Exhibit 10.1
CLIFFORD LIMITED LIABILITY PARTNERSHIP
CHANCE
CONFORMED COPY
Dated 7 July 2000
BARCLAYS BANK PLC
(as Transferor)
-and-
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
(as Receivables Borrower)
-------------------------------------------
AMENDMENT AND RESTATEMENT AGREEMENT
Relating to
RECEIVABLES SECURITISATION AGREEMENT
-------------------------------------------
CONTENTS
CLAUSE PAGE
1. Interpretation ............................................... I
2. Amendment .................................................... I
3. Costs and Expenses ........................................... I
4. Governing Law and Jurisdiction ............................... I
5. Counterparts ................................................. II
THE SCHEDULE Amended Form of Receivables Securitisation Agreement III
THIS AMENDMENT AGREEMENT is made on 7 July 2000
BETWEEN
(1) 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 Pavillion Drive, Northampton NN4 7SG (the
"TRANSFEROR"); and
(2) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey
having its registered office at 26 New Street, St. Helier, Jersey JE2
3RA, Channel Islands in its capacity as Receivables Trustee.
WHEREAS
(A On 23 November 1999, the Transferor and the Receivables Trustee entered
into a receivables securitisation agreement (the "RSA");
(A) The parties hereto have agreed to amend and restate the RSA with effect
from the date hereof.
IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Unless otherwise defined herein, terms defined in (or incorporated by
reference into) the RSA shall bear the same meaning herein.
1.2 The headings in this Agreement shall not affect its interpretation.
1.3 A person who is not a party to this Agreement has no right under the
Contract (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement.
2. AMENDMENT
Without prejudice to any accrued rights, the RSA shall, with effect from
the date hereof, stand amended in the form attached hereto as the
Schedule.
3. COSTS AND EXPENSES
The Transferor shall, from time to time on demand of the Receivables
Trustee, reimburse the Receivables Trustee for all costs and expenses
(including legal fees) (together with any VAT chargeable thereon) that
are incurred by the Receivables Trustee in or in connection with the
preparation and execution of this Agreement.
4. GOVERNING LAW AND JURISDICTION
The provisions of clauses 28 and 29 of the RSA shall apply mutatis
mutandis as if set out in full herein.
5. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which when executed and delivered shall be an original, but all the
counterparts together shall constitute one and the same instrument.
-I-
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date
first referred to above.
-II-
THE SCHEDULE
AMENDED FORM OF RECEIVABLES SECURITISATION AGREEMENT
-III-
RECEIVABLES SECURITISATION AGREEMENT
BETWEEN
BARCLAYS BANK PLC
AS TRANSFEROR
AND
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
AS RECEIVABLES TRUSTEE
CONTENTS
CLAUSE PAGE
1. Interpretation............................................................................................ 1
2. Offer of Receivables...................................................................................... 3
3. Acceptance of Offer and Payment for Existing Receivables.................................................. 8
4. Assignment of Receivables................................................................................. 8
5. Payment for Future Receivables............................................................................ 9
6. Perfection and Directions as to Payment................................................................... 11
7. Redesignation and Removal of Accounts..................................................................... 12
8. Discount Percentage, Special Fees, Annual Fees and Acquired Interchange................................... 15
9. Trust..................................................................................................... 16
10. Reductions in Receivables, Early Collections, Credit Adjustments and reassignment of defaulted receivables 17
11. Breach of Warranty........................................................................................ 18
12. Currency of Account and Payment........................................................................... 20
13. Payments by the Transferor, Additional Transferors and the Receivables Trustee............................ 20
14. The Collection Agent...................................................................................... 22
15. Barclaycard Operating Account and Barclaycard Proceeds Account............................................ 22
16. The Trustee Collection Account............................................................................ 22
17. Representations........................................................................................... 22
18. Covenants................................................................................................. 23
19. Stamp Duty................................................................................................ 25
20. Non-Petition.............................................................................................. 27
21. Benefit of Agreement...................................................................................... 28
22. Disclosure of Information................................................................................. 28
23. Remedies and Waivers...................................................................................... 29
24. Partial Invalidity........................................................................................ 29
25. Counterparts.............................................................................................. 29
26. Notices................................................................................................... 29
27. Termination of Declaration of Trust and Trust Cash Management Agreement................................... 30
28. Law....................................................................................................... 30
29. Jurisdiction.............................................................................................. 30
SCHEDULE 1 Eligible Account Criteria................................................................................. 31
SCHEDULE 2 Eligible Receivables Criteria............................................................................. 33
CLAUSE PAGE
SCHEDULE 3 Form of Offer............................................................................................. 35
SCHEDULE 4 Conditions Precedent to the Subsequent Offers............................................................. 41
SCHEDULE 5 Part 1 Representations as to Matters of Law............................................................... 42
SCHEDULE 6 Notification Events....................................................................................... 45
SCHEDULE 7 Form of Solvency Certificate.............................................................................. 46
SCHEDULE 8 Form of Notice of Assignment.............................................................................. 48
SCHEDULE 9 Form of Offer -- Sale of Receivables in Defaulted Accounts................................................ 49
SCHEDULE 10 Form of Future Receivables Transfer...................................................................... 50
THIS AGREEMENT is made the 23rd day of November, 1999
BETWEEN
(1) 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 Pavillion Drive, Northampton NN4 7SG (the
"TRANSFEROR"); and
(2) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey
having its registered office at 26 New Street, St. Helier, Jersey JE2
3RA, Channel Islands in its capacity as Receivables Trustee.
WHEREAS
(A) The Transferor has owed to it at present and expects to have owed to it
in the future Receivables arising in the course of its business.
(B) The Transferor and the Receivables Trustee have agreed, upon the terms
and subject to the conditions of this Agreement, that the Transferor may
from time to time offer to assign all Receivables arising on Designated
Accounts (both Existing Receivables and Future Receivables) to the
Receivables Trustee and the Receivables Trustee may from time to time
accept any such offer in the manner provided for in Clause 3.4.
(C) The Transferor and the Receivables Trustee have agreed, upon the terms
and subject to the conditions of this Agreement, that the Transferor may
assign all Future Receivables arising on Designated Accounts to the
Receivables Trustee by executing a transfer in the form set out in
Schedule 10.
(D) The Transferor and the Receivables Trustee have agreed, that subject to
the delivery of an Accession Notice, any member of the Barclays Group
which from time to time originates Accounts or to whom legal and
beneficial title to all or any Accounts is transferred (an "ADDITIONAL
TRANSFEROR") may from time to time offer to assign all Existing
Receivables and Future Receivables arising on such transferred Accounts
subject to and in accordance with the conditions hereof.
(E) It is acknowledged by all the parties hereto that any assignment made or
to be made under this Agreement will take effect at all times as an
equitable assignment unless and until a Notice of Assignment is given in
respect of it in accordance with Clause 6.7.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Whenever used in this Agreement, the words and phrases defined in the
Master Definitions Schedule of even date herewith (as amended and
restated from time to time) 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 In this Agreement:
1.2.1 a "CLAUSE" or "SCHEDULE" is, subject to any contrary indication, a
reference to a clause hereof or a schedule hereto;
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1.2.2 "STAMP DUTY" shall be construed as a reference to any stamp,
registration or other transaction or documentary tax (including,
without limitation, any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same);
1.2.3 a "SUBSIDIARY" of a company or corporation shall be construed as a
reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the first-
mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the first-
mentioned company or corporation; or
(c) 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; and
1.2.4 the "ADMINISTRATION", "BANKRUPTCY", "DISSOLUTION",
"INSOLVENCY", "LIQUIDATION", "RECEIVERSHIP" or "WINDING UP"
of any person shall be construed so as to include any
equivalent or analogous proceedings under the laws of the
jurisdiction in which such person is incorporated (or, if
not a company or corporation, domiciled) or any
jurisdiction in which such person carries on business.
1.3 "[GBP]" and "STERLING" denote lawful currency for the time being of the
United Kingdom of Great Britain and Northern Ireland.
1.4 Save where the contrary is indicated, any reference in this Agreement to:
1.4.1 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;
1.4.2 a statute shall be construed as a reference to such statute as the
same may have been, or may from time to time be, amended or re-
enacted; and
1.4.3 a time of day (including opening and closing of business) shall be
construed as a reference to London time.
1.5 Clause and Schedule headings are for ease of reference only.
1.6 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.
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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 otherwise requires, include a reference to such part of
such cost or expense as represents VAT.
2. OFFER OF RECEIVABLES
2.1 The Transferor, or any Additional Transferor in respect of the first
Offer made by such Additional Transferor following its execution of an
Accession Notice, may (subject to receipt by the Receivables Trustee of
the documents referred to in the Closing Documents List in form and
substance satisfactory to the Receivables Trustee), by delivering to the
Receivables Trustee an Offer substantially in the form set out in the
Third Schedule:
2.1.1 nominate all existing Accounts of a Specified Product Line to be
Designated Accounts (but excluding those existing Accounts which
have been identified on the Transferor's system as being excluded
from such nomination); and/or
2.1.2 nominate all future Accounts in respect of a Specified Product Line
which come into existence under that Specified Product Line during
the next Monthly Period to be Designated Accounts (unless and to
the extent that such Accounts have been and are individually
identified on the Transferor's system as being excluded from such
nomination from the relevant Account Creation Date),
and offer to the Receivables Trustee in respect of the Initial Offer Date
an assignment of:
(A) in respect of existing Accounts on a Specified Product Line so
nominated as Designated Accounts:
(a) all Existing Receivables under each Account nominated in such
Offer;
(b) all Future Receivables under each such Account which are not
Finance Charge Receivables until the earliest of:
(i) in respect of each such Account, such time (if any) as such
Account becomes a Redesignated Account;
(ii)the termination of the Receivables Trust; or
(iii) the occurrence of an Insolvency Event;
(c) all Future Receivables under each Account nominated in such
Offer which are Finance Charge Receivables in respect of
Receivables which are assigned (or purported to be assigned)
pursuant to paragraphs (a) and (b) above;
(d) (to the extent such are capable of assignment) the benefit of
each guarantee or insurance policy obtained by the Transferor
in respect of the obligations of an Obligor to make payments on
any such Account,
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(B) in respect of future Accounts arising on a Specified Product Line during
the next Monthly Period nominated as Designated Accounts:
(a) all Future Receivables under each such Account which are not
Finance Charge Receivables until the earliest of:
(i) in respect of each such Account, such time (if any) as such
Account becomes a Redesignated Account;
(ii)the termination of the Receivables Trust; or
(iii) the occurrence of an Insolvency Event;
(b) all Future Receivables under each Account nominated in such Offer
which are Finance Charge Receivables in respect of Receivables
which are assigned (or purported to be assigned) pursuant to
paragraph (a) above; and
(c) (to the extent such are capable of assignment) the benefit of each
guarantee or insurance policy obtained by the Transferor in respect
of the obligations of an Obligor to make payments on any such
Account; and
(C) the benefit of all amounts representing Acquired Interchange in
respect of each Monthly Period.
2.2 The Transferor or any Additional Transferor may on any Offer Date falling
prior to the termination of the Receivables Trust, or on any other
Business Day with the written consent of the Beneficiaries, by delivering
to the Receivables Trustee an Offer substantially in the form set out in
the Third Schedule:
2.2.1 nominate all existing Accounts of a Specified Product Line to be
Designated Accounts (but excluding those existing Accounts which
have been identified on the Transferor's or, as the case may be,
such Additional Transferor's system as being excluded from such
nomination); and/or
2.2.2 nominate all future Accounts in respect of a Specified Product Line
which come into existence under that Specified Product Line during
the Relevant Monthly Period in respect of such Offer Date to be
Designated Accounts or, if the Offer is not made on an Offer Date,
during the current or (if specified) the next following Monthly
Period (unless and to the extent that such Accounts have been
individually identified on the Transferor's system or, as the case
may be, the relevant Additional Transferor's system, as being
excluded from such nomination from the relevant Account Creation
Date).
and offer to the Receivables Trustee in respect of that Offer Date an
assignment of:
(A) in respect of existing Accounts on a Specified Product Line
nominated as Designated Accounts:
(a) all Existing Receivables under each Account nominated in such
Offer;
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(b) all Future Receivables under each such Account which are not
Finance Charge Receivables until the earliest of:
(i) in respect of each such Account, such time (if any) as such
Account becomes a Redesignated Account;
(ii)the termination of the Receivables Trust; or
(iii) the occurrence of an Insolvency Event;
(c) all Future Receivables under each such Account which are
Finance Charge Receivables in respect of Receivables which are
assigned (or purported to be assigned) pursuant to paragraphs
(a) and (b) above; and
(d) (to the extent such are capable of assignment) the benefit of
each guarantee or insurance policy obtained by the Transferor
in respect of the obligations of an Obligor to make payments on
any such Account,
(B) in respect of future Accounts arising on a Specified Product Line
during the Relevant Monthly Period (or current or specified (as
appropriate) Monthly Period if the Offer is not made on an Offer
Date) nominated as Designated Accounts:
(a) all Future Receivables under each such Account which are not
Finance Charge Receivables until the earliest of:
(i) in respect of each such Account, such time (if any) as such
Account becomes a Redesignated Account;
(ii)the termination of the Receivables Trust; or
(iii) the occurrence of an Insolvency Event;
(b) all Future Receivables under each such Account which are
Finance Charge Receivables in respect of Receivables which are
assigned (or purported to be assigned) pursuant to paragraph
(a) above; and
(c) (to the extent such are capable of assignment) the benefit of
each guarantee or insurance policy obtained by the Transferor
in respect of the obligations of an Obligor to make payments on
any such Account.
PROVIDED, HOWEVER, that prior to or simultaneously with the making of
each such Offer in respect of an Offer Date, the Transferor or, as the
case may be, such Additional Transferor shall have satisfied the
conditions precedent set out in paragraphs 1, 2 and 3 of the Fourth
Schedule unless such conditions precedent have been waived in writing by
the Receivables Trustee (if, and only if, it has received written
confirmation from each relevant Rating Agency that such waiver will not
result in such Rating Agency reducing or withdrawing its then current
rating on any outstanding Related Debt).
