EXHIBIT 10.2
CLASS A CONFIRMATION
Confirmation to the
1992 ISDA Master{reg-trade-mark} Agreement
relating to the Class A Swap Agreement
Dated 8 April 2003
GRACECHURCH CARD FUNDING (NO. 3) PLC
Re: Transaction between Barclays Bank PLC ("PARTY A") and Gracechurch
Card Funding (No. 3) 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 8 April 2003, 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. 3) PLC
Trade Date: [{circle}] March 2003
Effective Date: 8 April 2003; provided, however, that
effectiveness is subject to the
issuance of the Notes and the receipt
by the Series 03-1 Issuer on or prior
to 8 April 2003 of unconditional
confirmation that upon issue the Class
A Notes will be rated Aaa by Moody's
and AAA by Standard & Poor's.
Termination Date: 15 March 2008, subject to adjustment in
accordance with the Following Business
Day
Convention, and subject to adjustment in
accordance with Section 3.3 below
Business Days for USD: A 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
Business Days for GBP: 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 [{circle}]
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 [{circle}]
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 900,000,000 (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 15 June 2003 to and
including the Termination Date, in each
case subject to adjustment in
accordance with the Following Business
Day Convention
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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: LIBOR for USD as calculated in
accordance with Condition 5 of the
Conditions for the Notes, provided for
the first Calculation Period the Party
A Floating Rate Option shall be an
interpolated rate for two and three
month LIBOR calculated in accordance
with Condition 5 of the Conditions for
the Notes; and provided further that
any reference to "London Banking Day"
in the Agreement shall not be utilised
in calculating the Party A Floating
Rate Option in respect of any Reset
Date and shall be read instead as a
reference to "quotation date" as
defined in Condition 5 of the
Conditions for the Notes
Calculation Periods for Party A
Floating Rate Amounts: Each period from, and including, the
Party A Floating Rate Payer Period End
Date to, but excluding, the next
following Party A Floating Rate Payer
Period End Date, provided that (a) the
first such Calculation Period for Party
A Floating Rate Amounts shall be from,
and including, the Effective Date to,
but excluding 15 June 2003 and (b) the
last such Calculation Period for Party
A Floating Rate Amounts shall end on,
but exclude, the Termination Date
Designated Maturity: 1 month
Spread: [{circle}]%
Party A Floating Rate
Day Count Fraction: Actual/360 as calculated in accordance
with Condition 5 of the Conditions for
the Notes
Reset Dates: First day of each Calculation Period
PARTY B FLOATING RATE AMOUNTS
Party B Floating Rate Payer: Party B
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Party B Currency Amount: GBP [{circle}] (subject to adjustment
during the Redemption Period as set out
below)
Party B Floating Rate Payer
Period End Dates: The 15th day of each March, June,
August and November 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 June 2003 and thereafter the 15th
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 calculated in accordance
with the Series 03-1 Class A Debt
Amount, and utilising the Moneyline
Telerate Page specified therein,
provided that in respect of the first
Calculation Period the Party B Floating
Rate Option shall be a linear
interpolation of the GBP-LIBOR-BBA
rates for the first Calculation Period
and calculated in accordance with the
Series 03-1 Class A Debt Amount
Calculation Periods for Party B
Floating Rate Amounts: Each period from, and including, one
Party B Floating Rate Payer Period End
Date to, but excluding, the next
following Party B Floating Rate Payer
Period End Date, provided that the
first such Calculation Period for Party
B Floating Rate Amounts shall be from,
and including, the Effective Date to,
but excluding, 15 June 2003, (b) the
last such Calculation Period for Party
B Floating Rate Amounts shall end on,
but exclude, the Termination Date
Designated Maturity: In respect of (a) the first Calculation
Period, the period from (and including)
the Effective
4
Date to (but excluding) 15 June 2003;
(b) Calculation Periods thereafter, 3
months (subject to adjustment during the
Redemption Period as set out below)
Spread: [{circle}]%
Party B Floating Rate
Day Count Fraction: A fraction, the numerator of which is
the actual number of days in such
Calculation Period and 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 03-1 Class A Debt Amount
Reset Dates: First day of each Calculation Period
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.
