EXHIBIT 10.3
BARCLAYCARD 8 - CLASS A2 CONFIRMATION
Confirmation to the
1992 ISDA Master[registered] Agreement
relating to the Class A2 Swap Agreement
Dated [*] June 2005
GRACECHURCH CARD FUNDING (NO. 8) PLC
Re: Transaction between Barclays Bank PLC ("PARTY A") and Gracechurch Card
Funding (No. 8) 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 [*] June 2005, 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.8) PLC
Trade Date: [*] June 2005
Effective Date: [*] June 2005; provided, however,
that effectiveness is subject to the
issuance of the Notes and the
receipt by the Series 05-1 Issuer on
or prior to [*] June 2005 of
unconditional confirmation that upon
issue the Class A2 Notes will be
rated Aaa by ▇▇▇▇▇'▇ and AAA by
Standard & Poor's.
Termination Date: 15 June 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: 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 FIXED RATE AMOUNTS
Party A Fixed Rate Payer: Party A
Party A Currency Amount: USD [*] (subject to adjustment
during the Redemption Period as set
out herein)
Party A Fixed Rate Payer
Period End Dates: The 15th day of each calendar month
from and including 15 August 2005 to
and including the Termination Date,
in each case subject to adjustment
in accordance with the Following
Business Day Convention
Party A Fixed Rate Payer
Payment Dates: Each Party A Fixed Rate Payer
Period End Date. Party A will
provide a clearing system notice as
to the amount to be paid on each
Party A Fixed Rate Payer Payment
Date 2 Business Days prior to each
such Party A Fixed Rate Payer
Payment Date
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Party A Fixed Rate Option: [*] per cent.
Designated Maturity: 1 month, except for the initial
Calculation Period which shall be
for the period from (and including)
[*] June 2005 to (but excluding)
15 August 2005
Party A Fixed Rate
Day Count Fraction: 30/360
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 March, June,
September and December 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: 15th August 2005 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
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
one and two months and the second
Calculation Period which shall be 1
month
Spread: [*]%
Party B Floating Rate
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Day Count Fraction: A fraction, the numerator of which
is the actual number of days in the
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 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 05-1 Class A2 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.
3.2 INTEREST DEFERRAL:
(A2) 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 05-1 Class A2), and hence the amount
of Party B Available Funds (Series 05-1 Class A2), 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 05-1 CLASS A2)" 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 05-1
Distribution Account) on the related Distribution Date in respect of the
Class A2 Monthly Finance Amount (provided that, for the avoidance of
doubt, MTN Issuer Available Funds (Series 05-1 Class A2) excludes any
amounts distributed by the Receivables Trustee to the MTN Issuer in
respect of Excess Finance Charge Amounts). "PARTY B AVAILABLE FUNDS
(SERIES 05-1 CLASS A2)" 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
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Trust Deed (provided that, for the avoidance of doubt, Party B Available
Funds (Series 05-1 Class A2) shall exclude any amounts received by Party
B in respect of Further Interest on the Series 05-1 MTN Certificate).
The obligation of Party A to pay the Party A Fixed Rate Amount on any
Party A Fixed Rate Payer Payment Date will be reduced by an amount equal
to the Party A Fixed Rate Amount otherwise payable on such Party A Fixed
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 05-1 Class A2) and hence
any Party B Make-up Funds (Series 05-1 Class A2) (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 05-1 CLASS A2)" 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 05-1 Distribution Account in respect of either of the following:
(a) the Class A2 Deficiency Amount (if and to the extent that the same
is attributable to the Class A2 Monthly Finance Amount for any earlier
Distribution Date); and (b) the Class A2 Additional Finance Amount (if
and to the extent that the same is attributable to the Class A2
Deficiency Amount for any earlier Distribution Date), provided that, for
the avoidance of doubt, the MTN Issuer Make-up Funds (Series 05-1 Class
A2) 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 05-1 CLASS A2)" 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 05-1 Class A2) shall
exclude any amounts received by Party B in respect of Further Interest
on the Series 05-1 MTN Certificate.