2.3 The Transferor may, at any time, by entering into a transfer with the
Receivables Trustee in the form set out in the Schedule 10, sell and
assign to the Receivables Trustee absolutely all of the Transferor's
right, title and interest in and to the Relevant Receivables (as defined
in the Future Receivables Transfer) on the terms and conditions
5
of the Future Receivables Transfer and this Agreement, together with (to
the extent such are capable of assignment) the benefit of each guarantee
or insurance policy obtained by the Transferor in respect of the
obligations of an Obligor to make payments on any such Receivables
PROVIDED, HOWEVER, that prior to or simultaneously with such transfer,
the Transferor shall have satisfied the conditions precedent set out in
paragraphs 1 and 4 of the Fourth Schedule unless such conditions
precedent have been waived in writing by the Receivables Trustee (if, and
only if, it has received written confirmation from each relevant Rating
Agency that such waiver will not result in such Rating Agency reducing or
withdrawing its then current rating on any outstanding Related Debt).
2.4 Every Offer delivered by the Transferor pursuant to Clause 2.1 or by the
Transferor or an Additional Transferor pursuant to Clause 2.2 shall:
2.4.1 (i)specify that the Accounts nominated pursuant to Clauses 2.1(A)
or 2.2(A) have been identified by the Transferor or, as the case
may be, such Additional Transferor, on its system, and/or (ii)
undertake that its system will identify those Accounts nominated
pursuant to Clauses 2.1.2(B) or 2.2.2(B), as from the relevant
Account Creation Date, as Designated Accounts in respect of which
an assignment of Existing Receivables and Future Receivables is
being offered to the Receivables Trustee;
2.4.2 in respect of Existing Receivables arising in Designated Accounts
nominated under Clauses 2.1(A)(a) or 2.2(A)(a):
(a) specify the aggregate amount of the Eligible Receivables
comprised therein;
(b) specify the total Outstanding Face Amount of the Principal
Receivables and the total outstanding balance of the Finance
Charge Receivables comprised in such Eligible Receivables; and
(c) specify the aggregate amount of the Ineligible Receivables
comprised therein;
2.4.3 be delivered no later than 12.00 noon on the Offer Date relating
thereto; and
2.4.4 constitute an offer by the Transferor or, as the case may be, such
Additional Transferor to sell and assign to the Receivables Trustee
absolutely all of the Transferor's or relevant Additional
Transferor's right, title and interest in and to the Existing
Receivables and Future Receivables arising on each Account
nominated in the Offer (including, for the avoidance of doubt, any
future Accounts nominated under Clause 2.2(B)) at the related
Purchase Price therefor on the terms and conditions of this
Agreement, together with (to the extent such are capable of
assignment) the benefit of each guarantee or insurance policy
obtained by the Transferor or, as the case may be, such Additional
Transferor, in respect of the obligations of an Obligor to make
payments on any such Receivables and, in the case of an Offer
delivered pursuant to Clause 2.1, the benefit of all amounts
representing Acquired Interchange in respect of each Monthly
Period.
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2.5 The Transferor and, upon execution of an Accession Notice, each
Additional Transferor agrees to maintain a system which, during the term
of this Agreement, will individually identify any Accounts which are
excluded from nomination as Designated Accounts in an Offer made pursuant
to Clause 2.1 or Clause 2.2. On or before the twentieth Business Day (or
within such period as may otherwise be agreed between the Transferor or
any Additional Transferor, as the case may be, and the Servicer)
following a request in writing from the Servicer (or any Co-Servicer), on
behalf of the Receivables Trustee, to the Transferor or Additional
Transferor (as applicable) the Transferor, and upon execution of an
Accession Notice each Additional Transferor, agrees to deliver to the
extent permitted by applicable law a computer file or microfiche list
containing a true and complete list of all Designated Accounts each
identified by a specific number identifying such Designated Account.
PROVIDED HOWEVER, that the Servicer on behalf of the Receivables Trustee
may not request such list or information more than once during any
calendar year unless an Insolvency Event has occurred and is subsisting,
in which case such request may be made at any time with reasonable
frequency.
2.6 The Transferor and upon execution of an Accession Notice, each Additional
Transferor agrees not to alter the file designation with respect to any
Designated Account during the term of this Agreement unless and until
such Designated Account becomes a Removed Account.
2.7 The Transferor and, upon execution of an Accession Notice, each
Additional Transferor agrees that if any Offer shall lapse before it is
accepted in accordance with Clause 3.4 it will ensure the Accounts which
are nominated in such lapsed Offer are identified (either at the time of
such lapse or the relevant Account Creation Date, as applicable) as not
being Designated Accounts in its system.
2.8 The Transferor may, at any time after the Initial Offer Date, designate
any subsidiary of the Transferor which originates Accounts in the course
of its business and/or to which the Transferor's right, title and
interest in and to Designated Accounts have been assigned as an
Additional Transferor for the purpose of making Offers under this
Agreement, by delivering or procuring the delivery to the Receivables
Trustee of an Accession Notice duly executed by the Transferor and such
nominated subsidiary of the Transferor in such form as the Receivables
Trustee may require together with such other documents (including legal
opinions) as the Receivables Trustee shall require and such nominated
subsidiary shall not be admitted as an Additional Transferor for the
purposes of this Agreement until such time as the Receivables Trustee
shall have confirmed to the Transferor and the Additional Beneficiary
that it has received the Accession Notice and such other prescribed
documents in form and substance satisfactory to the Receivables Trustee.
2.9 Any Offer which nominates Accounts on Specified Product Lines as
mentioned in Clause 2.1 or (as the case may be) Clause 2.2 above shall
set out (or incorporate by reference for the purpose of identification)
all of the express terms of the Card Agreement relating to Accounts on
the Specified Product Line in question. Where the Offer is made in
relation to future Accounts on the Specified Product Line in question
(with or without existing Accounts) the Offer shall be treated as being
made in relation to (and only in relation to) all future Accounts which
come into existence during the relevant Monthly Period and which are the
subject of Card Agreements incorporating all
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of the said express terms (except for any such Accounts which are
excluded as mentioned in Clause 2.1.2 or 2.2.2).
3. ACCEPTANCE OF OFFER AND PAYMENT FOR EXISTING RECEIVABLES
3.1 Following the receipt of the required funds by the Receivables Trustee
from or on behalf of the relevant Beneficiaries in respect of any amounts
of Purchase Price payable in cash in accordance with Clause 3.4, the
Receivables Trustee may accept any Offer made in accordance with Clause
2.3 in the manner specified in Clause 3.4.
3.2 Each Offer shall be accepted by the Receivables Trustee only with respect
to the Existing Receivables and Future Receivables on Accounts nominated
therein and any purported form of acceptance of an Offer otherwise than
in the manner specified in Clause 3.4 shall be null and void and of no
effect (and for the avoidance of doubt nothing in this Agreement or in
any Offer shall of itself operate so as to convey or transfer to any
person any beneficial interest in any Receivables).
3.3 Each Offer shall be irrevocable and binding on the Transferor or, as the
case may be, an Additional Transferor, until (if not accepted before such
time) close of business on the Business Day immediately succeeding the
Offer Date relating thereto or, if the Offer is not made on an Offer
Date, the Business Day immediately succeeding the day the Offer is made
(or such longer period of time for acceptance as may be agreed upon by
the Transferor or, as the case may be, an Additional Transferor, and the
Receivables Trustee), when that Offer shall lapse.
3.4 Each Offer may be accepted only by way of payment of the greater of (i)
[GBP]1.00 and (ii) the relevant amount of the Purchase Price in respect
of Existing Receivables the subject of such Offer to be paid in cash in
respect of such Offer being made by or on behalf of the Receivables
Trustee to the Transferor or, as the case may be, the Additional
Transferor in accordance with the terms of Clause 6.1, or in the case of
an Additional Transferor the relevant Accession Notice, by no later than
close of business on the Business Day immediately succeeding the relevant
Offer Date, or such longer period of time for acceptance as may be agreed
upon by the Transferor (or, as the case may be, the Additional
Transferor) and the Receivables Trustee PROVIDED, HOWEVER, that the Offer
made on the Initial Offer Date shall be accepted by no later than close
of business on the Initial Offer Date.
4. ASSIGNMENT OF RECEIVABLES
4.1 Upon acceptance of an Offer pursuant to Clause 3.4, all of the
Transferor's or, as the case may be, the Additional Transferor's, rights,
title and interest in and to:
4.1.1 the Existing Receivables under each Designated Account nominated in
that Offer; and
4.1.2 the Future Receivables under each such Designated Account which are
not Finance Charge Receivables in respect of Principal Receivables,
until the earliest of:
(a) in respect of each Designated Account, such time (if any), as
such Account becomes a Redesignated Account;
8
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event;
4.1.3 all Future Receivables under each Account nominated in such Offer
which are Finance Charge Receivables in respect of Receivables
which are assigned (or purported to be assigned) to the Receivables
Trustee pursuant to paragraphs 4.1.1 and 4.1.2 above;
4.1.4 (to the extent such are capable of assignment) the benefit of each
guarantee or insurance policy obtained by the Transferor or, as the
case may be, the Additional Transferor, in respect of the
obligations of an Obligor to make payments on any such Designated
Account; and
4.1.5 (in respect of the Offer made on the Initial Offer Date) the
benefit of all amounts representing Acquired Interchange in respect
of each Monthly Period,
shall thereupon vest in the Receivables Trustee on the terms and
conditions of this Agreement and the Offer.
4.2 It is hereby agreed, for the avoidance of doubt, that no transfer or
purported transfer of Receivables pursuant to this Clause or the Future
Receivables Transfer shall be rendered ineffective or void or otherwise
impaired by reason only of it being subsequently discovered that the
Account(s) relating to such Receivables either:
4.2.1 did not arise under the relevant Specified Product Line relating to
such Account(s), as named in the relevant Offer; or
4.2.2 did arise under the Specified Product Line relating to such
Account(s) in the relevant Offer but were subsequently removed from
such Specified Product Line without having been redesignated or
removed in accordance with Clause 7.
4.3 For the avoidance of doubt, any assignment made under this Clause 4 or
the Future Receivables Transfer will take effect in equity only unless
and until a Notice of Assignment is given in respect of it in accordance
with the provisions of Clause 6.7.
5. PAYMENT FOR FUTURE RECEIVABLES
5.1 In consideration of the assignment by the Transferor or any Additional
Transferor to the Receivables Trustee of Future Receivables coming into
existence on any day (including any Future Receivables assigned pursuant
to the Future Receivables Transfer) (which Receivables will have vested
in equity in the Receivables Trustee) and the benefit of Acquired
Interchange in respect of each Monthly Period, the Receivables Trustee
shall pay to the Transferor or, as the case may be, such Additional
Transferor (and, in respect of the amount to be paid in cash, in
accordance with Clause 6.2 or Clause 6.4, as applicable), not later than
the Business Day which is two Business Days after the Date of Processing
relating to such Future Receivables or such longer period of time as may
be agreed upon by the Transferor or, as the case may be, such Additional
Transferor and the Receivables Trustee (if it has received written
confirmation from each relevant Rating Agency that such increase in time
will not result in such Rating Agency reducing or withdrawing its then
current rating on any outstanding Related Debt), an amount equal to
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the aggregate of the Outstanding Face Amounts of the Principal
Receivables comprised therein as calculated by the Transferor or, as the
case may be, such Additional Transferor and notified to the Receivables
Trustee by the Transferor or, as the case may be, such Additional
Transferor (and specifying the aggregate amount of such Principal
Receivables which are Ineligible Receivables) by no later than 12.00 noon
on such day for payment PROVIDED THAT, in the case of Future Receivables
assigned pursuant to the Future Receivables Transfer, this Clause 5.1
shall apply subject to the provisions of the Future Receivables Transfer.
5.2 Where an amount would (apart from this Clause 5.2) fall to be paid by the
Receivables Trustee under Clause 5.1 above and such amount would fall to
be paid;
(i) on or after [date of Future Receivables Transfer]; and
(ii) in respect of any Future Receivables assigned otherwise than
pursuant to the Future Receivables Transfer;
any funds which are available (in accordance with the Declaration of
Trust and Trust Cash Management Agreement) to pay the amount in question
shall instead be applied in the first instance in making the non-
refundable payment of [GBP]10,000 referred to in clause 3.1 of the Future
Receivables Transfer (payment on account of consideration for Future
Receivables Transfer) with any balance of such funds being applied in
accordance with Clause 5.1 above and so that (for the avoidance of doubt)
as soon as the said payment of [GBP]10,000 shall have been made in full,
this Clause 5.2 shall cease to apply.
5.3 Where any amount has been applied in accordance with Clause 5.2 above,
such application shall be treated as leading to a deferral of payment of
the relevant amount of [GBP]10,000 which would otherwise have been paid
in accordance with Clause 5.1 above (the "DEFERRED AMOUNT"). The
Receivables Trustee shall be required to pay the deferred amount out of
any funds which thereafter become available to it for the purpose of
making payments under Clause 5.1 above, in priority to making any
payments under Clause 5.1 above in respect of Future Receivables assigned
pursuant to the Future Receivables Transfer.
5.4 The Transferor and each Additional Transferor shall prepare and maintain
a daily activity report (the "DAILY ACTIVITY REPORT") in connection with
the payment required under Clause 5.1 which shall specify with reference
to the Designated Accounts of the Transferor or, as the case may be, such
Additional Transferor (on an aggregate basis) in respect of the date
specified in such Daily Activity Report:
5.4.1 the outstanding balance of the Future Receivables which have arisen
and which have automatically been assigned in equity to the
Receivables Trustee since the previous Daily Activity Report and
which are Eligible Receivables;
5.4.2 the Outstanding Face Amount of the Principal Receivables which are
Eligible Receivables and the amount of the Finance Charge
Receivables comprised in such Eligible Receivables; and
5.4.3 the outstanding balance of Future Receivables which have arisen and
which have automatically been assigned in equity to the Receivables
Trustee since the previous Daily Activity Report and which are
Ineligible Receivables,
10
PROVIDED, HOWEVER, that the Transferor and, upon its accession hereunder
each Additional Transferor agrees to deliver such Daily Activity Report
to the Receivables Trustee within three Business Days (or such other
period as may otherwise be agreed) after the Receivables Trustee may at
any time request.
6. PERFECTION AND DIRECTIONS AS TO PAYMENT
6.1 Each payment due to the Transferor pursuant to the acceptance of an Offer
in accordance with Clause 3.4 in respect of Existing Receivables shall be
satisfied by payment into the Barclaycard Proceeds Account, such payment
when so made to constitute payment by the Receivables Trustee to the
Transferor by way of acceptance of the Offer in respect of which the
payment is made pursuant to Clause 3.4.
6.2 Each payment due to the Transferor pursuant to the acceptance of an Offer
in accordance with Clause 5.1 in respect of Future Receivables shall be
satisfied by payment into the Barclaycard Proceeds Account, such payment
when so made to constitute compliance by the Receivables Trustee with
Clause 5.1 in respect of the Future Receivables in respect of which the
payment is made.
