EXHIBIT 10.2
CLASS A CONFIRMATION
Confirmation to the
1992 ISDA Master(R) Agreement
relating to the Class A Swap Agreement
Dated [.] 2004
GRACECHURCH CARD FUNDING (NO. 6) PLC
Re: Transaction between Barclays Bank PLC ("PARTY A") and Gracechurch Card
Funding (No. 6) PLC ("PARTY B")
Dear Sirs:
The purpose of this letter agreement is to confirm the terms and conditions of
the Swap Transaction entered into between you and us on the Trade Date specified
below (the "SWAP TRANSACTION"). References herein to a TRANSACTION shall be
deemed to be references to a SWAP TRANSACTION for the purposes of the
Definitions.
The definitions and provisions contained in the 2000 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc.) are
incorporated into this Confirmation. In the event of any inconsistency between
those Definitions and this Confirmation, this Confirmation will govern.
1. This Confirmation incorporates the ISDA Master Agreement, including the
schedule thereto (the "ISDA MASTER") dated as of [.] 2004, between you and
us and this Confirmation, together with the ISDA Master, constitutes a
single agreement (the "AGREEMENT"). All provisions contained in the ISDA
Master apply to this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Party A: Barclays Bank PLC
Party B: Gracechurch Card Funding (No.6) PLC
Trade Date: [.] 2004
Effective Date: [.] 2004; provided, however, that
effectiveness is subject to the issuance
of the Notes and the receipt by the
Series 04-1 Issuer on or prior to [.]
2004 of unconditional confirmation that
upon issue the Class A Notes will be
rated Aaa by Xxxxx'x and AAA by Standard
& Poor's.
Termination Date: [.], subject to adjustment in accordance
with the Following Business Day
Convention, and subject to adjustment in
accordance with Section 3.3 below
Business Days: Any day other than a Saturday, a Sunday
or a day on which banking institutions
in London, England or New York, New York
are authorised or obliged by law to be
closed
Calculation Agent Party A
INITIAL EXCHANGE AMOUNTS AND FINAL EXCHANGE AMOUNTS
Party A Initial Exchange Amount: GBP [.]
Party A Initial Exchange Date: Effective Date
Party A Final Exchange Amount: Party A Currency Amount on the
Termination Date
Party A Final Exchange Date: Termination Date
Party B Initial Exchange Amount: USD [.]
Party B Initial Exchange Date: Effective Date
Party B Final Exchange Amount: Party B Currency Amount on the
Termination Date
Party B Final Exchange Date: Termination Date
PARTY A FLOATING RATE AMOUNTS
Party A Floating Rate Payer: Party A
Party A Currency Amount: USD [.] (subject to adjustment during
the Redemption Period as set out herein)
Party A Floating Rate Payer
Period End Dates: The 15th day of each calendar month
from and including [.] to and including
the Termination Date, in each case
subject to adjustment in accordance with
the Following Business Day Convention
Party A Floating Rate Payer
Payment Dates: Each Party A Floating Rate Payer Period
End Date. Party A will provide a
clearing system notice as to the amount
to be paid on each Party A Floating Rate
Payer Payment Date 2 Business Days prior
to each such Party A Floating Rate Payer
Payment Date
Party A Floating Rate Option: USD-LIBOR-BBA
- 2 -
Designated Maturity: 1 month, except for the initial
calculation period which shall be the
linear interpolation of [.] and [.]
Spread: [.]%
Party A Floating Rate Day Count
Fraction: Actual/360
Reset Dates: First day of each Calculation Period
Compounding: Inapplicable
PARTY B FLOATING RATE AMOUNTS
Party B Floating Rate Payer: Party B
Party B Currency Amount: GBP [.] (subject to adjustment during
the Redemption Period as set out below)
Party B Floating Rate Payer
Period End Dates: The 15th day of each [.],[.],[.] and
[.] to and including the Termination
Date, in each case subject to adjustment
in accordance with: (a) the Following
Business Day Convention, and (b) the
Redemption Period as set out below
(following which the Party B Floating
Rate Payer Period End Date shall be the
Amended Party B Floating Rate Payer
Period End Date)
Party B Floating Rate Payer
Payment Dates: 15/th/ [.] and thereafter the 15/th/ day
of each calendar month to and including
the Termination Date, in each case
subject to adjustment in accordance with
the Following Business Day Convention
Party B Floating Rate Option: GBP-LIBOR-BBA
Designated Maturity: 3 months (subject to adjustment during
the Redemption Period as set out below),
except for the initial calculation
period which shall be the linear
interpolation of [.] and [.]
