EXHIBIT 4.12
BARCLAYCARD FUNDING PLC
as Investor Beneficiary
and
BARCLAYS BANK PLC
as Servicer, Transferor Beneficiary and Excess Interest Beneficiary
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BENEFICIARIES SERVICING AGREEMENT
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CLIFFORD CHANCE
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..................................................................2
1.1 Definitions.............................................................................2
1.2 Other Definitional Provisions...........................................................2
2. Acknowledgement; Appointment Of Servicer And Servicing Of Receivables...........................3
2.1 Acknowledgement; Acceptance Of Appointment And Other Matters Relating To The Servicer...3
2.2 Servicing Compensation..................................................................5
2.3 Representations And Warranties Of The Servicer And Any Co-Servicer......................6
2.4 Compliance With Requirements Of Law.....................................................7
2.5 Annual Independent Auditors' Servicing Report...........................................8
2.6 Notices To Barclays Bank Plc And Any Co-Servicer........................................9
3. Other Matters Relating To The Servicer And Any Co-Servicer......................................9
3.1 Liability Of The Servicer And Any Co-Servicer..........................................9
3.2 Merger Or Consolidation Of, Or Assumption Of The Obligations Of, The Servicer Or Any
Co-Servicer.............................................................................9
3.3 Limitation On Liability Of The Servicer, Any Co-Servicer And Others....................10
3.4 Servicer Indemnification Of The Beneficiaries..........................................10
3.5 The Servicer Or Any Co-Servicer Not To Resign..........................................11
3.6 Access To Certain Documentation And Information Regarding The Receivables..............11
3.7 Delegation Of Duties...................................................................11
3.8 Examination Of Records.................................................................12
4. Servicer Defaults..............................................................................12
4.1 Servicer Defaults......................................................................12
4.2 Effect Of Termination Notice...........................................................13
4.3 Appointment Of Successor...............................................................14
4.4 Notification Of Servicer Default.......................................................16
4.5 Waiver Of Past Defaults................................................................16
5. Miscellaneous Provisions.......................................................................16
5.1 Amendment..............................................................................16
5.2 Protection Of Right, Title And Interest To Trust Property..............................17
5.3 Governing Law And Jurisdiction.........................................................17
5.4 Notices................................................................................18
5.5 Severability Of Provisions.............................................................19
5.6 Assignment.............................................................................19
5.7 Further Assurances.....................................................................19
5.8 No Waiver; Cumulative Remedies.........................................................19
5.9 Counterparts...........................................................................19
5.10 Actions By Beneficiaries...............................................................19
5.11 Voting By Investor Beneficiaries.......................................................20
5.12 Entire Agreement.......................................................................20
5.13 Headings...............................................................................20
THIS BENEFICIARIES SERVICING AGREEMENT is made the 23 day of November 1999
BETWEEN:
(1) BARCLAYCARD FUNDING PLC, a company incorporated in England and Wales
(Registration Number 2530163) having its registered office at 54 Lombard
Street, London EC3P 3AH (as "INVESTOR BENEFICIARY" in respect of each
Series or class of Investor Interest within such Series); and
(2) BARCLAYS BANK PLC, an institution authorised under the Banking Act 1987,
acting through its business unit "Barclaycard", having its principal
place of business at 1234 Pavilion Drive, Northampton NN4 7SG (in its
capacities as "SERVICER", "TRANSFEROR BENEFICIARY" and "EXCESS INTEREST
BENEFICIARY" of the Receivables Trust).
WHEREAS:
(A) Following the assignment of the Receivables arising on Designated
Accounts to the Receivables Trustee, Barclays Bank PLC will continue to
have its contractual relationship with the Obligors on the terms set out
in the Card Agreements and accordingly will continue to be a grantor of
credit in respect of both Existing Receivables and Future Receivables.
(B) Each Beneficiary will acquire an interest under the Receivables Trust by
way of making payments to the Receivables Trustee, upon the terms and
subject to the conditions of the Declaration of Trust and Trust Cash
Management Agreement and any related Accession Notice and Supplement.
(C) The Servicer has agreed at the request of the Beneficiaries, upon the
terms and subject to the conditions hereof, to act as servicer in
connection with the Receivables which are comprised in the Trust
Property of the Receivables Trust.
NOW IT IS HEREBY AGREED as follows:
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1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Whenever used in this Agreement, the words and phrases defined in the Master
Definitions Schedule of even date herewith and signed by the parties hereto
shall, unless otherwise defined herein or the context requires otherwise, bear
the same meanings herein (including the recitals hereto).
1.2 OTHER DEFINITIONAL PROVISIONS
(a) All terms defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant
hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in
Clause 1.1, and accounting terms partially defined in Clause 1.1 to the
extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles in the United Kingdom. To
the extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under generally accepted
accounting principles in the United Kingdom, the definitions contained
herein shall prevail.
(c) The agreements, representations and warranties of Barclays Bank PLC in
this Agreement in each of its capacities as Transferor, Transferor
Beneficiary, Excess Interest Beneficiary and Servicer shall be deemed to
be the agreements, representations and warranties of Barclays Bank PLC
solely in each such capacity for so long as Barclays Bank PLC acts in
each such capacity under this Agreement.
(d) The words "hereof", "herein" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; and Article and
Clause references contained in this Agreement are references to Articles
and Clauses of this Agreement unless otherwise specified.
(e) A time of day (including opening or closing of business) shall be
construed as a reference to London time unless specified otherwise.
(f)
(i) Save where the context otherwise requires, all sums payable by
any party to any other party pursuant hereto are inclusive of any
VAT which is chargeable on the supply or supplies for which such
sums (or any part thereof) are the whole or part of the
consideration for VAT purposes and section 89 of the Value Added
Tax Act 1994 shall not apply to affect the amount of such sums.
(ii) Any reference herein to any fee, cost, disbursement, expense or
liability incurred by any party and in respect of which such
party is to be reimbursed (or indemnified) by any other person or
the amount of which is to be taken into account in any
calculation or computation shall, save where the context
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otherwise requires, include a reference to such part of such cost
or expense as represents VAT.
(g) All references herein to any provision of any statute shall be construed
so as to include any statutory modification or re-enactment thereof or
any statutory instrument, order or regulation made thereunder or under
such modification or re-enactment.
(h) Save where the contrary is indicated, any reference in this Agreement or
any other agreement or document shall be construed as a reference to
this Agreement or, as the case may be, such other agreement or document
as the same may have been, or may from time to time be, amended, varied,
novated or supplemented.