6.3 The terms of each Accession Notice shall specify that each payment due to
the relevant Additional Transferor pursuant to the acceptance of an
Offer, in accordance with Clause 3.4, in respect of Existing Receivables
shall be satisfied by payment into the proceeds account specified in such
Accession Notice, such payment when made to constitute payment by the
Receivables Trustee to such Additional Transferor by way of acceptance of
the Offer in respect of which the payment is made pursuant to Clause 3.4.
6.4 The terms of each Accession Notice shall specify that each payment due to
the relevant Additional Transferor pursuant to the acceptance of an Offer
in accordance with Clause 5.1 in respect of Future Receivables shall be
satisfied by payment into the proceeds accounts specified in such
Accession Notice, such payment when so made to constitute compliance by
the Receivables Trustee which Clause 5.1 in respect of the Future
Receivables in respect of which the payment is made.
6.5 Subject to Clause 6.7, the Transferor and each Additional Transferor will
take all such steps and comply with all such formalities as the
Receivables Trustee may require to perfect or more fully to evidence or
secure title to the Receivables (and the benefit of any guarantee or
insurance policy in respect of the obligations of an Obligor to make
payments in respect thereof) assigned (or purported to be assigned)
pursuant to Clause 4 or the Future Receivables Transfer and the interest
of the Receivables Trustee therein.
6.6 Subject to Clause 6.7, to secure the proprietary interest of the
Receivables Trustee relating to the Receivables (and the benefit of any
guarantee or insurance policy in respect of the obligations of an Obligor
to make payments in respect thereof) assigned (or purported to be
assigned) to it by the Transferor or, as the case may be, an Additional
Transferor and the performance of the Transferor's or, as the case may
be, such Additional Transferor's obligations in respect thereof, the
Transferor and, upon its accession hereunder, each Additional Transferor
hereby irrevocably appoints the Receivables Trustee as its attorney (with
full power of delegation) for the purpose of performing and complying
with all and any of such obligations of the Transferor or, as the case
may be, such Additional Transferor, whether in the name of the Transferor
or, as
11
the case may be, any Additional Transferor or in the name of the
Receivables Trustee, and in such manner as the Receivables Trustee may
consider appropriate, and the Transferor and, upon its accession
hereunder, each Additional Transferor hereby ratifies, confirms and
adopts and agrees to ratify, confirm and adopt whatsoever the Receivables
Trustee shall do or purport to do on its behalf by virtue of and in
accordance with this power of attorney, except in the case of bad faith,
fraud or gross negligence on the part of the Receivables Trustee in so
acting.
6.7 The Receivables Trustee (in its capacity as donee of the power of
attorney in Clause 6.6 or otherwise) hereby agrees that at any time:
6.7.1 no Notice of Assignment shall be given by it (or required by it to
be given) to any Obligor or any provider of any guarantee or
insurance policy in respect of the obligations of such Obligor; and
6.7.2 no written assignment or transfer (whether by deed or otherwise) of
any Receivables (or any guarantee or insurance policy in respect of
the obligations of an Obligor to make payments in respect thereof)
assigned (or purported to be assigned) shall be required,
unless at such time a Notification Event has occurred and is then
subsisting and such action is required in the opinion of the Receivables
Trustee (after consulting with such legal advisers as it deems necessary)
to effect the obligations of the Transferor or, as the case may be, an
Additional Transferor under Clause 6.3. For the avoidance of doubt the
parties acknowledge that, unless and until a Notice of Assignment is
given following a Notification Event and in relation thereto, all
assignments or transfers of Receivables pursuant to this Agreement will
take effect at all times in equity only.
6.8 The Receivables Trustee shall not be entitled to create, assume or incur
indebtedness or other liabilities in the name of the Receivables Trust
other than as contemplated in this Agreement, the Declaration of Trust
and Trust Cash Management Agreement, any Supplement thereto and any
document related thereto.
7. REDESIGNATION AND REMOVAL OF ACCOUNTS
7.1 Each Designated Account shall continue to be a Designated Account until
such time, if any, that it becomes a Redesignated Account on the date
specified in respect of such Designated Account pursuant to Clause 7.3
(the "REDESIGNATION DATE").
7.2 Subject to Clause 7.7, the Transferor and each Additional Transferor may
at any time, and in its absolute discretion, notify the Receivables
Trustee in writing of (i) any Designated Account (which is not a
Cancelled Account, Defaulted Account or Zero Balance Account) which the
Transferor or such Additional Transferor wishes to cease to be a
Designated Account or (ii) any Specified Product Line in respect of which
the Transferor or such Additional Transferor wishes all Designated
Accounts existing under that Specified Product Line to cease to be
Designated Accounts, in each case with effect from such following date as
the Transferor or such Additional Transferor shall specify in that notice
(a "REDESIGNATION NOTICE").
7.3 The Redesignation Date of a Designated Account shall be ascertained as
follows:
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7.3.1 in the case of a Cancelled Account, the Redesignation Date shall be
the day on which the relevant Designated Account is recorded by the
Servicer as a Cancelled Account on the Servicer's computer master
file of Accounts;
7.3.2 in the case of a Zero Balance Account, the Redesignation Date shall
be the day on which the relevant Designated Account is recorded by
the Servicer as being a Zero Balance Account and removed from the
Servicer's computer master file of Accounts;
7.3.3 in the case of a Defaulted Account, the Redesignation Date shall be
the day on which the Receivables thereunder are recorded as
charged-off on the Servicer's computer master file of Accounts.
Notwithstanding any other provision hereof, any Receivables in a
Defaulted Account that are Ineligible Receivables prior to such
date shall be treated as Ineligible Receivables rather than as
Receivables in Defaulted Accounts; and
7.3.4 in the case of a Designated Account which is not a Cancelled
Account, Defaulted Account or Zero Balance Account, the
Redesignation Date shall be the day specified in the Redesignation
Notice.
7.4 On, and with effect from, the Redesignation Date in respect of a
Designated Account the following shall occur:
7.4.1 such Account shall cease to be a Designated Account and thereafter
shall be a Redesignated Account;
7.4.2 all Receivables which were in existence prior to the Redesignation
Date shall, to the extent the Receivables Trustee has not paid for
such Receivables, be paid for by the Receivables Trustee in
accordance with this Agreement;
7.4.3 all Future Receivables generated on such Redesignated Account which
are Principal Receivables or Finance Charge Receivables in respect
of Receivables which were not in existence prior to such
Redesignation Date which come into existence on or after the
Redesignation Date shall not be assigned by the Transferor or, as
the case may be, such Additional Transferor to the Receivables
Trustee; and
7.4.4 all Future Receivables which are Finance Charge Receivables in
respect of Receivables which were in existence prior to such
Redesignation Date which come into existence on or following such
Redesignation Date shall continue to be automatically assigned by
the Transferor or, as the case may be, such Additional Transferor
to the Receivables Trustee and constitute Trust Property;
PROVIDED, HOWEVER, that, for the avoidance of doubt, no Receivable
assigned to the Receivables Trustee shall be reassigned to the Transferor
or any Additional Transferor except in the circumstances set out in
Clause 11.3.
7.5 The Transferor and each Additional Transferor shall maintain a system
which identifies each Redesignated Account in the systems of the
Transferor or Additional Transferor until the earlier of:
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7.5.1 such time as Collections (equal to the Outstanding Face Amount of
each Principal Receivable and the outstanding balance of each
Finance Charge Receivable) have been received by the Receivables
Trustee in respect of every Receivable which has been assigned to
the Receivables Trustee in respect of that Account other than
Receivables which have been charged-off in accordance with the Card
Guidelines on the computer master file of Accounts used by the
Servicer; or
7.5.2 such time as all Receivables outstanding on such Account which
constitute Trust Property are reassigned to the Transferor or, as
the case maybe, such Additional Transferor in the circumstances set
out in Clause 11.3.
7.6 At such time as the Transferor or an Additional Transferor ceases to be
obliged to identify each Redesignated Account as such in the systems of
the Transferor or Additional Transferor (in accordance with Clause 7.5)
the Transferor and such Additional Transferor may at any time thereafter,
and in its absolute discretion, notify the Receivables Trustee that it
wishes to cease to identify such Accounts as being Redesignated Accounts,
with effect from such date as the Transferor or, as the case may be, such
Additional Transferor shall specify in that notice (the "REMOVAL DATE"),
and such Accounts shall then be identified in the systems of the
Transferor or Additional Transferor, in accordance with a system
maintained by the Transferor or, as the case may be, such Additional
Transferor for that purpose, as constituting "REMOVED ACCOUNTS".
PROVIDED, HOWEVER, that in respect of a Zero Balance Account, the
Transferor or, as the case may be, such Additional Transferor, shall
remove or have removed such designation on the Redesignation Date (which,
consequently, shall also be the Removal Date for such Account) and such
Zero Balance Account shall also constitute a Removed Account.
7.7 Neither the Transferor nor any Additional Transferor shall be permitted
to redesignate Designated Accounts pursuant to Clause 7.2 which are not
Cancelled Accounts, Defaulted Accounts or Zero Balance Accounts unless
the following conditions are satisfied:
7.7.1 such redesignation shall not, in the reasonable belief of the
Transferor or such Additional Transfer, cause a Pay Out Event to
occur;
7.7.2 the Transferor or, as the case may be, such Additional Transferor
shall represent and warrant to the Receivables Trustee that no
selection procedures believed by the Transferor or such Additional
Transferor to have a Material Adverse Effect were utilised in
selecting the Designated Accounts to be redesignated;
7.7.3 on or before the tenth Business Day prior to the Redesignation
Date, each Rating Agency and the Receivables Trustee shall have
received notice in writing from the Transferor or, as the case may
be, such Additional Transferor of such proposed redesignation and
the Transferor or such Additional Transferor and the Receivables
Trustee shall have received written notice prior to the
Redesignation Date from each Rating Agency that such proposed
redesignation will not result in a downgrade or withdrawal of its
then current rating of any outstanding Related Debt;
14
7.7.4 the Transferor or, as the case may be, such Additional Transferor
and the Servicer shall certify to the Receivables Trustee that
Collections (equal to the Outstanding Face Amount of each Principal
Receivable and the outstanding balance of each Finance Charge
Receivable) have been received by the Receivables Trustee in
respect of every Receivable which has been assigned to the
Receivables Trustee in respect of that Account other than
Receivables which have been charged-off in accordance with the Card
Guidelines on the computer master file of Accounts used by the
Servicer; and
7.7.5 the Transferor or, as the case may be, such Additional Transferor
shall have delivered to the Receivables Trustee an Officer's
Certificate confirming the items set out in Clauses 7.7.1 to 7.7.4
above.
PROVIDED, HOWEVER, that the Receivables Trustee may conclusively rely on
the Officer's Certificate referred to in Clause 7.7.5 above without
making enquiries with regard to the matters set out therein.
8. DISCOUNT PERCENTAGE, SPECIAL FEES, ANNUAL FEES AND ACQUIRED INTERCHANGE
8.1 The Transferor or any Additional Transferor may, at any time by giving
not less than 30 days' prior notice in writing to the Servicer, the
Receivables Trustee and the Rating Agencies, nominate a Discount
Percentage to apply to Principal Receivables from the date specified in
such notice for such period (or additional period) of time as the
Transferor or such Additional Transferor shall specify.
8.2 If the Transferor or any Additional Transferor notifies the Receivables
Trustee of the application of a Discount Percentage in accordance with
Clause 8.1 then, during the period of time specified by the Transferor or
such Additional Transferor under Clause 8.1, the relevant amount of any
Purchase Price to be paid pursuant to Clause 3.4 shall accordingly be
reduced by a percentage equal to the Discount Percentage, and the
obligation of the Receivables Trustee to make the payments referred to in
Clause 5.1 shall be likewise reduced.
8.3 No nomination by the Transferor or any Additional Transferor pursuant to
Clause 8.1 of a Discount Percentage or the period (or additional period)
of time for which it is to be effective shall be of any effect unless:
8.3.1 each Rating Agency has confirmed in writing that such proposed
nomination or increase in length of the relevant period will not
result in a downgrade or withdrawal of its then current rating of
any outstanding Related Debt;
8.3.2 the Transferor or such Additional Transferor has provided the
Receivables Trustee with a certificate in the form set out in the
Seventh Schedule, signed by an authorised officer of the Transferor
or such Additional Transferor confirming that:
(a) the performance of the portfolio of Designated Accounts is such
that in the reasonable opinion of the Transferor or such
Additional Transferor the yield of Finance Charge Collections
is not generating adequate cashflows for the Beneficiaries of
the Receivables Trust and the size of the Discount
15
Percentage is not intended solely to accelerate distributions
to the Excess Interest Beneficiary; and
(b) the Transferor or such Additional Transferor is able to pay its
debts within the meaning of section 123 of the Insolvency Act
1986 and will not become unable to pay its debts within the
meaning of that section in consequence of such Discount
Percentage coming into effect, as at the date on which the
Discount Percentage or additional period is to take effect.
8.4 From time to time, the Transferor and each Additional Transferor may levy
a Special Fee on Accounts (including Designated Accounts) in respect of
all or certain types of Receivables arising thereon, whether at one time
or on an ongoing basis, and may in respect of such Special Fees on or
after the date on which they are first levied, designate in a certificate
to the Receivables Trustee whether such Special Fees shall be treated as
Finance Charge Receivables or as Principal Receivables, PROVIDED,
HOWEVER, that in the absence of such certificate, such Special Fees shall
be treated as Finance Charge Receivables, PROVIDED FURTHER, HOWEVER, that
the Transferor or such Additional Transferor may not designate Special
Fees as Principal Receivables unless it certifies in such certificate
that it has received an Opinion of Counsel that such Special Fees
constitute, for the purpose of tax in the United Kingdom, repayment in
whole or in part of an advance to an Obligor.
8.5 The Transferor and each Additional Transferor may, at any time by giving
notice in writing to the Servicer, the Receivables Trustee and the Rating
Agencies, designate in a certificate to the Receivables Trustee whether
Future Receivables arising after that time and Existing Receivables
comprised in offers accepted by the Receivables Trustee after that time
in respect of (in each case) Annual Fees shall be treated as Finance
Charge Receivables or as Principal Receivables PROVIDED, HOWEVER, in the
absence of such certificate, such Receivables in respect of Annual Fees
shall be treated as Finance Charge Receivables; PROVIDED FURTHER,
HOWEVER, that any designation of Annual Fees as Principal Receivables
shall not be of any effect unless the Transferor or, as the case may be,
such Additional Beneficiary certifies in such certificate that it has
received an Opinion of Counsel that such Annual Fees constitute, for the
purpose of tax in the United Kingdom, repayment in whole or in part of an
advance to an Obligor.