Spread: [.]%
Party B Floating Rate Day Count
Fraction: A fraction, the numerator of which is
the actual number of days in such
Calculation Period and
- 3 -
the denominator of which is 365 (or 366
in the case of any Calculation Period
ending in a leap year) as calculated in
accordance with the interest rate
applicable to the Series 04-1 Class A
Debt Amount
Reset Dates: First day of each Calculation Period
Compounding: Inapplicable
3. DETAILS OF VARIATION TO AGREEMENT:
3.1 TAXATION: Neither Party A nor Party B is under any obligation to gross up
any payments to be made under this Agreement for amounts withheld with
respect to any Tax. In the event that a Tax is imposed such that Party B's
payment hereunder shall be net of the amount of any Taxes so withheld,
accounted for, deducted or suffered, then Party A's payment obligation
shall be reduced in proportion to the amount by which the payments to be
made by Party B are so reduced. In the event that a Tax is imposed such
that Party A's payment hereunder shall be net of the amount of any Taxes so
withheld, accounted for, deducted or suffered, then (subject to the first
sentence of this Section 3.1 and Section 3.2, 3.3 and 3.4 below) the
payment obligations of Party B shall remain the same.
- 4 -
3.2 INTEREST DEFERRAL:
(A1) The obligation of Party B to pay the Party B Floating Rate Amount on any
Party B Floating Rate Payer Payment Date will be reduced to the extent
that, on such Party B Floating Rate Payer Payment Date, the amount of MTN
Issuer Available Funds (Series 04-1 Class A), and hence the amount of Party
B Available Funds (Series 04-1 Class A), is less than the Party B Floating
Rate Amount calculated for such Party B Floating Rate Payer Payment Date
(the amount of any such reduction, the "DEFERRED INTEREST AMOUNT" for that
Party B Floating Rate Payer Payment Date). "MTN ISSUER AVAILABLE FUNDS
(SERIES 04-1 CLASS A)" means, in relation to any Party B Floating Rate
Payer Payment Date, the aggregate amount of Finance Charge Collections and
Acquired Interchange that is distributed by the Receivables Trustee to
Barclaycard Funding plc (the "MTN ISSUER") by the Receivables Trustee (and
deposited in the Series 04-1 Distribution Account) on the related
Distribution Date in respect of the Class A Monthly Finance Amount
(provided that, for the avoidance of doubt, MTN Issuer Available Funds
(Series 04-1 Class A) excludes any amounts distributed by the Receivables
Trustee to the MTN Issuer in respect of Excess Finance Charge Amounts).
"PARTY B AVAILABLE FUNDS (SERIES 04-1 CLASS A)" means, in relation to any
Party B Floating Rate Payer Payment Date, the amount that is available to
Party B for payment of the Party B Floating Rate Payer Payment Amount
calculated for that Party B Floating Rate Payer Payment Date in accordance
with the priority of payments set forth in the Trust Deed (provided that,
for the avoidance of doubt, Party B Available Funds (Series 04-1 Class A)
shall exclude any amounts received by Party B in respect of Further
Interest on the Series 04-1 MTN Certificate).
The obligation of Party A to pay the Party A Floating Rate Amount on any
Party A Floating Rate Payer Payment Date will be reduced by an amount equal
to the Party A Floating Rate Amount otherwise payable on such Party A
Floating Rate Payer Payment Date (prior to any adjustment thereof in
accordance with this Section 3.2) multiplied by the Reduction Ratio. The
"REDUCTION RATIO" is a fraction equal to:
Deferred Interest Amount
--------------------------------
Aggregate Party B Payment Amount
The "AGGREGATE PARTY B PAYMENT AMOUNT" is equal to the Party B Floating
Rate Amount, before any adjustment thereof in accordance with the terms of
the provisions of this Section 3.2, that would otherwise have been payable
on such Party B Floating Rate Payer Payment Date.
(B) In the event that, on any Party B Floating Rate Payer Payment Date, there
are any MTN Issuer Make-up Funds (Series 04-1 Class A) and hence any Party
B Make-up Funds (Series 04-1 Class A) (any such amount for the relevant
Party B Floating Rate Payer Payment Date, an "ADDITIONAL PARTY B AMOUNT"),
the obligation of Party B to pay the Party B Floating Rate Amount on any
Party B Floating Rate Payer Payment Date shall be increased by the
Additional Party B Amount.
Accordingly, on such Party B Floating Rate Payer Payment Date, Party B
shall pay the Party B Floating Rate Amount that would otherwise have been
calculated for that Party
- 5 -
B Floating Rate Payer Payment Date as well as any Additional Party B
Amount. "MTN ISSUER MAKE-UP FUNDS (SERIES 04-1 CLASS A)" means, in relation
to any Party B Floating Rate Payer Payment Date, the aggregate amount of
Finance Charge Collections and Acquired Interchange that is distributed by
the Receivables Trustee to the MTN Issuer on the related Distribution Date
by deposit to the Series 04-1 Distribution Account in respect of either of
the following: (a) the Class A Deficiency Amount (if and to the extent that
the same is attributable to the Class A Monthly Finance Amount for any
earlier Distribution Date); and (b) the Class A Additional Finance Amount
(if and to the extent that the same is attributable to the Class A
Deficiency Amount for any earlier Distribution Date), provided that, for
the avoidance of doubt, the MTN Issuer Make-up Funds (Series 04-1 Class A)
shall exclude any amounts distributed by the Receivables Trustee to the MTN
Issuer in respect of Excess Finance Charge Amounts. "PARTY B MAKE-UP FUNDS
(SERIES 04-1 CLASS A)" means, in relation to any Party B Floating Rate
Payer Payment Date, the amount that is available to Party B for payment of
the Additional Party B Amount in accordance with the priority of payments
set forth in the Trust Deed, provided that, for the avoidance of doubt,
Party B Make-up Funds (Series 04-1 Class A) shall exclude any amounts
received by Party B in respect of Further Interest on the Series 04-1 MTN
Certificate.