3.2 INTEREST DEFERRAL:
(A) 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 (for Series 03-1 Class A) and hence the
amount of Party B Available Funds for Series 03-1 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 03-1 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 03-1
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 03-1 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 03-1 CLASS A)" means, in relation to any Party B
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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 03-1 Class A) shall
exclude any amounts received by Party B in respect of Further Interest on
the Series 03-1 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 03-1 Class A) and hence
any Party B Make-up Funds (Series 03-1 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 B Floating Rate Payer Payment Date as
well as any Additional Party B Amount. "MTN ISSUER MAKE-UP FUNDS
(SERIES 03-1 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 03-1 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 03-1 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 03-1 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
6
03-1 Class A) shall exclude any amounts received by Party B in respect of
Further Interest on the Series 03-1 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 B Amount
-----------------------------------------------
Aggregate Party B Payment Amount
3.3 REDEMPTION PERIOD.
On the earliest to occur of (a) the Series 03-1 Scheduled Redemption Date
in the event that the Series 03-1 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 April 2010, and (b) the date
upon which the Series 03-1 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".
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
7
(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 03-1 Scheduled Redemption Date if the
Redemption Trigger falls on the Series 03-1 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 03-1 Issuer Account
and referable to the Series 03-1 Class A Debt Amount and credited to the
Class A Notes Principal Ledger (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 03-1 Scheduled Redemption Date if the
Redemption Trigger occurs on the Series 03-1 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.
4. ACCOUNT DETAILS
Account for Payments to Party A in GBP:Barclays Bank PLC
SWIFT: BARCGB22
Sort code: 20-00-00
Beneficiary: Barclays Swaps
Beneficiary Account: 00152021
Account for Payments to Party A in USD Barclays Bank PLC NY
SWIFT: BARCUS33
Beneficiary: Barclays Swaps and Options Group NY
Beneficiary Account: 050-01922-8
Account for Payments to Party B in GBP:Barclays Bank PLC
Sort code: 20-19-90
Account number: [{circle}]
8
Account for Payments to Party B in USD:Barclays Bank PLC
Sort code: 20-19-90
Account number: [{circle}]
5. CONTACT FOR PARTY A DOCUMENTATION AND OPERATIONS:
Barclays Bank PLC
Attention: Derivatives Director, Legal Division (marked urgent)
Telephone: +44 20 7773 2224
Fax No: +44 20 7773 4932
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: Authorised Signatory
Confirmed as of the date first written:
GRACECHURCH CARD FUNDING (NO. 3) PLC
By:
Per pro SFM Directors (No. 3) Limited, as Director
Title: Authorised Signatory
9
EXHIBIT 10.2
SCHEDULE
TO THE
1992 ISDA MASTER{reg-trade-mark} AGREEMENT
DATED AS OF 8 APRIL 2003
BETWEEN
BARCLAYS BANK PLC
("PARTY A")
AND
GRACECHURCH CARD FUNDING (NO. 3) PLC
("PARTY B")
AND
THE BANK OF NEW YORK, LONDON BRANCH
("PARTY C")
1. TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:
Section 5(a)(v), None Specified
Section 5(a)(vi), None Specified
Section 5(a)(vii), None Specified
Section 5(b)(iv), None Specified
and in relation to Party B for the purpose of
Section 5(a)(v), None Specified
Section 5(a)(vi), None Specified
Section 5(a)(vii), None Specified
Section 5(b)(iv), None Specified
(b) "SPECIFIED TRANSACTION" has the meaning specified in Section 14.
(c) The "BREACH OF AGREEMENT" provisions of Section 5(a)(ii) will not
apply to Party B.
The "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii) will
not apply to Party B.
The "MISREPRESENTATION" provisions of Section 5(a)(iv) will not
apply to Party B.
The "DEFAULT UNDER SPECIFIED TRANSACTION" provisions of Section
5(a)(v) will not apply to Party A and Party B.
The "CROSS DEFAULT" provisions of Section 5(a)(vi) will not apply to
Party A and Party B.
The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will
not apply to Party A and Party B.
(d) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will
not apply to Party A and Party B.
(e) PAYMENTS ON EARLY TERMINATION. "Second Method" and "Market
Quotation" will apply for the purpose of Section 6(e) of this
Agreement.