(i) In this Agreement a "subsidiary" of a company or corporation shall be
construed as a reference to any company or corporation:
(i) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(ii) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(iii) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation,
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is able
to direct its affairs and/or to control the composition of its board of
directors or equivalent body.
2. ACKNOWLEDGEMENT; APPOINTMENT OF SERVICER AND SERVICING OF RECEIVABLES
2.1 ACKNOWLEDGEMENT; ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS RELATING TO
THE SERVICER
(a) The parties hereby acknowledge that, following the assignment of the
Receivables arising on Designated Accounts to the Receivables Trustee
(as trustee for the Beneficiaries absolutely) (without notice to
Obligors except following a Notification Event) pursuant to any Offer
made and accepted in accordance with the Receivables Securitisation
Agreement, the Servicer shall continue to have its contractual
relationship with the Obligors on the terms set out in the Credit Card
Agreements and accordingly shall continue to be a grantor of credit to
Obligors in respect of both Existing Receivables and Future Receivables.
(b) The Beneficiaries, in their capacity as absolute owners of the Trust
Property in undivided shares (and without prejudice to the powers and
duties of the Receivables Trustee under the Declaration of Trust and
Trust Cash Management Agreement), hereby appoint Barclays Bank PLC, and
Barclays Bank PLC agrees to act, as the Servicer for the Beneficiaries
under this Agreement. By its execution of a Supplement each Investor
Beneficiary, inter alia, consents to Barclays Bank PLC acting as
Servicer under this Agreement. By its execution of an Accession Notice
each
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Additional Transferor as an additional Transferor Beneficiary, inter
alia, consents to Barclays Bank PLC acting as Servicer under this
Agreement.
(c) Any Additional Transferor may, if the relevant Accession Notice so
specifies, be appointed by the Beneficiaries (on the same terms as set
out in Clause 2.1(b)), to carry out Servicing under this Deed (a
"CO-SERVICER") and, by its execution of a Supplement, each Investor
Beneficiary, inter alia, consents to the appointment of Co-Servicers
being made in accordance with this Clause 2.1(c). If any Accession
Notice in respect of an Additional Transferor does not specify that such
Additional Transferor is to be appointed a Co-Servicer then the Servicer
shall be deemed to be appointed by the Beneficiaries to carry out all
Servicing as set out in this Deed as such Servicing may apply to such
Additional Transferor.
(d) The Servicer and any Co-Servicer shall carry out all servicing,
administration and management functions in relation to the Receivables
and (insofar as the interests of the Beneficiaries are affected) the
Designated Accounts in accordance with the Card Guidelines and its
customary and usual procedures and in accordance with normal market
practice (so far as consistent with the Card Guidelines) and shall have
full power and authority, acting alone or through any party properly
designated by it hereunder, to do any and all things in connection with
such servicing, administration and management which it may deem
necessary or desirable. The Servicer and any Co-Servicer shall follow
such instructions in regard to the exercise of its power and authority
as the Beneficiaries, acting unanimously, may from time to time direct.
Without prejudice to the generality of the foregoing, the Servicer's and
(to the extent specified in the relevant Accession Notice) any
Co-Servicer's functions shall include: (i) carrying out valuations of
Receivables on Designated Accounts for the purpose of determining
whether any such Receivables should be charged-off in accordance with
the Card Guidelines; (ii) ensuring that the interests of the
Beneficiaries are taken into account in making decisions regarding the
granting of credit to Obligors; (iii) on the Servicer's or Co-Servicer's
own behalf (for the purpose of enabling it to perform the other
functions set out in this Clause 2.1) preparing and keeping its own
records as regards all such matters (including in particular, but
without limitation, the matters referred to in (i) and (ii) above); (iv)
monitoring payments by Obligors and notifying Obligors of overdue
payments; and (v) crediting and debiting Obligors' Accounts as
appropriate.
(e) Without limiting the generality of (d) above, and subject to Clause 4.1,
the Servicer and any Co-Servicer (to the extent authorised in the
relevant Accession Notice) is hereby obliged, authorised and empowered
to make any filing, reports, notices, applications, registrations with,
and to seek any consents or authorisations from any relevant securities
or other authority as may be necessary or advisable to comply with any
securities or reporting requirements.
(f) On or before the Transfer Date for each Monthly Period in which any
Designated Accounts are Defaulted Accounts, the Servicer, and any
Co-Servicer (without limiting the generality of (d) above) shall notify
the Beneficiaries of the balance of Receivables in such Defaulted
Accounts. No fee will be charged for this.
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(g) Neither the Servicer nor any Co-Servicer shall be obliged to use
separate servicing procedures, offices, employees or accounts for
servicing the Receivables from the procedures, offices, employees and
accounts used by the Servicer or such Co-Servicer in connection with
servicing other credit card receivables.
(h) The Servicer and any Co-Servicer shall maintain insurance coverage
against losses through wrongdoing of its officers and employees who are
involved in the servicing of credit card receivables covering such
actions and in such amounts as the Servicer or Co-Servicer believes to
be reasonable from time to time.
(i) The Servicer and any Co-Servicer shall, so far as it is practicable,
carry out all of its obligations and duties as Servicer or Co-Servicer
in the United Kingdom.
(j) The Servicer and, if applicable, any Co-Servicer, shall at all times
take all practicable steps to:
(i) ensure that payments made to the Transferor or, if applicable,
any Additional Transferor, by Obligors are received into,
respectively, the Barclaycard Operating Account or Additional
Transferor Operating Account;
(ii) identify any funds in the Barclaycard Operating Account or, if
applicable, the Additional Transferor Operating Account, which
are required to be transferred to the Trustee Collection Account
for the benefit of the Beneficiaries; and
(iii) ensure that such funds are so transferred when required.
2.2 SERVICING COMPENSATION
(a) As full compensation for its servicing activities hereunder (with the
exception of Clause 2.1(f)) and as reimbursement for any expense
incurred by it in connection therewith, the Servicer and any Co-Servicer
shall be entitled to receive from the Beneficiaries (in each case solely
to the extent of payments made by the Beneficiaries utilising Trust
Property allocated with respect thereto as provided in this Agreement,
the Declaration of Trust and Trust Cash Management Agreement and in any
Supplement and subject to Clause 2.2(d)) a servicing fee (the "SERVICING
FEE") with respect to each Monthly Period, payable monthly on the
related Transfer Date, in an amount equal to one-twelfth of the product
of (i) 0.75 per cent. (or, if Barclays Bank PLC is Servicer, such other
percentage as shall be agreed between the Beneficiaries PROVIDED THAT
(a) each Rating Agency has confirmed in writing that such proposed
percentage will not result in a downgrade or withdrawal of its then
current rating of any outstanding Related Debt and (b) the Beneficiaries
have obtained an Opinion of Counsel that such proposed agreement to
alter the percentage will not prejudice the Tax treatment of the
Receivables Trust or the Beneficiaries) and (ii) the average daily
aggregate Outstanding Face Amount of Principal Receivables during such
Monthly Period. Any amount payable under this Clause 2.2(a) shall be
inclusive of VAT thereon, if applicable, and the application of section
89 of the Value Added Tax Act 1994 shall be excluded in relation
thereto. Any Co-Servicer shall be entitled to such
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portion of the Servicing Fee as shall be specified in the relevant
Accession Notice pursuant to which such Co-Servicer is appointed.