The obligation of Party A to pay the Party A Floating Rate Amount on any
Party A Floating Rate Payer Payment Date will be increased by an amount
(the "ADDITIONAL PARTY A AMOUNT") equal to the Party A Floating Rate Amount
otherwise payable on such Party A Floating Rate Payer Payment Date (prior
to any adjustment thereof in accordance with this Section 3.2) multiplied
by the Increase Ratio. Accordingly, on such Party A Floating Rate Payer
Payment Date, Party A shall pay the Party A Floating Rate Amount as well as
the Additional Party A Amount. The "INCREASE RATIO" is a fraction equal to:
Additional Party X Xxxxxx
--------------------------------
Aggregate Party B Payment Amount
3.3 REDEMPTION PERIOD.
On the earliest to occur of (a) the Series 04-1 Scheduled Redemption Date
in the event that the Series 04-1 Class A Debt Amount is not redeemed in
full on such date, (b) the first distribution date for the Regulated
Amortisation Period, or (c) the first distribution date for the Rapid
Amortisation Period (any such event, a "REDEMPTION TRIGGER") then the
following provisions shall apply.
The "REDEMPTION PERIOD END DATE" is the earlier of (a) the Party B Floating
Rate Payer Payment Date falling in [.], and (b) the date upon which the
Series 04-1 Class A Debt Amount is redeemed in full.
From the occurrence of the Redemption Trigger, the Termination Date shall
be amended to be the Redemption Period End Date. The period from and
including the date on which the Redemption Trigger occurs and the
Redemption Period End Date is called the "REDEMPTION PERIOD".
- 6 -
During the Redemption Period:
(a) the Party B Floating Rate Payer Period End Date shall be amended
(each such Party B Floating Rate Payer Period End Date thereafter,
an "AMENDED PARTY B FLOATING RATE PAYER PERIOD END DATE") to be the
15th day of each calendar month, subject to adjustment in
accordance with the Following Business Day Convention, provided
that if the Redemption Period commences on a day other than a date
which would otherwise have been a Party B Floating Rate Payer
Period End Date (but for adjustment in accordance with this Section
3.3) then the first Amended Party B Floating Rate Payer Period End
Date shall be the Party B Floating Rate Payer Period End Date which
would have occurred but for adjustment in accordance with this
Section 3.3 and thereafter each Amended Party B Floating Rate Payer
Period End Date shall be the 15th day of each calendar month,
subject to adjustment in accordance with the Following Business Day
Convention; and
(b) the Designated Maturity for Party B shall change to 1 month
commencing on the first Amended Party B Floating Rate Payer Period
End Date.
3.4 AMORTISATION OF PARTY A CURRENCY AMOUNT AND PARTY B CURRENCY AMOUNT DURING
REDEMPTION PERIOD
During the Redemption Period, on each Party B Floating Rate Payer Period
End Date (including the Series 04-1 Scheduled Redemption Date if the
Redemption Trigger falls on the Series 04-1 Scheduled Redemption Date), the
Party B Currency Amount shall be reduced (for the next following
Calculation Period for Party B) by the amount on deposit on that Party B
Floating Rate Payer Period End Date in the Series 04-1 Issuer Account and
referable to the Series 04-1 Class A Debt Xxxxxx and credited to the Class
A Notes Principal Xxxxxx (the amount of such reduction, the "PARTY B
AMORTISATION AMOUNT"). On each Party B Floating Rate Payer Payment Date
corresponding to such Party B Floating Rate Payer Period End Date, Party B
shall pay to Party A an amount equal to the Party B Amortisation Amount.
During the Redemption Period, on each Party A Floating Rate Payer Period
End Date (including the Series 04-1 Scheduled Redemption Date if the
Redemption Trigger occurs on the Series 04-1 Scheduled Redemption Date),
the Party A Currency Amount shall be reduced (for the next following
Calculation Period for Party A) by an amount (the "PARTY A AMORTISATION
AMOUNT") calculated as specified below. The Party A Amortisation Amount is
equal to A x B/C where:
A = the Party A Currency Amount calculated on the Effective Date
B = the Party B Amortisation Amount applicable on the Party B Floating Rate
Payer Period End Date occurring on such Party A Floating Rate Payer Period
End Date
C = the Party B Currency Amount calculated on the Effective Date.
On each Party A Floating Rate Payer Payment Date, Party A shall pay to
Party B an amount equal to the Party A Amortisation Amount, if any.
