Exhibit 4.1
CONFORMED COPY
DATED 23 NOVEMBER 1999
BETWEEN
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
As Receivables Trustee
And
BARCLAYS BANK PLC
As Beneficiary
And
BARCLAYCARD FUNDING PLC
As Beneficiary
-----------------------------------
DEED OF AMENDMENT AND RESTATEMENT
RELATING TO A DECLARATION OF TRUST
DATED 1 NOVEMBER 1999
-----------------------------------
CLIFFORD CHANCE
THIS DEED is made on 23 November 1999
BETWEEN
(1) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey
having its registered office at One The Forum, Grenville Street, St.
Helier, Jersey JE4 8PP, Channel Islands (the "RECEIVABLES TRUSTEE");
(2) BARCLAYS BANK PLC, an institution authorised under the Banking Act 1987,
acting through its business unit "Barclaycard", having its principal
place of business at 1234 Pavillion Drive, Northampton NN4 7SG
("BARCLAYS"); and
(3) BARCLAYCARD FUNDING PLC, a public limited company incorporated in England
and Wales, with company number 2530163 and having its registered office
at 54 Lombard Street, London EC3P 3AH ("BCF" and, together with Barclays,
the "BENEFICIARIES").
RECITALS
(A) The Receivables Trustee and the Beneficiaries have entered into a
Declaration of Trust dated 1 November 1999 (the "DECLARATION OF TRUST").
(B) The Receivables Trustee and the Beneficiaries wish to vary the terms of
the Declaration of Trust as set out in the Schedule to this Deed.
IT IS AGREED as follows.
1. INTERPRETATION
1.1 In this Deed any reference to a "Clause" or "Schedule" is, unless the
context otherwise requires, a reference to a Clause or Schedule hereof.
Clause headings are for ease of reference only.
2. RESTATEMENT
With effect from the date of this Deed the Declaration of Trust shall be
amended and restated so that it shall be read and construed for all
purposes as set out in the Schedule.
3. CONTINUITY AND FURTHER ASSURANCE
3.1 The provisions of Declaration of Trust shall, save as amended hereby,
continue in full force and effect.
3.2 Each of the Receivables Trustee and the Beneficiaries shall do all such
acts and things necessary or desirable to give effect to the amendments
effected or to be effected pursuant to this Deed.
4. NO AGENCY
Nothing contained herein (or in any other agreement (in writing or
otherwise) amending, modifying or replacing this Deed) shall cause the
Receivables Trustee to be an agent of the Beneficiaries for any purpose
or shall be construed as giving rise to any such agency.
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5. GOVERNING LAW AND JURISDICTION
5.1 This Deed shall be governed by, and construed in accordance with the laws
of England.
5.2 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 Deed, and for
such purposes, irrevocably submit to the exclusive jurisdiction of such
courts.
5.3 Each of the parties hereto irrevocably waives any objection which it
might now or hereafter have to the courts of England referred to in
Clause 5.2 being nominated as the forum to hear and determine any suit,
action or proceeding, and to settle any disputes, which may arise out of
or in connection with this Deed and agrees not to claim that any such
court is not a convenient or appropriate forum.
5.4 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 Deed 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).
6. COUNTERPARTS
This Deed may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the Receivables Trustee, Barclays and BCF have
caused this deed to be duly executed and delivered by their duly authorised
representatives as a deed on the day and year first above written.