8.6 On or before each Transfer Date, the Transferor and each Additional
Transferor shall notify the Receivables Trustee of the amount of Acquired
Interchange with respect to the preceding Monthly Period.
8.7 On each Transfer Date, the Transferor and each Additional Transferor
shall cause to be paid to the Receivables Trustee by depositing into the
Trustee Collection Account, in immediately available funds, an amount
equal to the amount of Acquired Interchange.
9. TRUST
9.1 If for any reason any Receivable arising on a Designated Account cannot
be duly assigned to the Receivables Trustee as contemplated hereby but
the Receivables Trustee has accepted the Offer relating to that
Receivable then, with effect from the date on which the Receivables
Trustee accepted such Offer, that Receivable shall be treated as if
16
it had been validly and duly assigned to the Receivables Trustee and the
Transferor or, as the case may be, the Additional Transferor shall hold
the same and all Collections related thereto on trust absolutely for the
Receivables Trustee and all such Collections shall be applied as if such
Receivable had been validly and duly assigned.
9.2 The provisions of Clause 9.1 shall be without prejudice to:
9.2.1 any obligations or representations of the Transferor or, as the
case may be, such Additional Transferor hereunder in respect of any
Receivables; and
9.2.2 any liabilities of the Transferor or such Additional Transferor or
rights of the Receivables Trustee in relation to any breach or
inaccuracy on the part of the Transferor or, as the case may be,
such Additional Transferor of the matters referred to in Clause
9.2.1.
9.3 All Collections in respect of any Receivables constituting Trust Property
received by Barclays Bank PLC or any Additional Transferor (whether or
not the appointment of Barclays Bank PLC as Servicer or such Additional
Transferor as a Co-Servicer, if applicable, under the Beneficiaries
Servicing Agreement has been terminated) shall, pending their application
to the Trustee Collection Account, be held on trust for and to the order
of the Receivables Trustee.
10. REDUCTIONS IN RECEIVABLES, EARLY COLLECTIONS, CREDIT ADJUSTMENTS AND
REASSIGNMENT OF DEFAULTED RECEIVABLES
10.1 If the amount paid or payable in respect of any Principal Receivable
which has been assigned by the Transferor or any Additional Transferor to
the Receivables Trustee is reduced (other than in respect of a Transferor
Section 75 Liability, Additional Transferor Section 75 Liability or a
Credit Adjustment) after the Offer Date relating thereto by reason of:
10.1.1 any set-off or counterclaim as between an Obligor and the
Transferor or any Additional Transferor; or
10.1.2 any other matter as between an Obligor and the Transferor or
any Additional Transferor,
(each of 10.1.1 and 10.1.2 above a "REDUCTION")
and the Transferor or such Additional Transferor has received a benefit
in money or money's worth as a consequence of such Reduction (including,
without limitation, any reduction in any liability owing by the
Transferor or such Additional Transferor to such Obligor) then the
Transferor or such Additional Transferor shall nevertheless for the
purposes of this Agreement be treated as having been paid the amount of
such Reduction on the date of such Reduction in addition to any other
amounts which may be paid or payable in respect of such Receivable.
10.2 If any Existing Receivable which is purported to be assigned pursuant to
the Future Receivables Transfer or any Offer made pursuant to the terms
of this Agreement shall have been collected in whole or in part prior to
the time of such purported assignment, then the portion thereof which
shall have been so collected (an "EARLY COLLECTION") shall
17
be treated for the purposes of this Agreement as having been collected by
the Transferor or, as the case may be, the relevant Additional Transferor
immediately following such purported assignment thereof.
10.3 If any Principal Receivable which has been assigned by the Transferor or
any Additional Transferor to the Receivables Trustee is reduced after the
date of such assignment relating thereto by reason of a Credit Adjustment
then the Transferor or such Additional Transferor shall nevertheless for
the purposes of this Agreement be treated as having been paid the amount
of such Credit Adjustment on the date of such Credit Adjustment in
addition to any other amounts which may be paid or payable in respect of
such Receivable.
10.4 Subject to Clause 13.3, the Transferor or, as the case may be, such
Additional Transferor shall be obliged to pay to the credit of the
Trustee Collection Account an amount equal to the amount of each
Reduction (as referred to in Clause 10.1), Early Collection (as referred
to in Clause 10.2) or Credit Adjustment (as referred to in Clause 10.3)
by no later than the second Business Day following the date on which it
became aware of such Reduction, Early Collection or Credit Adjustment (as
the case may be) or was notified thereof by the Trust Cash Manager.
10.5 The Receivables Trustee may, if so instructed by the Beneficiaries, from
time to time (by giving a notice in substantially in the form set out in
Schedule 9) offer to sell to the Transferor or any Additional Transferor,
as applicable, all Receivables in the Defaulted Accounts specified in
such notice. The Transferor or Additional Transferor, as the case may
be, may in its discretion choose to accept such offer. If such offer is
accepted, the consideration ("CONSIDERATION") payable by the Transferor
or Additional Transferor (as applicable) for the assignment of such
Receivables shall be deferred and shall equal that portion of the balance
of such Receivables in Defaulted Accounts which is subsequently recovered
and paid to the Transferor or Additional Transferor (the "RECOVERED
AMOUNT") less any costs and expenses incurred or payments made by the
Transferor or Additional Transferor, as applicable, in order to obtain
the recovered amount. The consideration shall be payable in respect of
Monthly Periods and shall be paid into the Trustee Collection Account on
the Transfer Date relating to each relevant Monthly Period. For the
avoidance of doubt, the consideration shall only become due and payable
to the Receivables Trustee following the realisation of the recovered
amount and determination of related costs and expenses by the Transferor
or Additional Transferor, as the case may be, and there shall be no
obligation to make any payment prior to such time.
11. BREACH OF WARRANTY
11.1 If, in respect of any Principal Receivable which has been assigned to the
Receivables Trustee, any representation referred to in Clause 17.2 or
17.3 proves at any time to have been incorrect when made, the Transferor
or, as the case may be, the relevant Additional Transferor shall be
treated as having received by way of a Collection the Outstanding Face
Amount of such Principal Receivable and, subject to Clause 13.3, the
Transferor or, as the case may be, the relevant Additional Transferor
shall be obliged to pay by no later than the Business Day following the
date on which such representation becomes known to the Transferor or, as
the case may be, the relevant Additional Transferor to be incorrect, an
amount equal to the Outstanding Face Amount of such Principal Receivable
18
to the Trustee Collection Account under advice to that effect to the
Receivables Trustee, PROVIDED, HOWEVER, that such Principal Receivable
shall not be reassigned to the Transferor or such Additional Transferor
but shall thereafter be treated as an Ineligible Receivable unless and
until all Receivables outstanding on the relevant Account are reassigned
to the Transferor or such Additional Transferor in the circumstances set
out in Clause 11.3.
11.2 The fulfilment of the Transferor's or, as the case may be, the relevant
Additional Transferor's obligation to make payments to the Receivables
Trustee required pursuant to Clause 11.1 in respect of a Principal
Receivable or (as the case may be) all the Principal Receivables of an
Obligor shall be in full satisfaction and discharge of any rights or
remedies which the Receivables Trustee may otherwise have had with
respect to such Principal Receivable as a result of any breach,
anticipatory breach or other circumstance on the part of or affecting the
Transferor or the Additional Transferor arising under this Agreement in
relation to such Principal Receivable or (as the case may be) the Obligor
concerned, and accordingly, the Receivables Trustee hereby acknowledges
that it will have no further or other rights with respect to such
Principal Receivable as a result of or in connection with any such
breach, anticipatory breach or other circumstance.
11.3 In the event that:
11.3.1 each and every Principal Receivable which has been assigned to
the Receivables Trustee in respect of an Account and which
remains outstanding proves to have been assigned to the
Receivables Trustee in circumstances where any representation
referred to in Clause 17.2 and 17.3 proves at any time to have
been incorrect when made with respect to such Principal
Receivables;
11.3.2 the Transferor or any Additional Transferor has re-designated
such Account as a Redesignated Account pursuant to Clause 7.2;
and
11.3.3 the obligation of the Transferor or such Additional Transfer
with respect to such Principal Receivables as set out in Clause
11.1 has been fulfilled
then the Transferor or, as the case may be, such Additional Transferor
may by five Business Days written notice require the Receivables Trustee
(at the expense of the Transferor or, as the case may be, such Additional
Transferor) to offer to reassign all (but not some only) of the
Receivables outstanding on such Redesignated Account which constitute
Trust Property to the Transferor or, as the case may be, such Additional
Transfer for a nominal consideration not to exceed [GBP]1 pursuant to an
instrument to be executed and maintained, if so requested by the
Transferor or such Additional Transferor, outside of the United Kingdom.
Following such reassignment such Receivables shall be owned by the
Transferor or, as the case may be, such Additional Transferor absolutely
and such Account shall constitute and be identified as a Removed Account
from the date of such reassignment (which shall also constitute the
relevant Removal Date).
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12. CURRENCY OF ACCOUNT AND PAYMENT
12.1 Sterling is the currency of account and payment for each and every sum at
any time due from any person hereunder and under the Future Receivables
Transfer PROVIDED, HOWEVER, that:
12.1.1 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
12.1.2 each payment which is expressed herein to be payable in another
currency shall be made in that other currency.
12.2 If any sum due from a person (a "RELEVANT PERSON") under this Agreement
or the Future Receivables Transfer or any order or judgment given or made
in relation to this Agreement or the Future Receivables Transfer has to
be converted from the currency (the "FIRST CURRENCY") in which the same
is payable hereunder or under the Future Receivables Transfer or under
such order or judgment into another currency (the "SECOND CURRENCY") for
the purpose of (i) making or filing a claim or proof against the relevant
person, (ii) obtaining an order or judgment in any court or other
tribunal or (iii) enforcing any order or judgment given or made in
relation to this Agreement or the Future Receivables Transfer, the
relevant person shall indemnify and hold harmless the person to whom such
sum is due from and against any loss suffered as a result of any
discrepancy between (a) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second
currency and (b) the rate or rates of exchange at which such person may
in the ordinary course of business purchase the first currency with the
second currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
12.3 All payments made by any person hereunder or under the Future Receivables
Transfer shall be made free and clear of and without any deduction for or
on account of any set-off or counterclaim unless otherwise agreed in
writing by the Transferor and the Receivables Trustee or, as the case may
be, such Additional Transferor and the Receivables Trustee.
13. PAYMENTS BY THE TRANSFEROR, ADDITIONAL TRANSFERORS AND THE RECEIVABLES
TRUSTEE
13.1 On each date upon which this Agreement requires an amount to be paid in
cash by or on behalf of the Transferor or any Additional Transferor to
the Receivables Trustee, the Transferor or, as the case may be, such
Additional Transferor shall, save as expressly provided otherwise herein,
make the same available to the Receivables Trustee:
13.1.1 where such amount is denominated in Sterling by payment in
Sterling and in same day funds (or in such other funds as may
for the time being be customary in London for the settlement of
international banking transactions in Sterling) to such account
and bank in London as the Receivables Trustee shall have
specified in writing for this purpose at least two Business
Days prior to such amount becoming payable; or
13.1.2 where such amount is denominated in a currency other than
Sterling, by payment in such currency and in immediately
available, freely transferable,
20
cleared funds to such account with such bank in the principal
financial centre of the country of such currency as the
Receivables Trustee shall have specified in writing for this
purpose at least five Business Days prior to such amount
becoming payable.
13.2 On each date upon which this Agreement or the Future Receivables Transfer
requires an amount to be paid in cash to the Transferor or any Additional
Transferor by or on behalf of the Receivables Trustee, the Receivables
Trustee shall, save as otherwise provided herein, make the same available
to the Transferor or such Additional Transferor:
13.2.1 where such amount is denominated in Sterling, by payment in
Sterling and in same day funds (or in such other funds as may
for the time being be customary in London for the settlement of
international banking transactions in Sterling) to the
Transferor or such Additional Transferor at such account and
bank as the Transferor or such Additional Transferor shall have
specified in writing for this purpose at least two Business
Days prior to such amount becoming payable; or
13.2.2 where such amount is denominated in a currency other than
Sterling, by payment in such currency and in immediately
available, freely transferable, cleared funds to such account
with such bank in the principal financial centre of the country
of such currency as the Transferor or such Additional
Transferor shall have specified in writing for this purpose at
least five Business Days prior to such amount becoming payable.
13.3 Notwithstanding any other provision of this Agreement or the Future
Receivables Transfer, the Transferor, each Additional Transferor and the
Receivables Trustee hereby agree and acknowledge that:
13.3.1 any amount payable by the Receivables Trustee to the Transferor
or such Additional Transferor in cash pursuant to the Future
Receivables Transfer, Clause 3.4 (in respect of the payment for
Existing Receivables) or Clause 5.1 (in respect of the payment
for Future Receivables) shall be set-off against the amount of
any shortfall in the amount to be funded by the Transferor or
such Additional Transferor as a beneficiary of the Receivables
Trust in the circumstances contemplated by Clause 5.2(f)(ii)(D)
of the Declaration of Trust and Trust Cash Management Agreement
PROVIDED, HOWEVER, that the Transferor Interest or, as the case
may be, the Additional Transferor Interest, in the Receivables
Trust is increased accordingly; and
13.3.2 the obligation of the Transferor to the Receivables Trustee to
pay an amount in cash pursuant to Clause 10.4 (in respect of
reductions in Receivables) and Clause 11.1 (in respect of
breach of warranty) may be fulfilled (in whole or in part) by a
reduction in the amount of the Transferor Interest in the
Receivables Trust in the circumstances contemplated by Clauses
5.3(a)(ii) and 5.3(d) of the Declaration of Trust and Cash
Management Agreement PROVIDED, HOWEVER, that such decrease
shall not cause the Transferor Interest or, as the case may be,
Additional Transferor Interest to be decreased to an amount of
less than zero.
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14. THE COLLECTION AGENT
The Collection Agent has been appointed by the Transferor and, upon its
accession hereunder, each Additional Transferor as its agent to process
Collections received from Obligors in respect of the Accounts. The
Transferor and any relevant Additional Transferor shall procure that all
Collections processed by the Collection Agent in respect of Designated
Accounts are allocated by the Collection Agent to the Barclaycard
Operating Account or, as the case may be, Additional Transferor Operating
Account as being Collections in respect of Designated Accounts received
for and on behalf of the Receivables Trustee.