- 7 -
If the Termination Date occurs at the end of the Redemption Period, to the
extent that, on the Termination Date, there are no funds in respect of
principal deposited in the Series 04-1 Distribution Account for Class A,
and hence no funds (in respect of principal) deposited by the MTN Issuer in
the Series 04-1 Issuer Account and referable to the Series 04-1 Class A
Debt Amount, on and with effect from on the Termination Date each of the
Party B Currency Amount and the Party A Currency Amount shall be reduced to
zero.
4. ACCOUNT DETAILS
Account for Barclays Bank PLC
Payments to SWIFT: XXXXXX00
Party A in GBP: Sort code: 20-00-00
Beneficiary: Barclays Swaps
Beneficiary Account: [00000000]
Account for Barclays Bank PLC NY
Payments to SWIFT: BARCUS33
Party A in USD Beneficiary: Barclays Swaps and Options Group NY
Beneficiary Account: [000-00000-0]
Account for Barclays Bank PLC
Payments to Sort code: 20-19-90
Party B in GBP: Account number: [.]
Account for Barclays Bank PLC
Payments to Sort code: 20-19-90
Party B in USD: Account number: [.]
5. CONTACT FOR PARTY A DOCUMENTATION AND OPERATIONS:
Barclays Bank PLC
Attention: Derivatives Director, Legal Division (marked urgent)
Telephone: x00 00 0000 0000
Fax No: x00 00 0000 0000
6. GOVERNING LAW: England
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
BARCLAYS BANK PLC
By:
Title:
Confirmed as of the date first written:
- 8 -
GRACECHURCH CARD FUNDING (NO. 6) PLC
By:
Title: Authorised Signatory
- 9 -
EXHIBIT 10.2
SCHEDULE
TO THE MASTER AGREEMENT
DATED AS OF [.] MARCH 2004
between
BARCLAYS BANK PLC
("PARTY A")
and
GRACECHURCH CARD FUNDING (NO. 6) PLC
("PARTY B")
1 TERMINATION PROVISIONS
1.1 "SPECIFIED ENTITY" for the purpose of Sections 5(a)(v), 5(a)(vi),
5(a)(vii) and 5(b)(iv) will not apply to Party A or Party B.
1.2 "SPECIFIED TRANSACTION" is not applicable to Party A or Party B for any
purpose and Section 5(a)(v) shall accordingly not apply.
1.3 The "CROSS DEFAULT" provisions of Section 5(a)(vi) will not apply to Party
A and will not apply to Party B.
1.4 The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will not
apply to Party A and will not apply to Party B.
1.5 The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not apply
to Party A or to Party B.
1.6 PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
1.7 "TERMINATION CURRENCY" means (a) in the case of a payment due from Party
A, the lawful currency for the time being of the United States of America
, and (b) in the case of a payment due from Party B, the lawful currency
for the time being of the United Kingdom.
1.8 "BANKRUPTCY" sub-clause (2) of Section 5 (a)(vii) shall not apply to Party
B.
1.9 ADDITIONAL TERMINATION EVENTS
(a) ADDITIONAL TERMINATION EVENTS. The following shall constitute Additional
Termination Events:
(i) ENFORCEMENT NOTICE. An Enforcement Notice is served upon Party B
by the Security Trustee and, with respect to such Additional
Termination Event, Party B shall be the sole Affected Party.
(ii) EARLY REDEMPTION EVENT. The Notes have been redeemed or repaid in
accordance with the Conditions, and with respect to such
Additional Termination Event, there shall be two Affected Parties.
(iii) RATING EVENT. A Rating Event as defined in Part 5.2 shall have
occurred. Party A shall be the sole Affected Party in respect
thereof.
(iv) WITHOLDING TAX EVENT. In the event that there is a withholding tax
imposed (1) in relation to the Party B's payments under the Notes;
(2) in relation to any payments to Party B under the Series 04-1
MTN; (3) in relation to Party B's payments under this Agreement,
(4) in relation to Party A's payments under this Agreement
(following the expiration of a period of 30 days from Party B or
the Note Trustee becoming aware of the imposition of such
withholding tax and notwithstanding Party A's obligations in
relation to Section 6(b)(ii)(2) of this Agreement) and with
respect to such Additional Termination Event, Party A shall be the
Affected Party.
(v) DECLARATION OF PURPOSE TRUST - CESSATION OF SERIES 04-1 INVESTOR
BENEFICIARY INTEREST. The subject (being the Series 04-1 Investor
Beneficiary Interest) of the Declaration of Purpose Trust has been
reduced to zero and with respect to such Additional Termination
Event, Party B shall be the sole Affected Party, provided always
that: (1) the provisions of Section 6(e) of this Agreement will
not apply to the Additional Termination Event contained in this
sub-paragraph (v); and (2) in connection with any Additional
Termination Event in this sub-paragraph (v) any Early Termination
Amount shall be zero.
(a) 1.10 The "TAX EVENT" provisions of Section 5(b)(ii) (and
accordingly 5(b)(iii)) will not apply to Party A and Party B.
