect to such Date of Processing on a Relevant Date pursuant
to Clause 5.2(a)(i) from the RBS Securitisation Operating Account,
the RBSA Securitisation Operating Account and any Additional
Transferor Operating Account to the Trustee Collection Account;
(iii) the aggregate amount of such Collections referred to in paragraph
(ii) which will be distributed pursuant to Clause 5.2(b), (A) to
the Trustee Collection Account (to be recorded in the Principal
Collections Ledger), (B) to repay Incorrect Payments in
55
respect of Finance Charge Receivables, (C) to the Trustee
Collection Account (to be recorded in the Finance Charge
Collections Ledger) and (D) as Ineligible Collections (E) to the
RBS Proceeds Account or the RBSA Proceeds Account as Transferor
Finance Charge Amount and (F) to the RBS Proceeds Account or the
RBSA Proceeds Account as Transferor Acquired Interchange Amount;
(iv) the aggregate amount to be transferred from the Trustee Collection
Account to the Trustee Acquisition Account with respect to such
Date of Processing on a Relevant Date pursuant to Clause
5.2(b)(iii) (and the corresponding adjustment made to the Principal
Collections Ledger);
(v) the aggregate amount to be transferred from the Trustee Acquisition
Account to the RBS Proceeds Account, the RBSA Proceeds Account and
any Additional Transferor Proceeds Account with respect to such
Date of Processing on a Relevant Date by way of consideration for
Receivables pursuant to Clause 5.2(c)(i) and 5.2(c)(ii);
(vi) the aggregate amount to be transferred from the Trustee Acquisition
Account to the RBS Proceeds Account, the RBSA Proceeds Account and
any Additional Transferor Proceeds Account with respect to such
Date of Processing on a Relevant Date in respect of Investor Cash
Available for Acquisition required to be applied to the Transferor
Interest in the Eligible Receivables Pool pursuant to Clause
5.2(c)(i); and
(vii) after taking into account (i) to (vi) above, (aa) the aggregate
amount of the Eligible Receivables Pool; (bb) the Aggregate
Investor Interest; (cc) the Transferor Interest and (dd) the
aggregate amount of the Ineligible Receivables Pool, in each case
at the close of business on such Date of Processing.
(b) MONTHLY TRUST CASH MANAGER'S REPORT
Unless otherwise stated in the related Supplement with respect to any
Series, on or before each Transfer Date the Trust Cash Manager or, if
applicable, any Co-Trust Cash Manager, shall forward to the Receivables
Trustee, any Enhancement Provider, each Rating Agency and the Jersey Bank
Account Operator, a report of an Authorised Officer setting out with
respect to the preceding Monthly Period:
(i) the aggregate amount of Collections representing Trust Property
processed;
(ii) the aggregate amount of the applicable Investor Percentage of
Collections of Principal Receivables processed by the Trust Cash
Manager or, if applicable, any Co-Trust Cash Manager, pursuant to
Clause 5 with respect to each Applicable Series;
(iii) the aggregate amount of the applicable Investor Percentage of
Collections of Finance Charge Receivables processed by the Trust
Cash Manager or, if applicable,
56
any Co-Trust Cash Manager, pursuant to Clause 5 with respect to
each Applicable Series;
(iv) the aggregate amount of Principal Receivables which are Eligible
Receivables and Finance Charge Receivables processed as of the end
of the last day of the preceding Monthly Period;
(v) the balance on deposit in each of the Trust Accounts with respect
to Collections representing Trust Property processed by the Trust
Cash Manager or, if applicable, any Co-Trust Cash Manager;
(vi) the aggregate amount, if any, of withdrawals, drawings or payments
under any Enhancement, if any, for each Series required to be made
in the manner provided in the related Supplement;
(vii) the sum of all amounts allocated to the Investor Beneficiaries of
each Series (or for a Series with more than one Class of Investor
Beneficiaries, each such Class) on such Transfer Date to be
utilised to meet their obligations to pay principal and interest
with regard to Related Debt on the immediately succeeding
Distribution Date or on a later Distribution Date (as specified in
a related Supplement);
(viii)the sum of all amounts paid and payable to each Transferor
Beneficiary;
(ix) the sum of all amounts payable to the Trust Cash Manager or any Co-
Trust Cash Manager by way of Investor Cash Management Fee;
(x) the sum of all amounts paid or payable in respect of Deferred
Consideration; and
(xi) such other matters are set out in Exhibit D.
The Monthly Trust Cash Manager's Report shall be substantially in the
form of Exhibit D to this Deed, with such changes as the Trust Cash
Manager or, if applicable, Co-Trust Cash Manager, may reasonably
determine to be necessary or desirable or as it may agree from time to
time with the Rating Agencies; PROVIDED, HOWEVER, that no such changes
shall serve to exclude information required by this Deed or any
Supplement.
9.6 ANNUAL TRUST CASH MANAGER'S REPORT
On or before 30 March (or such other date as agreed from time to time) of
each calendar year following the execution of this Deed, the Trust Cash
Manager, or if applicable any Co-Trust Cash Manager, will deliver to the
Receivables Trustee, any Enhancement Provider and each Rating Agency, an
Annual Trust Cash Manager's Report substantially in the form of Exhibit E
stating that (a) a review of the activities of the Trust Cash Manager
and, if applicable, any Co-Trust Cash Manager during the twelve-month
period ending 31 December of such year, or for the initial period, from
the Initial Closing Date until 31 December 2000 and of its performance
under the Deed was made under the supervision of the officer signing such
report and (b) to the best of such officer's knowledge, based on such
review, the Trust Cash
57
Manager and any Co-Trust Cash Manager has fully performed all its
obligations under this Deed throughout such period, or, if there has been
a default in the performance of any such obligation, specifying each such
default known to such officer and the nature and status thereof. A copy
of such report may be obtained by any Investor Beneficiary by request in
writing to the Receivables Trustee pursuant to Clause 12.5(b)(ii).
9.7 NOTICES TO RBS
In the event that RBS and, if applicable, any Additional Transferor
appointed as a Co-Trust Cash Manager are no longer respectively acting as
Trust Cash Manager and Co-Trust Cash Manager, any Successor Cash Manager
appointed pursuant to Clause 11.3 shall deliver or make available to the
Transferors each certificate and report required to be prepared,
forwarded or delivered thereafter pursuant to Clauses 9.5 and 9.6.
10. OTHER MATTERS RELATING TO THE TRUST CASH MANAGER AND ANY CO-TRUST CASH
MANAGER
10.1 LIABILITY OF THE TRUST CASH MANAGER AND ANY CO-TRUST CASH MANAGER
The Trust Cash Manager and any Co-Trust Cash Manager shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Trust Cash Manager or Co-Trust Cash Manager in such
capacity herein.