(b) The share of the Servicing Fee payable to the Servicer and any
Co-Servicer which is to be met from payments made by the Investor
Beneficiaries of a particular Series with respect to each Monthly Period
(the "INVESTOR SERVICING FEE" with respect to such Series) will be
determined in accordance with the relevant Supplement.
(c) The portion of the Servicing Fee (the "TRANSFEROR SERVICING FEE") with
respect to any Monthly Period not to be met from payments made by the
Investor Beneficiaries of a particular Series pursuant to any related
Supplement shall be paid by each Transferor Beneficiary to the extent of
its pro rata share from the Transferor Finance Charge Amount and
Transferor Acquired Interchange Amount or other Trust Property allocable
to such Transferor Beneficiary on the related Transfer Date. In no event
shall the Investor Beneficiaries of any Series be liable to the Servicer
or any Co-Servicer for the share of the Servicing Fee with respect to
any Monthly Period to be met from payments to be made by any Transferor
Beneficiary from Trust Property allocated to such Transferor
Beneficiary, PROVIDED, HOWEVER, that the amount of Transferor Servicing
Fee to be paid by each Transferor Beneficiary in any Monthly Period
shall not exceed its pro rata share of the aggregate amount of the
Transferor Finance Charge Amount and Transferor Acquired Interchange
Amount for such Monthly Period.
(d) With respect to any Monthly Period throughout which the Servicer is
Barclays Bank Plc, any part of the Servicing Fee for such Monthly Period
which would (apart from this Clause 2.2(d)) be payable by Barclays Bank
PLC in its capacity as Transferor Beneficiary shall not be payable (and
an appropriate apportionment shall be made for any Monthly Period where
Barclays Bank plc is the Servicer for part only of such Monthly Period).
2.3 REPRESENTATIONS AND WARRANTIES OF THE SERVICER AND ANY CO-SERVICER
(i) Barclays Bank PLC, as initial Servicer hereby makes, (ii) any Co-Servicer,
by its appointment pursuant to the relevant Accession Notice, shall be deemed to
make, and (iii) any Successor Servicer by its appointment hereunder shall make,
(in the case of (ii) and (iii) with appropriate modifications to Clause 2.3 to
reflect the Co-Servicer's or Successor Servicer's organisation), the following
representations and warranties on which the Beneficiaries have relied in
appointing Barclays Bank PLC as the initial Servicer and, whenever appropriate,
any Co-Servicer or Successor Servicer.
(a) ORGANISATION It is a corporation duly incorporated under the laws of
England with full corporate power, authority and legal right to own its
assets and conduct its business as such assets are presently owned and
its business as presently conducted and with power to enter into the
Relevant Documents to which it is a party and to exercise its rights and
perform its obligations thereunder and all corporate and other action
required to authorise its execution of each such Relevant Document and
its performance of its obligations thereunder has been duly taken.
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(b) DUE AUTHORIZATION All acts, conditions and things required to be done,
fulfilled and performed in order (i) to enable it lawfully to enter
into, exercise its rights under and perform and comply with the
obligations expressed to be assumed by it in each Relevant Document to
which it is a party, (ii) to ensure that the obligations expressed to be
assumed by it in each such Relevant Document are legal, valid and
binding on it and (iii) to make each such Relevant Document and each
such assignment admissible in evidence in England have been done,
fulfilled and performed save for the payment of stamp duty in the United
Kingdom in respect of any such assignment under any applicable law.
(c) NO VIOLATION The execution and delivery of each Relevant Document to
which it is party by the Servicer and, if applicable, any Co-Servicer
and the exercise of its rights and the performance of its obligations
thereunder will not conflict with or violate any Requirement of Law.
(d) BINDING OBLIGATION The obligations expressly to be assumed by it in each
Relevant Document to which it is party are legal and valid obligations
binding on it and enforceable against it in accordance with its terms,
subject to applicable bankruptcy laws, other similar laws affecting
creditors' rights, general equitable principles and other limitations on
enforcement in the jurisdiction of an Obligor.
(e) NO PROCEEDINGS There are no proceedings or investigations pending or, to
the best of its knowledge threatened against it before any court,
regulatory body, arbitral tribunal or public or administrative body or
agency (i) asserting the invalidity of any Relevant Document to which it
is party; (ii) seeking to prevent the entering into of any of the
transactions contemplated by any Relevant Document; (iii) seeking any
determination or ruling that, in the reasonable opinion of the Servicer,
would materially and adversely affect the performance by it of its
obligations under any Relevant Document to which it is party; or (iv)
seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of any Relevant Document to which
it is party.
(f) NO CONFLICT The execution and delivery of each Relevant Document to
which it is party and the exercise by the Servicer and any Co-Servicer
of its rights and the performance of its obligations thereunder will not
conflict with, result in any breach of the material terms and provisions
of, or constitute (with or without notice or lapse of time or both) a
default under, any agreement, indenture, contract, mortgage, trust deed
or other instrument to which it is a party or by which it or any of its
assets is otherwise bound.
2.4 COMPLIANCE WITH REQUIREMENTS OF LAW
The Servicer and any Co-Servicer shall duly satisfy all obligations on its part
to be fulfilled under or in connection with each Receivable and each Designated
Account, will maintain in effect all qualifications required under Requirements
of Law in order to service properly each Receivable and each Designated Account
and will comply in all material respects with all other Requirements of Law in
connection with servicing each Receivable and each Designated Account the
failure to comply with which would have a Material Adverse Effect on the
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interests of any Investor Beneficiary or any Material Adverse Effect on the
interests of any Enhancement Provider.