(f) "TERMINATION CURRENCY" means GBP.
(g) The "TAX EVENT" provisions of Section 5(b)(ii) (and accordingly
5(b)(iii)) will not apply to Party A and Party B.
(h) ADDITIONAL TERMINATION EVENT will apply. Each of the following
shall constitute an Additional Termination Event.
(i) EVENT OF DEFAULT
An Event of Default under the Conditions occurs and The Bank of
New York, London Branch, in its capacity as trustee (the "NOTE
TRUSTEE"), gives notice that the notes (the "NOTES") issued by
the Party B pursuant to the Trust Deed (as defined below) are
due and repayable as provided in Condition 9 of the Conditions
(in which event Party B shall be the Affected Party).
In the case of the Additional Termination Event described in sub-
paragraph (i) above, the provisions of Section 6(b)(iv) shall be
modified to provide that Party B will, by not more than 20 days
notice to Party A, and provided that the Additional Termination
Event is then continuing, designate as the day which is the day such
notice by the Note Trustee declaring the Notes due and repayable is
effective as an Early Termination Date in respect of all Affected
Transactions.
(ii)WITHHOLDING TAX EVENT
In the event that there is a withholding tax imposed (1) in
relation to the Issuer's payments under the Notes; (2) in
relation to any payments to Party B under the Series 03-1 MTN
Certificate; (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).
In the case of the Additional Termination Event described in sub-
paragraph (ii) above, Party A shall be the Affected Party.
(iii)FAILURE TO COMPLY WITH OBLIGATIONS SET OUT IN SECTION 5(M)
(OTHER PROVISIONS)
In the event that failure by Party A to comply with or perform
any agreement or obligation under Section 5(m) (Other
Provisions) below.
In the case of the Additional Termination Event described in sub-
paragraph (iii) above, Party A shall be the Affected Party and
provided that payment of any termination payment under this
Additional Termination Event shall be subject to Section 5(m) (Other
Provisions) below and to the Trust Deed and the Deed of
2
Charge which provide for the subordination of such termination
payment in accordance with the terms thereof.
2. TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS
For the purpose of Section 3(e) of this Agreement, each of Party A
and Party B make the representations specified below:
It is not required by any applicable law, as modified by the
practice of any relevant government revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for
or on account of any Tax from any payment (other than interest
under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be
made by it to the other party under this Agreement. In making
this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f)
of this Agreement, (ii) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement and (iii) the satisfaction of the agreement of the
other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation
where reliance is placed on clause (ii) and the other party does
not delivery a form or document under Section 4(a)(iii) by
reason of material prejudice to its legal or commercial
position.
(b) PAYEE REPRESENTATIONS
For the purpose of Section 3(f) of this Agreement, Party A and Party
B make the representations specified below:
Party A makes the following representation: It is a bank
organised under the laws of England and Wales.
Party B makes the following representation: It is a company
duly incorporated under the laws of England and Wales.
3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Section 4(a) of this Agreement, each party agrees to
deliver the following documents as applicable:
(a) Tax forms, documents or certificates to be delivered are:
PARTY FORM/DOCUMENT/CERTIFICATE DATE BY
REQUIRED WHICH TO BE
TO DELIVERED
DELIVER
DOCUMENT
- -----------------------------------------------------------------------------------------------------------------
Party Any document required or reasonably requested to allow the
other party to make payments under the Agreement without Promptly
A/Party B any deduction or withholding for or on account of any Tax, upon the
or with earlier of
(i) reasonable
demand by
the other
party and
(ii) learning that
the form or
document is required
- ------------------------------------------------------------------------------------------------------------------
3
PARTY FORM/DOCUMENT/CERTIFICATE DATE BY
REQUIRED WHICH TO BE
TO DELIVERED
DELIVER
DOCUMENT
- -----------------------------------------------------------------------------------------------------------------
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
- -----------------------------------------------------------------------------------------------------------------
(b) Other documents to be delivered are:
PARTY FORM/DOCUMENT/CERTIFICATE DATE BY WHICH COVERED BY
REQUIRED TO BE SECTION 3(D)
TO DELIVERED REPRESENTATION
DELIVER
DOCUMENT
Party Certificate or other documents evidencing the authority of the party entering into this At the Yes
A/Party B Agreement and the persons acting on behalf of such party (including any incumbency execution of