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RECEIVABLES TRUSTEE
Executed as a deed by )
GRACECHURCH RECEIVABLES TRUSTEE LIMITED )PETER S. CROOK
pursuant to a resolution of )
the Board )
ADDRESS FOR SERVICE:
c/- Clifford Chance Secretaries
200 Aldersgate Street
London EC1A 4JJ
BARCLAYS
Signed for and on behalf of )
BARCLAYS BANK PLC )MARK WINTER
by its duly authorised attorney )
in the presence of: )
SHARARE HAU
Name:
Occupation:
Address:
BCF
Executed as a deed by )D. ROGER FINNEY
BARCLAYCARD FUNDING PLC )
pursuant to a resolution of the Board )PETER S. CROOK
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SCHEDULE
RESTATED DECLARATION OF TRUST
[INSERT LOGO]
CONFORMED COPY
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
As Receivables Trustee
AND
BARCLAYS BANK PLC
As Trust Cash Manager, Transferor Beneficiary and Excess Interest Beneficiary
------------------------------
DECLARATION OF TRUST AND TRUST CASH
MANAGEMENT AGREEMENT
------------------------------
[INSERT LOGO]
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CONTENTS
CLAUSE PAGE
PART 1 3
1. Definitions.................................................................. 3
1.1 Definitions................................................................. 3
1.2 Other Definitional Provisions............................................... 3
PART 2 5
2. Declaration Of Trust......................................................... 5
2.1 Declaration Of Trust........................................................ 5
2.2 Application Of Trust Property............................................... 5
3. Rights Of Beneficiaries...................................................... 6
3.1 Undivided Interest And Other Interests In Trust Property.................... 6
3.2 Rights Of Beneficiaries..................................................... 6
3.3 Allocation Of Investor Cash Available For Acquisition To Transferor Interest 7
3.4 Non-Petition Undertaking Of Beneficiaries................................... 8
3.5 The Trust Certificates...................................................... 8
3.6 The Trust Certificate Register.............................................. 8
3.7 Disposals Of Beneficial Entitlement......................................... 9
4. Additional Beneficiaries And Tender Of Trust Certificates.................... 11
4.1 Acquisitions And Additional Beneficiaries................................... 11
4.2 Exchange Of Certificates.................................................... 11
4.3 Supplements................................................................. 13
4.4 Allocation Of Amounts Paid Pursuant To An Acquisition....................... 16
4.5 Accession Of Additional Transferor As Transferor Beneficiary................ 16
5. Allocation And Application Of Collections.................................... 18
5.1 Establishment Of Trust Accounts............................................. 18
5.2 Collections And Allocations................................................. 21
5.3 Adjustments................................................................. 26
6. Pay Out Events....................................................... 30
6.1 Trust Pay Out Events................................................. 30
6.2 Series Pay Out Events................................................ 31
6.3 Additional Rights Upon The Occurrence Of Certain Events.............. 31
PART 3 34
7. The Receivables Trustee............................................... 34
7.1 Duties Of The Receivables Trustee.................................... 34
7.2 Certain Matters Affecting The Receivables Trustee.................... 35
7.3 Receivables Trustee Not Liable For Validity Or Sufficiency........... 37
7.4 Resignation Or Removal Of The Receivables Trustee.................... 37
7.5 Successor Receivables Trustee........................................ 38
7.6 Appointment Of Co-Receivables Trustee Or Separate Receivables Trustee 38
7.7 Tax Returns.......................................................... 40
7.8 Receivables Trustee May Enforce Claims Without Beneficiaries....................... 40
7.9 Suits For Enforcement.............................................................. 40
7.10 Consideration Of The Interests Of The Beneficiaries................................ 41
7.11 Rights Of Investor Beneficiaries To Direct The Receivables Trustee................. 41
7.12 Representations And Warranties Of The Receivables Trustee.......................... 41
7.13 Covenants By The Receivables Trustee............................................... 42
7.14 Supplement To Trustee Act 1925..................................................... 43
7.15 Fees, Costs And Expenses Of The Receivables Trustee................................ 43
7.16 Trustee Fee........................................................................ 44
7.17 Limitation......................................................................... 44
7.18 Disclosure Of Information.......................................................... 44
8. Termination Of The Receivables Trust And Perpetuity................................. 45
8.1 Termination Of The Receivables Trust............................................... 45
8.2 Termination Rights Of Transferor Beneficiaries..................................... 45
8.3 Perpetuity Period.................................................................. 45
PART 4 46
9. Trust Cash Management Functions..................................................... 46