15. BARCLAYCARD OPERATING ACCOUNT AND BARCLAYCARD PROCEEDS ACCOUNT
15.1 The Transferor has opened an account in its name for the purpose of
receiving, inter alia, Collections (the "BARCLAYCARD OPERATING ACCOUNT").
On or prior to its accession hereunder, each Additional Transferor shall
have opened an account in its name for the purpose of receiving, inter
alia, Collections (the "ADDITIONAL TRANSFEROR OPERATING ACCOUNT").
15.2 Pending application of monies from the Barclaycard Operating Account and
the Additional Transferor Operating Account to the Trustee Collection
Account either hereunder or in accordance with the Declaration of Trust
and Trust Cash Management Agreement, the sums from time to time standing
to the credit of the Barclaycard Operating Account and the Additional
Transferor Operating Account shall be held respectively by the Transferor
and the relevant Additional Transferor on trust for and to the order of
(1) the Receivables Trustee, to the extent such Collections are Principal
Collections, Finance Charge Collections or Ineligible Collections and (2)
the Transferor or, as the case may be, the Additional Transferor,
otherwise, and the Transferor and each Additional Transferor upon its
accession hereby confirms that the bank at which the Barclaycard
Operating Account and the Additional Transferor Operating Account is
maintained has been notified in writing that such account is a trust
account held on the above basis.
15.3 The Transferor has opened a bank account in its name for the purpose of
receiving cash payments due to the Transferor in respect of the Purchase
Price of Receivables (the "BARCLAYCARD PROCEEDS ACCOUNT"). On or prior
to its accession hereunder, each Additional Transferor shall have opened
an account in its name for the purpose of receiving cash payments due to
such Additional Transferor in respect of the Purchase Price of the
Receivables (the "ADDITIONAL TRANSFEROR PROCEEDS ACCOUNT").
16. THE TRUSTEE COLLECTION ACCOUNT
The Receivables Trustee has opened an account at a Qualified Institution
in the name of the Receivables Trustee (the "TRUSTEE COLLECTION
ACCOUNT").
17. REPRESENTATIONS
17.1 The Transferor represents as of the date hereof and each Additional
Transferor represents as of the date of its accession hereunder that each
of the statements set out in Parts 1 and 2 of the Fifth Schedule is true
and the Transferor and such Additional Transferor shall be
22
deemed to repeat such representations by reference to the facts and
circumstances then existing on each Closing Date specified in respect of
any Supplement.
17.2 Each Offer shall constitute a representation by the Transferor or, as the
case may be, the relevant Additional Transferor, that, in relation to
that Offer, each of the statements set out in Part 3 of the Fifth
Schedule is true with regard to the Existing Receivables identified in
such Offer which are Principal Receivables other than such Existing
Receivables which are specified in that Offer as being Ineligible
Receivables.
17.3 The Transferor or, as the case may be the relevant Additional Transferor
shall be deemed to represent in respect of each Future Receivable which
is a Principal Receivable on the Date of Processing relating thereto that
each of the statements set out in Part 3 of the Fifth Schedule is true
with regard to such Receivable unless such Principal Receivable is
specified by the Transferor or, as the case may be, the relevant
Additional Transferor as being an Ineligible Receivable pursuant to
Clause 5.1.
18. COVENANTS
18.1 The Transferor and each Additional Transferor shall:
18.1.1 pay to the Receivables Trustee by payment to the Trustee
Collection Account all payments received by the Transferor or,
as the case may be, such Additional Transferor in respect of
Receivables on Designated Accounts as soon as practicable after
receipt thereof by the Transferor;
18.1.2 notify the Receivables Trustee of the existence of any
Encumbrance on any Receivable on a Designated Account and
defend, at its own expense, the right, title and interest of
the Receivables Trustee in, to and under the Receivables on
Designated Accounts, whether now existing or created, against
all claims of third parties claiming through or under the
Transferor or, as the case may be, such Additional Transferor;
and
18.1.3 comply with and perform its obligations under the Card
Agreement relating to the Designated Accounts and the Card
Guidelines and all applicable rules and regulations of
MasterCard International Inc. and its subsidiaries, if any, and
VISA International, Inc. and its subsidiaries, if any, except
insofar as any failure to comply or perform would not cause a
Material Adverse Effect.
18.2 Neither the Transferor nor any Additional Transferor shall :
18.2.1 sell, assign, convey, transfer, lease, pledge or otherwise
dispose (or purport to do so) of any Receivable (whether now
existing or hereafter created) under a Designated Account to
any person other than the Receivables Trustee; or
18.2.2 grant, create, incur, assume or suffer to exist any Encumbrance
or purport to do so over any Receivable (whether now existing
or hereafter created) under a Designated Account or any
interest therein; or
18.2.3 consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an
entirety to any Person unless :
23
(a) the corporation formed by such consolidation or into which
the Transferor or such Additional Transferor is merged or
the Person which acquires by conveyance or transfer the
properties and assets of the Transferor or such Additional
Transferor substantially as an entirety, shall expressly
assume, by an agreement supplemental hereto, executed and
delivered to the Receivables Trustee in form satisfactory
to the Receivables Trustee, the performance of the
obligations of the Transferor or such Additional Transferor
hereunder (to the extent that any right, covenant or
obligation of the Transferor or such Additional Transferor,
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) and the Transferor or such Additional Transferor
shall also execute such documents as are necessary for such
person to become a Transferor Beneficiary and an Excess
Interest Beneficiary as contemplated in the Declaration of
Trust and Trust Cash Management Agreement;
(b) the Transferor or such Additional Transferor shall have
delivered to the Receivables Trustee an Officer's
Certificate of the Transferor or such Additional Transferor
stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this
Clause 18.2.3, and that all documentation referred to in
(a) above and any conditions precedent specified in such
documentation have been complied with, and an Opinion of
Counsel that such supplemental agreement is legal, valid,
binding and enforceable; and
(c) the Transferor or such Additional Transferor shall have
delivered notice to each Rating Agency of such
consolidation, merger, conveyance or transfer; or
18.2.4 disclose the name or address of any Obligor to any Person
seeking to enforce a claim against the Transferor or such
Additional Transferor or otherwise in breach of its obligations
of confidentiality to any Obligor, except pursuant to any
Requirement of Law.
18.3 Subject to Clause 18.4, each of the Transferor and any Additional
Transferor may from time to time amend the standard form terms and
conditions of the Card Agreements (other than the terms and conditions
which relate to the matters referred to in paragraph (iii) of the First
Schedule) or the Card Guidelines in any respect (including, without
limitation, reducing or increasing the amount of any required minimum
monthly payment or amending the calculation of the amount or the timing
of charge-offs and the Periodic Finance Charges and other fees assessed
thereon), PROVIDED, HOWEVER, that no such amendment may be made if:
18.3.1 in the reasonable belief of the Transferor or such Additional
Transferor, such amendment would cause a Pay Out Event; and
18.3.2 such amendment is not also applied to any comparable segment of
Accounts which are owned and serviced by the Transferor or such
Additional Transferor
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which have characteristics equivalent or substantially similar
to, the Designated Accounts (except as otherwise restricted by
an endorsement, sponsorship or other agreement between the
Transferor or such Additional Transferor and an unrelated third
party or by the terms of the relevant Card Agreements); and
18.3.3 the effect of such amendment would be to reduce or release any
amount owed by any Obligor in respect of any Receivable in a
Designated Account which is in existence at the time when such
amendment is made.
18.4 The Transferor and each Additional Transferor upon its accession hereby
agrees that, except as otherwise required by any Requirement of Law or as
may be determined by the Transferor or such Additional Transferor to be
necessary or in its best interests in order to maintain its credit card
and related card business (such determination being based on a good-faith
assessment by the Transferor or such Additional Transferor, in its sole
discretion, of the nature of competition in the credit card business in
the United Kingdom as a whole, or, as the case may be, in respect of
Accounts relating to an Additional Jurisdiction, of the nature of
competition in the credit card business in such Additional Jurisdiction
as a whole), it shall not at any time reduce the Periodic Finance Charges
assessed on Receivables existing or arising under any Designated Account
or other fees on any Designated Account if, as a result of such
reduction, the Transferor's or such Additional Transferor's reasonable
expectation of the Portfolio Yield (as defined in each Series Supplement)
as of such date would be less than the then Expense Rate (as defined in
each Series Supplement).
19. STAMP DUTY
19.1 Each and every Offer made pursuant to this Agreement shall be executed
and retained outside the United Kingdom and, if any such document is
introduced into the United Kingdom by any party hereto or any person
acting under the direction of or with the agreement of such a party, the
Receivables Trustee shall promptly arrange for the document so brought
into the United Kingdom to be stamped at the expense of the Receivables
Trustee PROVIDED, HOWEVER, that it is acknowledged that the obligations
of the Receivables Trustee to pay stamp duty shall be limited to the
extent that Trust Property is calculated as available for such purpose
pursuant to the Receivables Trust and not otherwise.
19.2 In the event that the Receivables Trustee accepts an Offer, the
Transferor shall take the following steps:
19.2.1 in relation to the first Offer made by the Transferor, as soon
as practicable after acceptance thereof:
(a) execute a transfer of either (i) an amount of Existing
Offered Receivables (as defined in Clause 19.3) having an
aggregate Purchase Price such that the Floating Investor
Percentage of such Purchase Price (the "STAMPABLE AMOUNT")
is at least [GBP]1,000,000 or (ii) all Existing Offered
Receivables if the stampable amount is less than
[GBP]1,000,000;
25
(b) procure that a member of the board of directors of the
Transferor or any other person specified for the purpose by
agreement with the Inland Revenue shall swear a statutory
declaration in the appropriate form;
(c) submit such transfer within 30 days of execution thereof,
together with the statutory declaration in the appropriate
form, to the Inland Revenue Stamp Office to be adjudicated
free of stamp duty under section 42 of the Finance Act
1930; and
(d) if the Inland Revenue Stamp Office adjudicate the transfer
free of stamp duty as described in (c) above, as soon as
practicable thereafter execute a further transfer
comprising either (i) all of the Existing Offered
Receivables not comprised in the transfer referred to in
(a) above or (ii) an amount of Existing Offered Receivables
not comprised in the transfer referred to in (a) above
having an aggregate Purchase Price such that the Floating
Investor Percentage of such Purchase Price is at least
[GBP]29,000,000 and take the steps referred to in (b) and
(c) above in relation to such transfer; and
(e) promptly notify each Rating Agency then rating any Related
Debt of the result of the adjudication obtained pursuant to
paragraphs (c) and (d) above;
19.2.2 in relation to any other Offer, not less than three months
after execution of the last Offer in relation to which the
following steps were taken or, failing that, not later than
three months after execution of such Offer:
(a) execute a transfer of all the Existing Offered Receivables
(subject to the proviso that in the event that the short
term rating of the senior unsecured debt of the Transferor
is rated A-3 or below by Standard & Poor's, such transfer
shall be executed on each Business Day in London);
(b) procure that a member of the board of directors of the
Transferor or any other person specified for the purpose by
agreement with the Inland Revenue shall swear a statutory
declaration in the appropriate form; and
(c) submit such transfer within 30 days of the execution
thereof, together with the statutory declaration in the
appropriate form, to the Inland Revenue Stamp Office to be
adjudicated free of stamp duty under section 42 of the
Finance Act 1930,
PROVIDED, HOWEVER that this Clause 19.2.2 shall not apply as
regards the acceptance of any Offer where, before an
application is made for adjudication of any related transfer as
referred to above, either:
(i) the Inland Revenue Stamp Office shall have refused to
adjudicate any other transfer referred to in this Clause
19.2 free of stamp duty; or
(ii)the Transferor shall have been advised by an appropriate
specialist lawyer practising in a reputable law firm of
national standing in the United
26
Kingdom that the transfer in question would not, or would
be unlikely to, qualify to be adjudicated free of stamp
duty,
PROVIDED FURTHER that this Clause 19.2.2 shall not apply at any
time when:
(1) all Receivables which have been the subject of Offers made
and accepted prior to that time shall have been the subject
of a written assignment executed by the Transferor in order
to complete the sale of such Receivables (including any
such Receivables which at the time when the assignment is
executed shall not have come into existence) to the
Receivables Trustee; and
(2) each written assignment which shall have been executed as
referred to in (1) above shall have been submitted to the
Inland Revenue Stamp Office to be adjudicated (and shall
not have been withdrawn from the Inland Revenue Stamp
Office prior to completion of the adjudication process).
19.3 In this Clause 19:
19.3.1 a statutory declaration "IN THE APPROPRIATE FORM" means a
statutory declaration substantially in a form approved by
leading tax Counsel chosen by the Transferor ("COUNSEL") for
the purposes set out in this Clause 19 as such form may be
varied or amended from time to time with the approval of
Counsel;
19.3.2 "EXISTING OFFERED RECEIVABLES" means in relation to any Offer
at any time all Receivables (whether Existing Receivables or
Future Receivables) which were the subject of such Offer and
which are in existence at the time in question.
20. NON-PETITION
20.1 The Transferor and each Additional Transferor upon its accession
covenants with the Receivables Trustee that it shall not take any
corporate action or other steps or legal proceedings for the winding-up,
dissolution or re-organisation or for the appointment of a receiver,
administrator, administrative receiver, trustee, liquidator, sequestrator
or similar officer of the Receivables Trustee (either in its own capacity
or as trustee of the Receivables Trust or otherwise) or any Investor
Beneficiary or of any or all of the revenues and assets of any of them.
20.2 The Transferor and, by its execution of an Accession Notice, any
Additional Transferor acknowledges that the obligations of the
Receivables Trustee under this Agreement at any time are limited to the
lesser, at such time, of (a) the nominal amount thereof (the "NOMINAL
AMOUNT") and (b) an amount (the "AVAILABLE AMOUNT") equivalent to the
value of the Trust Property at such time. Neither the Transferor nor any
Additional Transferor shall have a right to have recourse to, or make
demand or initiate proceedings against the Receivables Trustee at any
time whilst the nominal amount exceeds the available amount. The
Receivables Trustee shall incur no liability and be under no additional
duty to any person solely as a result of any inability on its part to
make payments or to perform other obligations under this Agreement, which
inability results from the operation of the foregoing provisions of this
Clause 20.2.
27
20.3 The Transferor and, by its execution of an Accession Notice, any
Additional Transferor agrees that it shall have no recourse, in respect
of any obligation, covenant or agreement of the Receivables Trustee,
against any shareholder, officer, agent or director of the Receivables
Trustee.
21. BENEFIT OF AGREEMENT
21.1 This Agreement shall be binding upon and enure to the benefit of each
party hereto and its successors and permitted assigns.