10.2 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF, THE
TRUST CASH MANAGER OR ANY CO-TRUST CASH MANAGER
Neither the Trust Cash Manager nor any Co-Trust Cash Manager shall
consolidate with or merge into any other corporation or convey or
transfer its properties and assets substantially as an entirety to any
person, unless:
(a) the corporation formed by such consolidation or into which the Trust Cash
Manager or Co-Trust Cash Manager is merged or the person which acquires
by conveyance or transfer the properties and assets of the Trust Cash
Manager or Co-Trust Cash Manager substantially as an entirety, shall
expressly assume, by an agreement supplemental hereto, executed and
delivered to the Receivables Trustee in a form reasonably satisfactory to
the Receivables Trustee, the performance of the obligations of the Trust
Cash Manager or Co-Trust Cash Manager hereunder (to the extent that any
right, covenant or obligation of the Trust Cash Manager or Co-Trust Cash
Manager, as applicable hereunder, is inapplicable to the successor
entity, such successor entity shall be subject to such covenant or
obligation, or benefit from such right, as would apply, to the extent
practicable, to such successor entity);
(b) the Trust Cash Manager or Co-Trust Cash Manager shall have delivered to
the Receivables Trustee:
(i) an Officer's Certificate that such consolidation, merger,
conveyance or transfer and such supplemental agreement comply with
this Clause 10.2 and that all
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documentation referred to in (a) above and any conditions precedent
specified in such documentation relating to such transaction have
been complied with; and
(ii) an Opinion of Counsel that such supplemental agreement is legal,
valid, binding and enforceable with respect to the Trust Cash
Manager or Co-Trust Cash Manager;
(c) the Trust Cash Manager or Co-Trust Cash Manager shall have delivered
notice to each Rating Agency of such consolidation, merger, conveyance or
transfer.
10.3 LIMITATION ON LIABILITY OF THE TRUST CASH MANAGER, ANY CO-TRUST CASH
MANAGER AND OTHERS
(a) The directors, officers, employees or agents of the Trust Cash Manager or
any Co-Trust Cash Manager shall not be under any liability to the
Receivables Trust, the Receivables Trustee, the Investor Beneficiaries,
any Enhancement Provider or any other person hereunder or pursuant to any
document delivered hereunder, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Deed and any Supplement
PROVIDED, HOWEVER, that this provision shall not protect the directors,
officers, employees and agents of the Trust Cash Manager or Co-Trust Cash
Manager against any liability which would otherwise be imposed by reason
of wilful default, bad faith or gross negligence in the performance of
duties hereunder.
(b) Except as provided in Clause 10.4 with respect to the Receivables Trust
and the Receivables Trustee and its agents, neither the Trust Cash
Manager nor any Co-Trust Cash Manager shall be under any liability to the
Receivables Trust, the Receivables Trustee and its agents, the Investor
Beneficiaries, or any other person for any action in its capacity as
Trust Cash Manager or Co-Trust Cash Manager pursuant to this Deed or any
Supplement, PROVIDED, HOWEVER, that this provision shall not protect the
Trust Cash Manager or Co-Trust Cash Manager against any liability which
would otherwise be imposed by reason of wilful default, bad faith or
gross negligence in the performance of duties or by reason of its
reckless disregard of its obligations and duties hereunder or under any
Supplement.
(c) The Trust Cash Manager and any Co-Trust Cash Manager may rely in good
faith on any document of any kind prima facie properly executed and
submitted by any person respecting any matters arising hereunder.
10.4 TRUST CASH MANAGER AND CO-TRUST CASH MANAGER INDEMNIFICATION OF THE
RECEIVABLES TRUST AND THE RECEIVABLES TRUSTEE
The Trust Cash Manager and any Co-Trust Cash Manager shall indemnify and
hold harmless the Receivables Trustee and its agents, for and against any
reasonable loss, liability, expense, damage or injury suffered or
sustained by reason of any fraud, wilful misconduct or grossly negligent
acts or omissions of the Trust Cash Manager or Co-Trust Cash Manager, in
its capacity as Trust Cash Manager or Co-Trust Cash Manager, as the case
may be, with respect to activities of the Receivables Trustee pursuant to
this Deed or any Supplement, including, but not limited to any judgement,
award, settlement, reasonable legal fees and other costs or expenses
properly incurred in connection with the defence of any actual or
threatened action,
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proceeding or claim PROVIDED, HOWEVER, that the Trust Cash Manager or Co-
Trust Cash Manager shall not:
(i) indemnify the Receivables Trustee if such acts, omissions or
alleged acts or omissions constitute or are caused by fraud,
negligence, or wilful misconduct by the Receivables Trustee or its
agents;
(ii) indemnify the Receivables Trust or any Investor Beneficiary for any
liabilities, costs or expenses of the Receivables Trust with
respect to any action taken by the Receivables Trustee at the
request of any Investor Beneficiary in respect of any Series;
(iii) indemnify the Receivables Trust, the Receivables Trustee or, any
Investor Beneficiary for any losses, claims or damages incurred by
any of them in their capacity as Beneficiaries of the Receivables
Trust; and
(iv) indemnify the Receivables Trust, the Receivables Trustee or any
Investor Beneficiary for any liabilities, costs or expenses of the
Receivables Trust, the Receivables Trustee or the Investor
Beneficiaries arising under any tax law (or any interest or
penalties with respect thereto or arising from a failure to comply
therewith) required to be paid by the Receivables Trust, the
Receivables Trustee or the Investor Beneficiaries in connection
herewith to any taxing authority.
Any such indemnification shall be payable by the Trust Cash Manager or
Co-Trust Cash Manager itself and not be payable from the Trust Property
of the Receivables Trust. The provision of this indemnity shall run
directly to and be enforceable by an injured party subject to the
limitations hereof.
10.5 THE TRUST CASH MANAGER AND ANY CO-TRUST CASH MANAGER NOT TO RESIGN
The Trust Cash Manager shall not resign from the obligations and duties
hereby imposed on it except upon determination that (i) the performance
of its duties hereunder is no longer permissible under any Requirement of
Law and (ii) there is no reasonable action which the Trust Cash Manager
could take to make the performance of its duties hereunder permissible
under any Requirement of Law. Any such determination permitting the
resignation of the Trust Cash Manager shall be evidenced as to sub-
paragraph (i) above by an Opinion of Counsel and as to sub-paragraph (ii)
by an Officer's Certificate, each to such effect delivered to the
Investor Beneficiaries (by delivery to the Receivables Trustee). No such
resignation shall become effective until a Successor Cash Manager shall
have assumed the responsibilities and obligations of the Trust Cash
Manager in accordance with Clause 11.3 hereof. Any Co-Trust Cash Manager
shall not resign except either (i) in the circumstances and subject to
the requirements set out above with respect to the Trust Cash Manager or
(ii) where the obligations of such Co-Trust Cash Manager are wholly
assumed from the time of such resignation by the Trust Cash Manager.
10.6 DELEGATION OF DUTIES
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In the ordinary course of business, the Trust Cash Manager and any Co-
Trust Cash Manager may at any time delegate any duties hereunder to any
person who agrees to conduct such duties, if applicable in accordance
with the Card Guidelines. Any such delegations shall not relieve the
Trust Cash Manager or such Co-Trust Cash Manager of its liabilities and
responsibility with respect to such duties, and shall not constitute a
resignation within the meaning of Clause 10.5 hereof. If any such
delegation is to a party other than RBS or any Affiliate thereof
notification thereof shall be given to each Rating Agency.