2 TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will not make any representation.
(b) PAYEE TAX REPRESENTATIONS For the purposes of Section 3(f) of this
Agreement, Party A will make the representation in (i) and Party B
will make the representation in (ii):
(i) Party A is incorporated and organised in the UK and is not
operating out of a U.S. or any other branch for the purposes of
this Agreement.
(ii) Party B is incorporated and organised in the UK and is not
operating out of a U.S. or any other branch for the purposes of
this Agreement.
3 AGREEMENT TO DELIVER DOCUMENTS
(a) Tax forms, documents or certificates to be delivered are:
--------------------------------------------------------------------------------
PARTY REQUIRED TO FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE
DELIVER DOCUMENT DELIVERED
--------------------------------------------------------------------------------
Party A and Party B Any document required or Promptly upon the
reasonably requested to allow reasonable demand by the
Party A or Party B to make other party
payments under this Agreement
without any deduction or
withholding for or on account
of any tax or with such
deduction or withholding at a
reduced rate or to enable the
relevant party to claim back or
be refunded for any amount of
Tax so withheld or deducted
where such relevant party
received a payment under this
Agreement net of such Tax
---------------------------------------------------------------------------
- 2 -
(b) Other documents to be delivered are:
-------------------------------------------------------------------------------------------
PARTY REQUIRED TO FORM/DOCUMENT/ CERTIFICATE DATE BY WHICH TO BE COVERED BY
DELIVER DOCUMENTS DELIVERED SECTION 3(D)
-------------------------------------------------------------------------------------------
Party A and Party B Evidence satisfactory to the Upon execution of Yes
other party as to the authority this Agreement and
of its signatories to this the relevant
Agreement and to each Confirmation, as
Confirmation including specimen applicable
signatures of such signatories
-------------------------------------------------------------------------------------------
Party A and Party B Evidence satisfactory to the Upon execution of Yes
other party as to its capacity this Agreement
and ability to enter into this
Agreement and any Transaction
hereunder
-------------------------------------------------------------------------------------------
Party B A legal opinion in a form Upon execution of No
satisfactory to Party A this Agreement
-------------------------------------------------------------------------------------------
Party B A duly executed copy of the Upon execution of No
Trust Deed this Agreement
-------------------------------------------------------------------------------------------
4 MISCELLANEOUS
4.1 ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this Agreement:
Addresses for notices or communications to Party A:
For notices regarding operation, payment and confirmation matters only,
notices should be sent to the address of the relevant branch set out in
the relevant Confirmation (as may be amended from time to time), with a
copy in the case of notices or communications relating to Sections 5, 6,
7, 11 or 13 to:
ADDRESS: 0 Xxx Xxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxx X00 0XX
ATTENTION: Derivatives Director, Legal Division (marked urgent)
FACSIMILE NO: (x00) 000 000 0000 TELEPHONE NO: (x00) 000 000 0000
Addresses for notices or communications to Party B:
ADDRESS: 00 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
ATTENTION: The Directors
FACSIMILE NO: x00 000 000 0000
4.2 PROCESS AGENT. For the purpose of Section 14(c) of this Agreement:
Party A appoints as its Process Agent: None
Party B appoints as its Process Agent: None
4.3 OFFICES. The provisions of Section 10(a) will apply to this Agreement.
4.4 MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party, and will act through its London
branch.
Party B is not a Multibranch Party.
4.5 CALCULATION AGENT. The Calculation Agent is Party A, unless otherwise
specified in a Confirmation in relation to the relevant Transaction.
- 3 -
4.6 CREDIT SUPPORT DOCUMENT. Not applicable.
4.7 CREDIT SUPPORT PROVIDER. Not applicable.
4.8 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with English law.
4.9 NETTING OF PAYMENTS. Section 2(c)(ii) of this Agreement will apply to
Transactions entered into under this Agreement.
4.10 "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
5 OTHER PROVISIONS
5.1 OBLIGATIONS. In Section 2(a)(iii) the words "or Potential Event of
Default" shall be deleted.
5.2 RATING EVENT
(i)(x) If, at any time, (i) the long-term, unsecured and unsubordinated
debt obligations of Party A (or its successor) cease to be rated
at least as high as A1 (or its equivalent) by Moody's or (ii) the
short-term, unsecured and unsubordinated debt obligations of Party
A (or its successor) cease to be rated at least as high as Prime-1
(or its equivalent) by Moody's (and, at such time, the long-term,
unsecured and unsubordinated debt obligations of any co-obligor to
Party A are not rated as high as A1 (or its equivalent) by Moody's
or the short-term, unsecured and unsubordinated debt obligations
of such co-obligor are not rated as high as Prime-1 (or its
equivalent) by Moody's (such ratings together the "MOODY'S
REQUIRED RATINGS I")), then Party A will, at its own cost:
(a) transfer all of its rights and obligations with respect to this
Agreement to either (x) a replacement third party with the Moody's
Required Ratings I domiciled in the same legal jurisdiction as
Party A or the Issuer or (y) a replacement third party agreed by
Moody's; or
(b) procure another person to become co-obligor in respect of the
obligations of Party A under this Agreement. Such co-obligor may
be either (x) a person with the Moody's Required Ratings I
domiciled in the same legal jurisdiction as Party A or the Issuer,
or (y) a person agreed by Moody's; or
(c) take such other action as Party A may agree with Moody's; or
(d) at its own cost, lodge collateral in an amount determined in
accordance with the Moody's Criteria in support of its obligations
under this Agreement (or other lesser amount which might be agreed
with Moody's).