21.2 Except in the circumstances contemplated by the provisions of Clause
18.2.3 neither the Transferor nor any Additional Transferor in its
capacity as such shall be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder. The Receivables Trustee
agrees that it shall, at the expense of the Transferor or, as the case
may be, such Additional Transferor, execute such documents as the
Transferor or, as the case may be, such Additional Transferor may
reasonably require to effect the matters permitted pursuant to Clause
18.2.3.
21.3 The Receivables Trustee shall not be entitled to assign or transfer all
or any of its rights, benefits and obligations hereunder except to the
extent permitted and in the manner provided by the Declaration of Trust
and Trust Cash Management Agreement.
22. DISCLOSURE OF INFORMATION
22.1 The Receivables Trustee hereby agrees not to disclose to any person any
Account Information except and only to the extent permitted by applicable
law:
22.1.1 if required in connection with the performance of its duties
hereunder or under the Declaration of Trust and Trust Cash
Management Agreement and any Supplement thereto;
22.1.2 if required in order to enforce the rights of any Beneficiary
of the Receivables Trust or to a Successor Servicer appointed
pursuant to Clause 4.3 of the Beneficiaries Servicing
Agreement;
22.1.3 with the consent of the Transferor and each Additional
Transferor, in connection with any security interest any
Investor Beneficiary has created or is proposing to create over
its beneficial interest in the Receivables Trust in connection
with an issue of Related Debt; or
22.1.4 pursuant to any Requirement of Law.
22.2 The Receivables Trustee agrees to take such measures as shall be
reasonably requested by the Transferor or any Additional Transferor, to
protect and maintain the security and confidentiality of Account
Information and, in connection therewith, shall allow the Transferor and
each Additional Transferor to inspect the Receivables Trustee's security
and confidentiality arrangements from time to time during normal business
hours and upon reasonable notice being given.
22.3 If the Receivables Trustee is required by any Requirement of Law to
disclose any Account Information, the Receivables Trustee shall provide
the Transferor and each Additional Transferor with prompt written notice,
unless such notice is prohibited by
28
law, of any such request or requirement. The Receivables Trustee shall
make reasonable efforts to provide the Transferor and each Additional
Transferor with written notice no later than five days prior to any such
disclosure unless compliance with this requirement would or might breach
any law.
23. REMEDIES AND WAIVERS
23.1 No failure to exercise, nor any delay in exercising, on the part of any
party hereto, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any
other right or remedy.
23.2 The rights and remedies herein provided are cumulative and not exclusive
of any rights or remedies provided by law.
24. PARTIAL INVALIDITY
Without prejudice to any other provision hereof, if one or more
provisions hereof is or becomes invalid, illegal or unenforceable in any
respect in any jurisdiction or with respect to any party such invalidity,
illegality or unenforceability in such jurisdiction or with respect to
such party or parties shall not, to the fullest extent permitted by
applicable law, render invalid, illegal or unenforceable such provision
or provisions in any other jurisdiction or with respect to any other
party or parties hereto.
25. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same Agreement.
26. NOTICES
26.1 Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in writing and may be made by telex, telefax or
letter.
26.2 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 telefax) 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 communication 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 hereto to another shall be made to that other person at the telefax
or telex number notified to such party by that other person from time to
time:
(i) in the case of the Transferor to Barclaycard, 1234 Pavillion Drive,
Northampton NN4 7SG, Attention: Timothy Gaffney, facsimile number:
(01604) 253 163,
29
with a copy to Attention: Group General Counsel, facsimile number:
(0171) 699 4036;
(ii) in the case of any Additional Transferor, to the address and fax
number set out in the Accession Notice of such Additional
Transferor; and
(iii) in the case of the Receivables Trustee at an address for service in
London at c/o Clifford Chance Secretaries Limited, 200 Aldersgate
Street, London, EC1A 4JJ.
27. TERMINATION OF DECLARATION OF TRUST AND TRUST CASH MANAGEMENT AGREEMENT
Notwithstanding any other provision of this Agreement, the parties hereto
acknowledge that if, following the occurrence of any Insolvency Event,
the Receivables Trust is dissolved in accordance with the provisions of
Clause 6.3 of the Declaration of Trust and Trust Cash Management
Agreement, then the provisions of this Agreement shall also terminate
without further action by the parties hereto, PROVIDED, HOWEVER, that
such termination shall be without prejudice to any rights existing on or
prior to the date of such Insolvency Event (including rights relating to
the giving of notice to Obligors as set out in Clause 6 hereof).
28. LAW
This Agreement shall be governed by, and construed in accordance with,
English law.
29. JURISDICTION
29.1 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 submits to the exclusive jurisdiction
of such courts.
29.2 Each party hereto irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 29.1 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.
29.3 The Receivables Trustee irrevocably appoints the person specified against
its name below to accept service of any process on its behalf and further
undertakes to the other parties hereto that it will at all times during
the continuance of this Agreement 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 that party may
notify to the other parties hereto).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorised representatives as a deed on
the day and year first before written.
30
SCHEDULE 1
ELIGIBLE ACCOUNT CRITERIA
An Account will be an "Eligible Account" if, as at the beginning of the day on
the Pool Selection Date (in the case of a New Designated Account (as defined in
the the first Offer)) or the related Additional Selection Date (in the case of
a New Designated Account (as defined in any subsequent Offer)) or on the date
on which such Account is opened (in the case of a Future Designated Account (as
defined in any Offer) or a Relevant Account (as defined in the Future
Receivables Transfer)), as applicable, it is an Account:
(i) where the Obligor is not a company or partnership for the purposes of
Section 349(2) of the Income and Corporation Taxes Act 1988;
(ii) which was in existence and maintained with the Transferor or relevant
Additional Transferor prior to or at the time of its designation as a
Designated Account;
(iii) which is payable in pounds sterling or the lawful currency of a Permitted
Additional Jurisdiction (where the Account is in a Permitted Additional
Jurisdiction);
(iv) which is governed by a Card Agreement as amended from time to time
(provided that no amendments may be made to terms and conditions relating
to the governing law of the agreement, the assignability thereof or the
ability of the Transferor or relevant Additional Transferor to provide
information regarding Obligors to any person assuming the Transferor's or
relevant Additional Transferor's rights under the agreement) or else, if
acquired by the Transferor or relevant Additional Transferor, is governed
by contractual terms not materially different from such Card Agreement in
relation to such matters;
(v) which is governed in whole or in part by the Consumer Credit Act 1974 and
creates legal, valid and binding obligations between the Transferor or
relevant Additional Transferor and the relevant Obligor and (except in
the case of Accounts on which Restricted Eligible Receivables arise) is
enforceable against the relevant Obligor in accordance with the Card
Agreement and the Consumer Credit Act 1974, subject to applicable
bankruptcy laws, other similar laws affecting creditors' rights, general
equitable principles and other limitations on enforcement in the
jurisdiction of the relevant Obligor and was otherwise created and
complies with all other applicable laws;
(vi) where the Obligor's most recent billing address is located in either:
(a) England, Wales, Scotland, Northern Ireland or in a Permitted
Additional Jurisdiction; or
(b) a Restricted Additional Jurisdiction, provided that the balance of
the Receivables in such Account, when added to the aggregate
balance of Receivables in any other Designated Accounts located in
a Restricted Additional Jurisdiction (including any Existing
Receivables comprised in the same Offer as the Receivables in the
Account in respect of which this representation is being made)
would not cause the aggregate balance of all Receivables in
Designated Accounts located in Restricted Additional Jurisdictions
to exceed 5 per cent. of the total aggregate balance of Receivables
in the Securitised Portfolio;
31
(vii) which has not been classified by the Transferor or relevant Additional
Transferor as counterfeit, cancelled, fraudulent, stolen or lost;
(viii) which has been originated or purchased by the Transferor or relevant
Additional Transferor;
(ix) which has been operated in all material respects in accordance with the
Transferor's or relevant Additional Transferor's Card Guidelines; and
(x) the Receivables in respect of which have not been charged-off by the
Transferor or relevant Additional Transferor.
PROVIDED, HOWEVER, that:
(a) notwithstanding (i) to (x) above an Account will be an Eligible Account
if the Transferor or, as the case may be, the Additional Transferor and
the Receivables Trustee have been notified that such Account (or each
Account with such characteristics) has been approved by each Rating
Agency as an Eligible Account; and
(b) the criterion in (ii) above shall not apply in the case of a Future
Designated Account (as defined in any Offer) or a Relevant Account (as
defined in the Future Receivables Transfer).
32
SCHEDULE 2
ELIGIBLE RECEIVABLES CRITERIA
A Receivable will be an "Eligible Receivable" if it complies with the following
criteria as at: (i) in the case of Existing Receivables which are the subject
of the first Offer made by the Transferor or any Additional Transferor, the
Pool Selection Date in respect of that Offer; or (ii) in the case of any
Existing Receivable which is the subject of any subsequent Offer made by the
Transferor or any Additional Transferor, the Additional Selection Date with
respect to that Offer; or (iii) in the case of any Future Receivable, the Date
of Processing with respect to the transaction which gives rise to that
Receivable or (if different) the date on which the Receivables Trustee first
acquires that Receivable pursuant to the terms and subject to the conditions of
this Agreement or the Future Receivables Transfer:
(i) it has arisen under an Eligible Account;
(ii)
(a) it was originated in accordance with and is governed by a Card
Agreement (without waiver or amendment in any material respect as
to its governing law, its assignability or the disclosure of
information to persons who may assume rights under the Card
Agreement) and, in whole or in part, by the Consumer Credit Act
1974, or else, if acquired by the Transferor or Additional
Transferor, as the case may be, was originated in all material
respects in accordance with and is governed by contractual terms
not materially different from such Card Agreement in relation to
such matters and, in whole or in part, by the Consumer Credit Act
1974;
(b) it was otherwise created and complies with all other applicable
laws;
(c) it was originated in accordance with the Card Guidelines; and
(d) it is not a Defaulted Receivable;
(iii) it is free and clear of any encumbrances exercisable against the
Transferor, any Additional Transferor or the Receivables Trustee arising
under or through the Transferor or any Additional Transferor (or any of
their respective Affiliates) and, to which, at the time of its creation
(or at the time of its acquisition by the Transferor or relevant
Additional Transferor if such Receivable was originated by any person
other than the Transferor or relevant Additional Transferor) and at all
times thereafter, the Transferor, relevant Additional Transferor or the
Receivables Trustee had good and marketable title thereto;
(iv) constitutes the legal, valid, and binding obligations of the relevant
Obligor, enforceable (except in the case of Restricted Eligible
Receivables) in accordance with the terms of the relevant Card Agreement
and the Consumer Credit Act 1974, subject to usual bankruptcy laws, other
similar laws affecting creditors' rights, general equitable principles
and other limitations arising on enforcement in the jurisdiction of the
relevant Obligor; and
33
(v) is not currently subject to any defence, dispute, set-off, counterclaim
or enforcement order.
34
SCHEDULE 3
FORM OF OFFER
A. INITIAL OFFER
To: The Receivables Trustee
From: Transferor
Dated: 23 November 1999
Dear Sirs
OFFER
1. We refer to the receivables securitisation agreement (as from time to
time amended, supplemented or novated, the "RSA") dated 23 November, 1999
and made between ourselves and yourselves.
2. Terms defined in (or incorporated by reference into) the RSA shall bear
the same meaning herein.
3. For the purposes of this Offer we have identified in our systems the
following Product Lines (the "NEW SPECIFIED PRODUCT LINES"):
PRODUCT NO. NAME
[eg: 010] [eg: Gold Visa]
4. Each New Specified Product Line contains Accounts which are to be
Designated Accounts (the "NEW DESIGNATED ACCOUNTS"). We hereby offer you
an assignment on [date] of:
(i) the Existing Receivables under each New Designated Account;
(ii) all Future Receivables under each such New Designated Account which
are not Finance Charge Receivables until the earliest of:
(a) in respect of each New Designated Account, such time (if any)
as such Account becomes a Redesignated Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event;
(iii) all Future Receivables under each Account specified in connection
with such Offer which are Finance Charge Receivables in respect of
Receivables which are assigned (or purported to be assigned)
pursuant to paragraphs (i) and (ii) above;
35
(iv) (to the extent such are capable of assignment) the benefit of any
guarantee or insurance policy obtained by ourselves in respect of
the obligations of an Obligor to make payments on such New
Designated Accounts; and
(v) the benefit of all amounts representing Acquired Interchange in
respect of each Monthly Period.
5. In respect of future Accounts which arise on a New Specified Product Line
during the Monthly Period immediately following this Offer (the "FUTURE
DESIGNATED ACCOUNTS") we hereby offer you an assignment of:
(i) all Future Receivables under each such Future Designated Account
which are not Finance Charge Receivables until the earliest of:
(a) in respect of each Future Designated Account, such time (if
any) as such Account becomes a Redesignated Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event,
(ii) all Future Receivables under each such Future Designated Account
which are Finance Charge Receivables in respect of Receivables
which are assigned (or purported to be assigned) pursuant to
paragraph (i); and
(iii) (to the extent such are capable of assignment) the benefit of any
guarantee or insurance policy obtained by ourselves in respect of
the obligations of an Obligor to make payments on such Future
Designated Accounts.
6. In respect of the Existing Receivables identified by reference to the New
Designated Accounts we have identified the Eligible Receivables and
Ineligible Receivables comprised therein.
7. In respect of the Eligible Receivables so identified we certify that, as
at the date of this Offer:
(a) the aggregate amount of the Eligible Receivables comprised in the
Existing Receivables is [__]; and
(b) the total Purchase Price payable in respect of this Offer is
[GBP][__].
8. In respect of the Ineligible Receivables so identified, we certify that
the aggregate amount of the Ineligible Receivables comprised in the
Existing Receivables is [GBP][__].
9. Save in respect of an Existing Receivable which is identified as an
Ineligible Receivable, we warrant that each of the representations
referred to in Clause 17.2 of the RSA is true on and as of the Offer
Date, as the case may be, in respect of each Existing Receivable which is
a Principal Receivable which is offered to you hereby.
10. We acknowledge that if you accept the Offer contained herein we will be
deemed to represent in respect of each Future Receivable which is a
Principal Receivable arising on the New Designated Accounts on the Date
of Processing
36
relating thereto and each Principal Receivable arising on a Future
Designated Account on the Date of Processing relating thereto, that each
of the representations referred to in Clause 17.3 of the RSA is true on
and as of such Date of Processing save in respect of a Principal
Receivable which is identified as an Ineligible Receivable.