11. TRUST CASH MANAGER DEFAULTS
11.1 TRUST CASH MANAGER DEFAULTS
If any one of the following events (a "TRUST CASH MANAGER DEFAULT") shall
occur and be continuing:
(a) any failure by the Trust Cash Manager or any Co-Trust Cash Manager to
give advice or notice to the Receivables Trustee pursuant to an agreed
schedule of collections and allocations or to advise the Receivables
Trustee to make any required drawing, withdrawal, or payment pursuant to
the Relevant Documents on or before the date occurring five Business Days
after the date such payment, transfer, deposit, withdrawal or drawing or
such advice or notice is required to be made or given, as the case may
be, under the terms of this Deed or any Relevant Document;
(b) failure on the part of the Trust Cash Manager or any Co-Trust Cash
Manager duly to observe or perform in any respect any other covenants or
agreements of the Trust Cash Manager or Co-Trust Cash Manager set forth
in this Deed or any Relevant Document which has a Material Adverse Effect
on the interests of the Investor Beneficiaries of any Applicable Series
and which continues unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Trust Cash Manager or relevant Co-Trust Cash
Manager by the Receivables Trustee, or to the Trust Cash Manager or
relevant Co-Trust Cash Manager and the Receivables Trustee by an Investor
Beneficiary in respect of more than one-half of the Series Investor
Interests of any Applicable Series adversely affected thereby and
continues to have a Material Adverse Effect on the interests of such
Investor Beneficiary in respect of such Applicable Series for such
period;
(c) delegation by the Trust Cash Manager or any Co-Trust Cash Manager of its
duties under this Deed to any other entity, except as permitted by Clause
10.6;
(d) any relevant representation, warranty or certification made by the Trust
Cash Manager or Co-Trust Cash Manager in this Deed or in any certificate
delivered pursuant hereto proves to have been incorrect when made, which
has a Material Adverse Effect on the interests of the Investor
Beneficiaries in respect of any Applicable Series and continues to be
incorrect in any material respect for a period of 60 days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Trust Cash Manager or relevant Co-
Trust Cash Manager by the Receivables Trustee or to the Trust Cash
Manager
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or relevant Co-Trust Cash Manager and the Receivables Trustee by an
Investor Beneficiary or Investor Beneficiaries in respect of in aggregate
more than one-half of the Aggregate Investor Interests of any Applicable
Series adversely affected thereby and continues to have a Material
Adverse Effect on the interests of an Investor Beneficiary in respect of
any Applicable Series affected for such period;
(e) the Trust Cash Manager or any Co-Trust Cash Manager shall consent to or
take any corporate action relating to the appointment of a receiver,
administrator, administrative receiver, liquidator, trustee or similar
officer of it or relating to all or substantially all of its revenues and
assets or an order of the court is made for its winding-up, dissolution,
administration or re-organisation (except for a solvent re-organisation)
and such order shall have remained in force undischarged or unstayed for
a period of 60 days or a receiver, administrator, administrative
receiver, liquidator, trustee or similar officer of it or relating to all
of its revenues and assets is legally and validly appointed; or
(f) a duly authorised officer of the Trust Cash Manager or any Co-Trust Cash
Manager shall admit in writing that the Trust Cash Manager or relevant
Co-Trust Cash Manager is unable to pay its debts as they fall due within
the meaning of Section 123(1) of the Insolvency Xxx 0000 or the Trust
Cash Manager or relevant Co-Trust Cash Manager makes a general assignment
for the benefit of or a composition with its creditors or voluntarily
suspends payment of its obligations with a view to the general
readjustment or rescheduling of its indebtedness,
then so long as such Trust Cash Manager Default shall not have been
remedied, either the Receivables Trustee at the direction of the Investor
Beneficiaries or Investor Beneficiaries representing in aggregate more
than 662/3% of the Investor Interest, by notice then given in writing to
the Trust Cash Manager and any Co-Trust Cash Managers (and to the
Receivables Trustee if given by the Investor Beneficiaries) (a
"TERMINATION NOTICE"), may terminate all of the rights and obligations of
the Trust Cash Manager and any Co-Trust Cash Managers as Trust Cash
Manager and Co-Trust Cash Managers respectively under this Deed. For the
avoidance of doubt, any Termination Notice given in accordance with this
Clause 11.1 shall terminate the appointment of both the Trust Cash
Manager and any Co-Trust Cash Manager regardless of which entity was the
subject of the Trust Cash Manager Default.
Notwithstanding the foregoing, a delay in or failure of performance
referred to in paragraph (a) above for a period of 10 Business Days or
under paragraph (b), (c) or (d) for a period of 60 Business Days, shall
not constitute a Trust Cash Manager Default if such delay or failure
could not have been prevented by the exercise of reasonable diligence by
the Trust Cash Manager or relevant Co-Trust Cash Manager and such delay
or failure was caused by an act of God, acts of declared or undeclared
war, public disorder, rebellion, riot or sabotage, epidemics, landslides,
lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or
meltdowns, floods, power cuts or similar causes. The preceding sentence
shall not relieve the Trust Cash Manager or any Co-Trust Cash Manager
from using reasonable efforts to perform its obligations in a timely
manner in accordance with the terms of this Deed and any relevant
agreement and the Trust Cash Manager or relevant Co-Trust Cash Manager
shall
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provide the Receivables Trustee, any Enhancement Provider, the
Transferors and each Investor Beneficiary with an Officer's Certificate
giving prompt notice of such failure or delay by it, together with a
description of the cause of such failure or delay and its efforts so to
perform its obligations.
11.2 EFFECT OF TERMINATION NOTICE
(a) After receipt by the Trust Cash Manager or relevant Co-Trust Cash Manager
of a Termination Notice pursuant to Clause 11.1, and on the date that a
Successor Cash Manager shall have been appointed by the Receivables
Trustee pursuant to Clause 11.3, all authority and power of the Trust
Cash Manager and any Co-Trust Cash Managers under this Deed shall pass to
and be vested in a Successor Cash Manager and, without limitation, the
Receivables Trustee is hereby appointed, authorised and empowered (upon
the failure of the Trust Cash Manager or any Co-Trust Cash Manager to co-
operate in a timely manner) in order to secure the performance of the
Trust Cash Manager or relevant Co-Trust Cash Manager in so doing to
execute and deliver, on behalf of the Trust Cash Manager or relevant Co-
Trust Cash Manager, as its attorney, all documents, records and other
instruments upon the failure of the Trust Cash Manager or relevant Co-
Trust Cash Manager to execute or deliver such documents, records or
instruments, and to do and accomplish all other acts or things necessary
or appropriate to effect the purposes of such transfer of such Trust Cash
Manager or Co-Trust Cash Manager's rights and obligations.
(b) The Trust Cash Manager and any Co-Trust Cash Manager agrees to use all
reasonable efforts and co-operate with the Receivables Trustee and such
Successor Cash Manager in effecting the termination of the
responsibilities and rights of the Trust Cash Manager and any Co-Trust
Cash Manager to conduct Cash Management hereunder including, without
limitation, the transfer to such Successor Cash Manager of all authority
of the Trust Cash Manager or Co-Trust Cash Manager to carry out Cash
Management functions in relation to the Receivables as provided for under
this Deed.
(c) The Trust Cash Manager and any Co-Trust Cash Manager shall promptly
transfer its electronic records or electronic copies thereof relating to
the Receivables to the Successor Cash Manager in such electronic form as
the Successor Cash Manager may reasonably request and shall promptly
transfer to the Successor Cash Manager all other records, correspondence
and documents necessary for the Successor Cash Manager to carry out Cash
Management in relation to the Receivables in the manner and at such times
as the Successor Cash Manager shall reasonably request.