If any of (i)(x)(a), (i)(x)(b) or (i)(x)(c) are satisfied at any time, all
collateral (or the equivalent thereof, as appropriate) transferred by
Party A pursuant to (i)(x)(d) above will be retransferred to Party A and
Party A will not be required to transfer any additional collateral.
(i)(y) If, at any time, (i) the long-term, unsecured and unsubordinated
debt obligations of Party A (or its successor) cease to be rated
at least as high as A3 (or its equivalent) by Moody's or (ii) the
short-term, unsecured and unsubordinated debt obligations of Party
A (or its successor) cease to be rated at least as high as Prime-2
(or its equivalent) by Moody's (such ratings together the "MOODY'S
REQUIRED RATINGS II") (and, at such time, the long-term, unsecured
and unsubordinated debt obligations or the short-term, unsecured
and unsubordinated debt obligations of any co-obligor to Party A
are not rated as
- 4 -
high as the Moody's Required Ratings I, then Party A will, on a
best efforts basis and at its own cost attempt to:
(a) transfer all of its rights and obligations with respect to
this Agreement to either (x) a replacement third party with
the Moody's Required Ratings I domiciled in the same legal
jurisdiction as Party A or the Issuer or (y) a replacement
third party agreed by Moody's; or
(b) procure another person to become co-obligor in respect of
the obligations of Party A under this Agreement. Such
co-obligor may be either (x) a person with the Moody's
Required Ratings I domiciled in the same legal jurisdiction
as Party A or the Issuer, or (y) a person agreed by
Moody's; or
(c) take such other action as Party A may agree with Moody's.
Pending compliance with (i)(y)(a), (i)(y)(b) or (i)(y)(c) above,
Party A will, at its own cost:
(d) lodge collateral in an amount determined in accordance with
the Moody's Criteria in support of its obligations under
this Agreement (or other lesser amount which might be
agreed with Moody's).
If any of (i)(y)(a), (i)(y)(b) or (i)(y)(c) are satisfied at any
time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to (i)(y)(d) above will be
retransferred to Party A and Party A will not be required to
transfer any additional collateral.
(ii) If, at any time, (i) the short-term unsecured, unsubordinated and
unguaranteed debt obligations of Party A are assigned a rating of
less than A-1+ by S&P (the "S&P REQUIRED RATING") or (ii) any such
rating is withdrawn by S&P, then the Party A will, at its own
cost, use its best endeavours (at the option of Party A) to:
(a) transfer and assign its rights and obligations under this
Agreement and the Transaction dated the same date hereof
between Party A and Party B to either (x) a third party
having the S&P Required Rating or (y) a replacement third
party agreed by S&P; or
(b) enter into an agreement with a third party, having either
(x) the S&P Required Rating or (y) a party agreed with S&P,
which party will guarantee the obligations of Party A under
this Agreement; or
(c) at its own cost, lodge collateral in an amount
(notwithstanding any provisions of any credit support annex
in respect of this Agreement) determined in accordance with
the then applicable S&P Criteria in support of its
obligations under this Agreement (or other lesser amount
which might be agreed with S&P); or
(d) find any other solution acceptable to S&P to maintain the
then current rating of the Notes.
(iii) If Party A does not take the measures described in either (i) or
(ii) above, such failure shall not be or give rise to an Event of Default
but shall constitute an Additional Termination Event (a "RATING EVENT")
with respect to Party A and shall be deemed to
- 5 -
have occurred on the thirtieth day following such downgrade (as
appropriate) with Party A as the sole Affected Party and all Transactions
shall be Affected Transactions, provided that the foregoing shall not
apply in respect of any failure by Party A to comply with its obligations
under the Credit Support Annex. Further, it shall constitute an Additional
Termination Event with respect to Party A if Party A fails to satisfy one
of (a), (b) or (c) under paragraph 5.2(i)(y) above, (assuming for this
purpose only that the words, "on a best efforts basis and", and, "attempt
to", are deleted from that paragraph), and such Additional Termination
Event shall be deemed to have occurred on the thirtieth day following such
downgrade (as appropriate) with Party A as the sole Affected Party and all
Transactions shall be Affected Transactions.
5.3 DISAPPLICATION OF CERTAIN EVENTS OF DEFAULT AND TERMINATION EVENTS. The
provisions of Sections 5(a)(ii), 5(a)(iii) and 5(a)(iv) shall not apply
with respect to Party B.
5.4 AMENDMENT TO EVENTS OF DEFAULT AND TERMINATION EVENTS. At the end of
Section 5(a)(i) the addition of the following:
"(for the purposes of this Section failure to pay shall be deemed to
include circumstances where payment is made by a party but is subsequently
required to be repaid pursuant to any applicable laws or regulations)".
