SCHEDULE TO THE
MASTER AGREEMENT
dated as of * November 1999
relating to the
$ * Class B Backed Floating
Rate Notes Issued by Party B due * (the "Class B Notes")
between
BARCLAYS BANK PLC
("Party A")
and
GRACECHURCH CARD FUNDING (NO.1) PLC
("Party B")
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(a)(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.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not
apply to Party B.
(e) The "Automatic Early Termination" provisions of Section 6(a) will not
apply to Party A and Party B.
(f) Payments on Early Termination "Second Method" and "Loss" will apply for
the purpose of Section 6(3) of this Agreement.
(g) "Termination Currency" means [Dollars].
(h) The "Tax Event" provisions of Section 5(b)(ii) will not apply to Party A
and Party B.
(i) 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 terms and
conditions occurs and the Trustee gives notice
that the Class A Notes are due and repayable
as provided in Condition 8 in the [terms and
conditions of the Class A Notes] (in which
event Party B shall be the Affected Party).
In the case of Additional Termination Event[s] described in clause
[(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 relevant Additional Termination
Event is then continuing, designate a day not earlier than the day
such notice is effective as an Early Termination Date in respect
of all
1
Affected Transaction, provided however, that such Early
Termination Date shall not be later than the date set for
redemption of the Class A Notes in accordance with Condition 5(a)
of the Terms and Conditions of the Class A Notes, as applicable.
(j) The "Deduction or Withholding for Tax" provisions of Section 2(d) will
not apply to Party A and Party B.
2. TAX REPRESENTATIONS
(a) Payer Representations. For the purpose of Section 3(e) of this Agreement,
Party A and Party B will 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 the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, the satisfaction of the agreement of the other party 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 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
deliver 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:
(A) Party A makes no representation.
(B) Party B makes the following representation: It is a company duly
incorporated under the laws of England and Wales and is a foreign
corporation for United States tax purposes, and any payments
received by it pursuant to this Agreement do not arise from the
conduct of a United States trade or business for such purposes.
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:
(c) Tax forms, documents or certificates to be delivered are:
Party required to deliver Form/Document/ Date by which to be
document Certificate delivered
Party B A duly completed and (i) Before the first
executed Internal Payment Date under the
Revenue Service Form W8 Agreement, (ii)
(or any successor promptly upon
thereto) as requested reasonable demand by
by Party A with respect Party A and (iii)
to any payments promptly upon learning
received that any such form
previously provided by
Party B has become
obsolete or incorrect
Party A/Party B Any document required Promptly upon the
or reasonably requested earlier of (i)
to allow the other reasonable demand by
party to make payments the other party and
under the Agreement (ii) learning that the
without any deduction form or document is
or withholding for or required
on account of any Tax
or with such deduction
or withholding at a
reduced rate
Party B A duly completed and (i) Before the first
executed Internal Payment Date under the
Revenue Service Form Agreement, (ii)
4224 (or any successor promptly upon
thereto) as requested reasonable demand by or
by Party B with respect on behalf of Party B
to any payments and (iii) promptly upon
received by Party A learning that any such
form previously
provided by Party A has
become obsolete or
incorrect
2
(d) Other documents to be delivered are:
Party required to deliver Form/Document/Certificate Date by which to be delivered Covered by Section 3(d)
document Representation
Party A A copy of the most recent Upon execution of this Yes
annual report of Party A Agreement
Party A/Party B Certificate or other At the execution of this Yes
documents evidencing the Agreement, and, if a
authority of the party Confirmation so requires it
entering into this Agreement on or before the date set
and the persons acting on forth therein
behalf of such party
Party A/Party B Legal Opinions in the form At the execution of this No
reasonably acceptable to the Agreement
other party
Party B A duly executed copy of the Upon execution of this No
Credit Support Document Agreement
specified in Part 4 of this
Schedule together with duly
executed copies of the
Support Documents (as defined
in the Trust Deed)
Party B Certificate of Incorporation, At the execution of this Yes
Memorandum and Articles of Agreement
Association of Party B
Party B Letter of Acceptance of At the execution of this No
Appointment from the Process Agreement
Agent acknowledging agreement
to act in such capacity
4. MISCELLANEOUS
(e) Addresses for Notices: For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to Party A:
In connection with Section 12(a), all notices to Party A shall, with respect to
any particular Transaction, be sent to the address, telex number or facsimile
number specified in the relevant Confirmation and any notice for purposes of
Section 5 or 6 shall be sent to the address, telex number or facsimile number
specified below:
Address: 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Swaps Operations
▇▇▇▇▇▇▇▇▇ ▇▇.▇▇▇▇ ▇▇▇ ▇▇▇▇/6858
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
cc:
Address: 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
3
Attention: Markets Credit
Facsimile No.▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
With a copy in the case of notices or communications relating to Sections 5, 6,
7, 11 or 13 to:
Address: 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Legal Director, Legal Division (marked urgent)
Facsimile No.▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Address for notices or communications to Party B:
Address: Gracechurch Card Funding (No.1) PLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: The Directors
Fax: *
(For all purposes)
(f) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent:
Not applicable
Party B appoints as its Process Agent:
Address: ▇▇▇▇▇▇▇▇ CHANCE SECRETARIES LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(g) Offices. The provisions of Section 10(a) will apply to this Agreement.