certificates delivered in connection with the execution of the Trust Deed) this
Agreement,
and, if a
Confirmation
so requires
it on or
before the
date set
forth therein
Party Legal Opinions in the form reasonably acceptable to the other party At the No
A/Party B execution of
this
Agreement
Party B A duly executed copy of the Trust Deed Upon No
execution of
this
Agreement
Party A Evidence reasonably satisfactory to the other party as to the due authorisation by such Upon Yes
and Party Partyor any Credit Support Provider of such Party, as the case may be, of the signatory execution of
B to this Agreement, each Confirmation and any Credit Support Document, as the case may be this
Agreement
4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES: For the purpose of Section 12(a) of this
Agreement:
4
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: 5 The North Colonnade
Canary Wharf
London E14 4BB
Attention: Derivatives Director, Legal Division (marked urgent)
Fax No.: +44 20 7773 4932
Telephone: +44 20 7773 2224
Address for notices or communications to Party B:
Address: Gracechurch Card Funding (No. 3) PLC
54 Lombard Street
London EC3P 3AH
Attention: The Directors
Fax No.: +44 870 242 2733
(b) OFFICES. The Provisions of Section 10(a) will apply to this
Agreement.
(c) MULTIBRANCH PARTY. For the purpose of Section 10:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(d) CALCULATION AGENT. The Calculation Agent is Party A.
(e) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
Party A: None
Party B: None
(f) CREDIT SUPPORT PROVIDER.
Party A: Not applicable
Party B: Not applicable
(g) GOVERNING LAW. This Agreement and each Confirmation will be
governed by and construed in accordance with the laws of England.
(h) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
5. OTHER PROVISIONS
(a) 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
5
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.
(b) Section 6(b)(ii) is hereby amended to read as follows:
Transfer of Rights and Obligations.
(1)If an Illegality under Section 5(b)(i)(1) occurs and there is
only one Affected Party, the Affected Party will, as a condition
to its right to designate an Early Termination Date under Section
6(b)(iv), use all reasonable efforts (which will not require such
party to incur a loss, excluding immaterial, incidental expenses)
to transfer within 20 days after it gives notice under Section
6(b)(i) all its rights and obligations under this Agreement in
respect of the Affected Transactions to (A) in the case of Party
A, another of its Offices or Affiliates and (B) in the case of
Party B, another of its Offices or Affiliates, if any, or another
company so that such Termination Event ceases to exist. If the
Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day
period, whereupon the other party may effect such a transfer
within 30 days after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii)(1) will
be subject to and conditional upon the prior written consent of
the other party, which consent will not be withheld if such other
party's policies in effect at such time would permit it to enter
into transactions with the transferee on the terms proposed.
(2)If Party A, on the occasion of the next date for payment in
respect of this Agreement, would be required by any relevant
taxing authority or court of competent jurisdiction or by
operation of law to withhold or account for any Tax, Party A shall
forthwith upon becoming aware of such circumstance so inform Party
B and the Note Trustee and shall use its best endeavours (which
will not require such Party A to incur a loss, excluding
immaterial, incidental expenses) to arrange the substitution of an
Affiliate incorporated in another jurisdiction in the place of
Party A under this Agreement or to change the Office through which
it acts under this Agreement, but not so as in any event to (1)
result in the ratings of the Notes by Moody's Investors Service,
Inc. ("MOODY'S") or Standard & Poor's Ratings Services, a division
of the McGraw Hill Inc. group of companies ("STANDARD & POOR'S")
to be reduced or adversely affected by reference to the ratings
which would otherwise have applied to the Notes if such
circumstances described in this paragraph had not occurred or (2)
otherwise prejudice the position of Party B under this Agreement.
If Party A is unable to arrange such substitution or change, Party
A shall so inform Party B and the Note Trustee and shall use its
best endeavours (which will not require Party A to incur a loss,
excluding immaterial, incidental expenses) to arrange the
substitution of a company incorporated in another jurisdiction in
the place of Party A under this Agreement, but not so as in any
event to (x) result in the ratings of the Notes by Moody's or
Standard & Poor's to be reduced or adversely affected by reference
to the ratings which would otherwise have
6
applied to the Notes if such circumstance described in this
paragraph had not occurred or (y) otherwise prejudice the position
of Party B under this Agreement.