5.5 INDEMNIFIABLE TAX. For the purposes of Section 2(d)(i)(4) no tax shall be
an Indemnifiable Tax.
5.6 GROSS-UP PROVISION
Neither Party A nor Party B will in any circumstances be required to pay
additional amounts in respect of any Indemnifiable Tax or be under any
obligation to pay to the other any amount in respect of any liability of
such other party for or on account of any Tax, and, accordingly, Section
2(d)(i)(4) and Section 2(d)(ii) of this Agreement shall not apply.
5.7 TRANSFERS. Section 7 of this Agreement is replaced in its entirety with
the following:
"(a) GENERAL
Save as provided in Part 5.2(i)(x)(a), (i)(y)(a) or (ii)(a) of the
Schedule to this Agreement and this paragraph, neither party may
transfer its interest hereunder or under any Transaction to
another party.
(b) TRANSFERS BY PARTY A
(i) Transfers by Party A if a Tax Event occurs and Party A is
the Affected Party.
(a) Section 6(b)(ii) shall not apply and Party A and Party
B will seek to find an alternative counterparty to
replace Party A so that such Tax Event ceases; or
(b) Party A may, with the prior consent of Party B, S&P,
Moody's and the Trustee, within 20 days after it gives
notice under Section 6(b)(i) (or, if earlier, on the
relevant Scheduled Payment Date next following the
date upon which the Tax Event occurs) transfer all its
rights and obligations under this Agreement in respect
of the Affected Transactions to any of its offices or
branches or any other person so that such Tax Event
ceases to exist;
(c) In the event that Party A is unable to Transfer the
Affected Transactions in accordance with Section
7(b)(i), a Termination Event will occur with both
parties being Affected Parties.
(ii) Transfers by Party A for any other reason
Party A may with the prior written consent of Party B, S&P,
Moody's and the Trustee, make a transfer of this Agreement
to any Affiliate of Party A
- 6 -
(but without prejudice to any other right or remedy under
this Agreement);
With respect to this Section 7(b), Party B, S&P, Moody's and the
Trustee shall not be entitled to withhold their consent to a
proposed transfer if:
(1) any transferee of Party A enters into documentation
identical or, subject to the Trustee's consent,
substantially identical to this Agreement and the documents
executed in connection with this Agreement; and
(2) either (a) the short-term unsecured debt obligation of the
transferee of Party A , as rated by S&P and Xxxxx'x is, at
least "A-1" or "P-1" respectively..
(a) TRANSFERS BY PARTY B
Neither this Agreement nor any interest in or under this Agreement
or any Transaction may be transferred by Party B to any other
entity save with Party A's prior written consent EXCEPT THAT such
consent is not required in the case of a transfer, charge or
assignment to the Trustee as contemplated in the Deed of Charge.
For the avoidance of doubt, Party A hereby agrees and consents to
the assignment by way of security by Party B of its interests
under this Agreement to the Trustee (or any successor thereto)
pursuant to and in accordance with the Deed of Charge and
acknowledges notice of such assignment. Party A and Party B
acknowledge that the provisions of this Agreement and any
Transaction hereunder will be subject to (a) the priority of
payments set out in the Ninth Schedule to the Trust Deed and (b)
the Deed of Charge each dated of even date of this Agreement
without regard to any subsequent amendments thereto.
Any transfer by Party B shall be subject to the consent of the
Trustee, S&P and Moody's."
5.8 REDUCTION OF PAYMENT OBLIGATIONS. In the event that any payment made by
Party B to Party A under a Transaction is less than the amount which Party
B would be required to pay Party A but for Part 5.9.2 below the payment
obligation of Party A to Party B shall be rateably reduced to the extent
of the reduction in the amount paid by Party B to Party A. For the
avoidance of doubt the payment of a reduced amount by Party A under this
Agreement shall not constitute a breach of the payment obligations
specified in Section 2(a)(i).
5.9 NO LIABILITY AND NO PETITION. Party A shall not be entitled to have
recourse for the payment or recovery of any monies owing to it by Party B
under this Agreement to any asset of Party B except to the extent provided
in the Deed of Charge. Accordingly:
5.9.1 Party A agrees that it shall not:
(i) 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 Party B or
of any or all Party B's revenues and assets; or
(ii) have any right to take any steps for the purpose of
obtaining payment of any amounts payable to it under this
Agreement by Party B and shall not take any steps to
recover any debts whatsoever owing to it by Party B,
except as permitted by the Deed of Charge; and
5.9.2 Party B's obligation to make payment hereunder shall be limited to
the extent it has funds available to make such payment as
determined in accordance with the provisions of the Deed of
Charge. To the extent that, as a result of having insufficient
funds available, Party B makes only a partial payment of any
amount due to Party A, then the related shortfall shall reduce
Party A's payment obligations but otherwise shall not discharge
Party A from its obligation hereunder. Provided that, for the
avoidance of doubt, if Party B fails to pay any amount which
would, but for the provisions of this Part 5.9.2, have been due,
- 7 -
such an event will constitute an Event of Default pursuant to
Section 5(a)(i) (Failure to Pay or Deliver).
