EXHIBIT 10.1
[GRAPHIC OMITTED] LIMITED LIABILITY PARTNERSHIP
EXECUTION VERSION
THE ROYAL BANK OF SCOTLAND PLC
as Transferor
and
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
---------------------------------------------------------------------------
RECEIVABLES SECURITISATION DEED
DATED 27 MARCH 2000
AS AMENDED AND RESTATED
ON 28 SEPTEMBER 2000 AND 27 OCTOBER 2005
---------------------------------------------------------------------------
CONTENTS
Clause Page
1. Interpretation and Construction.................................................................1
2. Offer of Receivables............................................................................2
3. Acceptance of Offer and Payment for Existing Receivables........................................5
4. Assignment of Receivables and Scottish Declaration of Trust.....................................7
5. Payment of Cash Price, Payment for Future Receivables and Deferred Consideration................8
6. Perfection and Directions as to Payment.........................................................9
7. Redesignation and Removal of Accounts..........................................................12
8. Discount Percentage, Special Fees, Annual Fees and Acquired Interchange........................15
9. Trust..........................................................................................17
10. Reductions in Receivables, Early Collections, Credit Adjustments and Reassignment or
Release of Defaulted Receivables...............................................................17
11. Breach of Warranty.............................................................................19
12. Currency of Account and Payment................................................................20
13. Payments by the Transferors, Additional Transferors and The Receivables Trustee................21
14. Card Operating Accounts and Proceeds Accounts..................................................22
15. The Trustee Collection Account.................................................................23
16. Representations................................................................................24
17. Covenants......................................................................................24
18. Stamp Duty.....................................................................................25
19. Non-Petition...................................................................................26
20. Benefit of Deed................................................................................26
21. Disclosure of Information......................................................................27
22. Remedies and Waivers...........................................................................27
23. Partial Invalidity.............................................................................28
24. Notices........................................................................................28
25. Termination of Receivables Trust Deed and Trust Cash Management Agreement......................28
26. Law............................................................................................29
27. Jurisdiction...................................................................................29
SCHEDULE 1A FORM OF OFFER (EXISTING ACCOUNTS).........................................................30
SCHEDULE 1B FORM OF OFFER (FUTURE ACCOUNTS)...........................................................33
SCHEDULE 2 CONDITIONS PRECEDENT TO SUBSEQUENT OFFERS.................................................37
SCHEDULE 3 FORM OF SCOTTISH DECLARATION OF TRUST.....................................................38
SCHEDULE 4 FORM OF SCOTTISH ADDITIONAL ACCOUNT NOTICE................................................48
SCHEDULE 5 NOTIFICATION EVENTS.......................................................................50
SCHEDULE 6 FORM OF SCOTTISH ASSIGNATION..............................................................51
SCHEDULE 7 FORM OF NOTICE OF ASSIGNMENT..............................................................54
SCHEDULE 8 FORM OF SOLVENCY CERTIFICATE..............................................................55
SCHEDULE 9 FORM OF OFFER - SALE OF RECEIVABLES IN DEFAULTED ACCOUNTS.................................57
SCHEDULE 10 FORM OF SCOTTISH TRUST NOTICE.............................................................58
THIS DEED is made on 27 March 2000 and amended and restated on 28 September 2000
and 27 October 2005.
BETWEEN
(1) THE ROYAL BANK OF SCOTLAND PLC, an institution authorised under the
Banking ▇▇▇ ▇▇▇▇, having its registered office at ▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (an "OFFEROR", "TRANSFEROR" or "RBS"); and
(2) SOUTH GYLE RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey
having its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, Channel Islands in its capacity as Receivables Trustee (the
"RECEIVABLES TRUSTEE").
WHEREAS
(A) Each Offeror has owed to it at present and expects to have owed to it in
the future Receivables arising in the course of its business.
(B) The Offerors and the Receivables Trustee have agreed, upon the terms and
subject to the conditions of this Deed, that each Offeror may from time
to time offer to assign and/or hold on trust all Receivables arising on
Designated Accounts (both Existing Receivables and Future Receivables)
to and/or for the Receivables Trustee and the Receivables Trustee may,
if it so determines, from time to time accept any such offer in the
manner provided for in Clause 3.4.
(C) The Offerors and the Receivables Trustee have agreed, that subject to
the delivery of an Accession Notice, any member of the RBS group of
companies which from time to time originates Accounts or to whom legal
and beneficial title to all or any Accounts is transferred (an
"Additional Offeror") may from time to time offer to assign and/or hold
on trust all Existing Receivables and Future Receivables arising on such
transferred Accounts subject to and in accordance with the conditions
hereof.
(D) It is acknowledged by all the parties hereto that any assignment made or
to be made in consequence of any acceptance of any Offer made pursuant
to this Deed will take effect at all times as an equitable assignment
unless and until a Notice of Assignment is given in respect of it in
accordance with Clause 6.8 and any other actions necessary to perfect
the assignment have been taken.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION AND CONSTRUCTION
1.1 Whenever used in this Deed, the words and phrases defined in the Amended
and Restated Master Framework Agreement of 27 March 2000, as amended and
restated on 28 September 2000 and 27 October 2005 and signed by, inter
alios, the parties hereto (the "Master Framework Agreement") shall,
unless otherwise defined herein or the context requires otherwise, bear
the same meanings herein (including the recitals hereto).
1
1.2 Save as expressly provided herein, this Deed shall incorporate by
reference, and be interpreted and construed in accordance with, the
Master Framework Agreement.
PART ONE
2. OFFER OF RECEIVABLES
2.1 Each Offeror, or any Additional Offeror in respect of the first Offer
made by such Additional Offeror following its execution and delivery to
the Receivables Trustee of an Accession Notice, may (subject to receipt
by the Receivables Trustee of the documents referred to in the Closing
Documents List in form and substance satisfactory to the Receivables
Trustee), by delivering to the Receivables Trustee: (1) an Offer
substantially in the form set out in Schedule 1A or 1B (as applicable),
and (2) in the case of an Offer relating to Existing Accounts, to the
extent permitted by applicable law a computer file, microfiche list or
read-only cd-rom containing a true and complete list of all Designated
Accounts which are the subject of the Offer, each identified by a
specific number identifying such Designated Account, offer to the
Receivables Trustee in respect of the Initial Offer Date an assignment
of or, in the case of Scottish Receivables, to hold on trust (pursuant
to a declaration of trust, substantially in the form of the Scottish
Declaration of Trust set out in Schedule 3):
2.1.1 all Existing Receivables under each Designated Account
nominated in such Offer;
2.1.2 all Future Receivables under each such Designated Account which
are not Finance Charge Receivables in respect of Principal
Receivables, which arise before the earliest of:
(a) in respect of each such Designated Account, such time (if
any) as such Designated Account becomes a Redesignated
Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event;
2.1.3 all Future Receivables arising on each Designated Account
nominated in such Offer which are Finance Charge Receivables in
respect of Receivables which are assigned (or purported to be
assigned) or, in the case of the Scottish Receivables, are held
on trust, pursuant to Clauses 2.1.1 and 2.1.2;
2.1.4 (to the extent such are capable of assignment) the benefit of,
and any proceeds arising from, each guarantee or insurance
policy obtained by the relevant Offeror in respect of the
obligations of an Obligor to make payments on any such
Designated Account including all Insurance Proceeds; and
2.1.5 the benefit of all amounts representing Acquired Interchange in
respect of each Monthly Period,
2
(each an "INITIAL OFFER"). For the purposes of any Initial Offer, an
Existing Account shall be nominated as a Designated Account by
identifying it as a Designated Account in the Pool Index File and
informing the Receivables Trustee accordingly in the Initial Offer. A
Future Account shall be nominated as a Designated Account in an Initial
Offer by stating such Initial Offer is in respect of Receivables on
Future Accounts and specifying the relevant Future Accounts Criteria in
such Initial Offer.
2.2 Each Offeror or any Additional Offeror may, on any Offer Date following
the Initial Offer Date but falling prior to the termination of the
Receivables Trust, or with the written consent of the Beneficiaries, on
any other Business Day, nominate any Account to be a Designated Account.
An Existing Account shall be nominated as a Designated Account by
identifying it as a Designated Account in the Pool Index File and
informing the Receivables Trustee accordingly in an Offer. A Future
Account shall be nominated as a Designated Account in an Offer by
stating that such Offer is in respect of Receivables on Future Accounts
and specifying the relevant Future Accounts Criteria in such Offer. Each
Offeror or Additional Offeror may by delivering to the Receivables
Trustee: (1) an Offer substantially in the form set out in Schedule 1A
or 1B (as applicable) and, (2) in the case of an Offer relating to
Existing Accounts, to the extent permitted by applicable law a computer
file, microfiche list or read-only cd-rom containing a true and complete
list of all Designated Accounts, each identified by a specific number
identifying such Designated Account, offer to the Receivables Trustee in
respect of an Addition Date, an assignment of or, in the case of
Scottish Receivables to hold on trust (pursuant to a declaration of
trust, substantially in the form of the Scottish Declaration of Trust,
set out in Schedule 3):
2.2.1 all Existing Receivables under each Additional Account
nominated in such Offer; and
2.2.2 all Future Receivables under each such Additional Account which
are not Finance Charge Receivables in respect of Principal
Receivables, which arise before the earliest of:
(a) in respect of each Additional Account, such time (if any)
as such Additional Account becomes a Redesignated Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event;
2.2.3 all Future Receivables arising on each Additional Account
nominated in such Offer which are Finance Charge Receivables in
respect of Receivables which are assigned (or purported to be
assigned) to or, in the case of the Scottish Receivables, are
held on trust for the Receivables Trustee pursuant to clauses
2.2.1 and 2.2.2 above; and
2.2.4 (to the extent such are capable of assignment) the benefit of,
and any proceeds arising from, each guarantee or insurance
policy obtained by the Offeror or relevant
3
Additional Offeror in respect of the obligations of an Obligor
to make payments on any such Additional Account, including all
Insurance Proceeds,
(each a "SUBSEQUENT OFFER"),
PROVIDED, HOWEVER, that prior to the making of each such Offer in
respect of an Addition Date, the Offeror or, as the case may be, such
Additional Offeror shall have satisfied the conditions precedent set out
in Schedule 2 unless any such conditions precedent have been waived in
writing by the Receivables Trustee (if it has received written
confirmation from each relevant Rating Agency that such waiver will not
result in a withdrawal or reduction in the then current rating given by
such Rating Agency of any debt obligations, secured, directly or
indirectly, on the Trust Property).
2.3 EACH INITIAL OFFER AND EACH SUBSEQUENT OFFER DELIVERED BY AN OFFEROR OR
AN ADDITIONAL OFFEROR SHALL:
2.3.1 specify (a) in relation to Existing Accounts, that the Accounts
identified in such Offer have been identified in the Pool Index
File as Designated Accounts in respect of which an assignment
of or a declaration of trust over Existing Receivables and
Future Receivables is being offered to the Receivables Trustee;
and (b) in relation to Future Accounts, the relevant Future
Accounts Criteria;
2.3.2 in respect of Existing Receivables arising under Designated
Accounts specified in such Offer:
(a) specify the aggregate amount of the Eligible Receivables
comprised therein;
(b) specify the total Outstanding Face Amount of the Principal
Receivables and the total outstanding balance of the
Finance Charge Receivables comprised in such Eligible
Receivables; and
(c) specify the aggregate amount of the Ineligible Receivables
comprised therein, including, for the avoidance of doubt,
any Additional Ineligible Receivables specified pursuant
to Clause 2.3.2(d) below; and
(d) specify any Additional Ineligible Receivables offered in
such Offer;
2.3.3 be delivered no later than 12.00 noon on the Offer Date
relating thereto; and
2.3.4 constitute an offer by such Offeror or, as the case may be,
such Additional Offeror to sell and assign to, or, in the case
of Scottish Receivables, to hold on trust for, the Receivables
Trustee absolutely all of the relevant Offeror's or relevant
Additional Offeror's right, title and interest in and to the
Existing Receivables and Future Receivables arising on each
Account nominated in the Offer at the related Purchase Price
therefor on the terms and conditions of this Deed, together
with (to the extent such are capable of assignment) the benefit
of each guarantee or insurance policy obtained by such Offeror
or, as the case may be, such Additional Offeror, in respect
4
of the obligations of an Obligor to make payments on any such
Receivables and, in the case of an Initial Offer, the benefit
of all amounts representing Acquired Interchange in respect of
each Monthly Period.
PART TWO
POST OFFER ACTIONS
2.4 Each Transferor and, upon its accession hereto, each Additional
Transferor agrees to maintain a system which, during the term of this
Deed, will individually identify any Designated Accounts the Receivables
on which are the subject of an Offer made pursuant to Clause 2.1 or
Clause 2.2.
2.5 Each Transferor and, upon its accession hereto, each Additional
Transferor agrees not to alter the file designation with respect to any
Designated Account during the term of this Deed unless and until such
Designated Account becomes a Redesignated Account in accordance with
Clause 7.4.
2.6 Each Transferor and, upon its accession hereto, each Additional
Transferor agrees that if any Offer lapses before it is accepted in
accordance with Clause 3.3, it will ensure the Accounts which are
nominated in such lapsed Offer are not identified as being Designated
Accounts in its system.
2.7 Each Transferor may, at any time after the Initial Offer Date in respect
of such Transferor, subject to the prior written consent from the Rating
Agencies and all existing Beneficiaries, designate any Affiliate of such
Transferor which originates Accounts in the course of its business
and/or to which such Transferor's rights, title and interest in and to
any Designated Accounts have been assigned as an Additional Transferor
for the purpose of making Offers under this Deed, by delivering or
procuring the delivery to the Receivables Trustee of an Accession Notice
duly executed by such Transferor and such nominated Affiliate of the
Transferor in such form as the Receivables Trustee may require together
with such other documents (including legal opinions) as the Receivables
Trustee shall require and such nominated Affiliate shall not be admitted
as an Additional Transferor for the purposes of this Deed until such
time as the Receivables Trustee shall have confirmed to each existing
Beneficiary that it has received the Accession Notice and such other
prescribed documents in form and substance satisfactory to the
Receivables Trustee.
3. ACCEPTANCE OF OFFER AND PAYMENT FOR EXISTING RECEIVABLES
3.1 The Receivables Trustee may accept any Offer made in accordance with
Clause 2.3 in the manner specified in Clause 3.4.