The obligation of Party A to pay the Party A Fixed Rate Amount on any
Party A Fixed Rate Payer Payment Date will be increased by an amount
(the "ADDITIONAL PARTY A
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AMOUNT") equal to the Party A Fixed Rate Amount otherwise payable on
such Party A Fixed 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 Fixed Rate Payer Payment Date,
Party A shall pay the Party A Fixed Rate Amount as well as the
Additional Party A Amount. The "INCREASE RATIO" is a fraction equal to:
Additional Party ▇ ▇▇▇▇▇▇
--------------------------------
Aggregate Party B Payment Amount
3.3 REDEMPTION PROTECTION PERIOD.
In the event that the Regulated Amortisation Period or Rapid
Amortisation Period commences prior to the Series 05-1 Scheduled
Redemption Date, certain deposit arrangements will apply. In such
event, the period from the date of the commencement of the Regulated
Amortisation Period or the Rapid Amortisation Period to and including
the series 05-1 scheduled redemption date is called the "REDEMPTION
PROTECTION PERIOD".
During the Redemption Protection Period, on any business day on which an
amount (each such amount, a "CLASS A2 INVESTOR INTEREST REDEMPTION
AMOUNT") is deposited into the Series 05-1 Issuer Account towards
redemption of the Series 05-1 MTN Certificate and where such amount is
referable to the Class A2 Investor Interest, the amount of such Class A2
Investor Interest Redemption Amount shall be withdrawn by Party B from
the Series 05-1 Issuer Account and deposited into an account (the "CLASS
A2 ACCUMULATION ACCOUNT") in the name of Party B (each such deposit is
called an "INTERIM CLASS A2 PRINCIPAL REPAYMENT").
All amounts representing any Interim Class A2 Principal Repayment shall
be: (1) maintained in the Class A2 Accumulation Account; (2) held by
Party B subject to the security created pursuant to the Deed of Charge;
and (3) invested in Swap Permitted Investments (as defined below) as
directed by Party A. All income from the Class A2 Accumulation Account
is called the "REINVESTED COLLATERAL INCOME". The Reinvested Collateral
Income will be released to Party B on each Party B Floating Rate Payer
Payment Date. In addition to utilising Party B Available Funds (Series
05-1 Class A2, Party B shall also utilise Reinvested Collateral Income
and income from Swap Permitted Investments for the Party B Floating Rate
Payer Payment for that Party B Floating Rate Payer Payment Date.
Party B's obligation to pay the applicable Party B Floating Rate Payer
Payment shall be reduced on each Party B Floating Rate Payer Payment
Date by an amount (if any) by which (a) the aggregate amount of the
Interim Class A2 Principal Repayment funds then standing to the credit
of the Class A2 Accumulation Account on that Party B Floating Rate Payer
Payment Date (but not including any Interim Class A Principal Repayment
Funds to be deposited on that Party B Floating Rate Payer Payment Date)
multiplied by the Party A Fixed Rate Option (and calculated using the
applicable Day Count Fraction therefor), exceeds (b) the Reinvested
Collateral Income and income from Swap Permitted Investments released to
Party B on that Party B Floating Rate Payer Payment Date. Party B's
obligation to pay the applicable Party B Floating Rate Payer Payment
shall be increased on each Party B Floating Rate Payer Payment Date by
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an amount (if any) by which: (a) the Reinvested Collateral Income and
income from Swap Permitted Investments released to Party B on that Party
B Floating Rate Payer Payment Date, exceeds (b) the aggregate amount of
the Interim Class A2 Principal Repayment funds then standing to the
credit of the Class A2 Accumulation Account on that Party B Floating
Rate Payer Payment Date (but not including any Interim Class A Principal
Repayment Funds to be deposited on that Party B Floating Rate Payer
Payment Date) multiplied by the Party A Fixed Rate Option (and
calculated using the applicable Day Count Fraction therefor).
