Exhibit 10.9
CLIFFORD CLIFFORD CHANCE LLP
CHANCE
Dated [ ] 2008
BARCLAYS BANK PLC
as Excess Interest Beneficiary
and
BARCLAYCARD FUNDING PLC
as Series [ ] Investor Beneficiary
and
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
- --------------------------------------------------------------------------------
AGREEMENT BETWEEN BENEFICIARIES
- --------------------------------------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Interpretation...........................................................2
2. Assignment Of Entitlement To Excess Spread Relating To Series [ ]......3
3. Acknowledgements.........................................................3
4. Representations And Warranties...........................................3
5. Contracts (Rights Of Third Parties) Act..................................4
6. Execution In Counterparts, Severability..................................4
7. Governing Law............................................................4
8. Jurisdiction.............................................................4
1
THIS DEED is made on [ ] 2008
BETWEEN:
(1) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in
Jersey with registered number 75210 having its registered office at 26
New Street, St. Helier, Jersey JE2 3RA in its capacity as trustee of the
trust constituted by a Declaration of Trust and Trust Cash Management
Agreement dated 23 November 1999 as the same has been supplemented from
time to time (the "RECEIVABLES TRUSTEE");
(2) BARCLAYS BANK PLC, an institution authorised for the purposes of the
Financial Services and Markets Act 2000 of the United Kingdom, acting
through its business unit "Barclaycard", having its principal place of
business at 1234 Pavilion Drive, Northampton NN4 7SG, in its capacity as
Excess Interest Beneficiary (the "EXCESS INTEREST BENEFICIARY") of the
Receivables Trust pursuant to the terms of a Declaration of Trust and
Trust Cash Management Agreement dated 23 November 1999 as the same has
been supplemented from time to time; and
(3) BARCLAYCARD FUNDING PLC, a public limited company incorporated in
England and Wales, with company number 2530163, having its registered
office at 1 Churchill Place, London E14 5HP, in its capacity as Investor
Beneficiary for Series [ ] (the "SERIES [ ] INVESTOR BENEFICIARY").
WHEREAS:
(1) The MTN Issuer has issued the Series [ ] MTN Certificate to Gracechurch
Card Programme Funding Limited (the "ISSUER") at par with a right to
further payments of premium by way of Deferred Subscription Price.
(2) The Excess Interest Beneficiary wishes to assign to the MTN Issuer its
entitlement to excess spread in relation to Series [ ] in consideration
for payments from the MTN Issuer of Excess Entitlement Consideration in
amounts equal to the Deferred Subscription Price.
(3) On each Distribution Date, the MTN Issuer will pay an amount equal to
the excess spread relating to Series [ ] paid to the Series [ ] Investor
Beneficiary on such Distribution Date (together with (where applicable)
certain amounts accruing to the MTN Issuer in its capacity as Series [ ]
Investor Beneficiary) to the Issuer as additional interest on the Series
[ ] MTN Certificate.
(4) The Deferred Subscription Price on any Distribution Date will be an
amount equal to the said amount paid as additional interest on the
Series [ ] MTN Certificate to the Issuer on such Distribution Date but
which is not otherwise utilised by the Issuer.
THE PARTIES AGREE as follows:
1. INTERPRETATION
1.1 In this Deed the following expressions have the following meanings:
2
"DEFERRED SUBSCRIPTION PRICE" means the deferred subscription price
payable by the Issuer to the MTN Issuer as deferred consideration for
the issue of the Series [ ] MTN Certificate.
"EXCESS ENTITLEMENT CONSIDERATION" means the consideration payable by
the Series [ ] Investor Beneficiary to the Excess Interest Beneficiary
in respect of the assignment made pursuant to Clause 2.1 hereof in an
amount equal to the Deferred Subscription Price.
1.2 The headings in this Deed do not affect its interpretation.
1.3 Terms defined in the master definitions schedule dated 23 November 1999
and amended and restated on 7 July 2000 and on 24 October 2002 (the
"MASTER DEFINITIONS SCHEDULE") and the Series [ ] Supplement to the
Declaration of Trust and Trust Cash Management Agreement dated [ ] 2008,
(the "SERIES [ ] SUPPLEMENT"), shall have the same meanings when used in
this Deed unless the context requires otherwise, PROVIDED, HOWEVER, that
in the event that any term or provision contained herein shall conflict
with or be inconsistent with any provision contained in the Series [ ]
Supplement or the terms of the Master Definitions Schedule, the terms
and provisions of this Deed shall prevail with respect to Series [ ]
only and provided further that, in the event of any inconsistency of
interpretation between the Master Definitions Schedule and the Series
[ ] Supplement, the terms and provisions of the Series [ ] Supplement
shall prevail with respect to Series [ ] only.