11. In respect of the New Specified Product Lines and New Designated Accounts
we certify and represent that no selection procedures adverse to the
Investor Beneficiaries of any Applicable Series have been employed by us
in selecting the New Specified Product Lines and New Designated Accounts
from amongst the Product Lines and Accounts in the Bank Portfolio.
Yours faithfully
for and on behalf of
BARCLAYS BANK PLC
37
B. SUBSEQUENT OFFERS
To: The Receivables Trustee
From: Transferor/Additional Transferor
Dated: [__]
Dear Sirs
OFFER
1. We refer to the receivables securitisation agreement (as from time to
time amended, supplemented or novated, the "RSA") dated 23 November, 1999
and made between ourselves and yourselves.
2. Terms defined in (or incorporated by reference into) the RSA shall bear
the same meaning herein.
3. For the purposes of this Offer we have identified in our systems the
following Product Lines (the "FUTURE ACCOUNTS SPECIFIED PRODUCT LINES"):
PRODUCT NO. NAME
[eg: 010] [eg: Gold Visa]
[Note -- this list should include all Product Lines which are below
designated as New Specified Product Lines]
4. In respect of future Accounts which arise on a Future Accounts Specified
Product Line during the Relevant Monthly Period in respect of the date of
this Offer [or state other Monthly Period if applicable] (the "FUTURE
DESIGNATED ACCOUNTS") we hereby offer you an assignment of:
(i) all Future Receivables under each such Future Designated Account
which are not Finance Charge Receivables until the earliest of:
(a) in respect of each Future Designated Account, such time (if
any) as such Account becomes a Redesignated Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event,
(ii) all Future Receivables under each such Future Designated Account
which are Finance Charge Receivables in respect of Receivables
which are assigned (or purported to be assigned) pursuant to
paragraph (i) above; and
(iii) (to the extent such are capable of assignment) the benefit of any
guarantee or insurance policy obtained by ourselves in respect of
the obligations of an Obligor to make payments on such Future
Designated Accounts.
38
5. For the purposes of this Offer we have further identified in our systems
the following Product Lines (the "NEW SPECIFIED PRODUCT LINES"):
PRODUCT NO. NAME
[eg: 010] [eg: Gold Visa]
6. Each New Specified Product Line contains Accounts which are to be
Designated Accounts (the "NEW DESIGNATED ACCOUNTS"). We hereby offer you
an assignment on [date] of:
(i) the Existing Receivables under each New Designated Account;
(ii) all Future Receivables under each such New Designated Account which
are not Finance Charge Receivables until the earliest of:
(a) in respect of each New Designated Account, such time (if any)
as such Account becomes a Redesignated Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event;
(iii) all Future Receivables under each Account specified in connection
with such Offer which are Finance Charge Receivables in respect of
Receivables which are assigned (or purported to be assigned)
pursuant to paragraphs (i) and (ii) above;
(iv) (to the extent such are capable of assignment) the benefit of any
guarantee or insurance policy obtained by ourselves in respect of
the obligations of an Obligor to make payments on such New
Designated Accounts; and
7. In respect of the Existing Receivables identified by reference to the New
Designated Accounts we have identified the Eligible Receivables and
Ineligible Receivables comprised therein. The Additional Selection Date
in relation to such Existing Receivables was [o].
8. In respect of the Eligible Receivables so identified we certify that, as
at the date of this Offer:
(a) the aggregate amount of the Eligible Receivables comprised in the
Existing Receivables is [__]; and
(b) the total Purchase Price payable in respect of this Offer is
[GBP][__]; and
(c) the total outstanding balance of the Finance Charge Receivables
comprised in the Existing Receivables is [GBP][__].
9. In respect of the Ineligible Receivables so identified, we certify that
the aggregate amount of the Ineligible Receivables comprised in the
Existing Receivables is [GBP][__].
10. Save in respect of an Existing Receivable which is identified as an
Ineligible Receivable, we warrant that each of the representations
referred to in Clause 17.2 of the RSA is true
39
on and as of the Offer Date, as the case may be, in respect of each
Existing Receivable which is a Principal Receivable which is offered to
you hereby.
11. We acknowledge that if you accept the Offer contained herein we will be
deemed to represent in respect of each Future Receivable which is a
Principal Receivable arising on the New Designated Accounts on the Date
of Processing relating thereto and each Principal Receivable arising on a
Future Designated Account on the Date of Processing relating thereto,
that each of the representations referred to in Clause 17.3 of the RSA is
true on and as of such Date of Processing save in respect of a Principal
Receivable which is identified as an Ineligible Receivable.
12. We confirm, as at the date of this Offer, that no Trust Pay Out Event has
occurred and that the statements set out in the Solvency Certificate
dated 23 November 1999 are true and correct with respect to [the
Transferor/Additional Transferor] as if references in such Solvency
Certificate to "the Offer" were references to this Offer.
13. In respect of the New Specified Product Lines and New Designated Accounts
we certify and represent that:
(a) no selection procedures adverse to the Investor Beneficiaries of
any Applicable Series have been employed by us in selecting the New
Specified Product Lines and New Designated Accounts from amongst
the Product Lines and Accounts in the Bank Portfolio; and
(b) [the Offer satisfies the Maximum Addition Amount criteria]1 or [the
Offer does not satisfy the Maximum Addition Amount criteria but we
have received written confirmation from each Rating Agency that the
inclusion of such New Designated Accounts as Designated Accounts
pursuant to Clause 2.2 of the RSA will not result in the reduction
or withdrawal of its then current rating of any outstanding Related
Debt]1
Yours faithfully
for and on behalf of
[NAME OF TRANSFEROR/ADDITIONAL TRANSFEROR]
1 Delete as appropriate
40
SCHEDULE 4 CONDITIONS
PRECEDENT TO THE SUBSEQUENT OFFERS
The Transferor and each Additional Transferor shall provide the following
documents to the Receivables Trustee (which shall be in form and substance
satisfactory to the Receivables Trustee):
1. a Solvency Certificate from the Transferor and such Additional Transferor
substantially in the form set out in the Seventh Schedule, provided that
this requirement shall be deemed to be met if the statement set out at
paragraph 12 of the form of Subsequent Offer in Schedule 3 is able to be
made and is included in the relevant Offer or the Future Receivables
Transfer (as appropriate).
2. a statement from the Transferor and such Additional Transferor in the
relevant Offer substantially in the form set out in paragraph 13(b) of
the form of Subsequent Offer in Schedule 3 confirming either:
(i) the Offer satisfies the Maximum Addition Amount criteria; or
(ii) the Offer does not satisfy the Maximum Addition Amount criteria but
the Transferor has received written notice from each Rating Agency
that the inclusion of such Accounts as Designated Accounts pursuant
to Clause 2.2 will not result in the reduction or withdrawal of its
then current rating of any outstanding Related Debt;
3. if applicable, a legal opinion addressed to the Receivables Trustee in
respect of Receivables arising in any new Permitted Additional
Jurisdiction from reputable legal advisers qualified to practise in such
new Permitted Additional Jurisdiction; and
4. a legal opinion addressed to the Receivables Trustee in respect of the
Receivables Future Transfer in a form satisfactory to the Receivables
Trustee.
41
SCHEDULE 5
PART 1
REPRESENTATIONS AS TO MATTERS OF LAW
1. ORGANISATION: It is a corporation duly organised 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 is presently conducted and with power to enter into this
Agreement and other Relevant Documents and each assignment to be entered
into by it in respect of any Receivables assigned or scheduled to be
assigned and to exercise its rights and perform its obligations
thereunder and all corporate and other action required to authorise its
execution of each Relevant Document and each such assignment and its
performance of its obligations thereunder has been duly taken or will be
taken prior to the execution of such Relevant Document or assignment (as
the case may be).
2. DUE AUTHORISATION: All acts, conditions and things required to be done,
fulfilled and performed in order (a) 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 or in any such
assignment, (b) to ensure that the obligations expressed to be assumed by
it in each Relevant Document or in any such assignment are legal, valid
and binding on it and (c) to make each Relevant Document and each such
assignment admissible in evidence in England have been done, fulfilled
and performed or will be done, fulfilled or performed prior to the
execution of such Relevant Document or assignment (as the case may be)
save for the payment of stamp duty in respect of any such assignment
under Requirement of Law.
3. NO VIOLATION: The execution of each Relevant Document by it and each
assignment to be entered into by it in respect of any Receivables
assigned or scheduled to be assigned in the manner contemplated and the
exercise of its rights and the performance of its obligations in any such
assignment will not conflict with or violate any applicable law.
4. DOCUMENTARY REQUIREMENTS: Under the laws of England in force as at the
date of making this representation, it is not necessary that each
Relevant Document or any such assignment be filed, recorded or enrolled
with any court or other authority in England or that any stamp,
registration or similar tax be paid on or in relation to each Relevant
Document or any such assignment, save for the payment of stamp duty on
any such assignment under any applicable law.
5. BINDING OBLIGATIONS: The obligations expressed to be assumed by it in
each Relevant Document and in each such assignment are legal and valid
obligations binding on it and enforceable against it in accordance with
its terms (or will be so upon execution of each such Relevant Document or
each such assignment), subject to applicable bankruptcy laws, other
similar laws affecting creditors' rights, general equitable principles
and other limitations on enforcement in the jurisdiction of the Obligor.
6. ALL CONSENTS REQUIRED: All approvals, authorisations, consents, orders or
other actions of any person or of any governmental or regulatory body or
official required in connection with the execution and delivery of each
Relevant Document and/or the assignment of Receivables in the manner
contemplated herein or therein, the
42
performance of the transactions contemplated by each Relevant Document
and the fulfilment of the terms thereof have been obtained.
PART 2
REPRESENTATIONS AS TO MATTERS OF FACT
1. NO PROCEEDINGS: There are no proceedings or investigations commenced or,
to the best of its knowledge, pending or threatened against the
Transferor or any Additional Transferor before any Court, regulatory
body, arbitral tribunal or public or administrative body or agency (i)
asserting the invalidity of any Relevant Document or of any assignment
made in the manner therein contemplated; (ii) seeking to prevent the
entering into of any such assignment or of any of the transactions
contemplated by any Relevant Document; (iii) seeking any determination or
ruling that, in the Transferor's or such Additional Transferor's
reasonable opinion, would materially and adversely affect the performance
by it of its obligations under any Relevant Document; or (iv) seeking
any determination or ruling that would materially and adversely affect
the validity or enforceability of any Relevant Document or any assignment
of Receivables to be made in the manner therein contemplated.
2. NO CONFLICT: The execution of any Relevant Document or the assignment of
any Receivables in the manner therein contemplated and the exercise by
the Transferor or any Additional Transferor of its rights and the
performance of its obligations thereunder with regard to such Receivables
will not conflict with, result in any breach of the material terms and
provisions of, or constitute a material default under, any agreement,
indenture, contract, mortgage, deed of charge or other instrument to
which it is a party or by which it or any of its assets is otherwise
bound.
3. DUE QUALIFICATION: All licences, approvals, authorisations and consents
which may be reasonably considered to be necessary in connection with the
performance of its credit card business and in particular any applicable
licences under the Consumer Credit Act 1974 and the Data Protection Act
1984 have been obtained and remain in force in all material respects.
4. TAX RESIDENCE: Each of the Transferor and each Additional Transferor is
resident for tax purposes in the United Kingdom and, in the case of the
Transferor, is a bank as defined for the purpose of Section 349(3) of the
Income and Corporation Taxes Act 1988.
PART 3
REPRESENTATIONS RELATING TO RECEIVABLES
1. ELIGIBILITY: Unless identified as an Ineligible Receivable, each
Existing Receivable which is a Principal Receivable offered to the
Receivables Trustee thereunder is, at the Pool Selection Date (in the
case of the Initial Offer) or the relevant Additional Selection Date (in
the case of a subsequent Offer) relating thereto, an Eligible Receivable
and has arisen from an Eligible Account in the amount specified in the
Offer and, unless specified in any Daily Activity Report provided to the
Receivables Trustee by the
43
Transferor pursuant to Clause 5.2, each Future Receivable which is a
Principal Receivable and each Principal Receivable arising on a Future
Designated Account (as defined in the Offer relating thereto) or (as the
case may be) on a Relevant Account (as defined in the Future Receivables
Transfer) is on the relevant Date of Processing an Eligible Receivable
and has arisen from an Eligible Account in the amount specified in such
Daily Activity Report.
2. ASSIGNMENT EFFECTIVE: The assignment of each Receivable the subject of an
Offer or the Future Receivables Transfer will be effective to pass to the
Receivables Trustee good and marketable title thereto and the benefit
thereof (including in such context, any Collections and other rights in
connection therewith such as related guarantees and Insurance Proceeds)
free of any Encumbrances in favour of any person claiming through or
under the Transferor or any of its Affiliates to the Receivables Trustee
and, subject to any limitations arising on enforcement in the
jurisdiction of the relevant Obligor, no further act, condition or thing
will be required to be done in connection therewith to enable the
Receivables Trustee to require payment of any such Receivable or to
enforce any such right in the courts of England and Wales, Scotland or
Northern Ireland or any Additional Jurisdiction without the participation
of the Transferor other than:
(1) the payment of any applicable United Kingdom stamp duty; and
(2) the giving of a Notice of Assignment.
3. COMPLIANCE: The assignment of each Receivable the subject of an Offer or
the Future Receivables Transfer is in compliance with Requirements of Law
applicable to the Transferor or, as the case may be, the Additional
Transferor on the date of such assignment.
44
SCHEDULE 6
NOTIFICATION EVENTS
1. A duly authorised officer of the Transferor shall admit in writing that
the Transferor or any Additional Transferor is unable to pay its debts as
they fall due within the meaning of Section 123(1) of the Insolvency Act
1986 or the Transferor or any Additional Transferor makes a general
assignment for the benefit of or a composition with its creditors or
voluntarily suspends payments of its obligations with a view to the
general readjustment or rescheduling of its indebtedness.
2. The Transferor or any Additional Transferor shall consent to or take any
corporate action relating to the appointment of a receiver,
administrator, administrative receiver, trustee, liquidator 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 reorganisation)
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
or substantially all of its revenues and assets is legally and validly
appointed and such appointment is not discharged within 14 days.
3. An encumbrancer legally and validly enforces its security with respect to
all or substantially all of the assets and revenues of the Transferor or
any Additional Transferor and such action by the encumbrancer is not
discharged within 14 days.
5. The Transferor or any Additional Transferor (or the Servicer on behalf of
the Transferor or any Additional Transferor) fails to pay any sum due
from it to the Receivables Trustee hereunder in respect of the Designated
Accounts within five Business Days of the due date thereof or the date of
demand, if payable on demand, in the currency and in the manner specified
herein, and such failure is not remedied within ten Business Days after
the Receivables Trustee has given notice thereof to the Transferor or
such Additional Transferor.