"SWAP PERMITTED INVESTMENTS" means any sterling-denominated bond,
debenture, note or other investment or security evidencing debt which
(1)(i) has a residual maturity of 364 days or less (and where such
maturity date is no later than a date which is on or prior to the Series
05-1 Scheduled Redemption Date), (ii) is purchased at a price no greater
than par plus accrued interest, if any, and (iii) (A2) has ratings of
"A-1+" from Standard & Poor's, "P-1" from ▇▇▇▇▇'▇ and, if rated by Fitch
Ratings, F1+ from Fitch Ratings, at the time of investment or (B) has
different ratings if each of the trustee has been provided with a letter
from Standard & Poor's and ▇▇▇▇▇'▇ to the effect that investment in such
securities will not adversely affect the then current rating of the
class A1 notes or (2) is a floating rate AAA instrument with a residual
maturity of 365 days or greater (and where such maturity date is no
later than a date which is on or prior to the Series 05-1 Scheduled
Redemption Date) which has received the consent of Standard & Poor's and
▇▇▇▇▇'▇, provided that a rating with a "r" suffix or equivalent shall
not constitute a Swap Permitted Investment within the above meaning
unless otherwise agreed by Standard & Poor's.
3.4 REDEMPTION PERIOD.
On the Series 05-1 Scheduled Redemption Date in the event that the
Series 05-1 Class A2 Debt Amount is not redeemed in full on such date
(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 June 2010, and (b) the date
upon which the Series 05-1 Class A2 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
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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 05-1 Scheduled Redemption Date if the
Redemption Trigger falls on the Series 05-1 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 05-1 Issuer Account
and referable to the Series 05-1 Class A2 Debt Amount and credited to
the Class A2 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 Fixed Rate Payer Period
End Date (including the Series 05-1 Scheduled Redemption Date if the
Redemption Trigger occurs on the Series 05-1 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 Fixed Rate Payer
Period End Date
C = the Party B Currency Amount calculated on the Effective Date.
On each Party A Fixed Rate Payer Payment Date, Party A shall pay to
Party B an amount equal to the Party A Amortisation Amount, if any.
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 05-1 Distribution Account for Class
A, and hence no funds (in respect of principal) deposited by the MTN
Issuer in the Series 05-1 Issuer Account and referable to the Series
05-1 Class A2 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.
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4. ACCOUNT DETAILS
Account for Barclays Bank PLC
Payments to SWIFT: ▇▇▇▇▇▇▇▇
Party A in GBP: Sort code: 20-00-00
Beneficiary: Barclays Swaps
Beneficiary Account: ▇▇▇▇▇▇▇▇
Account for Bank Federal Reserve Bank Of New York, New York
Payments to ABA No: ▇▇▇-▇▇▇▇-▇▇
Party A in USD Account Name: Barclays Bank PLC NY
[SWIFT: BARCUS33]
Beneficiary:Barclays Swaps and Options Group NY
Beneficiary Account: ▇▇▇-▇▇▇▇▇-▇
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: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax No: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
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:
GRACECHURCH CARD FUNDING (NO. 8) PLC
By:
Title:
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SCHEDULE
TO THE MASTER AGREEMENT
DATED AS OF [*] JUNE 2005
between
BARCLAYS BANK PLC
("PARTY A")
and
GRACECHURCH CARD FUNDING (NO. 8) PLC
("PARTY B")
PART 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" has the meaning specified in Section 14.
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 Note Trustee and, with respect to such Additional
Termination Event, Party B shall be the sole Affected Party.
(ii) 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.
(iii) WITHHOLDING 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 05-1 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); provided
that: (A) with respect to the Additional Termination Events set
out in this paragraph 1.9(a)(iii), for purposes of Section 6(b)
(iv) of the Agreement (Right to Terminate), Party A shall be the
sole Affected Party (and provided further that in the event that
Party B exercises its right to terminate in accordance with the
Agreement, the relevant class of Noteholders in respect of the
relevant Agreement shall first have directed the Note Trustee to
terminate the relevant Agreement by way of extraordinary
resolution); (B) with respect to the Additional Termination
Events set out in this paragraph 1.9(a)(iii)(1), 1.9(a)(iii)(2)
and/or 1.9(a)(iii)(3), for purposes of all calculations and
payments in respect of early termination as provided by Section
6(e) of this Agreement (Payments on Early Termination), Party B
shall be considered to be the sole Affected Party for purposes
of all such calculations.