(d) To the extent that compliance with this Clause 11.2 shall require the
Trust Cash Manager or any Co-Trust Cash Manager to disclose to the
Successor Cash Manager information of any kind which the Trust Cash
Manager or Co-Trust Cash Manager reasonably deems to be confidential, the
Successor Cash Manager shall be required to enter into such customary
licensing and confidentiality agreements as the Trust Cash Manager or Co-
Trust Cash Manager shall reasonably deem necessary to protect its
interests.
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(e) The Trust Cash Manager and any Co-Trust Cash Manager shall, on the date
of any transfer of its Cash Management functions under this Deed,
transfer all of its rights and obligations under any Enhancement with
respect to any Beneficiaries to the Successor Cash Manager.
(f) Upon the termination of the appointment of the Trust Cash Manager and any
Co-Trust Cash Manager pursuant to this Clause 11.2, any amounts in
respect of Collections of Receivables constituting Trust Property and any
other Trust Property in the possession of the Trust Cash Manager or Co-
Trust Cash Manager (or coming into the possession of the Trust Cash
Manager or Co-Trust Cash Manager at any time thereafter) shall be held on
trust by the Trust Cash Manager or Co-Trust Cash Manager, as applicable,
for and to the order of the Receivables Trustee.
11.3 RECEIVABLES TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR
(a) On and after the receipt by the Trust Cash Manager and any Co-Trust Cash
Manager of a Termination Notice pursuant to Clause 11.1, the Trust Cash
Manager and any Co-Trust Cash Manager shall continue to perform their
respective Cash Management functions under this Deed until the date
specified in the Termination Notice or otherwise specified by the
Receivables Trustee in writing or, if no such date is specified in such
Termination Notice, or otherwise specified by the Receivables Trustee,
until a date mutually agreed upon by the Trust Cash Manager, any Co-Trust
Cash Manager and Receivables Trustee. The Receivables Trustee shall
notify each Rating Agency of such removal of the Trust Cash Manager and
any Co-Trust Cash Managers. The Receivables Trustee shall, as promptly as
possible after the giving of a Termination Notice, appoint a successor
Cash Manager (the "SUCCESSOR CASH MANAGER") which shall at the time of
its appointment as Successor Cash Manager be an Eligible Cash Manager,
and such Successor Cash Manager shall accept its appointment by a written
assumption in a form acceptable to the Receivables Trustee.
(b) Upon its appointment, the Successor Cash Manager shall be the successor
in all respects to the Trust Cash Manager and any Co-Trust Cash Managers
with respect to Cash Management functions under this Deed and shall be
subject to all the responsibilities, duties and liabilities relating
thereto placed on the Trust Cash Manager or any Co-Trust Cash Manager by
the terms and provisions hereof or any relevant Accession Notice, and all
references in this Deed to the Trust Cash Manager and any Co-Trust Cash
Manager shall be deemed to refer to the Successor Cash Manager. Any
Successor Cash Manager, by its acceptance of its appointment, will
automatically agree to be bound by the terms and provisions of each
agreement relating to Enhancement.
(c) In connection with such appointment and assumption, the Receivables
Trustee shall be entitled to such compensation, or may make such
arrangements for the compensation of the Successor Cash Manager out of
Collections, as it and such Successor Cash Manager shall agree PROVIDED,
HOWEVER, that no such compensation shall be in excess of the Cash
Management Fee permitted to the Trust Cash Manager and any Co-Trust Cash
Managers pursuant to Clause 9.2.
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(d) All authority and power granted to the Successor Cash Manager under this
Deed shall automatically cease and terminate upon dissolution of the
Receivables Trust pursuant to Clause 6.3 or Clause 8.1 and shall pass to
and be vested in RBS and RBS is hereby appointed, authorised and
empowered to execute and deliver, on behalf of the Successor Cash
Manager, as its attorney, in order to secure the performance of the
Successor Cash Manager of the matters, referred to in the next paragraph,
all documents and other instruments, and to do and accomplish all other
acts or things necessary or appropriate to effect the purposes of such
transfer of rights in relation to the Trust Cash Manager and any Co-Trust
Cash Managers.
The Successor Cash Manager agrees to co-operate with RBS in effecting the
termination of the responsibilities and rights of the Successor Cash
Manager to carry out Cash Management functions in relation to the
Receivables constituting Trust Property. The Successor Cash Manager shall
transfer its electronic records relating to the Receivables constituting
Trust Property to RBS in such electronic form as RBS may reasonably
request and shall transfer all other records, correspondence and
documents to RBS in the manner and at such times as RBS shall reasonably
request. To the extent that compliance with this Clause 11.3 shall
require the Successor Cash Manager to disclose to RBS information of any
kind which the Successor Cash Manager deems to be confidential, RBS shall
be required to enter into such customary licensing and confidentiality
agreements as the Successor Cash Manager shall reasonably deem necessary
to protect its interest.
11.4 NOTIFICATION OF TRUST CASH MANAGER DEFAULT
Within two Business Days after the Trust Cash Manager or any Co-Trust
Cash Manager becomes aware of any Trust Cash Manager Default, the Trust
Cash Manager or relevant Co-Trust Cash Manager, as the case may be, shall
give prompt written notice thereof to the Receivables Trustee, each
Investor Beneficiary, each Rating Agency and any Enhancement Provider.
Upon any termination or appointment of a Successor Cash Manager pursuant
to this Clause 11 the Receivables Trustee shall give prompt written
notice thereof to each Investor Beneficiary at their respective addresses
appearing in the Trust Certificate Register.
11.5 WAIVER OF PAST DEFAULTS
Any Beneficiary which is adversely affected by any default by the Trust
Cash Manager or any Co-Trust Cash Manager or the Transferors or any
Additional Transferor may, with the prior written consent of all the
other Beneficiaries, instruct the Receivables Trustee to waive in writing
any default by the Trust Cash Manager, any Co-Trust Cash Manager, the
Transferors or any Additional Transferor in the performance of its
obligations hereunder or in any Relevant Document and its consequences,
except a default which results directly in a failure by the Receivables
Trustee to make any required deposits or distributions of Finance Charge
Collections or Principal Collections relating to such Series pursuant to
Clause 5. Upon any such waiver of a past default, such default shall be
deemed not to have occurred. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereon except
to the extent expressly so waived.
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PART 5
MISCELLANEOUS
12. MISCELLANEOUS PROVISIONS
12.1 ACKNOWLEDGEMENT REGARDING PAYMENTS
Each of the Receivables Trustee and the Transferor Beneficiaries
acknowledge and confirm that each of RBS and RBS Advanta shall apply any
amounts due from the Receivables Trustee to them in their capacity (i) as
Transferors of the Receivables; and (ii) as Transferor Beneficiaries of
the Receivables Trust, other than any amounts due in respect of any
Acceptance Price payable to accept an Offer, in or towards satisfaction
of any amounts then due to the Receivables Trustee from it in its
capacity (i) as Transferor of the Receivables; and (ii) as Transferor
Beneficiary of the Receivables Trust, respectively. As a consequence of
the foregoing it is acknowledged and confirmed that, except in relation
to payments of Acceptance Price, as between RBS as a Transferor
Beneficiary, RBS Advanta as a Transferor Beneficiary and the Receivables
Trustee only net payments will be made to the relevant parties. For the
avoidance of doubt, the obligation of the Receivables Trustee to pay any
amount by way of Acceptance Price shall not be the subject of any set-
off, netting or similar arrangement.