2. ASSIGNMENT OF ENTITLEMENT TO EXCESS SPREAD RELATING TO SERIES [ ]
2.1 The Excess Interest Beneficiary hereby assigns its entitlement to Excess
Finance Charge Amounts relating to Series [ ] to the Series [ ] Investor
Beneficiary (the "ASSIGNED EXCESS SPREAD") and in consideration for that
assignment the Series [ ] Investor Beneficiary hereby undertakes to pay
to the Excess Interest Beneficiary the Excess Entitlement Consideration
from time to time on each Distribution Date.
2.2 Each of the Series [ ] Investor Beneficiary and the Excess Interest
Beneficiary agree that the Assigned Excess Spread shall henceforth for
calculation purposes be treated as forming part of the Series [ ]
Investor Interest.
3. ACKNOWLEDGEMENTS
3.1 The Receivables Trustee acknowledges (i) the assignment made pursuant to
Clause 2.1 hereof; and (ii) that the Assigned Excess Spread shall
henceforth for calculation purposes be treated as forming part of the
Series [ ] Investor Interest.
3.2 The Series [ ] Investor Beneficiary will create security over the
Assigned Excess Spread under the Series [ ] MTN Supplement under the
terms of the Security Trust Deed and MTN Cash Management Agreement.
4. REPRESENTATIONS AND WARRANTIES
Each party hereto represents and warrants to the other parties, in each
case with respect to itself only, that it has the capacity and authority
to enter into this Deed and that this Deed constitutes its legal, valid
and binding obligation enforceable in accordance with its terms.
3
5. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any provision of
the terms of this Deed.
6. EXECUTION IN COUNTERPARTS, SEVERABILITY
6.1 This Deed may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement.
6.2 If any provision in or obligation under this Deed shall be invalid,
illegal, unenforceable or not permitted to be adduced in evidence in any
jurisdiction, the validity, legality, enforceability or ability to be
adduced in evidence of the remaining provisions or obligations under
this Deed, or of such provisions or obligations in any other
jurisdiction, shall not be affected or impaired thereby.
7. GOVERNING LAW
The laws of England and Wales shall govern this Deed and all matters
arising from or connected with it.
8. JURISDICTION
8.1 Each of the parties hereto irrevocably agrees for the benefit of each
other party that the Royal Courts of Jersey shall have exclusive
jurisdiction to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with
this Deed and agrees not to claim that any such court is not a
convenient or appropriate forum, and, for such purposes, irrevocably
submits to the exclusive jurisdiction of such courts.
8.2 Each party hereto irrevocably waives any objection which it might now or
hereafter have to the courts of Jersey referred to above being nominated
as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with
this Deed and the transactions which it acknowledges and agrees not to
claim that any such court is not a convenient or appropriate forum.
8.3 Each of the Series [ ] Investor Beneficiary and the Excess Interest
Beneficiary irrevocably appoints the person specified against its name
on the execution pages hereto to accept service of any process on its
behalf and further undertakes to the other parties hereto that it will
at all times during the continuance of this Deed maintain the
appointment of some person in Jersey as its agent for the service of
process and irrevocably agrees that service of any writ, notice or other
document for the purposes of any suit, action or proceeding in the
courts of Jersey shall be duly served upon it if delivered or sent by
registered post to the address of such appointee (or to such other
address in Jersey as that party may notify to the other parties hereto).
BY THEIR SIGNATURE HEREOF the Receivables Trustee, the Excess Interest
Beneficiary and the Series [ ] Investor Beneficiary have caused this Deed to be
duly executed and delivered in Jersey by their duly authorised representatives,
on the day and year first written above.
4
EXECUTION
RECEIVABLES TRUSTEE
EXECUTED AND DELIVERED )
AS A DEED ON BEHALF )
GRACECHURCH RECEIVABLES )
TRUSTEE LIMITED )
by its duly authorised signatory )
EXCESS INTEREST BENEFICIARY
EXECUTED AND DELIVERED )
AS A DEED ON BEHALF )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
in the presence of: )
PROCESS AGENT
Bedell Trust Company Limited
26 New Street
St.Helier
Jersey JE2 3RA
SERIES [ ] INVESTOR BENEFICIARY
EXECUTED AND DELIVERED )
AS A DEED ON BEHALF )
BARCLAYCARD FUNDING PLC )
By two Directors, being )
in the presence of: )
PROCESS AGENT
Bedell Trust Company Limited
26 New Street
St.Helier
Jersey JE2 3RA
5