(iv) DECLARATION OF PURPOSE TRUST - CESSATION OF SERIES 05-1 INVESTOR
BENEFICIARY INTEREST. The subject (being the Series 05-1
Investor Beneficiary Interest) of the Declaration of Purpose
Trust has been reduced to zero and is not capable of
reinstatement 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 (iv); and (2) in connection with any Additional
Termination Event in this sub-paragraph (iv) any Early
Termination Amount shall be zero.
1.10(A) The "TAX EVENT" provisions of Section 5(b)(ii) (and accordingly 5(b)
(iii)) will not apply to Party A and Party B. Party A shall not be
entitled to terminate any Transaction pursuant to Section 5(b)(iii) if
it is the Affected Party (as defined in that section).
PART 2
TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party B will not make any representation and Party
A will make the following representation:
"It is not required by any applicable law, as modified by the
practice of any relevant governmental 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,
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provided that it shall not be a breach of this representation
where reliance is placed on clause (ii) and the other party does
not deliver a form or document under Section 4(a)(iii) by reason
of material prejudice to its legal or commercial position."
(b) PAYEE TAX REPRESENTATIONS For the purposes of Section 3(f) of
this Agreement, Party A will make the following representation:
"Party A is entering into the Transactions through a
branch in the United Kingdom within the charge to United
Kingdom corporation tax and holds the Transactions
solely for the purpose of a trade carried on by party
A through that branch otherwise than as agent or nominee
for another person."
PART 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 Any document required or Promptly upon the
Party B reasonably requested to reasonable demand
allow Party A or Party by the other party
B to make 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
(b) Other documents to be delivered are:
PARTY REQUIRED FORM/DOCUMENT/ DATE BY WHICH COVERED BY
TO DELIVER CERTIFICATE TO BE DELIVERED Section 3(d)
DOCUMENTS
Party A and Evidence Upon execution Yes
Party B satisfactory to of this Agreement
the other party and the relevant
as to the authority Confirmation, as
of its signatories applicable
to this Agreement
and to each
Confirmation
including
specimen signatures
of such signatories
Party A AND Evidence Upon execution of Yes
Party B satisfactory to the this Agreement
other party as to
its capacity and
ability to enter
into this Agreement
and any Transaction
hereunder
party B A legal opinion in Upon execution No
a form satisfactory of this Agreement
to Party A
Party B A duly executed Upon execution
copy of the Trust of this Agreement No
Deed
- 3 -
PART 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: ▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
ATTENTION: Derivatives Director, Legal Division (marked urgent)
FACSIMILE NO: (▇▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇ TELEPHONE NO: (▇▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
WITH A COPY TO: Note Trustee
ADDRESS: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Addresses for notices or communications to Party B:
ADDRESS: ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
ATTENTION: The Directors
FACSIMILE NO: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
WITH A COPY TO: Note Trustee
ADDRESS: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
4.2 PROCESS AGENT. For the purpose of Section 13(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.
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.
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4.9 NETTING OF PAYMENTS. Section 2(c)(ii) of this Agreement will apply to
Transactions entered into under this Agreement.
4.10 NO SET-OFF.
(i) All payments under this Agreement shall be made without set-off
or counterclaim, except as expressly provided for in
Section 2(c) or Section 6.
(ii) Section 6(e) shall be amended by the deletion of the following
sentence; "The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will
be subject to any set-off.
4.11 "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
4.12 ADDITIONAL REPRESENTATION.
(a) Section 3 is amended by the addition at the end thereof of the
following additional representations:
"(g) NO AGENCY. It is entering into this Agreement and each
Transaction as principal and not as agent of any person."
(b) The following additional representation shall be given by Party A only:
"(h) PARI PASSU. Its obligations under this Agreement rank pari
passu with all of its other unsecured, unsubordinated
obligations except those obligations preferred by operation
of law."