3.2 Each Offer may be accepted by the Receivables Trustee only with respect
to the Existing Receivables and Future Receivables on Accounts referred
to therein and any purported form of acceptance of an Offer otherwise
than in the manner specified in Clause 3.4 shall be null and void and of
no effect (and for the avoidance of doubt nothing in this Deed or in any
5
Offer shall of itself operate so as to convey or transfer to any person
any beneficial interest in any Receivables).
3.3 Each Offer shall be irrevocable and binding on the relevant Offeror or,
as the case may be, Additional Offeror, until (if not accepted before
such time) the close of business on, in the case of an Initial Offer,
the second Business Day following the Initial Offer Date and, in the
case of a Subsequent Offer, the Second Business Day following the Offer
Date relating thereto (or such longer period of time for acceptance as
may be agreed upon by the relevant Offeror or, as the case may be,
Additional Offeror, and the Receivables Trustee), when that Offer shall
lapse.
3.4 Each Offer which has not lapsed in accordance with Clause 3.3 above may
be accepted by payment in cash in Jersey, Channel Islands by or on
behalf of the Receivables Trustee to the relevant Offeror or Additional
Offeror of the Acceptance Price.
3.5 The parties to this Deed confirm and acknowledge that any contract
entered into in the manner specified in Clause 3.4 will be a contract
entered into in Jersey, Channel Islands.
6
PART THREE
TERMS OF CONTRACT UPON ACCEPTANCE OF OFFER
The following clauses shall apply to any contract constituted by the
acceptance of an Offer pursuant to Clause 3.4.
4. ASSIGNMENT OF RECEIVABLES AND SCOTTISH DECLARATION OF TRUST
4.1 Upon acceptance of an Offer pursuant to Clause 3.4 or, in the case of
Future Receivables not in existence at the time of acceptance of the
Offer, upon such Future Receivables coming into existence, all of the
relevant Offeror's or, as the case may be, Additional Offeror's, rights,
title and interest in and to:
4.1.1 the Existing Receivables (other than Scottish Receivables)
under each Designated Account nominated in that Offer; and
4.1.2 the Future Receivables (other than Scottish Receivables) under
each such Designated Account which are not Finance Charge
Receivables in respect of Principal Receivables, which arise
before the earliest of:
(a) in respect of each Designated Account, such time (if any),
as such Account becomes a Redesignated Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event;
4.1.3 all Future Receivables (other than Scottish Receivables) under
each Designated Account nominated in such Offer which are
Finance Charge Receivables in respect of Receivables which are
assigned (or purported to be assigned) to the Receivables
Trustee pursuant to paragraphs 4.1.1 and 4.1.2 above;
4.1.4 (to the extent such are capable of assignment) the benefit of,
and any proceeds arising from, each guarantee or insurance
policy obtained by the relevant Offeror or, as the case may be,
the Additional Offeror, in respect of the obligations of an
Obligor to make payments on any such Designated Account,
including all Insurance Proceeds; and
4.1.5 (in respect of the Initial Offer) the benefit of all amounts
representing Acquired Interchange in respect of each Monthly
Period,
shall thereupon vest in the Receivables Trustee on the terms and
conditions of this Deed and the Offer.
4.2 For the avoidance of doubt, any assignment made pursuant to this Deed
will take effect in equity only unless and until a Notice of Assignment
has been given in respect of it in
7
accordance with the provisions of Clause 6.8 and such other action is
taken as is necessary to perfect the assignment.
4.3 Upon acceptance (or any date thereafter) by the Receivables Trustee of
an Offer of any Scottish Receivables, the relevant Transferor or, as the
case may be, Additional Transferor shall, if notified by the Receivables
Trustee, execute (in respect of an Initial Offer) a Scottish Declaration
of Trust substantially in the form set out in Schedule 3 or (in respect
of a Subsequent Offer) a Scottish Declaration of Trust substantially in
the form set out in Schedule 3 or a Scottish Additional Account Notice
substantially in the form set out in Schedule 4, and (in respect of each
Offer) the Receivables Trustee shall execute a Scottish Trust Notice
substantially in the form of Schedule 10.
5. PAYMENT OF CASH PRICE, PAYMENT FOR FUTURE RECEIVABLES AND DEFERRED
CONSIDERATION
5.1 Where a contract constituted by acceptance of an Offer in the manner
specified in Clause 3.4 relates to:
5.1.1 Receivables on an Existing Account, the Receivables Trustee
shall pay the Cash Price to the relevant Offeror or Additional
Offeror immediately upon such contract being accepted; and
5.1.2 Receivables on a Qualifying Future Account, the Receivables
Trustee shall pay the Cash Price to the relevant Offeror or
Additional Offeror on the relevant Addition Date.
5.2 In consideration of the assignment or holding on trust by a Transferor
or Additional Transferor to or for the Receivables Trustee of Future
Receivables coming into existence on any day (which Receivables will
have vested in equity in, or be held on trust for, the Receivables
Trustee) and the benefit of Acquired Interchange in respect of each
Monthly Period, the Receivables Trustee shall pay to such Transferor or,
as the case may be, Additional Transferor (and, in respect of any amount
to be paid in cash, in accordance with Clause 6.3 or Clause 6.6, as
applicable), not later than the Business Day which is two Business Days
after the Date of Processing relating to such Future Receivables or such
longer period of time as may be agreed upon by the relevant Transferor
or, as the case may be, Additional Transferor and the Receivables
Trustee (if it has received written confirmation from each relevant
Rating Agency that such increase in time will not result in such Rating
Agency reducing or withdrawing its then current rating on any
outstanding Associated Debt), an amount equal to the Outstanding Face
Amount of the Principal Receivables subject to such assignment or trust
of such Future Receivables as calculated by the relevant Transferor or,
as the case may be, Additional Transferor and notified to the
Receivables Trustee by such Transferor or, as the case may be,
Additional Transferor (and specifying the aggregate amount of such
Principal Receivables which are Ineligible Receivables) by no later than
12.00 noon on such day for payment.
8
5.3 Each Transferor and each Additional Transferor shall prepare and
maintain a daily activity report (the "DAILY ACTIVITY REPORT") in
connection with the payments required under Clause 5.2 which shall
specify with reference to the Designated Accounts of such Transferor or,
as the case may be, Additional Transferor (on an aggregate basis) in
respect of the date specified in such Daily Activity Report:
5.3.1 the outstanding balance of the Future Receivables which have
arisen and which have automatically been assigned in equity to,
or held on trust for, the Receivables Trustee since the
previous Daily Activity Report and which are Eligible
Receivables;
5.3.2 the Outstanding Face Amount of the Principal Receivables which
are Eligible Receivables and the amount of the Finance Charge
Receivables comprised in such Eligible Receivables; and
5.3.3 the outstanding balance of Future Receivables which have arisen
and which have automatically been assigned in equity to, or
held on trust for, the Receivables Trustee since the previous
Daily Activity Report and which are Ineligible Receivables,
PROVIDED, HOWEVER, that each Transferor and, upon its accession hereto,
each Additional Transferor agrees to deliver such Daily Activity Report
to the Receivables Trustee within three Business Days (or such other
period as may otherwise be agreed) of the Receivables Trustee requesting
it, which the Receivables Trustee may do at any time.
5.4 By way of further consideration for the assignment or holding on trust
of Receivables on Designated Accounts by each Transferor (or any
Additional Transferor) to or for the Receivables Trustee, the
Receivables Trustee shall make payments of Deferred Consideration to
each Transferor (or relevant Additional Transferor) on each Distribution
Date on which such Deferred Consideration is calculated to be payable.
The amount of Deferred Consideration payable shall be calculated by the
Trust Cash Manager (or relevant Co-Trust Cash Manager) in accordance
with the Receivables Trust Deed and Cash Management Agreement and
related Supplement.
6. PERFECTION AND DIRECTIONS AS TO PAYMENT
6.1 The Acceptance Price payable to the relevant Offeror in accordance with
Clause 3.4 in order to accept an offer shall be paid by the Receivables
Trustee into the Proceeds Account of the relevant Offeror, such payment
when so made to constitute payment by the Receivables Trustee to the
relevant Offeror by way of acceptance of the Offer in respect of which
the payment is made pursuant to Clause 3.4.
6.2 The obligation of the Receivables Trustee to pay the Cash Price to an
Offeror pursuant to Clause 5.1 shall be satisfied by payment of the Cash
Price into the Proceeds Account of the relevant Offeror, such payment
when so made to constitute compliance by the Receivables
9
Trustee with Clause 5.1 in respect of the Existing Receivables in
respect of which the payment is made.
6.3 Each payment due to an Offeror pursuant to Clause 5.2 in respect of
Future Receivables and Acquired Interchange shall be satisfied by
payment of the relevant amount into the Proceeds Account of the relevant
Offeror, such payment when so made to constitute compliance by the
Receivables Trustee with Clause 5.2 in respect of the Future Receivables
and Acquired Interchange in respect of which the payment is made.
6.4 The terms of each Accession Notice shall specify that the Acceptance
Price payable to the relevant Additional Offeror by the Receivables
Trustee in order to accept an Offer, in accordance with Clause 3.4,
shall be paid by the Receivables Trustee into the Proceeds Account
specified in such Accession Notice, such payment when made to constitute
payment by the Receivables Trustee to such Additional Offeror by way of
acceptance of the Offer in respect of which the payment is made pursuant
to Clause 3.4.
6.5 The terms of each Accession Notice shall specify that the obligation of
the Receivables Trustee to pay the Cash Price to the relevant Additional
Offeror shall be satisfied by payment of the Cash Price into the
Proceeds Account of the relevant Additional Offeror specified in such
Accession Notice, such payment when so made to constitute compliance by
the Receivables Trustee with Clause 5.1 in respect of the Existing
Receivables in respect of which the payment is made.
6.6 The terms of each Accession Notice shall specify that each payment due
to the relevant Additional Offeror pursuant to Clause 5.2 in respect of
Future Receivables and Acquired Interchange shall be satisfied by
payment of the relevant amount into the Proceeds Account specified in
such Accession Notice, such payment when so made to constitute
compliance by the Receivables Trustee which Clause 5.2 in respect of the
Future Receivables and Acquired Interchange in respect of which the
payment is made.
6.7 Subject to Clause 6.10, each Transferor and Additional Transferor will
take all such steps and comply with all such formalities as the
Receivables Trustee may require to perfect or more fully to evidence or
secure title to the Receivables and Acquired Interchange (and the
benefit of any guarantee or insurance policy in respect of the
obligations of an Obligor to make payments in respect thereof) assigned
(or purported to be assigned) or held on trust pursuant to this Deed and
the interest of the Receivables Trustee therein, including, without
prejudice to the generality of the foregoing, the execution of a
Scottish Assignation in respect of any Scottish Receivables,
substantially in the form set out in Schedule 6.
6.8 Further to Clause 6.7 (but without limitation thereof) and subject to
Clause 6.10, in the event that the Receivables Trustee accepts an Offer,
the Offeror or the relevant Additional Offeror shall, where the Rating
Agencies have required the Offeror or relevant Additional Offeror to do
so in relation to any Initial Offer, on the date of acceptance thereof,
execute a written instrument of transfer of either (i) Existing
Receivables in specified Designated Accounts offered pursuant to such
Offer in respect of which the Cash Price payable for such
10
Receivables (the "POTENTIALLY STAMPABLE AMOUNT"), is at least
(L)1,000,000 or (ii) all Existing Receivables offered pursuant to
such Offer if the potentially stampable amount is less than (L)4,000
(such instrument being an "INITIAL ASSIGNMENT").
6.9 Subject to Clause 6.10, to secure the proprietary interest of the
Receivables Trustee relating to the Receivables and Acquired Interchange
(and the benefit of any guarantee or insurance policy in respect of the
obligations of an Obligor to make payments in respect thereof) assigned
(or purported to be assigned) to or held on trust for it by a Transferor
or, as the case may be, an Additional Transferor and the performance of
such Transferor's or, as the case may be, Additional Transferor's
obligations in respect thereof, each Transferor and, upon its accession
hereunder, each Additional Transferor hereby irrevocably appoints by way
of security the Receivables Trustee as its attorney (with full power of
delegation) for the purpose of performing and complying with all and any
of such obligations of each Transferor or, as the case may be,
Additional Transferor, whether in the name of such Transferor or, as the
case may be, Additional Transferor or in the name of the Receivables
Trustee, and in such manner as the Receivables Trustee may consider
appropriate, and each Transferor and, upon its accession hereunder,
Additional Transferor hereby ratifies, confirms and adopts and agrees to
ratify, confirm and adopt whatsoever the Receivables Trustee shall do or
purport to do on its behalf by virtue of and in accordance with this
power of attorney, except in the case of bad faith, fraud or gross
negligence on the part of the Receivables Trustee in so acting.
6.10 The Receivables Trustee (whether in its capacity as donee of the power
of attorney in Clause 6.9 or otherwise) hereby agrees that at any time:
6.10.1 it shall not require any Transferor or, as the case may be,
Additional Transferor to execute a Scottish Assignation;
6.10.2 no Notice of Assignment or any other notice in whatever form of
the assignment or assignation to the Receivables Trustee of
Receivables relating to any Obligor and, if applicable the
benefit of any related guarantee or insurance policy shall be
given by it (or required by it to be given) to any such Obligor
or any provider of any guarantee or insurance policy in respect
of the obligations of such Obligor; and
6.10.3 except as provided in Clause 6.8, no written assignment or
transfer (whether by deed or otherwise) of any Receivables (or
any guarantee or insurance policy in respect of the obligations
of an Obligor to make payments in respect thereof) assigned (or
purported to be assigned) or held on trust shall be required,
unless at such time a Notification Event has occurred and is then
subsisting and such action is required in the opinion of the Receivables
Trustee (after consulting with such legal advisers as it deems
necessary) to give effect to the obligations of a Transferor or, as the
case may be, an Additional Transferor under Clause 6.7. For the
avoidance of doubt the parties acknowledge that, unless and until a
Notice of Assignment or Scottish Assignation as applicable is given
following a Notification Event and in relation thereto or such other
action
11
is taken as is necessary to perfect the assignment or transfer, all
assignments or transfers of Receivables pursuant to this Deed will take
effect at all times in equity or, in the case of Scottish Receivables,
by trust only.