5.10 SUCCESSORS. References in this Agreement to the parties hereto, Party A
and Party B shall (for the avoidance of doubt) include, where appropriate,
any permitted successor or assign thereof.
5.11 DEFINITIONS. This Agreement, the Confirmations and each Transaction
hereunder are subject to the 2000 ISDA Definitions (as published by the
International Swap and Derivatives Association, Inc.) (the "DEFINITIONS")
and will be governed in all respects by the provisions set forth in the
Definitions, without regard to any amendments subsequent to the date
hereof. The provisions of the Definitions are incorporated by reference in
and shall be deemed to be part of this Agreement and each Confirmation as
if set forth in full in this Agreement and in each such Confirmation. In
the event of any inconsistency between the provisions of this Agreement
and the Definitions, this Agreement will prevail. Words and expressions
used in this Schedule which are not defined herein or in the Definitions
shall have the same meanings as are given to them in the Confirmation.
Terms defined or referred to in (a) the Trust Deed dated of even date with
this Agreement and executed by Party B and the Note Trustee and (b) the
Master Definitions Schedule dated 24 October 2002 and executed by, inter
alia, Party A and Party B shall, where the context permits, bear the same
respective meanings herein. In the event of any conflict between the
Master Definitions Schedule and the definitions in the Trust Deed, the
definitions in the Trust Deed shall prevail.
5.12 BENEFIT OF AGREEMENT. Any legal entity into which Party A is merged or
converted or any legal entity resulting from any merger or conversion to
which Party A is a party shall, to the extent permitted by applicable law,
be a party to this Agreement in place of Party A without any further act
or formality.
5.13 RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent to
the other party on the date on which it enters into a Transaction that
(absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
5.13.1 NON-RELIANCE. It is acting for its own account, and it has made
its own independent decisions to enter into that Transaction and
as to whether that Transaction is appropriate or proper for it
based upon its own judgment and upon advice from such advisers as
it has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being understood
that information and explanations related to the terms and
conditions of a Transaction shall not be considered investment
advice or a recommendation to enter into that Transaction. No
communication (written or oral) received from the other party
shall be deemed to be an assurance or guarantee as to the expected
results of that Transaction.
5.13.2 ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the risks of that Transaction.
5.13.3 STATUS OF PARTIES. The other party is not acting as fiduciary for
or an adviser to it in respect of that Transaction.
5.14 Section 2(b) is hereby amended to read in its entirety as follows:
CHANGE OF ACCOUNT. Party A may change its account for receiving payment or
delivery by giving notice to Party B at least ten Local Business Days
prior to the scheduled date for payment or delivery to which such change
applies unless Party B gives timely notice of a reasonable objection to
such change. Party B may change its account for receiving payment or
delivery by giving notice to Party A at least ten Local Business Days
prior to the scheduled date for payment or delivery to which such change
applied unless Party A gives timely notice of a reasonable objection to
such change.
- 8 -
5.15 SEPARATE AGREEMENTS Section 1(c) (Single Agreement) will be deleted and
replaced with the following:
"Each Transaction is entered into on the basis that this Master Agreement
(including the Schedule) is incorporated by reference into the
Confirmation relating to that Transaction so that this Master Agreement
and the relevant Confirmation shall form a single agreement with respect
to that Transaction. This Master Agreement shall not be construed to form
a single agreement with two or more Confirmations together unless specific
provision to that effect is made in the relevant Confirmation.
Accordingly, all references to this "AGREEMENT" mean, with respect to any
Transaction, this Master Agreement together with the Confirmation relating
to that Transaction. It is understood that the parties would not enter
into any Transaction except on the foregoing terms."
5.16 INCONSISTENCY In the event of an inconsistency among or between any of the
following documents, the relevant document first listed below shall
govern.
(i) Confirmation;
(ii) Schedule;
(iii) Definitions.
5.17 RECORDING OF TELEPHONE CONVERSATIONS. Each party consents to the recording
of the telephone conversations of trading and marketing personnel of the
parties. Party A agrees to obtain any necessary consent of, and give
notice of such recording to, such personnel of it.
5.18 SEVERABILITY. Any provision of this Agreement which is prohibited (for
reasons other than those constituting an illegality) or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of the Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction unless the
severance shall substantially impair the benefits of the remaining
portions of this Agreement or change the reciprocal obligations of the
parties.
5.19 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999. A person who is not a party
to this Agreement shall have no right under the Contracts (Rights of Third
Party) Act 1999 to enforce any of its terms but this shall not affect any
right or remedy of a third party which exists or is available apart from
that Act.
IN WITNESS whereof, the parties have executed this Schedule by their duly
authorised officers as of the date hereof.
BARCLAYS BANK PLC GRACECHURCH CARD FUNDING
(NO. 6) PLC
By: By:
--------------------------------- ---------------------------------
Name: Name:
Title: Title:
Date: Date:
- 9 -