12.2 ADDITIONAL TRANSFEROR PAYMENTS
The provisions of Clause 12.1 shall apply mutatis mutandis as between the
Receivables Trustee and each Additional Transferor in its capacity as
Additional Transferor of the Receivables and as a Transferor Beneficiary.
12.3 AMENDMENT
(a) This Deed may (i) be amended in writing from time to time by (insofar as
it relates to any of the provisions of this Deed) the Trust Cash Manager,
any Co-Trust Cash Manager each Transferor Beneficiary and the Receivables
Trustee, only with the prior written consent of each person who is a
Beneficiary at the time of such amendment and (ii) be amended in writing
from time to time by (insofar as it relates to the provisions of the
Receivables Trust) the Receivables Trustee at the direction jointly of
each Transferor Beneficiary and with the prior written consent of each
person who is a Beneficiary at the time of such amendment:
(A) at any time, PROVIDED, HOWEVER, that each Rating Agency shall have
notified each Transferor Beneficiary, the Trust Cash Manager, any
Co-Trust Cash Manager and the Receivables Trustee in writing that
such action will not result in a reduction or withdrawal of the
rating of any outstanding Associated Debt (and in relation to which
it is a Rating Agency);
(2) to provide for additional Enhancement or substitute Enhancement
with respect to a Series (so long as the amount of such substitute
Enhancement, unless otherwise provided in any related Supplement,
is equal to the original Enhancement for such Series); and
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(3) to change the definition of Eligible Account or Eligible
Receivable, PROVIDED, HOWEVER that any such change shall have no
effect in relation to any Receivables which shall have been
acquired by or held on trust for the Receivables Trustee before
such change takes effect and Provided, that such action shall not,
in the reasonable belief of each Transferor Beneficiary, as
evidenced by an Officer's Certificate, have a Material Adverse
Effect on the interests of any Investor Beneficiary, Provided,
further, however that each Rating Agency shall have notified each
Transferor Beneficiary, the Trust Cash Manager, any Co-Trust Cash
Manager and the Receivables Trustee in writing that such action
will not result in a reduction or withdrawal of the rating of any
outstanding Associated Debt (and in relation to which it is a
Rating Agency).
(b) This Deed or any Supplement may also be amended in writing from time to
time by the Trust Cash Manager, any Co-Trust Cash Manager, each
Transferor Beneficiary and the Receivables Trustee, in each case with the
prior written consent of all of the Beneficiaries, for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Deed or any Supplement or modifying in any manner
the rights of any Investor Beneficiary in any Applicable Series. The
Receivables Trustee may, but shall not be obliged to, enter into any such
amendment which affects the Receivables Trustee's rights, duties or
immunities under this Deed or otherwise.
(c) Promptly after the execution of any such amendment (other than an
amendment pursuant to paragraph (a)), the Receivables Trustee shall
furnish notification of the substance of such amendment to each
Applicable Series adversely affected and to each Rating Agency providing
a rating for any Associated Debt outstanding in respect of such
Applicable Series.
(d) Without prejudice to any of the foregoing requirements for consent the
manner of obtaining such consents and of evidencing the authorisation of
the execution thereof by any Investor Beneficiaries shall be as
prescribed from time to time by the Receivables Trustee.
(e) Any Supplement executed and delivered pursuant to Clause 4.3, shall not
be considered an amendment to this Deed for the purpose of Clause 12.3(a)
and (b).
12.4 GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW
This Deed (and the Receivables Trust constituted hereby) shall be
governed by, and construed in accordance with the laws of England without
reference to its conflict of law provisions, and the obligations, rights
and remedies of the parties hereunder (including the immunities and
standard of care of the Receivables Trustee in the administration of the
Receivables Trust hereunder) shall be determined in accordance with such
laws.
(b) JURISDICTION
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(i) Each of the parties hereto irrevocably agrees for the benefit of
each other party that the courts of England shall have exclusive
jurisdiction to hear and determine any suit, action or proceeding,
and to settle any disputes, which may arise out of or in connection
with this Deed, and for such purposes, irrevocably submit to the
exclusive jurisdiction of such courts.
(ii) Each of the parties hereto irrevocably waives any objection which
it might now or hereafter have to the courts of England referred to
in Clause 12.4(b)(i) being nominated as the forum to hear and
determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this Deed
and agrees not to claim that any such court is not a convenient or
appropriate forum.
(iii) Each party (excluding the Receivables Trustee) hereto (if it is not
incorporated in England) irrevocably appoints the person specified
against its name on the execution pages hereof (or, in the case of
a Successor Cash Manager the document appointing such successor
Cash Manager, as the case may be) to accept service of any process
on its behalf and further undertakes to the other parties hereto
that it will at all times during the continuance of this Deed
maintain the appointment of some person in England as its agent for
the service of process and irrevocably agrees that service of any
writ, notice or other document for the purposes of any suit, action
or proceeding in the courts of England shall be duly served upon it
if delivered or sent by registered post to the address of such
appointee (or to such other address in England as that party may
notify to the other parties hereto).
12.5 NOTICES
(a) Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in accordance with the Master Framework
Agreement.
(b) Any communication, notice or document to be made or delivered by any one
person to another pursuant to this Deed shall (unless that other person
has by fifteen days' written notice to the other parties hereto specified
another address) be made or delivered to that other person at the address
identified below and shall be deemed to have been made or delivered when
despatched and confirmation of transmission received by the sending
machine (in the case of any communication made by facsimile) or (in the
case of any communication made by telex) when dispatched and the
appropriate answerback or identification symbol has been received by the
sender or (in the case of any communications made by letter) when left at
that address or (as the case may be) ten days after being deposited in
the post, postage prepaid, in an envelope addressed to it at that address
PROVIDED, HOWEVER, that each facsimile or telex communication made by one
party to another shall be made to that other person at the facsimile or
telex number notified to such party by that other person from time to
time;
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(i) in the case of any additional Transferor Beneficiary and Co-Trust
Cash Manager to the address specified in the Accession Notice for
such additional Transferor Beneficiary and Co-Trust Cash Manager;
(ii) in the case of an Investor Beneficiary in respect of any Series,
the address specified in the Supplement relating to such Series;
(iii) in the case of the Enhancement Provider for a Series, the address,
if any, specified in the Supplement relating to such Series; and
(iv) in the case of the Rating Agency for Associated Debt in respect of
a particular Investor Beneficiary, the address, if any, specified
in the Supplement relating to such Investor Beneficiary.
12.6 SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of
this Deed shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Deed and
shall in no way affect the validity or enforceability of the other
provisions of this Deed or of the rights of the Beneficiaries of the
Receivables Trust.
12.7 ASSIGNMENT
Notwithstanding anything to the contrary contained herein, except as
provided in Clause 10.2, the rights and benefits of the Trust Cash
Manager or any Co-Trust Cash Manager under this Deed may not be assigned
by the Trust Cash Manager or relevant Co-Trust Cash Manager without the
prior consent of Investor Beneficiaries representing in aggregate 662/3%
of the Series Investor Interests of each Applicable Series.
12.8 FURTHER ASSURANCES
RBS, RBS Advanta, any other Transferor Beneficiary, the Trust Cash
Manager and any Co-Trust Cash Manager agree to do and perform, from time
to time, any and all acts and to execute any and all further instruments
required or reasonably requested by the Receivables Trustee more fully to
effect the purposes of this Deed.