2.5 ANNUAL INDEPENDENT AUDITORS' SERVICING REPORT
(a) On or before 28 February of each calendar year following the execution
of this Agreement the Servicer or, if applicable, any Co-Servicer shall
cause a firm of internationally recognised independent auditors (who may
also render other services to the Servicer or Co-Servicer or the
Transferor) to furnish a report to the Investor Beneficiaries, any
Enhancement Provider and each Rating Agency to the effect that such firm
has made a study and evaluation, in accordance with generally accepted
auditing standards in the United Kingdom, of the Servicer's and any
Co-Servicer's internal accounting controls relative to the servicing of
Designated Accounts under this Agreement, and that, on the basis of such
study and evaluation, such firm is of the opinion (assuming the accuracy
of any reports generated by the Servicer or the Co-Servicer or the
Servicer's and any Co-Servicer's third party agents on its behalf
relating to (in particular but without limitation) the matters referred
to in Clause 2.1(d)(iii)) that the system of internal accounting
controls in effect on the date set forth in such report, relating to
servicing procedures performed by the Servicer and any Co-Servicer,
taken as a whole, was sufficient for the prevention and detection of
errors and irregularities in amounts that would be material to the
financial statements of the Servicer or Co-Servicer and that such
servicing was conducted in compliance with the provisions of this
Agreement during the period covered by such report (which shall be the
period from 1 January of the preceding calendar year to and including 31
December of such calendar year, or for the initial period, from the
Initial Closing Date until 31 December 1999), except for such
exceptions, errors or irregularities as such firm shall believe to be
immaterial to the financial statements of the Servicer or Co-Servicer
and such other exceptions, errors or irregularities as shall be set
forth in such report.
Unless otherwise provided with respect to any Series in a related
Supplement, a further copy of such report may be obtained by any
Investor Beneficiary by a request in writing to the Servicer or, if
applicable, any Co-Servicer pursuant to Clause 5.4(b).
(b) On or before 28 February of each calendar year following the execution
of this Agreement, the Servicer or, if applicable, any Co-Servicer shall
cause a firm of internationally recognised independent auditors (who may
also render other services to the Servicer, any Co-Servicer, the
Transferor or any Additional Transferor) to furnish a report, prepared
using generally accepted auditing standards in the United Kingdom to the
Investor Beneficiaries and each Rating Agency to the effect that they
have compared the mathematical calculations of each amount set forth in
the Monthly Trust Cash Manager's Reports forwarded by the Trust Cash
Manager or a Co-Trust Cash Manager pursuant to Clause 9.5(b) of the
Declaration of Trust and Trust Cash Management Agreement during the
period covered by such report (which shall be the period from 1 January
of the preceding calendar year to and including 31 December of such
calendar year, or for the initial period, from the Initial Closing Date
until 31 December 1999) with the Servicer's or, if applicable, any
Co-Servicer's computer
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reports which were the source of such amounts and that on the basis of
such comparison, such firm is of the opinion that such amounts are in
agreement, except for such exceptions as it believes to be immaterial to
the financial statements of the Servicer or Co-Servicer and such other
exceptions as shall be set forth in such report. A copy of such report
may be obtained by any Investor Beneficiary by a request in writing to
the Servicer or, if applicable, any Co-Servicer pursuant to Clause
5.4(b).
2.6 NOTICES TO BARCLAYS BANK PLC AND ANY CO-SERVICER
In the event that Barclays Bank PLC and any Co-Servicer are no longer acting as
Servicer and Co-Servicer respectively, any Successor Servicer appointed pursuant
to Clause 4.3 shall deliver or make available to the Transferor and each
Additional Transferor each certificate and report required to be prepared,
forwarded or delivered thereafter pursuant to Clause 2.5.
3. OTHER MATTERS RELATING TO THE SERVICER AND ANY CO-SERVICER
3.1 LIABILITY OF THE SERVICER AND ANY CO-SERVICER
The Servicer and any Co-Servicer shall be liable in accordance herewith only to
the extent of the obligations specifically undertaken by the Servicer or such
Co-Servicer (as such obligations are specified in the relevant Accession Notice)
in such capacity herein.
3.2 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF,
THE SERVICER OR ANY CO-SERVICER
Neither the Servicer nor any Co-Servicer shall consolidate with or merge into
any other corporation or convey or transfer its properties and assets
substantially as an entirety to any person, unless:
(a) the corporation formed by such consolidation or into which the Servicer
or Co-Servicer is merged or the person which acquires by conveyance or
transfer the properties and assets of the Servicer or Co-Servicer
substantially as an entirety, shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Beneficiaries, in
form satisfactory to the Beneficiaries, the performance of the
obligations of the Servicer or Co-Servicer hereunder (to the extent that
any right, covenant or obligation of the Servicer or Co-Servicer, as
applicable hereunder, is inapplicable to the successor entity, such
successor entity shall be subject to such covenant or obligation, or
benefit from such right, as would apply, to the extent practicable, to
such successor entity);
(b) the Servicer or Co-Servicer shall have delivered to the Beneficiaries:
(i) an Officer's Certificate that such consolidation, merger,
conveyance or transfer and such supplemental agreement complies
with this Clause 3.2 and that all documentation referred to in
(a) above and any conditions precedent specified in such
documentation relating to such transaction have been complied
with; and
(ii) an Opinion of Counsel that such supplemental agreement is legal,
valid, binding and enforceable with respect to the Servicer or
Co-Servicer;
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(c) the Servicer or Co-Servicer shall have delivered notice to each Rating
Agency of such consolidation, merger, conveyance or transfer.
3.3 LIMITATION ON LIABILITY OF THE SERVICER, ANY CO-SERVICER AND OTHERS
(a) The directors, officers, employees or agents of the Servicer and any
Co-Servicer shall not be under any liability to the Beneficiaries, any
Enhancement Provider or any other person hereunder or pursuant to any
document delivered hereunder, it being expressly understood that all
such liability is expressly waived and released as a condition of, and
as consideration for, the execution of this Agreement, PROVIDED,
HOWEVER, that this provision shall not protect the directors, officers,
employees and agents of the Servicer or Co-Servicer against any
liability which would otherwise be imposed by reason of wilful default,
bad faith or negligence in the performance of duties hereunder.
(b) Except as provided in Clause 3.4, neither the Servicer nor any
Co-Servicer shall be under any liability to the Beneficiaries or any
other person for any action in its capacity as Servicer or Co-Servicer
pursuant to this Agreement, PROVIDED, HOWEVER, that this provision shall
not protect the Servicer or any Co-Servicer against any liability which
would otherwise be imposed by reason of wilful default, bad faith or
gross negligence in the performance of duties or by reason of its
reckless disregard of its obligations and duties hereunder or under any
Supplement.