No transfer or substitution pursuant to this Section 6(b)(ii) shall
occur unless and until the Note Trustee has received the written
affirmation of each of Standard & Poor's and Moody's that such
transfer or substitution shall not adversely affect the then-current
ratings of the Notes.
(c) Section 6(d)(i) is hereby amended to read in its entirety as
follows:
STATEMENT On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, the Calculation Agent shall
make computations of the amounts owing pursuant to Section 6(e) and
will provide to each party a statement (1) showing, in reasonable
detail, such calculations and specifying the net amount payable by
the applicable party pursuant to Section 6(e) and (2) giving details
of the relevant account to which any amount payable is to be paid.
(d) Section 7 is hereby amended to read in its entirety as follows:
Except as stated under Section 6(b)(ii), as provided in the Schedule
or as provided in this Section 7, and except for the assignment by
way of security in favour of The Bank of New York, London Branch
under the trust deed dated 8 April 2003 (including any supplement
thereto) (collectively, the "TRUST DEED") between Party B and The
Bank of New York, London Branch, neither Party A nor Party B is
permitted to assign, novate or transfer as a whole or in party any
of its rights, obligations or interests under this Agreement. Party
A may transfer its rights and obligations under this Agreement (but,
not its rights only) to another of Party A's Offices, branches or
Affiliates (the "TRANSFEREE") on ten Business Days' prior written
notice, provided that (i) Party A delivers an opinion of independent
counsel of recognised standing in form and substance satisfactory to
Party B (or, following the security becoming enforceable as
described in the Conditions, the Note Trustee on behalf of Party B)
and the Note Trustee confirming that as at the date of such transfer
the Transferee will not, as a result of such transfer, be required
to withhold or deduct on account of tax under this Agreement, (ii) a
Termination Event or Event of Default does not occur under this
Agreement as a result of such transfer and (iii) the Note Trustee
has received written affirmation of Standard & Poor's and Moody's
(or their successors) that such transfer shall not adversely affect
the then-current ratings of the Notes. Party B may transfer is
rights and obligations under this Agreement (but not its rights
only) to any other body corporate which has been duly substituted as
the holder of the Series 03-1 MTN Certificate.
(e) ADDITIONAL REPRESENTATIONS Section 3 is hereby amended by adding at
the end thereof the following Subparagraph:
(i) It is entering into this Agreement, any Credit Support Document
to which it is a party and any other documentation relating to
this Agreement as principal (and not as agent or in any other
capacity, fiduciary or otherwise).
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(f) RELATIONSHIP BETWEEN PARTIES Each party will be deemed to represent
to the other party on the date on which it enters into this
Agreement that (absent a written agreement between the parties duly
executed by each of them that expressly imposes affirmative
obligations to the contrary);
(i) NON-RELIANCE. It is acting for its own account, and it has made
its own independent decisions to enter into this Agreement and
as to whether this Agreement 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 this Agreement; it
being understood that information and explanations related to
the Conditions of this Agreement shall not be considered
investment advice or a recommendation to enter into this
Agreement. 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 this Agreement.
(ii)ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of an understanding (on its own behalf or through
independent professional advice), and understands and accepts,
the terms, conditions and risks of this Agreement. It is also
capable of assuming, and assumes, the risks of this Agreement.
(iii)STATUS OF PARTIES. The other party is not acting as a
fiduciary for or as adviser to it in respect of this Agreement.
(g) AMENDMENTS. Section 9(b) of this Agreement is hereby amended to
read:
AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing and executed by each
of the parties and approved by the Note Trustee; provided, however,
that all such amendments, modifications or waivers shall require the
written affirmation of each of Standard & Poor's and Moody's that
such amendments, modifications or waivers shall not adversely affect
the then current ratings of the Notes.
(h) NON-PETITION AND LIMITED RECOURSE.