6. The rating of the Transferor's (or, if applicable, any Additional
Transferor's) long term senior unsecured indebtedness as rated by any of
Moody's, Standard & Poor's or Fitch falls below Baa2, BBB or BBB
respectively.
45
SCHEDULE 7
FORM OF SOLVENCY CERTIFICATE
[on letterhead of the Transferor or Additional Transferor]
("THE COMPANY")
To: The Receivables Trustee
PO Box 75
Normandy House
St. Helier
Jersey JE2 4UF
dated __________________
IN RELATION TO THE OFFER FOR THE SALE OF
CREDIT CARD RECEIVABLES BY
[BARCLAYS BANK PLC/ADDITIONAL TRANSFEROR]
IT IS HEREBY CERTIFIED that, having duly considered the provisions of Sections
123 (as to when a company is deemed to be unable to pay its debts) and 238 to
241 (as to transactions at an undervalue and preferences) of the Insolvency Act
1986 (the "ACT") the Company has determined that:
(1) as at the date hereof, the Company is not unable to pay its debts within
the meaning of Section 123 of the Act (but without reference to the court
for this purpose) or otherwise and will not become unable to do so in
consequence of the sale by way of assignment of credit card receivables
pursuant to the Offer of even date herewith made pursuant to the terms of
clause [2.1/2.2] of the receivables securitisation agreement (the "RSA")
dated 23 November 1999 and entered into between Barclays Bank PLC and the
Receivables Trustee (the "OFFER");
(2) no order has been made or resolution passed for the winding-up of the
Company and, to the best of my knowledge and belief:
(a) no petition had been presented for the winding-up of the Company;
and
(b) no receiver, administrative receiver, or receiver and manager has
been appointed in relation to the Company's property, assets or
undertaking
(disregarding proceedings which are not being pursued or are discharged
or are being contested in good faith on proper grounds where less than
sixty days have expired since their commencement);
(3) the value in money or money's worth of the consideration to be received
by the Company under the RSA following acceptance of the Offer is not
significantly less than the value, in money or money's worth, of the
consideration provided by the Company under the RSA;
46
(4) the sale of the Receivables to the Receivables Trustee and all matters
concerning the Company in connection with such matters will, to the
extent to which these were to be carried out by the Company, be effected
by the Company in good faith and for the purpose of carrying on its
business, and there are reasonable grounds for believing that the sale of
the Receivables and all related matters will benefit the Company; [and]
(5) in submitting the Offer to the Receivables Trustee the Company has not
been influenced by a desire to prefer one of the Company's creditors;
[and]
(6) [in respect of a Discount Percentage only] in the reasonable opinion of
the Company the performance of the portfolio of Designated Accounts is
such that the yield of Finance Charge Collections is not generating
adequate cashflows for the Beneficiaries of the Receivables Trust and the
size of the Discount Percentage is not intended by the Company solely to
accelerate distributions to the Excess Interest Beneficiary].
Words and expressions defined in the RSA shall, unless the context otherwise
requires, bear the same meanings when used herein.
DATED
..........................................................
Signed for and on behalf of
..........................................................
[Barclays Bank PLC/Additional Transferor]
47
SCHEDULE 8
FORM OF NOTICE OF ASSIGNMENT
From: Barclaycard, a division of Barclays Bank PLC
To: [Obligor]
Account ref: [__]
NOTICE OF ASSIGNMENT
We are writing to notify you that on Barclaycard has transferred its rights to
receive all payments made by you in respect of your [description of product]
account to Gracechurch Receivables Trustee Limited ("GRTL") to be held on trust
for Barclaycard and a subsidiary of Barclays Bank, Barclaycard Funding PLC.
This transfer related only to amounts payable for charges incurred on your
account. The account itself continued to be legally held with Barclaycard and
the terms of conditions on which the account is held did not change.
Following your receipt of this notice all payments which you are required to
make for charges on your account will now be made directly to GRTL as the party
entitled to receive those payments. However, please note that this notice is
for your information only and you do not need to do anything further in
relation to your account.
BARCLAYCARD*
*[Note: This notice could attract stamp duty if signed manually, so should
rather be stamped.]
48
SCHEDULE 9
FORM OF OFFER -- SALE OF RECEIVABLES IN DEFAULTED ACCOUNTS
From: Gracechurch Receivables Trustee Limited (in its capacity as Receivables Trustee)
To: Barclays Bank PLC (in its capacity as Transferor)
OFFER TO ASSIGN RECEIVABLES IN DEFAULTED ACCOUNTS
1. We refer to the Receivables Securitisation Agreement dated 23 November
1999 (the "RSA"). Terms defined in the RSA (including in the Master
Definitions Schedule referred to therein) shall have the same meaning in
this offer unless otherwise specified.
2. We have been notified that certain Designated Accounts have become
Defaulted Accounts during the Monthly Period which commenced on [date].
The balance of Receivables in such Defaulted Accounts is [[GBP]o] (the
"DEFAULTED RECEIVABLES").
3. We hereby offer you an assignment of the Defaulted Receivables for the
consideration and on the payment terms set out in Clause 10.5 of the RSA.
__________________________________________
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
49
SCHEDULE 10
FORM OF FUTURE RECEIVABLES TRANSFER
ASSIGNMENT OF RECEIVABLES
THIS DEED OF ASSIGNMENT OF RECEIVABLES IS MADE THE DAY OF , 2000
BETWEEN:
(1) 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 Pavillion Drive, Northampton NN4 7SG (the
"TRANSFEROR"); and
(2) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey
having its registered office at 26 New Street, St. Helier, Jersey JE2
3RA, Channel Islands, in its capacity as trustee of the Receivables Trust
(the "RECEIVABLES TRUSTEE").
IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Unless otherwise defined herein, terms defined in (or incorporated by
reference into) the receivables securitisation agreement dated 23
November 1999 between the Transferor and the Receivables Trustee (as
amended and restated from time to time) shall bear the same meaning
herein.
1.2 In this Deed:
"ADDITIONAL RIGHTS" means any guarantees or insurance policies obtained
by the Transferor in respect of the obligations of Obligors to make
payments on Relevant Accounts insofar as any claims thereunder relate to
any Relevant Receivables;
"RELEVANT ACCOUNT" means an Account which is opened on or after 1 August
2000 on any Product Line which (at the time when such Account is opened)
fulfils the condition that each Account on the relevant Product Line is
identified on the "Triumph" accounting system (or any other accounting
system used by Barclays Bank PLC from time to time to perform the same or
similar functions) by a 3 digit number which is either one of the numbers
listed in the following table under the heading "Product Number" or a
number between 023 and 500 (inclusive) and so that (for the avoidance of
doubt) "Relevant Accounts" shall not be confined to Accounts opened on
Product Lines which are in existence at the date hereof;
PRODUCT NUMBER NAME (IF KNOWN)
001 Stockton Visa
002 Manchester Visa
003 Ford Visa
50
PRODUCT NUMBER NAME (IF KNOWN)
004 Stockton Mastercard
005 Manchester Mastercard
006 Ford Mastercard
007 Premier Card
008 Student
009 Graduate
010 Gold Visa
011 Sense
012 Visa Trial
013
014 Gold Mastercard
015 Plus/Reserve
016 Advance Visa
017 Platinum Visa
018 Platinum Mastercard
019 First Visa
020 Alpha Visa
021
022 Choice Visa
"RELEVANT FINANCE CHARGE RECEIVABLE" means any future Finance Charge
Receivable (other than any Relevant Receivable) in respect of a Relevant
Receivable;
"RELEVANT PRINCIPAL RECEIVABLE" means any Principal Receivable which is a
Relevant Receivable; and
"RELEVANT RECEIVABLE" means any Future Receivable which arises on a
Relevant Account and comes into existence before the earliest of:
(i) such time (if any) as such Relevant Account becomes a Redesignated
Account;
(ii) the termination of the Receivables Trust; and
(iii) the occurrence of an Insolvency Event.
2. ASSIGNMENT
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The Transferor hereby CONVEYS, TRANSFERS and ASSIGNS to the Receivables
Trustee with full title guarantee, subject only to the subsisting rights
of Obligors, the benefit of the Transferor's interest and entitlement,
both present and future, actual or contingent, in and to:
(i) the Relevant Receivables;
(ii) all Relevant Finance Charge Receivables; and
(iii) the Additional Rights.
3. PAYMENT FOR RECEIVABLES
3.1 As an initial instalment of consideration for the assignment of the
Relevant Receivables pursuant to this Deed, the Receivables Trustee shall
pay to the Transferor [GBP]10,000 on the date hereof (if and to the
extent that funds are available for the purpose in accordance with clause
5.2 of the RSA and otherwise as and when such funds are available):
3.2 Subject to the provisions of clause 3.1 above and clause 4 below and the
other provisions of this Deed, the provisions of the RSA relating to the
calculation and payment of the consideration for the assignment of Future
Receivables shall apply in relation to any Future Receivables which are
assigned pursuant to this Deed as such provisions apply in relation to
all other Future Receivables referred to in the RSA PROVIDED THAT the
payment of [GBP]10,000 referred to in clause 3.1 above shall be treated
as a non-refundable payment on account of any amounts that may become
payable on or after the date hereof under clause 5.1 of the RSA in
respect of Future Receivables assigned pursuant to this Deed and
accordingly no amount shall be payable under clause 5.1 of the RSA in
respect of Future Receivables assigned pursuant to this Deed unless and
until the Receivables Trustee shall have paid the deferred amount (as
defined in clause 5.3 of the RSA) in full in accordance with clause 5.3
of the RSA.
4. PAYMENT ADJUSTMENT
4.1 If, at any time, the Receivable Trustee considers that any amount that is
required to be paid under the provisions of the RSA and this Deed as
consideration for the assignment of any assets pursuant to this Deed is
or may be materially in excess of the market value of the assets to which
it is referable, the Receivables Trustee may request the Rating Agencies
to determine whether there would be a down-grading of the Notes as a
result of the method of determining such amount.
4.2 If, following a request by the Receivables Trustee made in accordance
with clause 4.1 above, the Rating Agencies determine that there would be
a down-grading of the Notes as a result of the method of determining any
amount that is required to be paid as mentioned in clause 4.1 above, such
method shall be replaced by an alternative pricing mechanism approved by
the Rating Agencies as being suitable to allow the rating of the Notes to
be maintained and such amount shall be adjusted accordingly.
5. REPRESENTATIONS AND WARRANTIES
5.1 The Transferor hereby warrants and represents to the Receivables Trustee
that:
52
(i) as of each Date of Processing relating to any Relevant Principal
Receivables, each of the representations referred to in clause 17.3
of the RSA is true in respect of each such Relevant Principal
Receivables;
(ii) as at the date hereof, no Trust Pay Out has occurred and the
statements set out in the Solvency Certificate dated 23 November
are true and correct with respect to the Transferor as if
references in such Solvency Certificate to "the Offer" were
references to this Future Receivables Transfer;
(iii) no selection procedures adverse to the Investor Beneficiaries of
any Applicable Series have been or will be employed by the
Transferor in selecting the Relevant Accounts; and
(iv) this Future Receivables Transfer satisfies and will satisfy the
Maximum Addition Amount criteria.
6. MISCELLANEOUS
6.1 For the avoidance of doubt, the parties hereby agree that the provisions
of clause 6.7.2 of the Receivables Securitisation Agreement shall not be
breached by their entry into, and the operation of, this Deed.
6.2 The provisions of clauses 24 (Partial Invalidity), 25 (Counterparts), 26
(Notices) and 29 (Jurisdiction) of the Receivables Securitisation
Agreement shall apply to this Deed mutatis mutandis.
7. ACKNOWLEDGEMENT
For the avoidance of doubt, the parties acknowledge that if, at any time
after the date hereof, any of the 3 digit numbers set out or referred to
in the definition of "Relevant Account" is either:
(i) allocated to be used for the purpose of identifying Accounts as
being included in a particular Product Line; or
(ii) used upon the opening of any Account to identify that Account as
being included in a particular Product Line;
no Receivables and no Additional Rights which (in each case) shall be in
existence at that time shall be assigned to the Receivables Trustee
pursuant to this Deed solely as a result of the said 3 digit code being
so allocated or used.
8. COSTS AND EXPENSES
The Transferor shall, from time to time on demand of the Receivables Trustee,
reimburse the Receivables Trustee for all costs and expenses (including legal
fees) (together with any VAT chargeable thereon) that are incurred by the
Receivables Trustee in or in connection with the preparation and execution of
this Deed.
53
9. GOVERNING LAW
This Deed shall be governed by and construed in accordance with English
law.
54
IN WITNESS WHEREOF the parties have executed and delivered this document as a
deed on the day and year first before written.
Signed for and on behalf of )
BARCLAYS BANK PLC )
by its duly authorised attorney )
in the presence of: )
_______________________ (Signature of Witness)
_______________________ (Full name of Witness)
_______________________ (Address of Witness)
Executed as a deed by )
GRACECHURCH RECEIVABLES TRUSTEE )
LIMITED pursuant to a resolution of the Board)
ADDRESS FOR SERVICE:
Clifford Chance Secretaries Limited
200 Aldersgate Street
London EC1A 4JJ
55
EXECUTION PAGE
THE TRANSFEROR
Signed for and on behalf of )
BARCLAYS BANK PLC ) MARK WINTER
by its duly authorised attorney )
in the presence of: )
GINA HARTNETT
Name:
Occupation:
Address:
THE RECEIVABLES TRUSTEE
Executed as a deed by GRACECHURCH )
RECEIVABLES TRUSTEE LIMITED ) PETER S. CROOK
pursuant to a resolution of the Board )
ADDRESS FOR SERVICE
Clifford Chance Secretaries Limited
200 Aldersgate Street
London EC1A 4JJ
56
EXECUTION PAGE TO AMENDMENT AGREEMENT
THE TRANSFEROR
Signed for and on behalf of )
BARCLAYS BANK PLC ) PATRICK BUXTON
by its duly authorised attorney )
in the presence of: )
EDWARD MANCHESTER
Name:
Occupation:
Address:
THE RECEIVABLES TRUSTEE
Executed as a deed by GRACECHURCH )
RECEIVABLES TRUSTEE LIMITED ) RICHARD GERWAT
pursuant to a resolution of the Board )
ADDRESS FOR SERVICE
Clifford Chance Secretaries Limited
200 Aldersgate Street
London EC1A 4JJ
IV