(c) The Servicer and any Co-Servicer may rely in good faith on any document
of any kind prima facie properly executed and submitted by any person
respecting any matters arising hereunder.
(d) The Servicer and any Co-Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental
to its duties pursuant to this Agreement which in its reasonable opinion
may involve it in any expense or liability.
3.4 SERVICER INDEMNIFICATION OF THE BENEFICIARIES
The Servicer and any Co-Servicer shall indemnify and hold harmless the
Beneficiaries from and against any reasonable loss, liability, expense, damage
or injury suffered or sustained by reason of any fraud, wilful misconduct or
negligent acts or omissions of the Servicer or Co-Servicer with respect to
activities of the Beneficiaries pursuant to this Agreement, including, but not
limited to any judgment, award, settlement, reasonable legal fees and other
costs or expenses incurred in connection with the defence of any actual or
threatened action, proceeding or claim, PROVIDED, HOWEVER, that neither the
Servicer nor any Co-Servicer shall:
(i) indemnify the Beneficiaries if such acts, omissions or alleged
acts or omissions constitute or are caused by fraud, negligence,
or wilful misconduct by the Beneficiaries or their agents;
(ii) indemnify any Beneficiary for any liabilities, costs or expenses
of the Receivables Trust with respect to any action taken by the
Receivables Trustee at the request of any Beneficiary or any
Series to which it belongs;
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(iii) indemnify any Beneficiary as to any losses, claims or damages
incurred by any of them in their capacity as Beneficiaries of
the Receivables Trust, including without limitation, losses
incurred as a result of Receivables in Defaulted Accounts; or
(iv) indemnify the Beneficiaries for any liabilities, costs or
expenses of the Beneficiaries (or their agents) arising under
any Tax law (or any interest or penalties with respect thereto
or arising from a failure to comply therewith) required to be
paid by the Beneficiaries (or their agents) in connection
herewith to any taxing authority.
Any such indemnification shall be payable by the Servicer or Co-Servicer itself
and not be payable from the Trust Property of the Receivables Trust. The
provision of this indemnity shall run directly to and be enforceable by an
injured party subject to the limitations hereof.
3.5 THE SERVICER OR ANY CO-SERVICER NOT TO RESIGN
The Servicer shall not resign from the obligations and duties hereby imposed on
it except upon determination that (i) the performance of its duties hereunder is
no longer permissible under any Requirement of Law and (ii) there is no
reasonable action which the Servicer could take to make the performance of its
duties hereunder permissible under any Requirement of Law. Any such
determination permitting the resignation of the Servicer shall be evidenced as
to (i) above by an Opinion of Counsel and as to (ii) above by an Officer's
Certificate, each to such effect delivered to the Beneficiaries. No such
resignation shall become effective until a Successor Servicer shall have assumed
the responsibilities and obligations of the Servicer in accordance with Clause
4.3. Any Co-Servicer shall not resign except either (i) in the circumstances and
subject to the requirements set out above with respect to the Servicer or (ii)
where the obligations of such Co-Servicer are wholly assumed from the time of
such resignation by the Servicer.
3.6 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE
RECEIVABLES
The Servicer and any Co-Servicer shall provide to the Beneficiaries access to
the documentation regarding the Designated Accounts and the Receivables in such
cases where the Beneficiaries (or any person acting on their behalf) are
required by any Relevant Document (having regard to (inter alia) Clause
2.1(d)(iii)) or applicable statutes or regulations to review such documentation,
such access being afforded without any charge (apart from the Servicing Fee
provided for in Clause 2.2) but only (i) upon reasonable request, (ii) during
normal business hours, (iii) subject to the Servicer's or Co-Servicer's normal
security and confidentiality procedures and (iv) at offices in the United
Kingdom designated by the Servicer or Co-Servicer. Nothing in this Clause 3.6
shall derogate from the obligation of each Transferor Beneficiary, the
Beneficiaries, the Servicer or any Co-Servicer to observe any Requirement of Law
prohibiting disclosure of information regarding the Obligors and the failure of
the Servicer or any Co-Servicer to provide access as provided in this Clause 3.6
as a result of such obligations shall not constitute a breach of this Clause
3.6.
3.7 DELEGATION OF DUTIES
In the ordinary course of business, the Servicer and any Co-Servicer may at any
time delegate any duties hereunder to any person who agrees to conduct such
duties in accordance with the
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Card Guidelines. Any such delegations shall not relieve the Servicer or
Co-Servicer of its liabilities and responsibility with respect to such duties,
and shall not constitute a resignation within the meaning of Clause 3.5 hereof.
If any such delegation is to a party other than Barclays Bank PLC or any
Affiliate thereof notification thereof shall be given to each Rating Agency.
3.8 EXAMINATION OF RECORDS
The Servicer or, if applicable, any Co-Servicer shall identify in its systems
those Receivables created in connection with the Designated Accounts which have
been assigned to the Receivables Trustee. The Servicer or Co-Servicer shall,
prior to the sale or transfer to a third party of any receivable held in its
custody, examine its computer or other records to determine that such receivable
is not a Receivable assigned or purported to be assigned to the Receivables
Trustee.