(i) Only The Bank of New York, London Branch may pursue the remedies
available under the general law or under this Agreement, the
Trust Deed and the Series 03-1 MTN Certificate to enforce the
rights of Party A, and Party A shall not be entitled to proceed
directly against Party B unless The Bank of New York, London
Branch, having become bound to proceed in accordance with the
terms of the Trust Deed, fails or neglects to do so within a
reasonable period and such failure or neglect is continuing
provided always that, for the avoidance of doubt, the foregoing
shall not prevent Party A from exercising any right to terminate
this Agreement pursuant to the provisions hereof.
8
(ii)Notwithstanding any other provision of this Agreement, Party A
agrees to be bound by the provisions of the Trust Deed and the
Deed of Charge. After realisation of the Security created under
the Deed of Charge and distribution of the net proceeds thereof
in accordance with the Deed of Charge, Party A may not take any
further steps against Party B or any of its assets and all
claims of the Party B under this Agreement against Party B in
respect of any sum unpaid shall be extinguished
(iii)In particular, Party A shall not be entitled to petition or
take any other step for the winding-up of Party B or for the
purpose of commencing or sustaining a case against Party B under
any bankruptcy, insolvency, conservatorship, receivership or
similar law or appointing a conservator, receiver, liquidator,
assignee, trustee, custodian, sequestrator, or other similar
official of Party B or any substantial part of its property,
provided that the Note Trustee and/or Party A may prove or lodge
a claim in the liquidation of Party B initiated by another party
and provided further that the Note Trustee and Party A may take
proceedings to obtain a declaration or similar judgment order as
to the obligations and liabilities of Party B under this
Agreement.
(i) ADDITIONAL DEFINITIONS. Terms defined or referred to in each of the
Trust Deed; the Security Trust Deed and MTN Cash Management
Agreement (the "SECURITY TRUST DEED") dated 23 November 1999 (as
amended) between, among others, Barclaycard Funding PLC and The Bank
of New York; the Series 03-1 MTN Supplement (the "MTN SUPPLEMENT")
dated 8 April 2003 between, among others, Barclaycard Funding PLC
and The Bank of New York; and the Series 03-1 MTN Certificate shall
bear the same respective meanings herein.
(j) INTEREST RATE AND CURRENCY EXCHANGES DEFINITIONS. Reference is
hereby made to the 2000 ISDA Definitions (as published by the
International Swaps and Derivatives Association, Inc.) (the
"DEFINITIONS"), which are incorporated by reference herein.
(k) 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.
(l) PAYMENTS FROM PARTY B. Notwithstanding anything contained in this
Agreement to the contrary, any amount required to be paid by Party B
pursuant to this Agreement will be paid in accordance with the
priority of payments provided in the Trust Deed.
9
(m) OPTIONAL TRANSFER AND MAINTAINING RATING OF THE NOTES. If any rating
in respect of any of (I) Party A, or (II) any Rating Support (as
defined below) is:
(i) downgraded below the short-term unsecured debt rating of A-1+,
or withdrawn by, Standard & Poor's; or
(ii)downgraded below the long-term unsecured debt rating of Aa3, or
withdrawn by, Moody's;
(either of (i) or (ii) a "PARTY A RATING REDUCTION")
then, immediately upon such Party A Rating Reduction
(1) Party A (acting reasonably) shall determine, or either of
Standard & Poor's or Moody's shall indicate, that as a direct
consequence of such Party A Rating Reduction, the then current
rating of the Notes could be adversely affected, then
(2) Party A shall immediately consult with the relevant rating
agency and if such rating agency confirms that as a direct
consequence of the Party A Rating Reduction the then rating of the
Notes is or will be adversely affected, then
(3) Party A shall thereupon use its best efforts (subject to
the proviso at the end of the last sentence of this subparagraph
(m)(3)) to assist Party B in ensuring (if necessary) that, within
thirty days of such Party A Rating Reduction (with the prior written
confirmation of each rating agency (or agencies, as applicable)
carrying out the Party A Rating Reduction) all necessary actions are
taken to maintain the rating of the Notes at the rating that would
subsist but for the Party A Rating Reduction or, in the case of an
immediate adverse effect on the rating of the Notes, to restore the
rating of the Notes to the rating that existed immediately prior to
such Party A Rating Reduction. These efforts shall include (A)
obtaining a third party, acceptable to Party B, to guarantee the
obligations of Party A under this Agreement or to whom the
obligations under this Agreement may be transferred or (B) posting