9.1 Acceptance Of Appointment And Other Matters Relating To The Trust Cash Manager..... 46
9.2 Trust Cash Management Fees......................................................... 48
9.3 Representations And Warranties Of The Trust Cash Manager And Co-Trust Cash Managers
49
9.4 Compliance With Requirements Of Law................................................ 50
9.5 Reports And Records For The Receivables Trustee.................................... 50
9.6 Annual Trust Cash Manager's Report................................................. 53
9.7 Notices To Barclays Bank Plc....................................................... 53
10. Other Matters Relating To The Trust Cash Manager And Any Co-Trust Cash Manager...... 54
10.1 Liability Of The Trust Cash Manager And Any Co-Trust Cash Manager.................. 54
10.2 Merger Or Consolidation Of, Or Assumption Of The Obligations Of,
The Trust Cash Manager Or Any Co-Trust Cash Manager................................ 54
10.3 Limitation On Liability Of The Trust Cash Manager, Any Co-Trust Cash Manager And Others
54
10.4 Trust Cash Manager And Co-Trust Cash Manager Indemnification Of
The Receivables Trust And The Receivables Trustee...................................... 55
10.5 The Trust Cash Manager And Any Co-Trust Cash Manager Not To Resign..................... 56
10.6 Delegation Of Duties................................................................... 56
11. Trust Cash Manager Defaults............................................................. 57
11.1 Trust Cash Manager Defaults............................................................ 57
11.2 Effect Of Termination Notice........................................................... 58
11.3 Receivables Trustee To Act; Appointment Of Successor................................... 59
11.4 Notification Of Trust Cash Manager Default............................................. 61
11.5 Waiver Of Past Defaults................................................................ 61
PART 5 63
12. Miscellaneous Provisions................................................................ 62
12.1 Acknowledgement Regarding Payments..................................................... 62
12.2 Additional Transferor Payments......................................................... 62
12.3 Amendment.............................................................................. 62
12.4 Governing Law And Jurisdiction......................................................... 63
12.5 Notices................................................................................ 64
12.6 Severability Of Provisions............................................................. 65
12.7 Assignment............................................................................. 65
12.8 Further Assurances..................................................................... 65
12.9 No Waiver; Cumulative Remedies......................................................... 65
12.10 Counterparts........................................................................... 65
12.11 Third Party Beneficiaries.............................................................. 65
12.12 Actions By Beneficiaries............................................................... 66
12.13 Voting By Investor Beneficiaries....................................................... 66
12.14 Merger And Integration................................................................. 66
12.15 Headings............................................................................... 66
SCHEDULE 1 General Principles Relating To Calculations And Applications 67
SCHEDULE 2 Form Of Defaulted Accounts Instruction Notice............... 72
EXHIBIT A............................................................... 73
EXHIBIT B............................................................... 76
EXHIBIT C............................................................... 79
DECLARATION OF TRUST AND TRUST CASH MANAGEMENT AGREEMENT
(AS AMENDED AND RESTATED PURSUANT TO A DEED OF AMENDMENT
AND RESTATEMENT DATED 23 NOVEMBER 1999)
BETWEEN:
(1) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey
having its registered office at Normandy House, Grenville Street, St.
Helier, Jersey JE2 4UF, Channel Islands (the "RECEIVABLES TRUSTEE");
(2) BARCLAYS BANK PLC, an institution authorised under the Banking Act 1987,
acting through its business unit "Barclaycard", having its principal
place of business at 1234 Pavillion Drive, Northampton NN4 7SG (in its
capacities as "TRUST CASH MANAGER", "TRANSFEROR BENEFICIARY" and "EXCESS
INTEREST BENEFICIARY" of the Receivables Trust).
WHEREAS:
(A) The Transferor is the legal owner of the Receivables (which terms and
certain other capitalised terms used in these recitals bear the meaning
given to them in Article I below).
(B) Pursuant to the terms and subject to the conditions of the RSA the
Transferor and any nominated subsidiary thereof which accedes to the RSA
as an Additional Transferor may from time to time offer to sell by way of
assignment (without notice to Obligors except following a Notification
Event, which assignment shall, pending the giving of such notice, take
effect in equity only) all Receivables arising on Designated Accounts
(being Receivables and Designated Accounts in existence on the date of
such offer and Receivables and Designated Accounts arising thereafter) to
the Receivables Trustee.