6.11 The Receivables Trustee shall not be entitled to create, assume or incur
indebtedness or other liabilities in the name of the Receivables Trust
other than as contemplated in this Deed, the Receivables Trust Deed and
Trust Cash Management Agreement, any Supplement thereto and any document
related thereto.
7. REDESIGNATION AND REMOVAL OF ACCOUNTS
7.1 Each Designated Account shall continue to be a Designated Account until
such time, if any, that it becomes a Redesignated Account on the date
specified in respect of such Designated Account pursuant to Clause 7.3
(the "REDESIGNATION DATE").
7.2 Subject to Clause 7.7, each Transferor and Additional Transferor may at
any time, and in its absolute discretion, notify the Receivables Trustee
in writing of any Designated Account (which is not a Cancelled Account,
Defaulted Account (excluding Defaulted Accounts to be sold or
transferred for consideration prior to being charged-off) or Zero
Balance Account) which such Transferor or Additional Transferor wishes
to cease to be a Designated Account with effect from such following date
as the Transferor or such Additional Transferor shall specify in that
notice (a "REDESIGNATION NOTICE").
7.3 The Redesignation Date of a Designated Account shall be ascertained as
follows:
7.3.1 in the case of a Cancelled Account, the Redesignation Date
shall be the day on which the relevant Designated Account is
recorded by the Servicer as a Cancelled Account on the
Servicer's computer master file of Accounts;
7.3.2 in the case of a Zero Balance Account, the Redesignation Date
shall be the day on which the relevant Designated Account is
recorded by the Servicer as being a Zero Balance Account and
removed from the Servicer's computer master file of Accounts;
7.3.3 in the case of a Defaulted Account, the Redesignation Date
shall be the day on which:
(i) the Receivables thereunder are recorded as charged-off on
the Servicer's computer master file of Accounts, or
(ii) in the case where such Defaulted Accounts are intended to
be sold or transferred for consideration (in accordance
with the Servicer's customary procedures for such sales or
transfers) to a third party for debt recovery, the day on
which the Receivables thereunder are recorded as eligible
for sale or transfer in respect of debt recovery, PROVIDED
THAT, in the case of this
12
paragraph (ii), such Redesignation shall only occur if all
conditions listed in Clause 7.7 below are met.
Notwithstanding any other provision hereof, any
Receivables in a Defaulted Account that are Ineligible
Receivables prior to such date shall be treated as
Ineligible Receivables rather than as Receivables in
Defaulted Accounts; and
7.3.4 in the case of a Non-Conforming Account, the Redesignation Date
shall be the day on which the relevant Designated Account is
identified as being a Non-Conforming Account and is recorded by
the Servicer as a Non-Conforming Account on the Servicer's
computer master file of Accounts. Notwithstanding any other
provision hereof and for the avoidance of doubt, any
Receivables in a Non-Conforming Account shall be treated as
Ineligible Receivables from the date they are identified by the
Servicer as Non-Conforming Receivables;
7.3.5 in the case of a Designated Account which is not a Cancelled
Account, Defaulted Account, Zero Balance Account or
Non-Conforming Account, the Redesignation Date shall be the day
specified in the Redesignation Notice.
7.4 On, and with effect from, the Redesignation Date in respect of a
Designated Account the following shall occur:
7.4.1 such Account shall cease to be a Designated Account and
thereafter shall be a Redesignated Account;
7.4.2 all Receivables which were in existence prior to the
Redesignation Date shall, to the extent the Receivables Trustee
has not paid for such Receivables, be paid for by the
Receivables Trustee in accordance with this Deed;
7.4.3 all Future Receivables generated on such Redesignated Account
which are Principal Receivables or Finance Charge Receivables
in respect of Receivables which were not in existence prior to
such Redesignation Date which come into existence on or after
the Redesignation Date shall not be assigned or held on trust
by the relevant Transferor or, as the case may be, Additional
Transferor to or for the Receivables Trustee; and
7.4.4 all Future Receivables which are Finance Charge Receivables in
respect of Receivables which were in existence prior to such
Redesignation Date which come into existence on or following
such Redesignation Date shall continue to be automatically
assigned or held on trust by the relevant Transferor or, as the
case may be, Additional Transferor to or for the Receivables
Trustee and constitute Trust Property;
PROVIDED, HOWEVER, that, for the avoidance of doubt, no Receivable
assigned to or held on trust for the Receivables Trustee shall be
reassigned or released to any Transferor or Additional Transferor except
in the circumstances set out in Clauses 10.5 and 11.3.
13
7.5 Each Transferor and Additional Transferor shall maintain a system which
identifies each Redesignated Account in the systems of such Transferor
or Additional Transferor until the earlier of:
7.5.1 such time as Collections (in an amount equal to the aggregate
of the Outstanding Face Amount of each Principal Receivable and
the outstanding balance of each Finance Charge Receivable) have
been received by the Receivables Trustee in respect of the
Receivables which have been assigned to or held on trust for
the Receivables Trustee in respect of that Account other than
Receivables which have been sold or transferred for
consideration or charged-off in accordance with the Card
Guidelines on the computer master file of Accounts used by the
Servicer (or any Co-Servicer); or
7.5.2 such time as all Receivables outstanding on such Account which
constitute Trust Property have been reassigned or released to
the relevant Transferor or, as the case may be, such Additional
Transferor in the circumstances set out in Clause 11.3.
7.6 At such time as a Transferor or an Additional Transferor ceases to be
obliged to identify each Redesignated Account as such in the systems of
such Transferor or Additional Transferor (in accordance with Clause 7.5)
such Transferor or Additional Transferor may at any time thereafter, and
in its absolute discretion, notify the Receivables Trustee that it
wishes to cease to identify such Accounts as being Redesignated
Accounts, with effect from such date as such Transferor or, as the case
may be, Additional Transferor shall specify in that notice (the "REMOVAL
DATE"), and such Accounts shall then be identified in the systems of the
relevant Transferor or Additional Transferor, in accordance with a
system maintained by such Transferor or, as the case may be, Additional
Transferor for that purpose, as constituting "REMOVED ACCOUNTS"
PROVIDED, HOWEVER, that in respect of a Zero Balance Account, the
relevant Transferor or, as the case may be, Additional Transferor, shall
remove or have removed such designation on the Redesignation Date
(which, consequently, shall also be the Removal Date for such Account)
and such Zero Balance Account shall also constitute a Removed Account.
7.7 No Transferor or Additional Transferor shall be permitted to redesignate
Designated Accounts pursuant to Clause 7.2 which are not Cancelled
Accounts, Defaulted Accounts (excluding Defaulted Accounts to be sold or
transferred for consideration prior to being charged-off), Zero Balance
Accounts or Non-Conforming Accounts unless the following conditions are
satisfied:
7.7.1 such redesignation shall not, in the reasonable belief of the
relevant Transferor or Additional Transferor, cause a Pay Out
Event to occur;
7.7.2 the relevant Transferor or, as the case may be, Additional
Transferor shall represent and warrant to the Receivables
Trustee that no selection procedures believed by such
Transferor or Additional Transferor to have a Material Adverse
Effect were utilised in selecting the Designated Accounts to be
redesignated;
14
7.7.3 on or before the tenth Business Day prior to the Redesignation
Date, each Rating Agency and the Receivables Trustee shall have
received notice in writing from the relevant Transferor or, as
the case may be, Additional Transferor of such proposed
redesignation and such Transferor or Additional Transferor and
the Receivables Trustee shall have received written notice
prior to the Redesignation Date from each Rating Agency that
such proposed redesignation will not result in a downgrade or
withdrawal of its then current rating of any outstanding
Associated Debt;
7.7.4 the relevant Transferor or, as the case may be, Additional
Transferor and the Servicer (or any Co-Servicer) shall certify
to the Receivables Trustee that either (i) Collections (equal
to the Outstanding Face Amount of each Principal Receivable and
the outstanding balance of each Finance Charge Receivable) have
been received by the Receivables Trustee in respect of every
Receivable which has been assigned to or held on trust for the
Receivables Trustee in respect of that Account other than
Receivables which have been sold or transferred for
consideration or charged-off in accordance with the Card
Guidelines on the computer master file of Accounts used by the
Servicer (or relevant Co-Servicer) or (ii) such Transferor or
Additional Transferor has received confirmation from the
Financial Services Authority that such redesignation is
permitted; and
7.7.5 such Transferor or, as the case may be, Additional Transferor
shall have delivered to the Receivables Trustee an Officer's
Certificate confirming the items set out in Clauses 7.7.1 to
7.7.4 above.
PROVIDED, HOWEVER, that the Receivables Trustee may conclusively rely on
the Officer's Certificate referred to in Clause 7.7.5 above without
making enquiries with regard to the matters set out therein.
8. DISCOUNT PERCENTAGE, SPECIAL FEES, ANNUAL FEES AND ACQUIRED INTERCHANGE
8.1 Any Transferor or Additional Transferor may, at any time by giving not
less than 30 days' prior notice in writing to the Servicer, any
Co-Servicer, the Receivables Trustee and the Rating Agencies, nominate a
Discount Percentage to apply to Principal Receivables from the date
specified in such notice for such period (or additional period) of time
as such Transferor or Additional Transferor shall specify.
8.2 If a Transferor or Additional Transferor notifies the Receivables
Trustee of the application of a Discount Percentage in accordance with
Clause 8.1 then, during the period of time specified by such Transferor
or Additional Transferor under Clause 8.1, the relevant amount of any
Cash Price to be paid pursuant to Clause 5.1 shall accordingly be
reduced by a percentage equal to the Discount Percentage, and the
obligation of the Receivables Trustee to make the payments referred to
in Clause 5.2 shall be likewise reduced.
15
8.3 No nomination by a Transferor or Additional Transferor pursuant to
Clause 8.1 of a Discount Percentage or the period (or additional period)
of time for which it is to be effective shall be of any effect unless:
8.3.1 each Rating Agency has confirmed in writing that such proposed
nomination or increase in length of the relevant period will
not result in a downgrade or withdrawal of its then current
rating of any outstanding Associated Debt;
8.3.2 such Transferor or Additional Transferor has provided the
Receivables Trustee with a certificate in the form set out in
the Eighth Schedule, signed by an authorised officer of such
Transferor or Additional Transferor confirming that:
(a) the performance of the portfolio of Designated Accounts is
such that in the reasonable opinion of such Transferor or
Additional Transferor the yield of Finance Charge
Collections is not generating adequate cashflows for the
Beneficiaries of the Receivables Trust and the size of the
Discount Percentage is not intended solely to accelerate
amounts payable as Deferred Consideration; and
(b) such Transferor or Additional Transferor is able to pay
its debts within the meaning of section 123 of the
Insolvency ▇▇▇ ▇▇▇▇ and will not become unable to pay its
debts within the meaning of that section in consequence of
such Discount Percentage coming into effect, as at the
date on which the Discount Percentage or additional period
is to take effect.
8.4 From time to time, each Transferor and Additional Transferor may levy a
Special Fee on Accounts (including Designated Accounts) in respect of
all or certain types of Receivables arising thereon, whether at one time
or on an ongoing basis, and may in respect of such Special Fees on or
after the date on which they are first levied, designate in a
certificate to the Receivables Trustee whether such Special Fees shall
be treated as Finance Charge Receivables or as Principal Receivables,
PROVIDED, HOWEVER, that in the absence of such certificate, such Special
Fees shall be treated as Finance Charge Receivables, PROVIDED FURTHER,
HOWEVER, that such Transferor or such Additional Transferor may not
designate Special Fees as Principal Receivables unless it certifies in
such certificate that it has received an Opinion of Counsel that such
Special Fees constitute, for the purpose of tax in the United Kingdom,
repayment in whole or in part of an advance to an Obligor.
8.5 Each Transferor and Additional Transferor may, at any time by giving
notice in writing to the Servicer, the Receivables Trustee and the
Rating Agencies, designate in a certificate to the Receivables Trustee
whether Future Receivables arising after that time and Existing
Receivables comprised in Offers accepted by the Receivables Trustee
after that time in respect of Annual Fees shall be treated as Finance
Charge Receivables or as Principal Receivables PROVIDED, HOWEVER, that
in the absence of such certificate, such Receivables in respect of
Annual Fees shall be treated as Finance Charge Receivables; PROVIDED
FURTHER, HOWEVER, that any designation of Annual Fees as Principal
Receivables shall not be of any
16
effect unless such Transferor or, as the case may be, Additional
Transferor certifies in such certificate that it has received an Opinion
of Counsel that such Annual Fees constitute, for the purpose of tax in
the United Kingdom, repayment in whole or in part of an advance to an
Obligor.
8.6 On or before each Transfer Date, each Transferor and Additional
Transferor shall notify the Receivables Trustee of the amount of
Acquired Interchange with respect to the preceding Monthly Period.
8.7 On each Transfer Date, each Transferor and Additional Transferor shall
cause to be paid to the Receivables Trustee by depositing into the
Trustee Collection Account, in immediately available funds, an amount
equal to the amount of Acquired Interchange.
9. TRUST
9.1 If for any reason any Receivable arising on a Designated Account cannot
be duly assigned to, or, in the case of a Scottish Receivable, held on
trust pursuant to the Scottish Declaration of Trust for, the Receivables
Trustee as contemplated hereby but the Receivables Trustee has accepted
the Offer relating to that Receivable then, with effect from the date on
which the Receivables Trustee accepted such Offer, that Receivable shall
be treated as if it had been validly and duly assigned to or held on
trust for the Receivables Trustee and the relevant Transferor or, as the
case may be, the Additional Transferor shall hold the same and all
Collections related thereto on trust absolutely for the Receivables
Trustee and all such Collections shall be applied as if such Receivable
had been validly and duly assigned.
9.2 The provisions of Clause 9.1 shall be without prejudice to:
9.2.1 any obligations or representations of such Transferor or, as
the case may be, Additional Transferor hereunder in respect of
any Receivables; and
9.2.2 any liabilities of such Transferor or Additional Transferor or
rights of the Receivables Trustee in relation to any breach or
inaccuracy on the part of such Transferor or, as the case may
be, Additional Transferor of the matters referred to in Clause
9.2.1.