4.13 CALCULATIONS
In the event that Party A is the sole Affected Party or Defaulting
Party, Party B will be entitled (but not obliged in the event that it
does not designate an Early Termination Date) to proceed in accordance
with Section 6 of the Agreement, subject to the following:
(i) For the purposes of Section 6(d)(i), Party B's obligation with
respect to the extent of information to be provided with its
calculations is limited to information Party B has already
received in writing and provided Party B is able to release
this information without breaching the provisions of any law
applicable to, or any contractual restriction binding upon,
Party B.
(ii) The following amendments shall be deemed to be made to the
definitions of "MARKET QUOTATION":
(a) the word "firm" shall be added before the word
"quotations" in the second line;
(b) the words "provided that the documentation relating
thereto is either the same as this Agreement and the
existing confirmations hereto (and the short-term,
unsecured and unsubordinated debt obligations of the
Reference Market-maker are rated not less than "P-1" by
Moody's and the long-term, unsecured and unsubordinated
debt obligations of the Reference Market-maker are rated
not less than "A1" by Moody's or Moody's has confirmed
in writing such proposed documentation and proposed
counterparty will not adversely impact the ratings of
the [Notes] shall be added after "agree" in the
sixteenth line; and
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(c) the last sentence shall be deleted and replaced with
the following:
"If, on the last date set for delivery of quotations,
exactly two quotations are provided, the Market
Quotation will be either (a) the higher of the two
quotations where there would be a sum payable by
Party B to Party A, or (b) the lower of the two
quotations where there would be a sum payable by Party A
to Party B. If only one quotation is provided on such
date, Party B may, in its discretion, accept such
quotation as the Market Quotation and if Party B does
not accept such quotation (or if no quotation has been
provided), it will be deemed that the Market Quotation
in respect of the Terminated Transaction cannot be
determined."
(iii) For the purpose of the definition of "MARKET QUOTATION", and
without limiting the general rights of Party B under the
Agreement:
(A) Party B will undertake to use its reasonable efforts to
obtain at least three firm quotations as soon as
reasonably practicable after the Early Termination Date
and in any event within the time period specified
pursuant to (iii)(C) below;
(B) Party A shall, for the purposes of Section 6(e), be
permitted to obtain quotations from Reference
Market-makers; and
(C) if no quotations have been obtained within 6 Local
Business Days after: (i) the occurrence of the Early
Termination Date; (ii) the date on which a request is
made of Party A in accordance with sub-paragraph (iv)
below; or (iii) such longer period as Party B may
specify in writing to Party A, then it will be deemed
that the Market Quotation in respect of the Terminated
Transaction cannot be determined.
(iv) Party B will be deemed to have discharged its
obligations under (iii)(A) above if it promptly
requests, in writing, Party A (such request to be
made within two Local Business Days after the
occurrence of the Early Termination Date) to obtain
quotations from Reference Market-makers.
(v) Party B will not be obliged to consult with Party A as to the
day and time of obtaining any quotations.
PART 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, 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
(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
(such ratings together the "MOODY'S REQUIRED RATINGS I")),
then Party A will, at its own cost within 30 days from ceasing
to meet Moody's Required Ratings I:
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(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 as set out in the Credit
Support Annex to this Schedule 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 P-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 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) within the later of 10 days from ceasing to meet
Moody's Required Ratings II or 30 days from ceasing
to meet Moody's Required Ratings I, lodge collateral
in an amount determined in accordance with the Moody's
Criteria (as defined in the Credit Support Annex to
this
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Schedule) 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.
In relation to paragraphs 5.2(i)(x)(d) and 5.2(i)(y)(d) above,
Party A will, upon receipt of reasonable notice from Moody's
demonstrate to Moody's the calculation by it of the
mark-to-market value of the outstanding Transactions.