(h) Multibranch Party. For the purpose of Section 10:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(i) Calculation Agent. The Calculation Agent is Barclays Bank PLC. All
calculations by the Calculation Agent (the "CA") shall be made in good
faith and through the exercise of the CA's commercially reasonable
judgment. If either Party A or Party B objects to any calculation made by
the CA, then Party A and Party B will negotiate in good faith to agree on
an independent leading dealer to make such calculation, and if they
cannot agree within three Business Days, they will each promptly choose
an independent leading dealer and instruct such dealers to agree on
another independent leading dealer to make such calculation. The
calculation of any such leading independent dealer will be binding absent
manifest error. The costs of such independent leading dealers will be
borne equally by Party A and Party B.
(j) Credit Support Document. Details of any Credit Support Document:
Party A: None.
Party B: The Trust Deed.
(k) Credit Support Provider.
Party A: Not Applicable
Party B: Not Applicable
(l) Governing Law. This Agreement and each Confirmation will be governed by
and construed in accordance with the laws of England.
(m) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
5. OTHER PROVISIONS
(n) 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
4
such other 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.
(o) Section 6(b)(ii) is hereby amended to read in its entirety as follows:
Transfer to Avoid Termination Event
(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 Officers 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)] [Others].
[(3)] No transfer or substitution pursuant to this Section 6(b)(ii)
shall occur unless and until the 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 Class A Notes.
(p) 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.
(q) 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 Trustee under the Trust Deed, 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 is 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 the 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 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 Class A Notes.
(r) Additional Representations. Section 3 is hereby amended by adding at the
end thereof the following Subparagraphs:
(g) 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).
(s) Relationship Between Parties. Each party will be deemed to represent to
the other party on the date 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 judgement 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 terms and
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.
5
(ii) 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 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.
(t) 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 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 Class A Notes.
(u) Confirmations. Each Confirmation supplements, forms part of, and will be
read and construed as one with this Agreement.
(v) Non-Petition. Only the Trustee may pursue the remedies available under
the general law or under this Agreement, the Trust Deed and the Notes to
enforce the rights of Party A, and Party A shall not be entitled to
proceed directly against Party B unless the Trustee, 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. The Trustee
having realised the security constituted by or pursuant to the Trust Deed
and distributed the net proceeds in accordance with Condition 3 of the
Terms and Conditions of the Class A Notes and the Trust Deed, Party A may
not take any further steps against Party B to recover any sum still
unpaid under the Trust Deed or under this Agreement and Party B's
liability for any sum still unpaid shall be extinguished. 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 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 Trustee and Party A may take proceedings to obtain a declaration
or similar judgment or order as to the obligations and liabilities of
Party B under this Agreement. [to conform to other documents].
(w) Additional Definitions. Terms defined or referred to in the Trust Deed
shall bear the same respective meaning herein.
(x) 1991 ISDA Definitions. Reference is hereby made to the 1991 ISDA
Definitions (as supplemented by the 1998 Supplement) and as amended by
the 1998 ISDA Euro Definitions) (the "Definitions"), published by the
International Swaps and Derivatives Association, Inc., which are hereby
incorporated by reference herein.
(y) 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 10 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 10 Local Business Days
prior to the scheduled date for payment or delivery to which such change
applies unless Party A gives timely notice of a reasonable objection to
such change.
(z) 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 payable only to the extent and in
accordance with the priority provided in the Trust Deed.