9.3 All Collections in respect of any Receivables constituting Trust
Property received by any Transferor or any Additional Transferor
(whether or not the appointment of RBS as Servicer or such Additional
Transferor as a Co-Servicer, if applicable, under the Beneficiaries
Servicing Agreement has been terminated) shall, pending their
application to the Trustee Collection Account, be held on trust for and
to the order of the Receivables Trustee.
10. REDUCTIONS IN RECEIVABLES, EARLY COLLECTIONS, CREDIT ADJUSTMENTS AND
REASSIGNMENT OR RELEASE OF DEFAULTED RECEIVABLES
10.1 If the amount paid or payable in respect of any Principal Receivable
which has been assigned or held on trust by a Transferor or Additional
Transferor to or for the Receivables Trustee is reduced (other than in
respect of a Transferor Section 75 Liability, Additional
17
Transferor Section 75 Liability or a Credit Adjustment) after the Offer
Date relating thereto by reason of:
10.1.1 any set-off or counterclaim as between an Obligor and a
Transferor or Additional Transferor; or
10.1.2 any other matter as between an Obligor and a Transferor or
Additional Transferor,
(each of 10.1.1 and 10.1.2 above a "REDUCTION")
and such Transferor or Additional Transferor has received a benefit in
money or money's worth as a consequence of such Reduction (including,
without limitation, any reduction in any liability owing by such
Transferor or Additional Transferor to such Obligor) then such
Transferor or Additional Transferor shall nevertheless for the purposes
of this Deed be treated as having been paid the amount of such Reduction
on the date of such Reduction in addition to any other amounts which may
be paid or payable in respect of such Receivable.
10.2 If any Existing Receivable which is purported to be assigned or held on
trust pursuant to any Offer made pursuant to the terms of this Deed
shall have been collected in whole or in part prior to the time of such
purported assignment or holding on trust, then the portion thereof which
shall have been so collected (an "EARLY COLLECTION") shall be treated
for the purposes of this Deed as having been collected by the relevant
Transferor or, as the case may be, the Additional Transferor immediately
following such purported assignment or holding on trust thereof.
10.3 If any Principal Receivable which has been assigned or is held on trust
by a Transferor or Additional Transferor to or for the Receivables
Trustee is reduced after the Offer Date relating thereto by reason of a
Credit Adjustment then such Transferor or Additional Transferor shall
nevertheless for the purposes of this Deed be treated as having been
paid the amount of such Credit Adjustment on the date of such Credit
Adjustment in addition to any other amounts which may be paid or payable
in respect of such Receivable.
10.4 Subject to Clause 13.3, such Transferor or, as the case may be,
Additional Transferor shall be obliged to pay to the credit of the
Trustee Collection Account an amount equal to the amount of each
Reduction (as referred to in Clause 10.1), Early Collection (as referred
to in Clause 10.2) or Credit Adjustment (as referred to in Clause 10.3)
by no later than the second Business Day following the date on which it
became aware of such Reduction, Early Collection or Credit Adjustment
(as the case may be) or was notified thereof by the Trust Cash Manager.
10.5 The Receivables Trustee may, if so instructed by the Beneficiaries, from
time to time (by giving a notice in substantially the form set out in
Schedule 9) offer to sell to a Transferor or Additional Transferor (in
each case for immediate on-sale to a third party, such sale to occur
outside the United Kingdom), as applicable, all Receivables in the
Defaulted Accounts specified in such notice. The Transferor or
Additional Transferor, as the case may be, may in its discretion choose
to accept such offer. If such offer is accepted, the consideration
18
("CONSIDERATION") payable by the Transferor or Additional Transferor (as
applicable) for the assignment or release from trust (as appropriate) of
such Receivables shall be deferred and shall equal (i) that portion of
the balance of such Receivables in Defaulted Accounts which is
subsequently recovered, or (ii) the amount of consideration received
from any third party to whom the Receivables in Defaulted Accounts are
sold, and (in the case of (i) and (ii)) paid to the Transferor or
Additional Transferor (the "RECOVERED AMOUNT") less any costs and
expenses incurred or payments made by the Transferor or Additional
Transferor, as applicable, in order to obtain the recovered amount. 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. For the avoidance of doubt,
the consideration shall only become due and payable to the Receivables
Trustee following the realisation of the recovered amount and
determination of related costs and expenses by the Transferor or
Additional Transferor, as the case may be, and there shall be no
obligation to make any payment prior to such time.
11. BREACH OF WARRANTY
11.1 If, in respect of any Principal Receivable which has been assigned to or
held on trust for the Receivables Trustee, any representation referred
to in Clause 16.2 or 16.3 proves at any time to have been incorrect when
made or the Principal Receivable is identified by the Servicer as being
a Non-Conforming Receivable and, as such, an Ineligible Receivable from
the date of such identification, the relevant Transferor or, as the case
may be, the Additional Transferor shall be treated as having received by
way of a Collection the Outstanding Face Amount of such Principal
Receivable and, subject to Clause 13.3, the relevant Transferor or, as
the case may be, the Additional Transferor shall be obliged to pay by no
later than the Business Day following the date on which such
representation becomes known to the relevant Transferor or, as the case
may be, the Additional Transferor to be incorrect, an amount equal to
the Outstanding Face Amount of such Principal Receivable to the Trustee
Collection Account under advice to that effect to the Receivables
Trustee, PROVIDED, HOWEVER, that such Principal Receivable shall not be
reassigned or released from trust to such Transferor or Additional
Transferor but shall thereafter be treated as an Ineligible Receivable
unless and until all Receivables outstanding on the relevant Account are
reassigned or released from trust to such Transferor or Additional
Transferor in the circumstances set out in Clause 11.3.
11.2 The fulfilment of the relevant Transferor's or, as the case may be, the
Additional Transferor's obligation to make payments to the Receivables
Trustee required pursuant to Clause 11.1 in respect of a Principal
Receivable or (as the case may be) all the Principal Receivables of an
Obligor shall be in full satisfaction and discharge of any rights or
remedies which the Receivables Trustee may otherwise have had with
respect to such Principal Receivable as a result of any breach,
anticipatory breach or other circumstance on the part of or affecting
the Transferor or the Additional Transferor arising under this Deed in
relation to such Principal Receivable or (as the case may be) the
Obligor concerned, and accordingly, the Receivables Trustee hereby
acknowledges that it will have no further or other rights with respect
to such
19
Principal Receivable as a result of or in connection with any such
breach, anticipatory breach or other circumstance.
11.3 In the event that:
11.3.1 each and every Principal Receivable which has been assigned to
or held on trust for the Receivables Trustee in respect of an
Account and which remains outstanding proves to have been
assigned to or held on trust for the Receivables Trustee in
circumstances where any representation referred to in Clause
16.2 and 16.3 proves to have been incorrect when made with
respect to such Principal Receivables, or is identified as
being a Non-Conforming Receivable;
11.3.2 the relevant Transferor or Additional Transferor has issued a
Redesignation Notice in respect of such Account as a
Redesignated Account pursuant to Clause 7.2; and
11.3.3 the obligation of such Transferor or Additional Transferor with
respect to such Principal Receivables as set out in Clause 11.1
has been fulfilled
then such Transferor or, as the case may be, Additional Transferor may
by five Business Days written notice require the Receivables Trustee (at
the expense of the relevant Transferor or, as the case may be,
Additional Transferor) to offer to reassign or release from trust (as
appropriate) all (but not some only) of the Receivables outstanding on
such Redesignated Account which constitute Trust Property to such
Transferor or, as the case may be, Additional Transferor for a nominal
consideration not to exceed (L)1 pursuant to an instrument to be
executed and maintained, if so requested by such Transferor or
Additional Transferor, outside of the United Kingdom. Following such
reassignment or release such Receivables shall be owned by such
Transferor or, as the case may be, such Additional Transferor absolutely
and such Account shall constitute and be identified as a Removed Account
from the date of such reassignment or release (which shall also
constitute the relevant Removal Date).
12. CURRENCY OF ACCOUNT AND PAYMENT
12.1 Sterling is the currency of account and payment for each and every sum
at any time due from any person hereunder PROVIDED, HOWEVER, that:
12.1.1 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
12.1.2 each payment which is expressed herein to be payable in another
currency shall be made in that other currency.
12.2 If any sum due from a person (a "RELEVANT PERSON") under this Deed or
any order or judgment given or made in relation hereto has to be
converted from the currency (the "FIRST CURRENCY") in which the same is
payable hereunder or under such order or judgment into another currency
(the "SECOND CURRENCY") for the purpose of (i) making or filing a claim
or proof
20
against the relevant person, (ii) obtaining an order or judgment in any
court or other tribunal or (iii) enforcing any order or judgment given
or made in relation hereto, the relevant person shall indemnify and hold
harmless the person to whom such sum is due from and against any loss
suffered as a result of any discrepancy between (a) the rate of exchange
used for such purpose to convert the sum in question from the first
currency into the second currency and (b) the rate or rates of exchange
at which such person may in the ordinary course of business purchase the
first currency with the second currency upon receipt of a sum paid to it
in satisfaction, in whole or in part, of any such order, judgment, claim
or proof.
12.3 All payments made by any person hereunder shall be made free and clear
of and without any deduction for or on account of any set-off or
counterclaim unless otherwise agreed in writing by the relevant
Transferor and the Receivables Trustee or, as the case may be, the
relevant Additional Transferor and the Receivables Trustee.
13. PAYMENTS BY THE TRANSFERORS, ADDITIONAL TRANSFERORS AND THE RECEIVABLES
TRUSTEE
13.1 On each date upon which this Deed requires an amount to be paid in cash
by or on behalf of a Transferor or Additional Transferor to the
Receivables Trustee, such Transferor or, as the case may be, Additional
Transferor shall, save as expressly provided otherwise herein, make the
same available to the Receivables Trustee:
13.1.1 where such amount is denominated in Sterling by payment in
Sterling and in same day funds (or in such other funds as may
for the time being be customary in Jersey for the settlement of
international banking transactions in Sterling) to such account
and bank in Jersey as the Receivables Trustee shall have
specified in writing for this purpose at least two Business
Days prior to such amount becoming payable; or
13.1.2 where such amount is denominated in a currency other than
Sterling, by payment in such currency and in immediately
available, freely transferable, cleared funds to such account
with such bank in the principal financial centre of the country
of such currency as the Receivables Trustee shall have
specified in writing for this purpose at least five Business
Days prior to such amount becoming payable.
13.2 On each date upon which this Deed requires an amount to be paid in cash
to a Transferor or Additional Transferor hereunder by or on behalf of
the Receivables Trustee, the Receivables Trustee shall, save as
otherwise provided herein, make the same available to such Transferor or
Additional Transferor:
13.2.1 where such amount is denominated in Sterling, by payment in
Sterling and in same day funds (or in such other funds as may
for the time being be customary in London for the settlement of
international banking transactions in Sterling) to such
Transferor or Additional Transferor at such account and bank in
Jersey as such Transferor or Additional Transferor shall have
specified in writing for this purpose at least two Business
Days prior to such amount becoming payable; or
21
13.2.2 where such amount is denominated in a currency other than
Sterling, by payment in such currency and in immediately
available, freely transferable, cleared funds to such account
with such bank in the principal financial centre of the country
of such currency as such Transferor or Additional Transferor
shall have specified in writing for this purpose at least five
Business Days prior to such amount becoming payable.
13.3 Notwithstanding any other provision of this Deed, each Transferor, each
Additional Transferor and the Receivables Trustee hereby agrees and
acknowledges that:
13.3.1 any amount payable by the Receivables Trustee to the relevant
Transferor or Additional Transferor in cash pursuant to Clause
5.1 (in respect of payment of the Cash Price for Existing
Receivables) and Clause 5.2 (in respect of the payment for
Future Receivables) on any Business Day shall be set-off
against the amount of any shortfall in the amount of Cash
Available for Acquisition on that Business Day which is to be
funded by the Transferors and each Additional Transferor as
beneficiaries of the Receivables Trust in the circumstances
contemplated by Clause 5.2(c)(ii) and (iii) respectively of the
Receivables Trust Deed and Trust Cash Management Agreement
PROVIDED, HOWEVER, that the relevant Transferor Interest in the
Receivables Trust is increased accordingly; and
13.3.2 the obligation of each Transferor or Additional Transferor to
the Receivables Trustee to pay an amount in cash pursuant to
Clause 10.4 (in respect of reductions in Receivables) and
Clause 11.1 (in respect of breach of warranty) may be fulfilled
(in whole or in part) by a reduction in the amount of the
relevant Transferor Interest in the Receivables Trust in the
circumstances contemplated by Clauses 5.3(a)(ii) of the
Receivables Trust Deed and Trust Cash Management Agreement
PROVIDED, HOWEVER, that such decrease shall not cause such
Transferor Interest to be decreased to an amount of less than
zero.
13.4 For the avoidance of doubt, the Acceptance Price payable by the
Receivables Trustee pursuant to Clause 3.4 in order to accept an Offer
shall not be subject to the set-off arrangements described in Clause
13.3 above.
14. CARD OPERATING ACCOUNTS AND PROCEEDS ACCOUNTS
14.1 Each Transferor has opened, and on or prior to its accession hereto each
Additional Transferor shall have opened (unless otherwise agreed with
the Receivables Trustee), an account in its own name for the purpose of
receiving, inter alia, Collections (each a "CARD OPERATING ACCOUNT").
14.2 Pending application of monies from the Card Operating Accounts to the
Trustee Collection Account either hereunder or in accordance with the
Receivables Trust Deed and Trust Cash Management Agreement, the sums
from time to time standing to the credit of each Operating Account shall
be held respectively by the relevant Transferor or Additional Transferor
on trust for and to the order of (1) the Receivables Trustee, to the
extent such Collections are
22
Principal Collections, Finance Charge Collections, Acquired Interchange
or Ineligible Collections and (2) the relevant Transferor or, as the
case may be, Additional Transferor, otherwise; and each Transferor and
each Additional Transferor by its accession hereto hereby confirms that
the bank at which its respective Card Operating Account is maintained
has been notified in writing that such account is a trust account held
on the above basis.