12.9 NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of the
Receivables Trustee, any Enhancement Provider or the Investor
Beneficiaries, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
69
12.10 COUNTERPARTS
This Deed may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same instrument.
12.11 THIRD PARTY BENEFICIARIES
(a) This Deed will inure to the benefit of and be binding upon the parties
hereto, each additional Transferor Beneficiary, each additional Co-Trust
Cash Manager, the Investor Beneficiaries and, to the extent provided in
the related Supplement, to the Enhancement Provider named therein and
their respective successors and permitted assigns as Beneficiaries of the
Receivables Trust; and
(b) Except as otherwise provided in this Clause 12 and Clause 9.1 hereof, no
other person will have any right or obligation hereunder.
12.12 ACTIONS BY BENEFICIARIES
Any request, demand, authorisation, direction, notice, consent, waiver or
other act by a Beneficiary shall bind each and every successor of such
Beneficiary.
12.13 VOTING BY INVESTOR BENEFICIARIES
Wherever provision is made in this Deed for voting by Investor
Beneficiaries, each Investor Beneficiary (including any Investor
Beneficiary who acts in such capacity in respect of more than one Series)
shall be entitled to one vote in respect of each [GBP]1 of that Investor
Beneficiary's Aggregate Investor Interest but shall not be obliged to
exercise such votes (or any of them) or to cast all of the votes
exercised the same way.
12.14 MERGER AND INTEGRATION
Except as specifically stated otherwise herein, this Deed sets forth the
entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by
this Deed. This Deed may not be modified, amended, waived or supplemented
except as provided herein.
12.15 HEADINGS
The headings are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
IN WITNESS WHEREOF, the Receivables Trustee, RBS (in its capacities as Trust
Cash Manager, Transferor and Transferor Beneficiary) and the Loan Note Issuer
have caused this agreement to be amended and restated and duly executed and
delivered by their duly authorised representatives as a deed on the day and
year first above written.
70
SCHEDULE 1
FORM OF DEFAULTED ACCOUNTS INSTRUCTION NOTICE
To: Receivables Trustee
From:
Date:
DEFAULTED ACCOUNTS INSTRUCTION NOTICE
Capitalised terms used in this Notice are defined in the Master Framework
Agreement dated 27 March 2000 as amended and restated on 28 September 2000 and
27 October 2005 between, inter alios, the Transferors, the Receivables Trustee
and the Investor Beneficiary unless otherwise specified.
You will be notified by the Servicer from time to time that certain Designated
Accounts have become Defaulted Accounts during the Monthly Period prior to such
notice and the Transferors are willing to purchase these Defaulted Receivables.
We hereby instruct you to enter into agreements to assign or release from trust
the Defaulted Receivables for such consideration as may be agreed with the
Transferors, Provided that the consideration shall be payable in respect of
Monthly Periods and shall be paid into the Trustee Collection Account on the
Transfer Date relating to each relevant Monthly Period.
If it is not possible to enter into an agreement to assign or release from
trust the Defaulted Receivables as specified above you shall notify us
accordingly and request further instructions.
----------------
71
SCHEDULE 2
TRUST CERTIFICATE REGISTER
SERIES DESIGNATION:
DESCRIPTION OF INITIAL
NAME, ADDRESS AND DESCRIPTION OF ANY SECURITY AMOUNT OF
DATE OF DATE OF BENEFICIARY (ALSO STATE BENEFICIAL HOLDER OVER TRUST TRUST FURTHER AMOUNT
NO. ANNOTATION ACQUISITION IF REGISTERED IN NAME OF NOMINEE) CERTIFICATE CERTIFICATE PAYABLE
--------- ---------- ----------- ----------------------------------------- -------------- ----------- --------------
AMOUNT DATE OF
NO. RETURNABLE CANCELLATION NOTES
--------- ---------- ------------ -----
72
EXHIBIT A
FORM OF RBS TRANSFEROR CERTIFICATE
TRANSFEROR CERTIFICATE
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
Incorporated in Jersey having its registered office at 00 Xxxxxxxxx Xxxxxx, Xx.
Xxxxxx, Xxxxxx XX0 0XX
THIS CERTIFICATE SHALL BE AUTHENTICATED AND RETAINED
OUTSIDE THE UNITED KINGDOM
RECEIVABLES TRUST
TRANSFEROR CERTIFICATE
Certificate of Title evidencing an undivided interest and other interests in
the trust constituted by the Receivables Trust Deed and Trust Cash Management
Agreement dated 27 March 2000 amended and restated on 28 September 2000 and 27
October 2005, between South Gyle Receivables Trustee Limited, RBS Cards
Securitisation Funding Limited, The Royal Bank of Scotland plc ("RBS") and RBS
Advanta (the "RECEIVABLES TRUST DEED")
NOT AN INTEREST IN OR OBLIGATION OF RBS, RBS ADVANTA OR ANY AFFILIATE THEREOF
This Certificate certifies that RBS is a Beneficiary of the Receivables Trust
and as such is beneficially entitled to Trust Property in the amount and in the
manner set out in the Receivables Trust Deed and Trust Cash Management
Agreement as supplemented by any Accession Notice and any Supplement to the
Receivables Trust Deed and Trust Cash Management Agreement executed from time
to time in respect of any additional Series.
Terms defined in the Master Framework Agreement dated 27 March 2000 amended and
restated on 28 September 2000 and 27 October 2005 shall have the same meaning
in this Transferor Certificate.
PLEASE NOTE THE FOLLOWING:
This Transferor Certificate is in registered form and evidences the beneficial
entitlement of RBS in the Receivables Trust.
No transfer of this Transferor Certificate or Disposal of the aggregate
beneficial entitlement of RBS in the Receivables Trust shall be permitted
except in accordance with the Receivables Trust Deed and Trust Cash Management
Agreement.
The entries in the Trust Certificate Register shall be conclusive in the
absence of manifest error and the Trust Cash Manager and the Receivables
Trustee shall be entitled to treat RBS (as the person in whose name this
Transferor Certificate is registered) as the owner hereof and the person
beneficially entitled to Trust Property as a consequence thereof to the extent
of its share specified in the attached schedule:
73
Unless the Certificate of Authentication hereon has been executed by or on
behalf of the Receivables Trustee by manual signature RBS shall not be
registered in the Trust Certificate Register as holder of this Transferor
Certificate.
IN WITNESS WHEREOF, RBS has executed this Transferor Certificate in Jersey as a
deed.
Signed for and on behalf of )
THE ROYAL BANK OF )
SCOTLAND PLC )
by its duly authorised attorney )
... ... ... ... ... ... ... ... ...
in the presence of: )
Name: ... ... ... ... ... ... ... ... ...
Occupation: ... ... ... ... ... ... ... ... ...
Address: ... ... ... ... ... ... ... ... ...
CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate referred to in the above mentioned
Receivables Trust Deed and Trust Cash Management Agreement.
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
By:
Name:
Title:
Date:
74
SCHEDULE TO TRANSFEROR CERTIFICATE
INITIAL
AMOUNT OF
DATE OF TRUST FURTHER AMOUNT DATE OF
NO. ACQUISITION CERTIFICATE PAYABLE AMOUNT RETURNABLE CANCELLATION
--------- ----------- ----------- -------------- ----------------- ------------
75
EXHIBIT B
FORM OF ADDITIONAL TRANSFEROR CERTIFICATE
TRANSFEROR CERTIFICATE
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
Incorporated in Jersey having its registered office at 00 Xxxxxxxxx Xxxxxx, Xx.