(aa) 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:
(iv) downgraded or withdrawn by Standard & Poor's; or
(v) downgraded or withdrawn by Moody's;
(either of (i) or (ii) a "Party A Rating Reduction")
then, immediately upon such Party A Rating Reduction
6
(1) Party A (acting reasonably) shall determine, or either 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
Class A 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 Class A 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 penultimate sentence of this paragraph
(n)) 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 Class A
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 Class A Notes, to restore the rating of the Class A
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,
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 ▇▇▇▇-to-market and volatility buffer calculations
set forth therein), as such criteria may be amended, supplemented
or replaced from time to time) or (C) any other action as Party A,
in its sole discretion, deems to be reasonably necessary (and any
of (A), (B) or (C) called "Rating Support") to assist Party B in
maintaining the rating of the Class A Notes or (in the event the
Class A Notes have been downgraded) in restoring the rating of the
Class A 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. In the event that any rating in respect of
Party A is placed under review for possible downgrade or placed
under review for possible withdrawal by Moody's, then Party A
shall promptly send written notice of such fact to Moody's.
[(bb) Pari Passu. The following Section 3(a)(vi) shall be inserted after
Section 3(a)(v):
(vi) 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).]
(cc) Inconsistency. In the event of any inconsistency among or between any of
the following documents, the relevant document first listed below shall
govern.
(vi) Confirmation;
(vii) Schedule;
(viii)Definitions;
(ix) Sections 1 through 14 of this Agreement.
(dd) Telephone Recording. Each party to this Agreement acknowledges and agrees
to the tape recording of conversations between the parties to this
Agreement whether by one or other or both of the parties and that any
such tape recordings may be submitted in evidence to any court or legal
proceedings for the purpose of establishing any matters relating to this
Agreement.
(ee) Payments made by either party to this Agreement pursuant to this
Agreement will be made in accordance with the provisions of the [Trust
and cash Management Agreement] dated * 1999 between, inter alios, the
parties hereto.
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorised officers as of * 1999 effective as of * 1999.
BARCLAYS BANK PLC
By:
Name:
Title:
Date:
7
GRACECHURCH CARD FUNDING (NO.1) PLC
By:
Name:
Title:
Date:
8
SCHEDULE TO THE
MASTER AGREEMENT
dated as of * November 1999
relating to the
$ * Class B Backed Floating
Rate Notes Issued by Party B due * (the "Class B Notes")
between
BARCLAYS BANK PLC
("Party A")
and
GRACECHURCH CARD FUNDING (NO.1) PLC
("Party B")
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(a)(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.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not
apply to Party B.
(e) The "Automatic Early Termination" provisions of Section 6(a) will not
apply to Party A and Party B.
(f) Payments on Early Termination "Second Method" and "Loss" will apply for
the purpose of Section 6(3) of this Agreement.
(g) "Termination Currency" means [Dollars].
(h) The "Tax Event" provisions of Section 5(b)(ii) will not apply to Party A
and Party B.
(i) 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 terms and
conditions occurs and the Trustee gives notice that the Class A
Notes are due and repayable as provided in Condition 8 in the
[terms and conditions of the Class A Notes] (in which event Party
B shall be the Affected Party).
In the case of Additional Termination Event[s] described in clause
[(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 relevant Additional Termination
Event is then continuing, designate a
9
day not earlier than the day such notice is effective as an Early
Termination Date in respect of all Affected Transaction, provided
however, that such Early Termination Date shall not be later than
the date set for redemption of the Class A Notes in accordance
with Condition 5(a) of the Terms and Conditions of the Class A
Notes, as applicable.
(j) The "Deduction or Withholding for Tax" provisions of Section 2(d) will
not apply to Party A and Party B.
2. TAX REPRESENTATIONS
(a) Payer Representations. For the purpose of Section 3(e) of this Agreement,
Party A and Party B will 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 the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, the satisfaction of the agreement of the other party 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 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
deliver 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:
(A) Party A makes no representation.
(B) Party B makes the following representation: It is a company duly
incorporated under the laws of England and Wales and is a foreign
corporation for United States tax purposes, and any payments
received by it pursuant to this Agreement do not arise from the
conduct of a United States trade or business for such purposes.