If Party A fails to comply with 5.2(i)(y)(d) of the Schedule
such failure shall give rise to an Event of Default with respect
to Party A and shall be deemed to have occurred on the tenth day
from ceasing to meet Moody's Required Ratings II with Party A
as the Defaulting Party. Further, it shall constitute an
Additional Termination Event with respect to Party A if, even
after satisfying the requirements of 5.2(i)(y)(d) of the
Schedule, Party A has failed within 30 days of ceasing to meet
Moody's Required Ratings II to either:
(a) transfer all of its rights and obligations with respect
to this Agreement to a replacement third party with the
Required Ratings domiciled in the same legal
jurisdiction as Party A or Party B; or
(b) procure another person with the Required Ratings which
is domiciled in the same legal jurisdiction as Party A
or Party B to become co-obligor in respect of the
obligations of Party A under this Agreement; or
(c) take such other action agreed with Moody's,
and such Additional Termination Event shall be deemed to have
occurred on the thirtieth day from Party A ceasing to meet
Moody's Required Ratings II with Party A as the sole Affected
Party and all Transactions shall be Affected Transactions.
In the event that Party B were to designate an Early Termination
Date and there would be a payment due to Party A, Party B may
only designate such Early Termination Date in respect of an
Additional Termination Event under this Clause 5.2 if Party B
has found a replacement counterparty willing to enter into a new
transaction on terms that reflect as closely as reasonably
possible (as Party B may, in its absolute discretion,
determine) the economic and legal terms of the Terminated
Transactions with Party A.
(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 Party A will,
at its own cost, within 30 days from ceasing to meet the
S&P Required Rating, 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
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(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 (as
defined in the Credit Support Annex to this Schedule)
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 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), 5(a)(vii)(7)
and (9) shall not apply with respect to Party B. Section 5(a)(vii)(6)
shall be amended in respect of Party B to remove the words "seeks or"
at the beginning of such Section 5(a)(vii)(6). Section 5(a)(vii)(8)
will not apply to Party B to the extent that it applies to Section
5(a)(vii)(7) and (9) (except to the extent that such provisions remain
unamended or modified).
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
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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 (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;
(2) the short-term unsecured debt obligation of the
transferee of Party A, as rated by S&P and ▇▇▇▇▇'▇ is,
at least "A-1"/"Prime 1";
(3) as of 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;
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(4) a Termination Event or an Event of Default does not
occur under this Agreement as a result of such transfer;
and
(5) no additional amount will be payable by Party B to Party
A or the Transferee on the next succeeding Scheduled
Payment Date as a result of such transfer.
(c) 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 Eleventh 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 If the net proceeds of realisation of the security constituted
by the Deed of Charge upon enforcement thereof in accordance
with the provisions of the
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Deed of Charge are less than the aggregate amount payable in
such circumstances by the Issuer to Party A and the other
parties to the Deed of Charge (the "TRANSACTION PARTIES")
(such negative amount being referred to herein as a
"shortfall"), the obligations of Party B in respect of the Notes
of each Class and its obligations to Party A and the other
Transaction Parties in such circumstances will be limited to
such net proceeds which shall be applied in accordance with the
order of priority set out in the Deed of Charge. In such
circumstances, the other assets (if any) of Party B will not be
available for payment of such shortfall, which shortfall shall
be borne by the Transaction Parties in accordance with the
order of priority set out in the Deed of Charge (applied in
reverse order), the rights of the Transaction Parties to receive
any further amounts in respect of such obligations shall be
extinguished and none of the Noteholders of each Class or the
other Transaction Parties may take any further action to recover
such amounts.
Only the Note Trustee may pursue the remedies available under
applicable laws, under the Notes, the Deed of Charge and under
the other Documents (including this Agreement) to enforce the
rights of the Noteholders, Party A, the Note Trustee or the
Expenses Loan Provider against the Issuer, and no Noteholder or
any of Party A, the Note Trustee or the Expenses Loan Provider
shall be entitled to proceed directly against the Issuer other
than in accordance with the Deed of Charge (including, without
limitation, Clause 17 (Limited Recourse; Non-Petition) thereof)
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 (as amended from time
to time) and executed by, inter alia, Party A and Party B (the
"MASTER DEFINITIONS SCHEDULE") 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
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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.
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.
(iii) Confirmation;
(iv) Schedule;
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(v) 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. 8) PLC
By: By:
Name: Name:
Title: Title: as Director
Date: [*] June 2005 Date: [*] June 2005
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