4. SERVICER DEFAULTS
4.1 SERVICER DEFAULTS
If any one of the following events (a "SERVICER DEFAULT") shall occur and be
continuing:
(a) failure on the part of the Servicer or any Co-Servicer duly to observe
or perform in any respect any of the covenants or agreements of the
Servicer or Co-Servicer set forth in this Agreement or any Relevant
Document which has a Material Adverse Effect on the interests of the
Beneficiaries as a whole or of the Investor Beneficiaries of any
Applicable Series and which continues unremedied for a period of 60 days
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer or, if
applicable, any Co-Servicer by Investor Beneficiaries representing in
aggregate more than one-half of the aggregate Investor Interests of any
Applicable Series adversely affected thereby (copied to the Receivables
Trustee) and continues to have a Material Adverse Effect on the
interests of an Investor Beneficiary of any Applicable Series for such
period;
(b) delegation by the Servicer or any Co-Servicer of its duties under this
Agreement to any other entity, except as permitted by Clause 3.7;
(c) any relevant representation, warranty or certification made by the
Servicer or any Co-Servicer in this Agreement or in any certificate
delivered pursuant hereto proves to have been incorrect when made, which
has a Material Adverse Effect on the interests of the Investor
Beneficiaries of any Applicable Series and continues to be incorrect in
any material respect for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer or, if applicable, any Co-Servicer by an
Investor Beneficiary or Investor Beneficiaries representing in aggregate
more than one-half of the aggregate Investor Interests of any Applicable
Series affected thereby (copied to the Receivables Trustee) and
continues to have a Material Adverse Effect on the interests of an
Investor Beneficiary of any Applicable Series affected for such period;
(d) the Servicer or any Co-Servicer shall consent to or take any corporate
action relating to the appointment of a receiver, administrator,
administrative receiver, liquidator,
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trustee or similar officer of it or relating to all or substantially all
of its revenues and assets or an order of the court is made for its
winding-up, dissolution, administration or reorganisation (except for a
solvent re-organisation) and such order shall have remained in force
undischarged or unstayed for a period of 60 days or a receiver,
administrator, administrative receiver, liquidator, trustee or similar
officer of it or relating to all of its revenues and assets is legally
and validly appointed;
(e) a duly authorised officer of the Servicer or any Co-Servicer shall admit
in writing that the Servicer or such Co-Servicer is unable to pay its
debts as they fall due within the meaning of Section 123(1) of the
Insolvency Act 1986 or the Servicer or such Co-Servicer makes a general
assignment for the benefit of or a composition with its creditors or
voluntarily suspends payment of its obligations with a view to the
general readjustment or rescheduling of its indebtedness,
then so long as such Servicer Default shall not have been remedied the
Beneficiaries acting together or (as the case may be) the Investor Beneficiaries
representing in aggregate more than 662/3% of the Aggregate Investor Interest,
by notice then given in writing to the Servicer or, if applicable, the
Co-Servicer (copied to the Receivables Trustee) (a "TERMINATION NOTICE"), may
terminate all of the rights and obligations of the Servicer and any Co-Servicer
as Servicer and Co-Servicer respectively under this Agreement. For the avoidance
of doubt, any Termination Notice given in accordance with this Clause 4.1 shall
terminate the appointment of both the Servicer and any Co-Servicer regardless of
which entity was the subject of the Servicer Default.
Notwithstanding the foregoing, a delay in or failure of performance referred to
in Clause 4.1(a), (b) or (c) for a period of 60 Business Days, shall not
constitute a Servicer Default if such delay or failure could not have been
prevented by the exercise of reasonable diligence by the Servicer or
Co-Servicer, as the case may be, and such delay or failure was caused by an act
of God, acts of declared or undeclared war, public disorder, rebellion, riot or
sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes,
earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar
causes. The preceding sentence shall not relieve the Servicer or Co-Servicer
from using reasonable efforts to perform its obligations in a timely manner in
accordance with the terms of this Agreement and any relevant agreement and the
Servicer and, if applicable, the Co-Servicer shall provide any Enhancement
Provider, the Transferor, any Additional Transferor and each Beneficiary with an
Officer's Certificate giving prompt notice of such failure or delay by it,
together with a description of the cause of such failure or delay and its
efforts so to perform its obligations.
4.2 EFFECT OF TERMINATION NOTICE
(a) After receipt by the Servicer or any Co-Servicer of a Termination Notice
pursuant to Clause 4.1, and on the date that a Successor Servicer shall
have been appointed by the Beneficiaries pursuant to Clause 4.3, all
authority and power of the Servicer and any Co-Servicer under this
Agreement shall pass to and be vested in a Successor Servicer and,
without limitation, each Beneficiary is hereby appointed, authorised and
empowered (upon the failure of the Servicer or any Co-Servicer to
cooperate in a timely manner) in order to secure the performance of the
Servicer or any Co-Servicer in so doing to execute and deliver, on
behalf of the Servicer or any Co-Servicer, as its
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attorney, all documents, records and other instruments upon the failure
of the Servicer or Co-Servicer to execute or deliver such documents,
records or instruments, and to do and accomplish all other acts or
things necessary or appropriate to effect the purposes of such transfer
of servicing rights and obligations;
(b) The Servicer and, by its execution of the relevant Accession Notice, any
Co-Servicer agrees to use all reasonable efforts and cooperate with the
Beneficiaries and such Successor Servicer in effecting the termination
of the responsibilities and rights of the Servicer and any Co-Servicer
to conduct servicing hereunder including, without limitation, the
transfer to such Successor Servicer of all authority of the Servicer and
any Co-Servicer to service the Receivables provided for under this
Agreement.
(c) The Servicer and any Co-Servicer shall promptly transfer its electronic
records or electronic copies thereof relating to the Receivables to the
Successor Servicer in such electronic form as the Successor Servicer may
reasonably request and shall promptly transfer to the Successor Servicer
all other records, correspondence and documents necessary for the
continued servicing of the Receivables in the manner and at such times
as the Successor Servicer shall reasonably request.
(d) To the extent that compliance with this Clause 4.2 shall require the
Servicer or any Co-Servicer to disclose to the Successor Servicer
information of any kind which the Servicer or such Co-Servicer
reasonably deems to be confidential, the Successor Servicer shall be
required to enter into such customary licensing and confidentiality
agreements as the Servicer or Co-Servicer shall deem reasonably
necessary to protect its interests.
(e) The Servicer and any Co-Servicer shall, on the date of any servicing
transfer, transfer all of its rights and obligations under any
Enhancement with respect to any Beneficiaries to the Successor Servicer.
(f) Upon the termination of the appointment of the Servicer and any
Co-Servicer pursuant to this Clause 4.2, any amounts in respect of
Collections of Receivables constituting Trust Property and any other
Trust Property in the possession of the Servicer or Co-Servicer (or
coming into the possession of the Servicer or Co-Servicer at any time
thereafter) shall be held on trust by the Servicer or Co-Servicer for
and to the order of the Beneficiaries.
4.3 APPOINTMENT OF SUCCESSOR
(a) (i) On and after the receipt by the Servicer or, if applicable, any
Co-Servicer of a Termination Notice pursuant to Clause 4.1, the
Servicer or Co-Servicer shall continue to perform all servicing
functions under this Agreement until the date specified in the
Termination Notice or otherwise specified by the Beneficiaries in
writing or, if no such date is specified in such Termination
Notice, or otherwise specified by the Beneficiaries, until a date
mutually agreed upon by the Servicer, any Co-Servicer and the
Beneficiaries. The Beneficiaries shall notify each Rating Agency
of such removal of the Servicer and any Co-Servicer. The
Beneficiaries shall, as promptly as possible after the giving of
a Termination Notice, appoint a successor servicer (the
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"SUCCESSOR SERVICER") which shall at the time of its appointment
as Successor Servicer be an Eligible Servicer, and such Successor
Servicer shall accept its appointment by a written assumption in
a form acceptable to the Beneficiaries.