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:
(c) Tax forms, documents or certificates to be delivered are:
Party required to deliver Form/Document/ Date by which to be
document Certificate delivered
Party B A duly completed and (i) Before the first
executed Internal Payment Date under the
Revenue Service Form W8 Agreement, (ii)
(or any successor promptly upon
thereto) as requested reasonable demand by
by Party A with respect Party A and (iii)
to any payments promptly upon learning
received that any such form
previously provided by
Party B has become
obsolete or incorrect
Party A/Party B Any document required Promptly upon the
or reasonably requested earlier of (i)
to allow the other reasonable demand by
party to make payments the other party and
under the Agreement (ii) learning that the
without any deduction form or document is
or withholding for or required
on account of any Tax
or with such deduction
or withholding at a
reduced rate
10
Party B A duly completed and (i) Before the first
executed Internal Payment Date under the
Revenue Service Form Agreement, (ii)
4224 (or any successor promptly upon
thereto) as requested reasonable demand by or
by Party B with respect on behalf of Party B
to any payments and (iii) promptly upon
received by Party A learning that any such
form previously
provided by Party A has
become obsolete or
incorrect
(d) Other documents to be delivered are:
Party required to Form/Document/ Date by which to Covered by
deliver document Certificate be delivered Section 3(d)
Representation
Party A A copy of the Upon execution of Yes
most recent this Agreement
annual report of
Party A
Party A/Party B Certificate or At the execution Yes
other documents of this
evidencing the Agreement, and,
authority of the if a Confirmation
party entering so requires it on
into this or before the
Agreement and the date set forth
persons acting on therein
behalf of such
party
Party A/Party B Legal Opinions in At the execution No
the form of this Agreement
reasonably
acceptable to the
other party
Party B A duly executed Upon execution of No
copy of the this Agreement
Credit Support
Document
specified in Part
4 of this
Schedule together
with duly
executed copies
of the Support
Documents (as
defined in the
Trust Deed)
Party B Certificate of At the execution Yes
Incorporation, of this Agreement
Memorandum and
Articles of
Association of
Party B
Party B Letter of At the execution No
Acceptance of of this Agreement
Appointment from
the Process Agent
acknowledging
agreement to act
in such capacity
4. MISCELLANEOUS
(e) Addresses for Notices: For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to Party A:
In connection with Section 12(a), all notices to Party A shall, with respect to
any particular Transaction, be sent to the address, telex number or facsimile
number specified in the relevant Confirmation and any notice for purposes of
Section 5 or 6 shall be sent to the address, telex number or facsimile number
specified below:
11
Address: 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Swaps Operations
Facsimile No.: ▇▇▇▇ ▇▇▇ ▇▇▇▇/6858
Telephone: 0171 773 6603
cc:
Address: 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Markets Credit
Facsimile No.: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: 0171 773 2274
With a copy in the case of notices or communications relating to Sections 5, 6,
7, 11 or 13 to:
Address: 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Legal Director, Legal Division (marked urgent)
Facsimile No.: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone: 0171 773 4720
Address for notices or communications to Party B:
Address: Gracechurch Card Funding (No.1) PLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: The Directors
Fax: *
(For all purposes)
(f) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent:
Not applicable
Party B appoints as its Process Agent:
Address: ▇▇▇▇▇▇▇▇ CHANCE SECRETARIES LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(g) Offices. The provisions of Section 10(a) will apply to this Agreement.
(h) Multibranch Party. For the purpose of Section 10:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(i) Calculation Agent. The Calculation Agent is Barclays Bank PLC. All
calculations by the Calculation Agent (the "CA") shall be made in good
faith and through the exercise of the CA's commercially reasonable
judgment. If either Party A or Party B objects to any calculation made by
the CA, then Party A and Party B will negotiate in good faith to agree on
an independent leading dealer to make such calculation, and if they
cannot agree within three Business Days, they will each promptly choose
an independent leading dealer and instruct such dealers to agree on
another independent leading dealer to make such calculation. The
calculation of any such leading independent dealer will be binding absent
manifest error. The costs of such independent leading dealers will be
borne equally by Party A and Party B.
(j) Credit Support Document. Details of any Credit Support Document:
Party A: None.
Party B: The Trust Deed.
12
(k) Credit Support Provider.
Party A: Not Applicable
Party B: Not Applicable
(l) Governing Law. This Agreement and each Confirmation will be governed by
and construed in accordance with the laws of England.