Xxxxxx, Xxxxxx XX0 0XX
THIS CERTIFICATE SHALL BE AUTHENTICATED AND RETAINED
OUTSIDE THE UNITED KINGDOM
RECEIVABLES TRUST
TRANSFEROR CERTIFICATE
Certificate of Title evidencing an undivided interest and other interests in
the trust constituted by the Receivables Trust Deed and Trust Cash Management
Agreement dated 27 March 2000 amended and restated on 28 September 2000 and 27
October 2005 between, inter alios, South Gyle Receivables Trustee Limited, RBS
Cards Securitisation Funding Limited and The Royal Bank of Scotland plc ("RBS")
(the "RECEIVABLES TRUST DEED")
NOT AN INTEREST IN OR OBLIGATION OF RBS OR ANY AFFILIATE THEREOF
This Certificate certifies that [Additional Transferor] is a Beneficiary of the
Receivables Trust and as such is beneficially entitled to Trust Property in the
amount and in the manner set out in the Receivables Trust Deed and Trust Cash
Management Agreement as supplemented by any Accession Notice and any Supplement
to the Receivables Trust Deed and Trust Cash Management Agreement executed from
time to time in respect of any additional Series.
Terms defined in the Master Framework Agreement dated 27 March 2000 amended and
restated on 28 September 2000 and 27 October 2005 shall have the same meaning
in this Transferor Certificate.
PLEASE NOTE THE FOLLOWING:
This Transferor Certificate is in registered form and evidences the beneficial
entitlement of [Additional Transferor] in the Receivables Trust.
No transfer of this Transferor Certificate or Disposal of the aggregate
beneficial entitlement of [Additional Transferor] in the Receivables Trust
shall be permitted except in accordance with the Receivables Trust Deed and
Trust Cash Management Agreement.
The entries in the Trust Certificate Register shall be conclusive in the
absence of manifest error and the Trust Cash Manager and the Receivables
Trustee shall be entitled to treat RBS (as the person in whose name this
Transferor Certificate is registered) as the owner hereof and the person
beneficially entitled to Trust Property as a consequence thereof to the extent
of its share specified in the attached schedule:
76
Unless the Certificate of Authentication hereon has been executed by or on
behalf of the Receivables Trustee by manual signature [Additional Transferor]
shall not be registered in the Trust Certificate Register as holder of this
Transferor Certificate.
IN WITNESS WHEREOF, [Additional Transferor] has executed this Transferor
Certificate in Jersey as a deed.
Signed for and on behalf of )
[Additional Transferor] )
by its duly authorised attorney )
... ... ... ... ... ... ... ... ...
in the presence of: )
Name: ... ... ... ... ... ... ... ... ...
Occupation: ... ... ... ... ... ... ... ... ...
Address: ... ... ... ... ... ... ... ... ...
CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate referred to in the above mentioned
Receivables Trust Deed and Trust Cash Management Agreement.
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
By:
Name:
Title:
Date:
77
SCHEDULE TO TRANSFEROR CERTIFICATE
INITIAL
AMOUNT OF
DATE OF TRUST FURTHER AMOUNT DATE OF
NO. ACQUISITION CERTIFICATE PAYABLE AMOUNT RETURNABLE CANCELLATION
--------- ----------- ----------- -------------- ----------------- ------------
78
EXHIBIT C
FORM OF INVESTOR CERTIFICATE
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
Incorporated in Jersey having its registered office at 00 Xxxxxxxxx Xxxxxx,
Xx. Xxxxxx, Xxxxxx XX0 0XX
THIS CERTIFICATE SHALL BE AUTHENTICATED AND RETAINED
OUTSIDE THE UNITED KINGDOM
RECEIVABLES TRUST
INVESTOR CERTIFICATE
Certificate of Title evidencing an undivided interest and other interests in
the trust constituted by the Receivables Trust Deed and Trust Cash Management
Agreement dated 27 March 2000 amended and restated on 28 September 2000 and 27
October 2005, between, inter alios, South Gyle Receivables Trustee Limited, RBS
Cards Securitisation Funding Limited and The Royal Bank of Scotland plc ("RBS")
(the "RECEIVABLES TRUST DEED")
NOT AN INTEREST IN OR OBLIGATION OF RBS OR ANY AFFILIATE THEREOF
This Certificate certifies that RBS Cards Securitisation Funding Limited (the
"LOAN NOTE ISSUER") is a Beneficiary of the Receivables Trust and as such is
beneficially entitled to Trust Property in the amount and in the manner set out
in the Receivables Trust Deed and Trust Cash Management Agreement as
supplemented by any Accession Notice and any Supplement to the Receivables
Trust Deed and Trust Cash Management Agreement executed from time to time in
respect of any additional Series.
Terms defined in the Master Framework Agreement dated 27 March 2000 amended and
restated on 28 September 2000 and 27 October 2005 shall have the same meaning
in this Transferor Certificate.
PLEASE NOTE THE FOLLOWING:
This Investor Certificate is in registered form and evidences the beneficial
entitlement of the Loan Note Issuer in the Receivables Trust.
No transfer of this Investor Certificate or Disposal of the aggregate
beneficial entitlement of the Loan Note Issuer in the Receivables Trust shall
be permitted except in accordance with the Receivables Trust Deed and Trust
Cash Management Agreement.
The entries in the Trust Certificate Register shall be conclusive in the
absence of manifest error and the Trust Cash Manager and the Receivables
Trustee shall be entitled to treat the Loan Note Issuer (as the person in whose
name this Investor Certificate is registered) as the owner hereof and the
person beneficially entitled to Trust Property as a consequence thereof to the
extent of its share specified below provided that should this certificate be
assigned for security purposes the Loan Note Issuer shall continue, prior to an
event of default under the Security Trust Deed and the relevant supplements
thereto, to be considered the person beneficially entitled to Trust Property as
a consequence thereof regardless of the person registered as registered holder:
79
The pro rata share of the Loan Note Issuer is as noted on the attached
schedule.
Unless the Certificate of Authentication hereon has been executed by or on
behalf of the Receivables Trustee by manual signature, the Loan Note Issuer
shall not be registered in the Trust Certificate Register as holder of this
Investor Certificate.
IN WITNESS WHEREOF, the Loan Note Issuer has executed this Investor Certificate
in Jersey as a deed.
Signed for and on behalf of )
RBS CARDS SECURITISATION )
FUNDING LIMITED )
by its duly authorised attorney )
......................
in the presence of: )
Name:.......................
Occupation:.................
Address:....................
CERTIFICATE OF AUTHENTICATION
This is the Investor Certificate referred to in the above mentioned Receivables
Trust Deed and Trust Cash Management Agreement.