14.3 Each Transferor has opened a bank account in its name for the purpose of
receiving cash payments due to such Transferor in respect of the
Purchase Price of Receivables (the "RBS CARDS PROCEEDS ACCOUNT" and the
"RBSA PROCEEDS ACCOUNT", respectively), or such other accounts as such
Transferor may from time to time designate. On or prior to its accession
hereto, each Additional Transferor shall have opened an account in its
name for the purpose of receiving cash payments due to such Additional
Transferor in respect of the Purchase Price of the Receivables (the
"ADDITIONAL TRANSFEROR PROCEEDS ACCOUNT") or such other accounts as such
Additional Transferor may from time to time designate.
15. THE TRUSTEE COLLECTION ACCOUNT
The Receivables Trustee has opened an account at a Qualified Institution
in the name of the Receivables Trustee (the "TRUSTEE COLLECTION
ACCOUNT").
16. REPRESENTATIONS
16.1 Each Offeror severally represents as of the date hereof and each
Additional Offeror severally represents as of the date of its accession
hereunder that each of the statements set out in Parts 1 and 2 of the
Fourth Schedule of the Master Framework Agreement is true and such
Offeror and such Additional Offeror shall be deemed to repeat such
representations by reference to the facts and circumstances then
existing on each Closing Date specified in respect of any Supplement.
16.2 Each Offer shall constitute a representation by the relevant Offeror or,
as the case may be, the Additional Offeror, that, in relation to that
Offer, each of the statements set out in Part 3 of the Fourth Schedule
of the Master Framework Agreement is true with regard to the Existing
Receivables identified in such Offer which are Principal Receivables
other than such Existing Receivables which are specified in that Offer
as to be Ineligible Receivables.
16.3 The relevant Offeror or, as the case may be the Additional Offeror shall
be deemed to represent in respect of each Future Receivable which is a
Principal Receivable on the Date of Processing relating thereto that
each of the statements set out in Part 3 of the Fourth Schedule of the
Master Framework Agreement is true with regard to such Receivable unless
such Principal Receivable is specified by the relevant Transferor or, as
the case may be, the Additional Transferor to be an Ineligible
Receivable pursuant to Clause 5.2 or Clause 2.3.2(d).
23
17. COVENANTS
Each Transferor and Additional Transferor gives the covenants set out in
section (A) of the Fifth Schedule to the Master Framework Agreement.
18. STAMP DUTY
18.1 Subject to Clause 18.2 below each and every Offer, Scottish Declaration
of Trust, Scottish Additional Account Notice, Scottish Trust Notice,
Retrocession Letter, Receivables Trust Retrocession Letter or Scottish
Assignation made pursuant to this Deed or any other document effecting a
transfer of Receivables which are the subject of an Offer shall be
executed and retained outside the United Kingdom and, if any such
document is introduced into the United Kingdom by any party hereto or
any person acting under the direction of or with the agreement of such a
party, the Receivables Trustee shall promptly arrange for the document
so brought into the United Kingdom to be adjudicated and stamped at the
expense of the Receivables Trustee PROVIDED, HOWEVER, that it is
acknowledged that the obligations of the Receivables Trustee to pay any
stamp duty shall be limited to the extent that Trust Property is
calculated as available for such purpose pursuant to the terms of the
Receivables Trust and not otherwise.
18.2 In the event that the Receivables Trustee accepts an Offer, the relevant
Transferor or, as the case may be, Additional Transferor shall take the
following steps:
18.2.1 in relation to the first Offers made by such Transferor or
Additional Transferor, as soon as practicable after acceptance
thereof:
(a) procure that a member of the board of directors of such
Transferor or Additional Transferor or any other person
specified for the purpose by agreement with the Inland
Revenue shall swear a statutory declaration in the
appropriate form;
(b) submit an Initial Assignment within 30 days of execution
thereof, together with the statutory declaration in the
appropriate form, to the Inland Revenue Stamp Office to be
adjudicated free of stamp duty under section 42 of the
Finance ▇▇▇ ▇▇▇▇; and
(c) if the Inland Revenue Stamp Office adjudicate that Initial
Assignment free of stamp duty as described in (b) above,
as soon as practicable thereafter submit a further
transfer of an amount of Existing Receivables not
comprised in the Initial Assignment having an aggregate
Purchase Price such that the Floating Investor Percentage
of such Purchase Price is at least (L)30,000,000 and
take the steps referred to in (a) and (b) above in
relation to such transfer; and
(d) promptly notify each Rating Agency then rating any
Associated Debt of the result of the adjudications
obtained pursuant to paragraphs (b) and (c) above,
24
PROVIDED HOWEVER, that no Additional Transferor shall be
required to take any action pursuant to this Clause 18.2.1 if
the Rating Agencies have agreed that such action is not
required.
18.2.2 in relation to any subsequent Offer, not less than three months
after execution of the previous Offer in relation to which the
following steps were taken or, failing that, not later than
three months after execution of such Offer:
(a) procure that a member of the board of directors of the
Transferor or any other person specified for the purpose
by agreement with the Inland Revenue shall swear a
statutory declaration in the appropriate form; and
(b) submit the Subsequent Assignment within 30 days of the
execution thereof, together with the statutory declaration
in the appropriate form, to the Inland Revenue Stamp
Office to be adjudicated free of stamp duty under section
42 of the Finance ▇▇▇ ▇▇▇▇,
PROVIDED, HOWEVER that this Clause 18.2.2 shall not apply as
regards the acceptance of any Offer where, before an
application is made for adjudication of any related Subsequent
Assignment as referred to above, either:
(i) the Inland Revenue Stamp Office shall have refused
to adjudicate any other transfer referred to in this
Clause 18.2 free of stamp duty;
(ii) the relevant Transferor or Additional Transferor
shall have been advised by an appropriate specialist
lawyer practising in a reputable law firm of
national standing in the United Kingdom that the
Subsequent Assignment in question would not, or
would be unlikely to, qualify to be adjudicated free
of stamp duty; or
(iii) the Rating Agencies have agreed that such
adjudication is not required.
18.3 In this Clause 18, a statutory declaration "IN THE APPROPRIATE FORM"
means a statutory declaration substantially in a form approved by
leading tax Counsel chosen by the relevant Transferor or Additional
Transferor ("COUNSEL") for the purposes set out in this Clause 18 as
such form may be varied or amended from time to time with the approval
of Counsel.
19. NON-PETITION
19.1 Each Transferor and Additional Transferor upon its accession covenants
with the Receivables Trustee that it shall 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 the Receivables Trustee (either in its own capacity or as
trustee of the Receivables Trust or otherwise) or any Investor
Beneficiary or of any or all of the revenues and assets of any of them.
25
19.2 Each Transferor and, by its execution of an Accession Notice, each
Additional Transferor acknowledges that the obligations of the
Receivables Trustee under this Deed at any time are limited to the
lesser, at such time, of (a) the nominal amount thereof (the "NOMINAL
AMOUNT") and (b) an amount (the "AVAILABLE AMOUNT") equivalent to the
value of the Trust Property at such time. None of the Transferors or any
Additional Transferor 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 19.2.
19.3 Each Transferor and, by its execution of an Accession Notice, each
Additional Transferor agrees that 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.
20. BENEFIT OF DEED
20.1 This Deed shall be binding upon and enure to the benefit of each party
hereto and its successors and permitted assigns.
20.2 Except in the circumstances contemplated by the provisions of paragraph
3.3 of Schedule 5(A) to the Master Framework Agreement, none of the
Transferors or any Additional Transferor in its capacity as such shall
be entitled to assign or transfer all or any of its rights, benefits and
obligations hereunder. The Receivables Trustee agrees that it shall, at
the expense of such Transferor or, as the case may be, Additional
Transferor, execute such documents as such Transferor or, as the case
may be, Additional Transferor may reasonably require to effect the
matters permitted pursuant to paragraph 3.3 of Schedule 5(A) to the
Master Framework Agreement.
20.3 The Receivables Trustee shall not be entitled to assign or transfer all
or any of its rights, benefits and obligations hereunder except to the
extent permitted and in the manner provided by the Receivables Trust
Deed and Trust Cash Management Agreement.
21. DISCLOSURE OF INFORMATION
21.1 The Receivables Trustee hereby agrees that it shall not disclose any
Account Information to any person, except in the following circumstances
and only to the extent permitted by applicable law:
21.1.1 if required in connection with the performance of its duties
hereunder or under the Receivables Trust Deed and Trust Cash
Management Agreement and any Supplement thereto;
26
21.1.2 if required in order to enforce the rights of any Beneficiary
of the Receivables Trust or to a Successor Servicer appointed
pursuant to Clause 4.3 of the Beneficiaries Servicing
Agreement;
21.1.3 with the consent of the Transferor 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 Related Debt or Associated Debt; or
21.1.4 pursuant to any Requirement of Law.
21.2 The Receivables Trustee agrees to take such measures as shall be
reasonably requested by the Transferor or any Additional Transferor, to
protect and maintain the security and confidentiality of Account
Information and, in connection therewith, shall allow the Transferor and
each Additional Transferor to inspect the Receivables Trustee's security
and confidentiality arrangements from time to time during normal
business hours and upon reasonable notice being given.
21.3 If the Receivables Trustee is required by any Requirement of Law to
disclose any Account Information, the Receivables Trustee shall provide
the Transferor and each Additional Transferor with prompt written
notice, unless such notice is prohibited by law, of any such request or
requirement. The Receivables Trustee shall make reasonable efforts to
provide the Transferor 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.
22. REMEDIES AND WAIVERS
22.1 No failure to exercise, nor any delay in exercising, on the part of any
party hereto, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any
other right or remedy.
22.2 The rights and remedies herein provided are cumulative and not exclusive
of any rights or remedies provided by law.
23. PARTIAL INVALIDITY
Without prejudice to any other provision hereof, if one or more
provisions hereof is or becomes invalid, illegal or unenforceable in any
respect in any jurisdiction or with respect to any party such
invalidity, illegality or unenforceability in such jurisdiction or with
respect to such party or parties shall not, to the fullest extent
permitted by applicable law, render invalid, illegal or unenforceable
such provision or provisions in any other jurisdiction or with respect
to any other party or parties hereto.
27
24. NOTICES
24.1 Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in writing and may be made by telex, telefax or
letter.
24.2 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 telefax)
or (in the case of any communication made by telex) when dispatched and
the appropriate answerback or identification symbol received by the
sender or (in the case of any communication made by letter) when left at
that address or (as the case may be) ten days after being deposited in
the post postage prepaid in an envelope addressed to it at that address
PROVIDED, HOWEVER, that each telefax or telex communication made by one
party hereto to another shall be made to that other person at the
telefax or telex number notified to such party by that other person from
time to time:
(ii) in the case of the Transferor to RBS Cards, The Younger
Building, PO Box 2000, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
Attention: Financial Controller, Securitisation, with a copy to
Attention: Group General Counsel, facsimile number: ▇▇▇ ▇▇ ▇▇▇▇
9968;
(iii) in the case of any Additional Transferor, to the address and
fax number set out in the Accession Notice of such Additional
Transferor; and
(iv) in the case of the Receivables Trustee to Mourant & Co.
Secretaries Limited, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇ Channel Islands.
25. TERMINATION OF RECEIVABLES TRUST DEED AND TRUST CASH MANAGEMENT
AGREEMENT
Notwithstanding any other provision of this Deed, the parties hereto
acknowledge that if, following the occurrence of any Insolvency Event,
the Receivables Trust is dissolved in accordance with the provisions of
Clause 6.3 of the Receivables Trust Deed and Trust Cash Management
Agreement, then the provisions of this Deed shall also terminate without
further action by the parties hereto, PROVIDED, HOWEVER, that such
termination shall be without prejudice to any rights existing on or
prior to the date of such Insolvency Event (including rights relating to
the giving of notice to Obligors as set out in Clause 6 hereof).
26. LAW
This Deed shall be governed by, and construed in accordance with,
English law.
28
27. JURISDICTION
27.1 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 submits to the exclusive jurisdiction of
such courts.
27.2 Each party hereto irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 27.1 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.
IN WITNESS WHEREOF, the parties hereto have caused this Deed to be executed and
delivered in Jersey, Channel Islands by their duly authorised representatives as
a deed on the day and year first before written.
29
SCHEDULE 1A
FORM OF OFFER (EXISTING ACCOUNTS)
[TO BE USED FOR OFFERS OF RECEIVABLES ON EXISTING ACCOUNTS]
To: The Receivables Trustee
From: [Name of Offeror/Additional Offeror]
Dated: [o]2000
Dear Sirs
OFFER
1. We refer to the receivables securitisation deed (as from time to time
amended, supplemented or novated, the "RSA") dated 27 March 2000 and
amended and restated on 28 September 2000 and 27 October 2005 and made
between, inter alios, ourselves and yourselves.
2. This Offer relates to Existing Accounts.
3. Terms defined in (or incorporated by reference into) the RSA shall bear
the same meaning herein. The [Pool Selection Date/Additional Selection
Date] in respect of this Offer is [o]].
4. We have identified in the Pool Index File certain Eligible Accounts
which are to be Designated Accounts (the "NEW DESIGNATED ACCOUNTS") with
the designation [o]. We hereby offer you an assignment of or, in the
case of Scottish Receivables, to hold on trust for you (pursuant to a
declaration of trust, substantially in the form of the Scottish
Declaration of Trust, over):
(a) the Existing Receivables under each New Designated Account;
(b) all Future Receivables under each such New Designated Account
which are not Finance Charge Receivables in respect of
Principal Receivables which arise before the earliest of:
(i) in respect of each New Designated Account, such time (if
any) as such Account becomes a Redesignated Account;
(ii) the termination of the Receivables Trust; or
(iii) the occurrence of an Insolvency Event;
(iv) all Future Receivables under each Account nominated in
this Offer which are Finance Charge Receivables in respect
of Receivables which are assigned (or
30
purported to be assigned) or, in the case of Scottish
Receivables, are held on trust, pursuant to paragraphs (i)
and (ii) above;
(v) (to the extent such are capable of assignment) the benefit
of and any proceeds arising from each guarantee or
insurance policy obtained by ourselves in respect of the
obligations of an Obligor to make payments on such New
Designated Accounts, including all Insurance Proceeds; and
(vi) [in respect of an Initial Offer only] [the benefit of all
amounts representing Acquired Interchange in respect of
each Monthly Period.]
5. The Acceptance Price payable in order to accept this Offer is
(L)10,000.