(ii) The Beneficiaries may obtain bids for the proposed sale of the
Receivables constituting Trust Property from any potential
successor servicer. If the Beneficiaries are unable to obtain any
bids from any potential successor servicer and the Servicer or,
if applicable, any Co-Servicer delivers an Officer's Certificate
to the effect that they cannot in good faith cure the Servicer
Default which gave rise to a Termination Notice, then the
Beneficiaries shall notify each Enhancement Provider of the
proposed sale of the Receivables and shall provide each such
Enhancement Provider an opportunity to bid on purchasing the
Receivables and shall offer the right of first refusal to
purchase the Receivables on terms equivalent to the best purchase
offer as determined by the Beneficiaries, but in no event less
than an amount equal to the Aggregate Investor Interest on the
date of such purchase plus all interest accrued but unpaid on all
Related Debt and Enhancement at the rate thereof through the date
of such purchase. The proceeds of such sale shall be deposited in
the Trust Accounts, for distribution to the Beneficiaries in
accordance with the provisions of this Agreement and the
applicable Supplement.
(b) Upon its appointment, the Successor Servicer shall be the successor in
all respects to the Servicer and any Co-Servicer with respect to
servicing functions under this Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Servicer and any Co-Servicer by the terms and provisions hereof, and all
references in this Agreement to the Servicer and any Co-Servicer shall
be deemed to refer to the Successor Servicer. Any Successor Servicer, by
its acceptance of its appointment, will automatically agree to be bound
by the terms and provisions of each agreement relating to Enhancement.
(c) In connection with such appointment and assumption, the Beneficiaries
shall be entitled to such compensation, or may make such arrangements
for the compensation of the Successor Servicer out of Collections, as it
and such Successor Servicer shall agree PROVIDED, HOWEVER, that no such
compensation payable in connection with services provided under this
Agreement shall be in excess of the Servicing Fee permitted to the
Servicer and any Co-Servicer pursuant to Clause 2.2.
(d) All authority and power granted to the Successor Servicer under this
Agreement shall automatically cease and terminate upon dissolution of
the Receivables Trust pursuant to Clause 6.3 or Clause 8.1 of the
Declaration of Trust and Trust Cash Management Agreement and shall pass
to and be vested in Barclays Bank PLC and, without limitation, Barclays
Bank PLC is hereby appointed, authorised and empowered to execute and
deliver, on behalf of the Successor Servicer, as its attorney, in order
to secure the performance by the Successor Servicer of the matters,
referred to in the next paragraph, all documents and other instruments,
and to do and accomplish all
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other acts or things necessary or appropriate to effect the purposes of
such transfer of servicing rights.
The Successor Servicer agrees to cooperate with Barclays Bank PLC in
effecting the termination of the responsibilities and rights of the
Successor Servicer to conduct servicing on the Receivables constituting
Trust Property. The Successor Servicer shall transfer its electronic
records relating to the Receivables constituting Trust Property to
Barclays Bank PLC in such electronic form as Barclays Bank PLC may
reasonably request and shall transfer all other records, correspondence
and documents to Barclays Bank PLC in the manner and at such times as
Barclays Bank PLC shall reasonably request. To the extent that
compliance with this Clause 4.3 shall require the Successor Servicer to
disclose to Barclays Bank PLC information of any kind which the
Successor Servicer deems to be confidential, Barclays Bank PLC shall be
required to enter into such customary licensing and confidentiality
agreements as the Successor Servicer shall deem necessary to protect its
interest.
4.4 NOTIFICATION OF SERVICER DEFAULT
Within two Business Days after the Servicer or any Co-Servicer becomes aware of
any Servicer Default, the Servicer or such Co-Servicer shall give prompt written
notice thereof to each Beneficiary, each Rating Agency, the Receivables Trustee
and any Enhancement Provider.
4.5 WAIVER OF PAST DEFAULTS
Any Beneficiary which is adversely affected by any default by the Servicer or
any Co-Servicer, the Transferor or any Additional Transferor may, with the prior
written consent of all the other Beneficiaries, waive in writing any default by
the Servicer, any Co-Servicer, the Transferor or any Additional Transferor in
the performance of its obligations hereunder or in any Relevant Document and its
consequences, except a default in making any required deposits or payments of
interest or principal relating to the relevant Series. Upon any such waiver of a
past default, such default shall be deemed not to have occurred. No such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon except to the extent expressly so waived.
5. MISCELLANEOUS PROVISIONS
5.1 AMENDMENT
(a) This Agreement may be amended in writing by the Servicer, any
Co-Servicer and each Transferor Beneficiary, with the prior written
consent of each person who is a Beneficiary at the time of such
amendment, PROVIDED HOWEVER that each Rating Agency shall have notified
each Transferor Beneficiary, the Servicer, any Co-Servicer and the
Investor Beneficiaries in writing that such amendment will not result in
a reduction or withdrawal of the rating of any outstanding Related Debt
(in relation to which it is a Rating Agency).
(b) Promptly after the execution of any such amendment, the Beneficiaries
shall furnish notification of the substance of such amendment to each
Rating Agency providing a rating for any Related Debt outstanding in
respect of any Applicable Series adversely affected by such amendment.
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5.2 PROTECTION OF RIGHT, TITLE AND INTEREST TO TRUST PROPERTY
(a) The Servicer and, if applicable, any Co-Servicer shall cause this
Agreement, all amendments hereto and/or the Declaration of Trust and
Trust Cash Management Agreement and/or the RSA and any other necessary
documents relating to the right, title and interest to the Trust
Property of the Beneficiaries and the Receivables Trustee to be promptly
recorded, registered and filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be
required by law fully to preserve and protect the right, title and
interest of the Beneficiaries or the Receivables Trustee, as the case
may be, to all property comprising the Trust Property. The Servicer or,
if applicable, any Co-Servicer shall deliver to the Beneficiaries
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following
such recording, registration or filing. The Transferor and any
Additional Transferor shall cooperate fully with the Servicer and any
Co-Servicer in connection with the obligations set forth above and will
execute any and all documents reasonably required to fulfil the intent
of this Clause 5.2(a).
(b) The Servicer and any Co-Servicer will give the Beneficiaries prompt
written notice of any relocation of any office from which it services
Receivables assigned or purported to be assigned to the Receivables
Trustee or keeps records concerning such Receivables or of its principal
executive office.
5.3 GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with
the laws of England without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder shall
be determined in accordance with such laws.
(b) JURISDICTION
(i) Each of the parties hereto irrevocably agrees for the benefit of each
other party that the courts of England shall have exclusive jurisdiction
to hear and determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this Agreement,
and for such purposes, irrevocably submit to the exclusive jurisdiction
of such courts.