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
By:
Name:
Title:
Date:
80
SCHEDULE TO INVESTOR CERTIFICATE
--------------------------------------------------------------------------------
NO. DATE OF INITIAL AMOUNT FURTHER AMOUNT AMOUNT DATE OF
ACQUISITION OF TRUST PAYABLE RETURNABLE CANCELLATION
CERTIFICATE
--------- ----------- -------------- -------------- ---------- ------------
81
EXHIBIT D
FORM OF MONTHLY TRUST CASH MANAGER'S REPORT
----------------------------------------
RECEIVABLES TRUST
----------------------------------------
1. Capitalised terms used in this Report have their respective meanings set
forth in the Master Definitions Schedule PROVIDED, HOWEVER, that the
"PRECEDING MONTHLY PERIOD" shall mean the Monthly Period immediately
preceding the calendar month in which this Certificate is delivered. This
Report is delivered pursuant to Clause 9.5(b) of the Receivables Trust Deed
and Trust Cash Management Agreement. References herein to certain Clauses
are references to the respective Clauses of the Receivables Trust Deed and
Trust Cash Management Agreement.
2. The Royal Bank of Scotland plc is Trust Cash Manager under the Receivables
Trust Deed and Trust Cash Management Agreement.
3. The undersigned is an Authorised Officer.
4. The date of this Report is a date on or before a Transfer Date
under the Receivables Trust Deed and
Trust Cash Management Agreement.
5. The aggregate amount of Collections [GBP]_________________
processed during the preceding Monthly
Period in respect of Designated Accounts
was equal to (excluding Acquired
Interchange)
6. The Aggregate Investor Percentage of [GBP]_________________
Receivables processed during the
preceding Monthly Period in respect of
Designated Accounts was equal to
7. The amount in paragraph 6 above in [GBP]_________________
respect of Principal Receivables which
are Eligible Receivables
8. The amount in paragraph 6 above in [GBP]_________________
respect of Finance Charge Receivables
9. The Aggregate Investor Percentage of [GBP]_________________
Principal Collections processed by the
82
Trust Cash Manager/Co-Trust Cash
Manager during the preceding Monthly
Period was equal to
10. The Aggregate Investor Percentage of [GBP]_________________
Finance Charge Collections processed by
the Trust Cash Manager/Co-Trust Cash
Manager during the preceding Monthly
Period was equal to (excluding Annual
Fees and Acquired Interchange)
11. The aggregate amount of Receivables [GBP]_________________
processed by the Trust Cash
Manager/Co-Trust Cash Manager as of
the end of the last day of the preceding
Monthly Period was equal to
12. Of the balance recorded in the Finance [GBP]_________________
Charge Collections Ledger, the amount
attributable to the Aggregate Investor
Percentage of Finance Charge
Collections processed by the Trust Cash
Manager/Co-Trust Cash Manager during
the preceding Monthly Period was equal
to
13. Of the balance recorded in the Principal [GBP]_________________
Collections Ledger, the amount
attributable to the Aggregate Investor
Percentage of Principal Collections
processed by the Trust Cash
Manager/Co-Trust Cash Manager during
the preceding Monthly Period was equal
to
14. Of the balance recorded in the Principal [GBP]_________________
Collections Ledger the aggregate
amount distributed as Investor Cash
Available for Acquisition for each
Applicable Series during the preceding
Monthly Period was equal to
15. The aggregate amount, if any, of [GBP]_________________
withdrawals, drawings or payments
under any Enhancement, if any, required
to be made with respect to any
Applicable Series for the preceding
Monthly Period
83
16. The aggregate amount of the Acquired [GBP]_________________
Interchange to be recorded in the Finance
Charge Collections Ledger on the
Transfer Date of the current month was
equal to
17. The aggregate amount of all sums to be [GBP]_________________
distributed to the Investor Beneficiaries
of each Applicable Series on the
succeeding Distribution Date to be
utilised to meet their obligations to pay
principal with regard to Related Debt
was equal to
18. The aggregate amount of all sums to be [GBP]_________________
distributed to the Investor Beneficiaries
of each Applicable Series on the
succeeding Distribution Date to be
utilised to meet their obligations to pay
interest with regard to Related Debt was
equal to
19. To the knowledge of the undersigned, there are no Encumbrances on any
Receivables in the Receivables Trust except as described below:
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
_____ day of ______________________, _________.
THE ROYAL BANK OF SCOTLAND PLC
Trust Cash Manager
By: ..............................
Name:
Title:
84
EXHIBIT E
FORM OF ANNUAL TRUST CASH MANAGER'S CERTIFICATE
THE ROYAL BANK OF SCOTLAND PLC
----------------------------------------
RECEIVABLES TRUST
----------------------------------------
The undersigned, a duly authorised representative of The Royal Bank of Scotland
plc, ("RBS"), as Trust Cash Manager pursuant to the Receivables Trust Deed and
Trust Cash Management Agreement (dated 27 March 2000 and amended and restated
on 28 September 2000 and 27 October 2005) (the "RECEIVABLES TRUST DEED AND
TRUST CASH MANAGEMENT AGREEMENT") by and between South Gyle Receivables Trustee
Limited as trustee (the "RECEIVABLES TRUSTEE"), RBS and RBS Advanta, does
hereby certify that:
RBS is Trust Cash Manager under the Receivables Trust Deed and Trust Cash
Management Agreement.
The undersigned is duly authorised to execute and deliver this Certificate to
the Receivables Trustee. This Certificate is delivered pursuant to Clause 9.6
of the Receivables Trust Deed and Trust Cash Management Agreement.
A review of the activities of the Trust Cash Manager during the period from the
Initial Closing Date until the twelve-month period ended _____ was conducted
under the supervision of the undersigned.
Based on such review, the Trust Cash Manager has, to the best of the knowledge
of the undersigned, fully performed all its obligations under the Receivables
Trust Deed and Trust Cash Management Agreement throughout such period and no
default in the performance of such obligations has occurred or is continuing
except as set out in [paragraph 6] below.
The following is a description of each default in the performance of the Trust
Cash Manager's obligations under the provisions of the Receivables Trust Deed
and Trust Cash Management Agreement, including any Supplement, known to the
undersigned to have been made during such period which sets out in detail (i)
the nature of each such default, (ii) the action taken by the Trust Cash
Manager, if any, to remedy each such default and (iii) the current status of
each such default:
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
_____ day of ______________________, _________.
.....................
Name:
Title:
85
Schedule to Annual
Trust Cash Manager's Certificate1
THE ROYAL BANK OF SCOTLAND PLC
AS TRUST CASH MANAGER
--------------------------------
RECEIVABLES TRUST
--------------------------------
1A separate schedule is to be attached for each Series, with appropriate
changes and additions to reflect the specifics of the relates Series
Supplement.
86
EXECUTION PAGE
RECEIVABLES TRUSTEE
Executed as a deed by )
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED ) /s/ Xxxxxx Kerhoat
by one of its directors in the presence of )
PROCESS AGENT
Xxxxxxxx Chance Secretaries Limited
00 Xxxxx Xxxx Xxxxxx
Xxxxxx X00 0XX
Transferor Beneficiary, Transferor
and Trust Cash Manager
Signed for and on behalf of )
THE ROYAL BANK OF SCOTLAND PLC ) /s/ Xxxxx Xxxxxxxx
by its duly authorised attorney )
in the presence of: )
LOAN NOTE ISSUER AND INVESTOR BENEFICIARY
Executed as a deed by )
RBS CARDS SECURITISATION FUNDING LIMITED ) /s/ Xxxxx Xxxxx
by one of its directors )
in the presence of: )
PROCESS AGENT
Xxxxxxxx Chance Secretaries Limited
00 Xxxxx Xxxx Xxxxxx
Xxxxxx X00 0XX
87