6. This Offer has attached a read only computer file, microfiche list or
cd-rom containing a true and complete list of all such New Designated
Accounts, each identified by specific number identifying such Account
and setting forth the Receivables balance of such Account as of the Pool
Selection Date with respect to an Initial Offer or the Additional
Selection Date with respect to any Subsequent Offer. Such file or list
shall be subject to clause 21 of the RSA.
(a) If you accept this Offer, we undertake to deliver to you at our
own expense and as soon as reasonably practicable after your
acceptance, a Scottish Declaration of Trust substantially in
the form set out in Schedule 3 to the RSA.
(b) If you accept this Offer, you will deliver to each Beneficiary
of the Receivables Trust at your expense as soon as reasonably
practicable after receipt of the Scottish Declaration of Trust
mentioned in the previous sentence a Scottish Trust Notice
substantially in the form set out in Schedule 10 to the RSA.
7. The Cash Price payable pursuant to Clause 5.1 of the RSA is [(L)o]
8. In respect of the Existing Receivables identified by reference to the
New Designated Accounts we have identified the Eligible Receivables and
Ineligible Receivables comprised therein.
9. In respect of the Eligible Receivables so identified, we certify that as
at the [Pool Selection Date/Additional Selection Date]:
(a) the aggregate amount of such Eligible Receivables is
(L)[o];
(b) the total Outstanding Face Amount of the Principal Receivables
comprised in such Eligible Receivables is (L)[o]; and
(c) the total outstanding balance of the Finance Charge Receivables
comprised in such Eligible Receivables is (L)[o].
10. In respect of the Ineligible Receivables so identified, we certify that
the aggregate amount of the Ineligible Receivables comprised in the
Existing Receivables is (L)[o].
31
11. The following Receivables offered under this Offer are Additional
Ineligible Receivables: [ ].
12. Save in respect of an Existing Receivable which is identified as an
Ineligible Receivable (including for the avoidance of doubt an
Additional Ineligible Receivable), we warrant that each of the
representations referred to in Clause 16.2 of the RSA is true on and as
of the Pool Selection Date or Additional Selection Date, as the case may
be, in respect of each Existing Receivable which is a Principal
Receivable which is offered to you hereby.
13. We acknowledge that if you accept the Offer contained herein we will be
deemed to represent in respect of each Future Receivable which is a
Principal Receivable arising on the New Designated Accounts on the Date
of Processing relating thereto, that each of the representations
referred to in Clause 16.3 of the RSA is true on and as of such Date of
Processing save in respect of a Principal Receivable which is identified
as an Ineligible Receivable.
14. In respect of the New Designated Accounts we certify and represent that:
(a) no selection procedures adverse to the Investor Beneficiaries
of any Applicable Series have been employed by us in selecting
the New Designated Accounts from amongst the Eligible Accounts
in our Portfolio of Accounts; [and]
(b) the list of New Designated Accounts delivered by us pursuant to
paragraph 5 is a true and complete list of all the New
Designated Accounts specified in the related Offer as of the
[Pool Selection Date/Additional Selection Date], and the
information contained therein with respect to the identity of
such Accounts and the Receivables existing thereunder is true
and correct as of such date.
(c) [in respect of Subsequent Offers only] [the Offer satisfies the
Maximum Addition Amount criteria] or [the Offer does not
satisfy the Maximum Addition Amount criteria but we have
received written confirmation from each Rating Agency that the
inclusion of such New Designated Accounts as Designated
Accounts pursuant to clause 2.2 of the RSA will not result in a
withdrawal or downgrading of the current rating of any
Associated Debt].
Yours faithfully
for and on behalf of
[NAME OF OFFEROR/ADDITIONAL OFFEROR]
32
SCHEDULE 1B
FORM OF OFFER (FUTURE ACCOUNTS)
[TO BE USED FOR OFFERS OF RECEIVABLES ON FUTURE ACCOUNTS]
To: The Receivables Trustee
From: [Name of Offeror/Additional Offeror]
Dated: [o] 2000
Dear Sirs
OFFER
1. We refer to the receivables securitisation deed (as from time to time
amended, supplemented or novated, the "RSA") dated 27 March 2000 and
amended and restated on 28 September 2000 and 27 October 2005 and made
between, inter alios, ourselves and yourselves.
2. This Offer relates to Future Accounts.
3. Terms defined in (or incorporated by reference into) the RSA shall bear
the same meaning herein. The "ADDITIONAL SELECTION DATE" in respect of
each Future Account the Receivables on which are the subject of this
Offer (each Future Account taken in strict chronological order by
reference to its Account Creation Date, and where more than one Future
Account has the same Account Creation Date, in alphabetical order by
reference to the surname of the Obligor), is the earliest of 31 March,
30 June, 30 September and 31 December (or if such date is not a Business
Day, the next following Business Day) (each a "QUARTER DAY") next
following the end of the month in which the Account Creation Date of
such Future Account falls, PROVIDED THAT on such Quarter Day the
relevant Future Account meets the Future Accounts Criteria specified
below and PROVIDED FURTHER THAT if any such Account does not meet the
Future Accounts Criteria on such Quarter Day only because the inclusion
of such Account as a Designated Account on such Quarter Day would not
satisfy the criterion set out as sub-paragraph 2(ii) of the Future
Accounts Criteria below, the ADDITIONAL SELECTION DATE in respect of
each such Account (taken in the strict chronological and alphabetical
order mentioned above) will be the next following Quarter Day on which
such Account meets the Future Accounts Criteria.
4. An Account is a Designated Account (a "NEW DESIGNATED ACCOUNT") if it
meets the following criteria (the "FUTURE ACCOUNTS CRITERIA"):
(i) it is an Eligible Account on:
33
(a) the Quarter Day next following the end of the calendar
month in which the Account Creation Date of that Account
falls, or
(b) if such Account is not included as a Designated Account
only because its inclusion on such Quarter Day would not
satisfy the Future Accounts Criterion mentioned in
sub-paragraph (ii) below, the next following Quarter Day
on which the inclusion of such Account as a Designated
Account would satisfy such criterion;
(ii) either the inclusion of such Account as a Designated Account on
the relevant Quarter Day satisfies the Maximum Addition Amount
criteria or notwithstanding that the inclusion of such Account
would not satisfy the Maximum Addition Amount criteria, we have
received written confirmation from each Rating Agency that the
inclusion of such Future Account as a Designated Account
pursuant to Clause 2.2 of the RSA will not result in a
withdrawal or downgrading of the current rating of any
Associated Debt; and
(iii) the Account Creation Date of that Account falls no later than
the end of the twelfth calendar month following this Offer.
5. We hereby offer you an assignment of:
(i) the Existing Receivables under each New Designated Account;
(ii) all Future Receivables under each such New Designated Account
which are not Finance Charge Receivables in respect of
Principal Receivables which arise before the earliest of:
(a) in respect of each New Designated Account, such time (if
any) as such Account becomes a Redesignated Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event;
(iii) all Future Receivables under each Account nominated in this
Offer which are Finance Charge Receivables in respect of
Receivables which are assigned (or purported to be assigned),
pursuant to paragraphs (i) and (ii) above;
(iv) (to the extent such are capable of assignment) the benefit of
and any proceeds arising from each guarantee or insurance
policy obtained by ourselves in respect of the obligations of
an Obligor to make payments on such New Designated Accounts,
including all Insurance Proceeds; and
(v) [in respect of an Initial Offer only] [the benefit of all
amounts representing Acquired Interchange in respect of each
Monthly Period.]
34
6. The Acceptance Price payable in order to accept this Offer is
(L)10,000.
7.
(i) We acknowledge that whether any Future Account will be a New
Designated Account is a question to be determined according to
the objective criteria set out in paragraph 4 of this Offer.
However, if you accept the Offer contained herein we hereby
undertake as soon as practicable after each Additional
Selection Date to deliver to you at our own expense a computer
file, microfiche list or read-only cd-rom containing a true and
complete list of all New Designated Accounts as at such
Additional Selection Date.
(ii) Any such computer file, microfiche list or read-only cd-rom so
delivered is for information only and is not determinative,
however, we will endeavour to ensure that it is accurate and
complete. In this regard we refer you to paragraph 10(b) below.
8. We acknowledge that if you accept the Offer contained herein we will be
deemed to warrant that each of the representations referred to in Clause
16.2 of the RSA is true on and as of the Additional Selection Date in
respect of each Existing Receivable which is a Principal Receivable as
at the Additional Selection Date and which is offered to you hereby.
9. We acknowledge that if you accept the Offer contained herein we will be
deemed to represent in respect of each Future Receivable which is a
Principal Receivable arising on the New Designated Accounts on the Date
of Processing relating thereto, that each of the representations
referred to in Clause 16.3 of the RSA is true on and as of such Date of
Processing save in respect of a Principal Receivable which is identified
as an Ineligible Receivable.
10. In respect of the New Designated Accounts we certify and represent that:
(a) no selection procedures adverse to the Investor Beneficiaries
of any Applicable Series have been employed by us in selecting
the New Designated Accounts from amongst the Eligible Accounts
in our Portfolio of Accounts; [and]
(b) the list of New Designated Accounts to be delivered by us
pursuant to paragraph 7 will be a true and complete list of all
the New Designated Accounts specified in the related Offer as
of the Additional Selection Date, and the information contained
therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct as of such
date.
(c) [In respect of Subsequent Offers only][the Offer satisfies the
Maximum Addition Amount criteria] or [the Offer does not
satisfy the Maximum Addition Amount criteria but we have
received written confirmation from each Rating Agency that the
inclusion of such New Designated Accounts as Designated
Accounts pursuant to clause 2.2 of the RSA will not result in a
withdrawal or downgrading of the current rating of any
Associated Debt].
35
Yours faithfully
for and on behalf of
[NAME OF OFFEROR/ADDITIONAL OFFEROR]
36
SCHEDULE 2
CONDITIONS PRECEDENT TO SUBSEQUENT OFFERS
The relevant Offeror or Additional Offeror shall provide the following documents
to the Receivables Trustee (which shall be in form and substance satisfactory to
the Receivables Trustee):
1. a Solvency Certificate from the relevant Offeror or Additional Offeror
substantially in the form set out in Schedule 8.
2. a statement from the relevant Offeror or Additional Offeror in the
relevant Offer substantially in the form set out in paragraph 14 (in the
case of an Offer relating to Existing Accounts) or 10 (in the case of an
Offer relating to Future Accounts) of the form of Offer in Schedule 1A
or 1B (as applicable) confirming either:
(a) the Offer satisfies the Maximum Addition Amount criteria; or
(b) the Offer does not satisfy the Maximum Addition Amount criteria
but the Transferor has received written notice from each Rating
Agency that the inclusion of such Accounts as Designated
Accounts pursuant to Clause 2.2 will not result in the
reduction or withdrawal of its then current rating of any
outstanding Associated Debt; and
3. if applicable, a legal opinion addressed to the Receivables Trustee in
respect of Receivables arising in any new Permitted Additional
Jurisdiction from reputable legal advisers qualified to practise in such
new Permitted Additional Jurisdiction.
37
SCHEDULE 3
FORM OF SCOTTISH DECLARATION OF TRUST
between
(1) [THE ROYAL BANK OF SCOTLAND PLC, acting through its division RBS Cards,
(registered number 90312) whose registered office is at ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "OFFEROR"); and ][RBS ADVANTA,
(registered number 157256) whose registered office is at ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "OFFEROR"); and] [[ADDITIONAL TRANSFEROR]
(the "OFFEROR"); and]
(2) SOUTH GYLE RECEIVABLES TRUSTEE LIMITED whose registered office is at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
"RECEIVABLES TRUSTEE" which expression shall include such company and
all other persons or companies for the time being acting as receivables
trustee or receivables trustees under the Receivables Securitisation
Deed (as hereinafter defined)).
WHEREAS
(A) By virtue of a Receivables Securitisation Deed dated 27 March 2000, as
amended and restated on 28 September 2000 and 27 October 2005, and made
between, inter alios, the Offeror and the Receivables Trustee (the
"RECEIVABLES SECURITISATION DEED"), the Offeror and the Receivables
Trustee have agreed that the Offeror may from time to time offer to sell
all Receivables arising on Designated Accounts (both Existing
Receivables and Future Receivables) to the Receivables Trustee and the
Receivables Trustee, if it so determines, may from time to time accept
any such offer in the manner provided for therein;
(B) On or around the date of this deed the Offeror has made, and the
Receivables Trustee has accepted, an Offer (referred to in this Scottish
Declaration of Trust as the "OFFER") in respect of, inter alia, the
Receivables arising under the Designated Accounts nominated in such
Offer, all on the terms of the Receivables Securitisation Deed; and
(C) In order to protect the title of the Receivables Trustee to any such
Receivables as may be governed by Scots law and in order to implement
Clause 4.3 of the Receivables Securitisation Deed, the Offeror has
undertaken to grant this deed, all under the terms of the Receivables
Securitisation Deed.
NOW THEREFORE the parties HEREBY AGREE AND DECLARE as follows:
1. INTERPRETATION
1.1 In this Deed, unless otherwise defined herein, terms defined in Schedule
1 of the Master Framework Agreement dated 27 March 2000, as amended and
restated on 28 September 2000 and 27 October 2005, between, inter alios,
the Offeror and the Receivables Trustee (the "MASTER FRAMEWORK
AGREEMENT") shall have the same meaning herein and, for the avoidance
38
of doubt, in the preamble hereto. This deed shall be interpreted and
construed in accordance with the Master Framework Agreement as a
Transaction Document.
1.2 The following terms shall have the following meanings:
"NEW ACCOUNTS" means such of the Designated Accounts nominated in the
Offer and set out in the read-only computer file, microfiche list or
cd-rom annexed as relative hereto as are from time to time governed by
Scots law;
"RECEIVABLES TRUST RETROCESSION LETTER" means a letter substantially in
the form set out in Part Two of the Schedule hereto;
"RETROCESSION LETTER" means a letter substantially in the form set out
in Part One of the Schedule hereto;
"SCOTTISH TRUST PROPERTY" means, with respect to Scottish Receivables
only, all of the Offeror's rights, title and interest to and in:
(i) the Existing Receivables under each New Account; and
(ii) the Future Receivables under each New Account which are not
Finance Charge Receivables in respect of Principal Receivables,
which arise before the earliest of:
(A) in respect of each such New Account, such time (if any),
as such New Account becomes a Redesignated Account;
(B) the termination of the Receivables Trust; or
(C) the occurrence of an Insolvency Event;
(iii) all Future Receivables arising on/under each New Account which
are Finance Charge Receivables in respect of the Receivables
referred to at (a)(i) and (ii) above;
(iv) the benefit of, and any proceeds arising from, each guarantee
or insurance policy obtained by the Offeror in respect of the
obligations of an Obligor to make payments on any New Account,
including all Insurance Proceeds; and
(v) all Collections in respect of (a)(i) to (a)(iv), inclusive.