(ii) Each of the parties hereto irrevocably waives any objection which it
might now or hereafter have to the courts of England referred to in
Clause 5.3(b)(i) being nominated as the forum to hear and determine any
suit, action or proceeding, and to settle any disputes, which may arise
out of or in connection with this Agreement and agrees not to claim that
any such court is not a convenient or appropriate forum.
(iii) Any Successor Servicer or Co-Servicer (if it is not incorporated in
England) shall, in the document appointing such Successor Servicer or
Accession Notice in relation to such Co-Servicer, appoint some person in
England to
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accept service of any process on its behalf and shall further undertake
to the other parties hereto that it will at all times during the
continuance of its appointment as Successor Servicer or Co-Servicer, as
the case may be, maintain the appointment of some person in England as
its agent for the service of process and irrevocably agrees that service
of any writ, notice or other document for the purposes of any suit,
action or proceeding in the courts of England shall be duly served upon
it if delivered or sent by registered post to the address of such
appointee (or to such other address in England as it may notify to the
parties hereto).
5.4 NOTICES
(a) Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in writing and may be made by telex, facsimile
or letter.
(b) Any communication, notice or document to be made or delivered by any one
person to another pursuant to this Agreement shall (unless that other
person has by fifteen days' written notice to the other parties hereto
specified another address) be made or delivered to that other person at
the address identified below and shall be deemed to have been made or
delivered when despatched and confirmation of transmission received by
the sending machine (in the case of any communication made by facsimile)
or (in the case of any communication made by telex) when dispatched and
the appropriate answerback or identification symbol received by the
sender or (in the case of any communications made by letter) when left
at that address or (as the case may be) ten days after being deposited
in the post, postage prepaid, in an envelope addressed to it at that
address PROVIDED, HOWEVER, that each telefax or telex communication made
by one party to another shall be made to that other person at the
facsimile or telex number notified to such party by that other person
from time to time;
(i) in the case of the Transferor Beneficiary, the Excess Interest
Beneficiary and the Servicer, to Barclaycard, Barclays Bank PLC,
1234 Pavilion Drive, Northampton NN4 7SG, Attention: Timothy
Gaffney, facsimile number: (01604) 253 163 (with a copy to
Attention: Group General Counsel, facsimile number: (0171) 699
4036);
(ii) in the case of the Investor Beneficiary, to Barclaycard Funding
PLC, Attention: Group General Counsel, facsimile number: (0171)
699 4036 (with a copy to Attention: Timothy Gaffney, facsimile
number: (01604) 253 163);
(iii) in the case of any additional Transferor Beneficiary the address
specified in the relevant Accession Notice;
(iv) in the case of any Co-Servicer the address specified in the
relevant Accession Notice;
(v) in the case of an Investor Beneficiary in any Series, the address
specified in the Supplement relating to such Series;
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(vi) in the case of the Enhancement Provider for a Series, the
address, if any, specified in the Supplement relating to such
Series;
(vii) in the case of the Rating Agency for Related Debt in respect of a
particular Investor Beneficiary, the address, if any, specified
in the Supplement relating to such Investor Beneficiary.
5.5 SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of this
Agreement shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Agreement
or of the rights of the Beneficiaries of the Receivables Trust.
5.6 ASSIGNMENT
Notwithstanding anything to the contrary contained herein, except as provided in
Clause 3.2, the benefit of this Agreement may not be assigned by the Servicer or
any Co-Servicer without the prior consent of Investor Beneficiaries representing
in aggregate 662/3% of the Aggregate Investor Interest of each Applicable
Series.
5.7 FURTHER ASSURANCES
Barclays Bank PLC, the Servicer and, by its execution of the relevant Accession
Notice, any Co-Servicer agree to do and perform, from time to time, any and all
acts and to execute any and all further instruments required or reasonably
requested by the Investor Beneficiaries more fully to effect the purposes of
this Agreement.
5.8 NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of the Investor
Beneficiaries or any Enhancement Provider, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
5.9 COUNTERPARTS
This Agreement may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original, but all
of which together shall constitute one and the same instrument.
5.10 ACTIONS BY BENEFICIARIES
(a) Wherever in this Agreement a provision is made that an action may be
taken or a notice, demand or instruction given by an Investor
Beneficiary, such action notice or instruction may be taken or given by
any person directed by the Investor Beneficiaries, and any such action,
notice, demand or instruction shall be deemed to be effective, if taken
or given by such agent (if so appointed and directed) for all purposes
as if the same had been taken or given by the Investor Beneficiaries.
For the avoidance of
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doubt, such person may include the Receivables Trustee acting in its
capacity as trustee of the Receivables Trust.
(b) Any request, demand, authorisation, direction, notice, consent, waiver
or other act by a Beneficiary shall bind each and every successor of
such Beneficiary.
5.11 VOTING BY INVESTOR BENEFICIARIES
Wherever provision is made in this Agreement for voting by Investor
Beneficiaries, each Investor Beneficiary (including any Investor Beneficiary who
acts in such capacity in respect of more than one Series) shall be entitled to
one vote in respect of each (pound)1 of that Investor Beneficiary's Investor
Interest but shall not be obliged to exercise such votes (or any of them) or to
cast all of the votes exercised the same way.
5.12 ENTIRE AGREEMENT
Except as specifically stated otherwise herein, this Agreement sets forth the
entire understanding of the parties relating to the subject matter hereof, and
all prior understandings, written or oral, are superseded by this Agreement.
This Agreement may not be modified, amended, waived or supplemented except as
provided herein.
5.13 HEADINGS
The headings are for purposes of reference only and shall not otherwise affect
the meaning or interpretation of any provision hereof.
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IN WITNESS WHEREOF, the Investor Beneficiary and Barclays Bank PLC (in its
capacities as Servicer, Transferor Beneficiary and Excess Interest Beneficiary)
have caused this agreement to be duly executed and delivered by their duly
authorised representatives on the day and year first above written.
INVESTOR BENEFICIARY
Signed for and on behalf of )
BARCLAYCARD FUNDING PLC ) D. ROGER FINNEY
by two directors/a director ) PETER S. CROOK
and a secretary )
SERVICER AND TRANSFEROR BENEFICIARY
AND EXCESS INTEREST BENEFICIARY
Signed for and on behalf of )
BARCLAYS BANK PLC )
by its duly authorised attorney ) MARK WINTER
in the presence of: )
GINA HARTNETT
Name: GINA HARTNETT
Occupation: TRAINEE SOLICITOR
Address: 200 ALDERSGATE STREET
LONDON EC1A 4JJ
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