(m) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
5. OTHER PROVISIONS
(n) 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 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.
(o) Section 6(b)(ii) is hereby amended to read in its entirety as follows:
Transfer to Avoid Termination Event
(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 Officers 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)] [Others].
[(3)] No transfer or substitution pursuant to this Section 6(b)(ii)
shall occur unless and until the 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 Class A Notes.
(p) 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.
(q) 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 Trustee under the Trust Deed, 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 is 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 the 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 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 Class A Notes.
(r) Additional Representations. Section 3 is hereby amended by adding at the
end thereof the following Subparagraphs:
(g) 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).
13
(s) Relationship Between Parties. Each party will be deemed to represent to
the other party on the date 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 judgement 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 terms and
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 and 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.
(t) 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 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 Class A Notes.
(u) Confirmations. Each Confirmation supplements, forms part of, and will be
read and construed as one with this Agreement.
(v) Non-Petition. Only the Trustee may pursue the remedies available under
the general law or under this Agreement, the Trust Deed and the Notes to
enforce the rights of Party A, and Party A shall not be entitled to
proceed directly against Party B unless the Trustee, 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. The Trustee
having realised the security constituted by or pursuant to the Trust Deed
and distributed the net proceeds in accordance with Condition 3 of the
Terms and Conditions of the Class A Notes and the Trust Deed, Party A may
not take any further steps against Party B to recover any sum still
unpaid under the Trust Deed or under this Agreement and Party B's
liability for any sum still unpaid shall be extinguished. 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 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 Trustee and Party A may take proceedings to obtain a declaration
or similar judgment or order as to the obligations and liabilities of
Party B under this Agreement. [to conform to other documents].
(w) Additional Definitions. Terms defined or referred to in the Trust Deed
shall bear the same respective meaning herein.
(x) 1991 ISDA Definitions. Reference is hereby made to the 1991 ISDA
Definitions (as supplemented by the 1998 Supplement) and as amended by
the 1998 ISDA Euro Definitions) (the "Definitions"), published by the
International Swaps and Derivatives Association, Inc., which are hereby
incorporated by reference herein.
(y) 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 10 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 10 Local Business Days
prior to the scheduled date for payment or delivery to which such change
applies unless Party A gives timely notice of a reasonable objection to
such change.
14
(z) 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 payable only to the extent and in
accordance with the priority provided in the Trust Deed.
(aa) 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:
(iv) downgraded or withdrawn by Standard & Poor's; or
(v) downgraded 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 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
Class A 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 Class A 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 penultimate sentence of this paragraph
(n)) 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 Class A
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 Class A Notes, to restore the rating of the Class A
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,
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 ▇▇▇▇-to-market and volatility buffer calculations
set forth therein), as such criteria may be amended, supplemented
or replaced from time to time) or (C) any other action as Party A,
in its sole discretion, deems to be reasonably necessary (and any
of (A), (B) or (C) called "Rating Support") to assist Party B in
maintaining the rating of the Class A Notes or (in the event the
Class A Notes have been downgraded) in restoring the rating of the
Class A 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. In the event that any rating in respect of
Party A is placed under review for possible downgrade or placed
under review for possible withdrawal by Moody's, then Party A
shall promptly send written notice of such fact to Moody's.
[(bb) Pari Passu. The following Section 3(a)(vi) shall be inserted after
Section 3(a)(v):
(vi) 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).]
(cc) Inconsistency. In the event of any inconsistency among or between any of
the following documents, the relevant document first listed below shall
govern.
(vi) Confirmation;
(vii) Schedule;
(vii) Definitions;
(ix) Sections 1 through 14 of this Agreement.
(dd) Telephone Recording. Each party to this Agreement acknowledges and agrees
to the tape recording of conversations between the parties to this
Agreement whether by one or other or both of the parties and that any
such tape recordings may be submitted in evidence to any court or legal
proceedings for the purpose of establishing any matters relating to this
Agreement.
15
(ee) Payments made by either party to this Agreement pursuant to this
Agreement will be made in accordance with the provisions of the [Trust
and cash Management Agreement] dated * 1999 between, inter alios, the
parties hereto.
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorised officers as of * 1999 effective as of * 1999.
BARCLAYS BANK PLC
By:
Name:
Title:
Date:
GRACECHURCH CARD FUNDING (NO.1) PLC
By:
Name:
Title:
Date:
16