1.3 This deed shall be referred to as the "[NAME OF DEED] SCOTTISH
DECLARATION OF TRUST".
2. DECLARATION OF TRUST
The Offeror hereby declares that from and after the date hereof it holds
and, subject to Clause 7 hereof, shall henceforth hold the Scottish
Trust Property and its whole right, title and interest, present and
future, therein and thereto in trust absolutely for the Receivables
Trustee.
39
3. INTIMATION
The Offeror hereby intimates to the Receivables Trustee the coming into
effect of the trust hereby declared and created and the Receivables
Trustee by its execution hereof immediately subsequent to the execution
of this Deed by the Offeror acknowledges such intimation.
4. DEALINGS WITH TRUST PROPERTY AND NEGATIVE PLEDGE
The Offeror warrants and undertakes to the Receivables Trustee that:
4.1 as at the date hereof, it holds legal title to the Scottish Trust
Property unencumbered by any fixed or floating charge;
4.2 it shall not create or agree to create any fixed or floating charge or
other security interest over or which may attach to or affect the whole
or any part of the Scottish Trust Property at any time when such
property or part thereof remains subject to the trust hereby created;
and
4.3 it shall deal with the Scottish Trust Property in accordance with the
provisions of the Receivables Securitisation Deed and any other
documentation between the Offeror and the Receivables Trustee
(including, without limitation, any documentation concerning the
administration of the Scottish Trust Property).
5. CHANGE OF TRUSTEE
Except with the prior written consent of the Receivables Trustee, the
Offeror shall not be entitled to resign office as a trustee or assume a
new trustee or trustees under this Deed.
6. POWER OF BENEFICIARY
The Receivables Trustee, as beneficiary hereunder, shall have the right
in the circumstances stated in Clause 6.10 of the Receivables
Securitisation Deed to complete its title to the Scottish Trust Property
or any part thereof or to call upon the Offeror to execute and deliver
to the Receivables Trustee valid assignations of the Scottish Trust
Property or any part thereof, and that notwithstanding the winding-up of
the Offeror or the making of any administration order in respect of the
Offeror, or the appointment of any receiver to all or any part of the
Scottish Trust Property.
7. TERMINATION OF TRUST
If:
7.1 legal title to any part or parts of the Scottish Trust Property is taken
by the Receivables Trustee; or
7.2 any New Account has been released to the Offeror pursuant to Clause 10.5
or Clause 11.3 of the Receivables Securitisation Deed; or
40
7.3 Collections in respect of any of the Scottish Trust Property are
transferred by the Offeror to (and cleared funds in respect thereof are
received in) the Trustee Collection Account (whereupon those amounts
will become subject to the Receivables Trust) according to the terms of
the Receivables Trust Deed and Trust Cash Management Agreement; or
7.4 monies held in the [RBS] [RBSA] [Offeror] Operating Account that are
identified as representing Ineligible Collections are transferred to the
Offeror or as the Offeror may direct according to the terms of Clause
5.2(a)(ii) of the Receivables Trust Deed and Cash Management Agreement;
or
7.5 the Receivables Trust is to be dissolved according to the terms of
Clause 6.3 or 8.1 of the Receivables Trust Deed and Cash Management
Agreement and the Receivables Trustee gives written notice to the
Offeror of its intention to terminate the trust constituted by this
Deed,
the trust hereby declared and created shall (but only when the relevant
events or transaction have been completed irrevocably, validly and in
full) ipso facto fall and cease to be of effect in respect of such part
or parts of the Scottish Trust Property but shall continue in full force
and effect in respect of the whole remainder (if any) of the Scottish
Trust Property.
The Offeror and the Receivables Trustee shall execute a Retrocession
Letter and the Receivables Trustee shall execute a Receivables Trust
Retrocession Letter in respect of the transfers referred to in Clause
7.2 as soon as reasonably practicable after such transfer.
8. VARIATION
This Deed and the trust hereby declared and created shall not be varied
in any respect without the consent in writing of the Receivables
Trustee.
9. GOVERNING LAW
This Deed shall be governed by, and construed in accordance with, Scots
law and the parties hereto submit to the jurisdiction of the Scottish
courts.
IN WITNESS WHEREOF these presents consisting of this and the preceding [four]
pages together with the Schedule hereto and the read-only computer file,
microfiche list or cd-rom contained in the envelope annexed hereto are
subscribed on behalf of the said [The Royal Bank of Scotland plc] [RBS Advanta]
[Additional Offeror] and the said South Gyle Receivables Trustee Limited at
[place of execution (i.e. town/city)] on [date of execution] as follows:
SUBSCRIBED for and on behalf of the said
[THE ROYAL BANK OF SCOTLAND PLC] [RBS ADVANTA] [[ADDITIONAL OFFEROR]
by
41
......................................................... (Authorised Signatory)
.......................................................... (Witness)
.......................................................... (Witness name)
.......................................................... (Witness address)
..........................................................
SUBSCRIBED for and on behalf of the said
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
by
......................................................... (Authorised Signatory)
.......................................................... (Witness)
.......................................................... (Witness name)
.......................................................... (Witness address)
..........................................................
DOCQUET TO BE AFFIXED TO READ ONLY COMPUTER FILE, MICROFICHE LIST OR CD-ROM AND
TO ENVELOPE CONTAINING IT:
"This is the read only [computer file] [microfiche list] [cd-rom] referred to in
the foregoing [Name of deed] Scottish Declaration of Trust by [The Royal Bank of
Scotland plc] [RBS Advanta] [Additional Offeror] in favour of South Gyle
Receivables Trustee Limited dated [o]"
42
THIS IS THE SCHEDULE TO THE FOREGOING [NAME OF DEED] SCOTTISH DECLARATION OF
TRUST BY [THE ROYAL BANK OF SCOTLAND PLC] [RBS ADVANTA] [ADDITIONAL OFFEROR] IN
FAVOUR OF SOUTH GYLE RECEIVABLES TRUSTEE LIMITED DATED [O]
PART ONE
RETROCESSION LETTER
[LETTERHEAD OF OFFEROR]
To: South Gyle Receivables Trustee Limited
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Channel Islands
Date: [o] [o] 200[o]
Dear Sirs
[NAME OF DEED] SCOTTISH DECLARATION OF TRUST BY [OFFEROR] IN FAVOUR OF SOUTH
GYLE RECEIVABLES TRUSTEE LIMITED DATED [O] (THE "DECLARATION OF TRUST")
We refer to the Declaration of Trust. Unless otherwise defined herein, terms
defined in the Declaration of Trust have the same meaning herein.
This Retrocession Letter is to confirm pursuant to Clause 7 of the Declaration
of Trust that the Accounts set out in the read-only computer file, microfiche
list or cd-rom contained in the envelope annexed as relative to this letter have
[been released to us pursuant to Clause [10.5] [11.3] of the Receivables
Securitisation Deed] and therefore have automatically been retrocessed to us
pursuant to Clause 7.2 of the Declaration of Trust.
Save as so amended thereby the Declaration of Trust remains in full force and
effect.
This letter shall be governed by Scots law and the parties hereto submit to the
jurisdiction of the Scottish courts.
Please acknowledge your acceptance of the above by signing the enclosed
duplicate copy letter and returning it to us.
Yours faithfully
.............................................
43
For and on behalf of [Offeror]
We acknowledge and accept the above.
................................................
Authorised Signatory
For and on behalf of
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
DOCQUET TO BE AFFIXED TO READ-ONLY COMPUTER FILE, MICROFICHE LIST OR CD-ROM AND
ENVELOPE CONTAINING IT:
"This is the read-only [computer file] [microfiche list] [cd-rom] referred to in
the foregoing Retrocession Letter from [Offeror] to [Receivables Trustee] dated
[o]"
44
PART TWO
RECEIVABLES TRUST RETROCESSION LETTER
[LETTERHEAD OF RECEIVABLES TRUSTEE]
To: RBS Cards Securitisation Funding Limited
Royal Bank House
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
(the "INVESTOR BENEFICIARY")
The Royal Bank of Scotland plc
▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
("RBS")
RBS Advanta
▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
("RBSA")
[Additional Offeror]
[address]
Date: [o] [o] 20[o]
Dear Sirs
RECEIVABLES TRUST DEED AND TRUST CASH MANAGEMENT AGREEMENT DATED 27 MARCH 2000
AND AMENDED AND RESTATED 28 SEPTEMBER 2000 AND 27 OCTOBER 2005 AMONG SOUTH GYLE
RECEIVABLES TRUSTEE LIMITED (THE "RECEIVABLES TRUSTEE"), RBS, RBSA AND THE
INVESTOR BENEFICIARY (AS AMENDED, SUPPLEMENTED, RESTATED OR NOVATED FROM TIME TO
TIME, THE "RECEIVABLES TRUST DEED AND TRUST CASH MANAGEMENT AGREEMENT")
We refer to:
(i) the Receivables Trust Deed and Trust Cash Management Agreement;
45
(ii) [further Supplements] (documents (ii) - (o) being together referred to
as the "SUPPLEMENTS");
(iii) the [name of trust] Scottish Declaration of Trust dated [o] between
[RBS] [RBSA] [Additional Offeror] and the Receivables Trustee (the
"SCOTTISH DECLARATION OF TRUST");
(iv) [the Scottish Additional Account Notice dated [o] between [RBS] [RBSA]
[Additional Offeror] and the Receivables Trustee (the "SCOTTISH
ADDITIONAL ACCOUNT NOTICE").]
Unless otherwise defined herein, terms defined in the Scottish Declaration of
Trust have the same meaning herein.
This Retrocession Letter is to confirm that the Accounts set out in the read
only computer file, microfiche list or cd-rom contained in the envelope annexed
as relative to this letter have been released from the Scottish Trust Property
pursuant to Clause [10.5] [11.3] of the Receivables Securitisation Deed.
Therefore our beneficial interest under the Scottish Declaration of Trust, which
is held in trust for you according to the terms of the Receivables Trust Deed
and Trust Cash Management Agreement, no longer includes the receivables and
other sums under those Accounts.
Save as so adjusted, our beneficial interest under the Scottish Declaration of
Trust, held on trust for you according to the terms of the Receivables Trust
Deed and Trust Cash Management Agreement, remains unchanged.
This letter shall be governed by Scots law and the parties hereto submit to the
jurisdiction of the Scottish courts.
Please acknowledge your acceptance of the above by signing the enclosed
duplicate of this letter and returning it to us.
Yours faithfully
..................................
For and on behalf of South Gyle Receivables Trustee Limited
We acknowledge and accept the above
....................................
Authorised Signatory
For and on behalf of RBS Cards Securitisation Funding Limited
46
....................................
Authorised Signatory
For and on behalf of The Royal Bank of Scotland plc
.....................................
Authorised Signatory
For and on behalf of [Additional Offeror]
DOCQUET TO BE ATTACHED TO READ-ONLY COMPUTER FILE, MICROFICHE LIST OR CD-ROM
This is the read-only [computer file] [microfiche list] [cd-rom], referred to in
the foregoing Receivables Trust Retrocession Letter dated [o] [o] 20[o] from
South Gyle Receivables Trustee Limited to RBS Cards Securitisation Funding
Limited, The Royal Bank of Scotland plc and RBS Advanta [Additional Offeror].
47
SCHEDULE 4
FORM OF SCOTTISH ADDITIONAL ACCOUNT NOTICE
[LETTERHEAD OF OFFEROR]
To: South Gyle Receivables Trustee Limited
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Channel Islands
Date: [o] [o] 200[o]
Dear Sirs
[NAME OF DEED] SCOTTISH DECLARATION OF TRUST BY [OFFEROR] IN FAVOUR OF SOUTH
GYLE RECEIVABLES TRUSTEE LIMITED DATED [O] (THE "DECLARATION OF TRUST")
We refer to the Declaration of Trust. Unless otherwise defined herein, terms
defined in the Declaration of Trust have the same meaning herein.
This Scottish Additional Account Notice is to notify you that the Additional
Accounts set out in the Pool Index File held on the read-only computer file,
microfiche list or cd-rom contained in the envelope annexed as relative to this
letter have been designated by us as Designated Accounts and therefore such of
those Additional Accounts as are from time to time governed by Scots law have
been automatically included in the existing Scottish Trust Property pursuant to
sub-paragraph (ii) of the definition of that term in the Declaration of Trust.
This letter shall be governed by Scots law and the parties hereto submit to the
jurisdiction of the Scottish courts.
Please acknowledge your acceptance of the above by signing the enclosed
duplicate copy letter and returning it to us.
Yours faithfully
.............................................
For and on behalf of [Offeror]
We acknowledge and accept the above.
48
................................................
Authorised Signatory
For and on behalf of South Gyle Receivables Trustee Limited
Docquet to be affixed to read-only computer file, microfiche list or cd-rom and
envelope containing it:
"This is the read-only [computer file] [microfiche list] [cd-rom] referred to in
the foregoing Scottish Additional Account Notice from [Offeror] to [Receivables
Trustee] dated [o]"
49
SCHEDULE 5
NOTIFICATION EVENTS
1. A duly authorised officer of a Transferor or an Additional Transferor
shall admit in writing that such Transferor or Additional Transferor is
unable to pay its debts as they fall due within the meaning of Section
123(1) of the Insolvency ▇▇▇ ▇▇▇▇ or a Transferor or Additional
Transferor makes a general assignment for the benefit of or a
composition with its creditors or voluntarily suspends payments of its
obligations with a view to the general readjustment or rescheduling of
its indebtedness.
2. A Transferor or an Additional Transferor shall consent to or take any
corporate action relating to the appointment of a receiver,
administrator, administrative receiver, trustee, liquidator 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 reorganisation (except for a solvent
reorganisation) 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 or substantially all of its revenues and assets is
legally and validly appointed and such appointment is not discharged
within 14 days.
3. Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any part of the property, undertaking or
assets of a Transferor or an Additional Transferor or any event occurs
which under the laws of any jurisdiction has a similar or analogous
effect, and such action is not discharged within 14 days.
4. A Transferor or an Additional Transferor (or the Servicer on behalf of a
Transferor or an Additional Transferor) fails to pay any sum due from it
to the Receivables Trustee hereunder in respect of the Designated
Accounts within five Business Days of the due date thereof or the date
of demand, if payable on demand, in the currency and in the manner
specified herein, and such failure is not remedied within ten Business
Days after the Receivables Trustee has given notice thereof to the
relevant Transferor or Additional Transferor.
5. The rating of RBS (or, if applicable, any Additional Transferor's long
term senior unsecured indebtedness as rated by any of Moody's, Standard
& Poor's or Fitch) falls below Baa2, BBB or BBB respectively.
50
SCHEDULE 6
FORM OF SCOTTISH ASSIGNATION
by
(1) [THE ROYAL BANK OF SCOTLAND PLC, acting through its division RBS Cards,
(registered number 90312) whose registered office is at ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇] [RBS ADVANTA, (registered number 157256)
whose registered office is at ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇]
[ADDITIONAL TRANSFEROR (registered number o) of [o]], as trustee
pursuant to the Declaration of Trust (as hereinafter defined) (the
"TRANSFEROR");
in favour of
(2) SOUTH GYLE RECEIVABLES TRUSTEE LIMITED whose registered office is at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
"RECEIVABLES TRUSTEE", which expression shall include such company and
all other persons or companies for the time being acting a receivables
trustee or receivables trustees under the Receivables Securitisation
Deed (as hereinafter defined)).
WHEREAS:
(A) The Transferor and the Receivables Trustee are, amongst others, parties
to a Receivables Securitisation Deed dated 27 March 2000 as amended and
restated on 28 September 2000 and 27 October 2005 (the "RECEIVABLES
SECURITISATION DEED"); and
(B) Pursuant to Clause 2.1 of the Receivables Securitisation Deed, the
Transferor has granted a [Name of deed] Scottish Declaration of Trust in
favour of the Receivables Trustee dated [o] in respect of receivables
under certain Accounts operated by the Transferor (the "DECLARATION OF
TRUST"); and
(C) Pursuant to Clause 6.5 of the Receivables Securitisation Deed, the
Receivables Trustee has resolved to effect the obligations of the
Transferor under the Receivables Securitisation Deed by, among other
things, requiring it to enter into this Assignation,
NOW THEREFORE the parties HEREBY AGREE AND DECLARE as follows:
1. DEFINITIONS
Unless otherwise defined herein, terms defined in the Declaration of
Trust and Schedule 1 of the Master Framework Agreement dated 27 March
2000 and amended and restated on 28 September 2000 and 27 October 2005
between inter alios the Transferor and the Receivables Trustee (the
"MASTER FRAMEWORK AGREEMENT"), shall have the same meaning herein. This
deed shall be interpreted and construed in accordance with the Master
Framework Agreement as a Transaction Document.
51
2. ASSIGNATION
The Transferor hereby assigns, conveys and makes over to the Receivables
Trustee and its assignees and successors whomsoever the Transferor's
whole right, title and interest to the Scottish Trust Property
designated in the attached read-only computer file, microfiche list or
cd-rom.
3. GOVERNING LAW AND JURISDICTION
This Assignation shall be governed by Scots law and the parties hereto
submit to the jurisdiction of the Scottish Courts.
IN WITNESS WHEREOF these presents consisting of this and the preceding page
[together with the read-only computer file, microfiche list or cd-rom contained
in the envelope annexed as relative hereto] are executed at [place (i.e.
town/city) of execution] on [date of execution] as follows:
SUBSCRIBED for and on behalf of the said
[THE ROYAL BANK OF SCOTLAND PLC] [RBS ADVANTA] [ADDITIONAL TRANSFEROR]
by
......................................................... (Authorised Signatory)
.......................................................... (Witness)
.......................................................... (Witness name)
.......................................................... (Witness address)
..........................................................
SUBSCRIBED for and on behalf of the said
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
by
......................................................... (Authorised Signatory)
.......................................................... (Witness)
52
.......................................................... (Witness name)
.......................................................... (Witness address)
..........................................................
Docquet to be affixed to read-only computer file, microfiche list or cd-rom and
envelope containing it:
"THIS IS THE READ-ONLY [COMPUTER FILE] [MICROFICHE LIST] [CD-ROM] REFERRED TO IN
THE FOREGOING ASSIGNATION BY [THE ROYAL BANK OF SCOTLAND PLC] [RBS ADVANTA]
[ADDITIONAL TRANSFEROR] IN FAVOUR OF SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
DATED [O]"
53
SCHEDULE 7
FORM OF NOTICE OF ASSIGNMENT
From: [Transferor/Additional Transferor]
To: [Obligor]
Account ref: [o]
NOTICE OF ASSIGNMENT
We are writing to notify you that on [o] 200[o]Transferor/Additional Transferor]
has transferred its rights to receive all payments made by you in respect of
your [description of product] account to South Gyle Receivables Trustee Limited
("SGRTL") to be held on trust for [Name of Transferor Beneficiaries] and a
subsidiary of The Royal Bank of Scotland plc, RBS Cards Securitisation Funding
Limited. This transfer related only to amounts payable for charges incurred on
your account. The account itself continued to be legally held with
[Transferor/Additional Transferor] and the terms of conditions on which the
account is held did not change.
Following your receipt of this notice all payments which you are required to
make for charges on your account will now be made directly to SGRTL as the party
entitled to receive those payments. However, please note that this notice is for
your information only and you do not need to do anything further in relation to
your account.
[THE ROYAL BANK OF SCOTLAND PLC/RBS ADVANTA/ADDITIONAL TRANSFEROR]*
*[Note: This notice does not need to be executed.]
54
SCHEDULE 8
FORM OF SOLVENCY CERTIFICATE
[on letterhead of the relevant Offeror or Additional Offeror]
("THE COMPANY")
To: South Gyle Receivables Trustee Limited
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(the "RECEIVABLES TRUSTEE")
dated __________________
IN RELATION TO THE OFFER FOR THE SALE OF
CREDIT CARD RECEIVABLES BY
[OFFEROR/ADDITIONAL OFFEROR]
IT IS HEREBY CERTIFIED that, having duly considered the provisions of Sections
123 (as to when a company is deemed to be unable to pay its debts) and [for
English incorporated transferors 238 to 241 (as to transactions at an undervalue
and preferences)] [for Scots incorporated transferors 242 to 243 (as to
gratuitous alienations and unfair preferences)] of the Insolvency ▇▇▇ ▇▇▇▇ (the
"ACT") the Company has determined that:
(1) as at the date hereof, the Company is not unable to pay its debts within
the meaning of Section 123 of the Act (but without reference to the
court for this purpose) or otherwise and will not become unable to do so
in consequence of the sale by way of assignment or holding on trust of
credit card receivables pursuant to the Offer of even date herewith made
pursuant to the terms of clause [2.1/2.2] of the receivables
securitisation deed (the "RSA") dated 27 March 2000 (as from time to
time amended) and entered into between, inter alios, the Company and the
Receivables Trustee (the "OFFER");
(2) no order has been made or resolution passed for the winding-up of the
Company and, to the best of my knowledge and belief:
(a) no petition had been presented for the winding-up of the
Company; and
(b) no receiver, administrative receiver, or receiver and manager
has been appointed in relation to the Company's property,
assets or undertaking
(disregarding proceedings which are not being pursued or are discharged
or are being contested in good faith on proper grounds where less than
sixty days have expired since their commencement);
55
(3) the value in money or money's worth of the consideration to be received
by the Company under the RSA following acceptance of the Offer is not
significantly less than the value, in money or money's worth, of the
consideration provided by the Company under the RSA;
(4) the sale of the Receivables to the Receivables Trustee and all matters
concerning the Company in connection with such matters will, to the
extent to which these were to be carried out by the Company, be effected
by the Company in good faith and for the purpose of carrying on its
business, and there are reasonable grounds for believing that the sale
of the Receivables and all related matters will benefit the Company;
[and]
(5) in submitting the Offer to the Receivables Trustee the Company has not
been influenced by a desire to prefer one of the Company's creditors
and/or prejudice the general body of creditors of the Company; [and]
(6) [in respect of a Discount Percentage only] in the reasonable opinion of
the Company the performance of the portfolio of Designated Accounts is
such that the yield of Finance Charge Collections is not generating
adequate cashflows for the Beneficiaries of the Receivables Trust and
the size of the Discount Percentage is not intended by the Company
solely to accelerate distributions of the Deferred Purchase Price].
(7) [[in respect of a Discount Percentage only] in the reasonable opinion of
the Company [the nomination of the Discount Percentage] [the proposed
increase in the period of application of the Discount Percentage]
[specify details] will not cause a Pay Out Event or any event that,
after the giving of notice or the lapse of time, would cause a Pay Out
Event to occur with respect to any Series.]
Words and expressions defined in the RSA shall, unless the context otherwise
requires, bear the same meanings when used herein.
DATED ....................................
...............................................
Signed for and on behalf of
...............................................
[Offeror/Additional Offeror]
56
SCHEDULE 9
FORM OF OFFER - SALE OF RECEIVABLES IN DEFAULTED ACCOUNTS
From: South Gyle Receivables Trustee Limited (in its capacity as Receivables
Trustee)
To: [o] (in its capacity as Transferor/Additional Transferor)
Date: [o]
OFFER TO ASSIGN OR RELEASE FROM TRUST RECEIVABLES IN DEFAULTED ACCOUNTS
1. We refer to the Receivables Securitisation Deed dated 27 March 2000 and
amended and restated on 28 September 2000 and 27 October 2005 (the
"RSA"). Terms defined in the RSA (including in the Master Framework
Agreement referred to therein) shall have the same meaning in this Offer
unless otherwise specified.
2. We have been notified that certain Designated Accounts have become
Defaulted Accounts during the Monthly Period which commenced on [date].
The balance of Receivables in such Defaulted Accounts is [(L)o] (the
"DEFAULTED RECEIVABLES").
3. We hereby offer you an assignment or, in the case of Scottish
Receivables, the release from trust of the Defaulted Receivables for the
consideration and on the payment terms set out in Clause 10.5 of the
RSA.
---------------------------------
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
57
SCHEDULE 10
FORM OF SCOTTISH TRUST NOTICE
[LETTERHEAD OF SOUTH GYLE RECEIVABLES TRUSTEE LIMITED]
To: RBS Cards Securitisation Funding Limited
Royal Bank House
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
(the "INVESTOR BENEFICIARY")
The Royal Bank of Scotland plc
▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
("RBS")
RBS Advanta
▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
("RBSA")
[Additional Offeror]
[address]
Date: [o] [o] 20[o]
Dear Sirs
RECEIVABLES TRUST DEED AND TRUST CASH MANAGEMENT AGREEMENT DATED 27 MARCH 2000
AND AMENDED AND RESTATED 28 SEPTEMBER 2000 AND 27 OCTOBER 2005 AMONG SOUTH GYLE
RECEIVABLES
58
TRUSTEE LIMITED (THE "RECEIVABLES TRUSTEE"), RBS, RBSA AND THE INVESTOR
BENEFICIARY (AS AMENDED, SUPPLEMENTED, RESTATED OR NOVATED FROM TIME TO TIME,
THE "RECEIVABLES TRUST DEED AND TRUST CASH MANAGEMENT AGREEMENT")
We refer to:
(i) the Receivables Trust Deed and Trust Cash Management Agreement;
(ii) [further Supplements] (documents (ii) - (o) being together referred to
as the "SUPPLEMENTS");
(iii) the [name of trust] Scottish Declaration of Trust of even date herewith
between [RBS] [RBSA] [Additional Offeror] and the Receivables Trustee
(the "SCOTTISH DECLARATION OF TRUST");
Unless otherwise defined herein, terms defined in the Scottish Declaration of
Trust have the same meaning herein.
Today, pursuant to the Scottish Declaration of Trust, receivables and certain
other sums payable under the New Accounts (as set out in the read-only computer
file, microfiche list or cd-rom annexed as relative hereto) were declared by
[RBS] [RBSA] [Additional Offeror] to be held on trust for us, South Gyle
Receivables Trustee Limited.
This letter is to confirm, for the avoidance of doubt, that pursuant to the
Receivables Trust Deed and Trust Cash Management Agreement and the Supplements,
our beneficial interest under the Scottish Declaration of Trust in respect of
the New Accounts is held by us in trust for you, according to the terms of the
Receivables Trust Deed and Trust Cash Management Agreement.
This letter shall be governed by Scots law and the parties hereto submit to the
jurisdiction of the Scottish courts.
Please acknowledge your acceptance of the above by signing the enclosed
duplicate of this letter and returning it to us.
Yours faithfully
..................................
For and on behalf of South Gyle Receivables Trustee Limited
We acknowledge and accept the above
59
....................................
Authorised Signatory
For and on behalf of RBS Cards Securitisation Funding Limited
....................................
Authorised Signatory
For and on behalf of The Royal Bank of Scotland plc
.....................................
Authorised Signatory
For and on behalf of RBS Advanta
[Additional Offeror Signature]
DOCQUET TO BE ATTACHED TO READ-ONLY COMPUTER FILE, MICROFICHE LIST OR CD-ROM
This is the read-only [computer file] [microfiche list] [cd-rom], referred to in
the foregoing Scottish Trust Notice dated [o] from South Gyle Receivables
Trustee Limited to RBS Cards Securitisation Funding Limited, The Royal Bank of
Scotland plc and RBS Advanta [Additional Offeror], setting out the New Accounts
referred to in the [[name of trust] Scottish Declaration of Trust] dated [o].
60
EXECUTION
OFFEROR AND TRANSFEROR
Executed as a deed by and on behalf of )
THE ROYAL BANK OF )
SCOTLAND PLC ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
by its duly authorised attorney )
in the presence of: )
THE RECEIVABLES TRUSTEE
Executed as a deed by
SOUTH GYLE )
RECEIVABLES TRUSTEE LIMITED ) /s/ ▇▇▇▇▇▇ Kerhoat
by one of its directors )
in the presence of )
PROCESS AGENT:
▇▇▇▇▇▇▇▇ Chance Secretaries Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
61