collateral (and, (1) in the event the Party A Rating Reduction is
carried out by Standard & Poor's, such posting of collateral shall
be in accordance with the Standard & Poor's interest rate and
currency swap criteria dated January 1999 for calculating swap
collateral (including all mark-to-market and volatility buffer
calculations set forth therein), as such criteria may be amended,
supplemented or replaced from time to time and (2) in the event that
the Party A Rating Reduction is carried out by Moody's, such posting
of collateral shall be undertaken only in accordance with the
Moody's Collateral Requirement (as defined below)) or (C) any other
action as Party A, in its sole discretion, deems to be reasonably
necessary (and any actions resulting in respect of paragraph (A) or
(C) called "RATING SUPPORT") to assist Party B in maintaining the
rating of the Notes or (in the event the Notes have been downgraded)
in restoring the rating of the Notes to the rating that existed
immediately prior to such Party A Rating Reduction, provided that if
Rating Support cannot be completed despite the exercise of Party A's
best efforts as outlined above, Party A shall nonetheless post
collateral as specified in (B) above. Any collateral posted
pursuant to subparagraphs (B) or (C) above shall be
10
deposited in an account at an eligible institution (other than Party
A) in the name of Party B or the Note Trustee and invested in
eligible investments at the direction of Party A (such eligible
investments to be as specified pursuant to the Standard & Poor's
interest rate and currency swap criteria dated January 1999).
(4) If any rating in respect of Party A is downgraded below the
long-term unsecured debt rating of A3 by Moody's, Party A agrees to
use its best efforts to obtain a replacement counterparty with a
long-term unsecured Moody's debt rating of Aa3 (or such other rating
as may be agreed by Moody's) and to transfer to such replacement
counterparty all of the rights and obligations of Party A under this
Agreement.
"MOODY'S COLLATERAL REQUIREMENT" means: (i) in the event that the
Party A Rating Reduction is in relation to a downgrade below Aa3,
102% of the weekly mark-to-market in relation to the Agreement plus
25 basis points to be calculated as follows: A + (B x C x D) where
A=102% of the weekly mark-to-market in relation to this Agreement;
B=0.25%; C = the notional amount of the Transactions represented by
this Agreement and D = the remaining years to the Termination Date;
(ii) in the event that the Party A Rating Reduction is in relation
to a downgrade below A2, the formula set forth in (i) shall continue
to apply except that A shall be amended as follows: A=110% of the
weekly mark-to-market in relation to this Agreement.
For the avoidance of doubt, any failure by Party A in respect of any
of the obligations under this subparagraph (m) shall not constitute
an "EVENT OF DEFAULT" as defined under the Agreement (but may
constitute an Additional Termination Event); however, where this
Agreement is terminated (in accordance with its terms) by Party B in
relation to a failure by Party A to comply with or perform any
agreement or obligation under this subparagraph (m), any termination
payment (if any) payable to Party A by Party B in relation to such
termination will be subject to the priority of payments set forth in
the Trust Deed and the Deed of Charge which provide for
subordination of such payment in circumstances where the Agreement
has been terminated as a result of a default of Party A.
(n) PARI PASSU The following Section 3(a)(vi) shall be inserted after
Section 3(a)(v):
(iv)Pari Passu. Party A represents and warrants to Party B that its
payment obligations hereunder rank and will rank at all times at
least pari passu in all respects with all of its unsecured
obligations (except for those which are preferred by operation
of law).
(o) 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
11
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."
(p) 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.
(q) 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.
(r) 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.
(s) 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 [3] April 2003 effective as of 8 April 2003.
BARCLAYS BANK PLC
By:
GRACECHURCH CARD FUNDING (NO. 3) PLC
By:
Per pro SFM Directors (No. 2) Limited, as
Director
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Party C is a party to this Agreement to take
the benefit of the provisions herein and Party
C will not be assuming any obligations under
this Agreement other than pursuant to Part 5(m)
of this Schedule in the event that any Rating
Support collateral is posted to an account in
the name of Party C or to an account in the
name of Party B where such account is charged
in favour of Party C:
THE BANK OF NEW YORK, LONDON BRANCH
By:
Title:
13