(C) On 1 November 1999 the Receivables Trustee entered into a declaration of
trust on the terms set out therein.
(D) The Receivables Trustee, as of the date hereof, has entered into a deed
of amendment and restatement pursuant to which the terms of the foregoing
declaration of trust have been amended, supplemented and restated as
provided in this Deed.
(E) The Receivables Trust is established primarily for the purpose of
enabling the Receivables Trustee to: (i) provide financial investments
(in debts) to existing and prospective Beneficiaries by granting
beneficial interests to them under the Receivables Trust (and issuing
Trust Certificates to them to evidence the same); and (ii) receive
amounts paid by Obligors in respect of Receivables and transfer such
amounts as appropriate and pay such amounts to the Beneficiaries in the
proportions that they have agreed (as set out herein and in any related
Supplement) and the Receivables Trustee has entered into a declaration of
trust on the terms set out herein in order to place itself in a position
to grant such interests and effect such receipts, transfers and payments.
(F) Under the terms of this Deed and any related Supplement, each Beneficiary
will acquire an interest under the Receivables Trust by making payments
to the Receivables Trustee, upon the terms and subject to the conditions
hereof, and of any related Supplement.
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(G) The Trust Cash Manager has agreed, upon the terms and subject to the
conditions hereof, to act as Trust Cash Manager in connection with the
Receivables from time to time assigned to the Receivables Trustee.
NOW IT IS HEREBY AGREED as follows:
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PART 1
INTERPRETATION
1. DEFINITIONS
1.1 DEFINITIONS
Whenever used in this Deed, the words and phrases defined in the Master
Definitions Schedule dated 23 November 1999 and signed by the parties hereto
shall, unless otherwise defined herein or the context requires otherwise, bear
the same meanings herein (including the recitals hereto).
1.2 OTHER DEFINITIONAL PROVISIONS
(a) All terms defined in this Deed or any Supplement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or delivered
pursuant hereto or thereto, accounting terms not defined in Clause 1.1,
and accounting terms partially defined in Clause 1.1 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles in the United Kingdom. To the extent that
the definitions of accounting terms herein are inconsistent with the
meanings of such terms under generally accepted accounting principles in
the United Kingdom, the definitions contained herein shall prevail.
(c) The agreements, representations and warranties of Barclays Bank PLC in
this Deed and any Supplement in each of its capacities as Transferor,
Transferor Beneficiary, Excess Interest Beneficiary and Trust Cash
Manager shall be deemed to be the agreements, representations and
warranties of Barclays Bank PLC solely in each such capacity for so long
as Barclays Bank PLC acts in each such capacity under this Deed.
(d) The words "hereof", "herein" and "hereunder" and words of similar import
when used in this Deed shall refer to this Deed and any Supplement as a
whole and not to any particular provision of this Deed or any Supplement;
and Clause, paragraph, Schedule and Exhibit references contained in this
Deed or any Supplement are references to clauses, paragraphs, schedules
and exhibits of this Deed or any Supplement unless otherwise specified.
(e) A time of day (including opening or closing of business) shall be
construed as a reference to London time unless specified otherwise.
(f)
(i) Save where the context otherwise requires, all sums payable by any
party to any other party pursuant hereto are inclusive of any VAT
which is chargeable on the supply or supplies for which such sums
(or any part thereof) are the whole or part of the consideration
for VAT purposes and section 89 of the Value Added Tax Act 1994
shall not apply to affect the amount of such sums.
(ii) Any reference herein to any fee, cost, disbursement, expense or
liability incurred by any party and in respect of which such party
is to be reimbursed (or indemnified) by any other person or the
amount of which is to be taken into
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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.
(g) All references herein to any provision of any statute shall be construed
so as to include any statutory modification or re-enactment thereof or
any statutory instrument, order or regulation made thereunder or under
such modification or re-enactment.
(h) Save where the contrary is indicated, any reference in this Deed or any
Supplement to this Deed or any other agreement or document shall be
construed as a reference to this Deed or any Supplement or, as the case
may be, such other agreement or document as the same may have been, or
may from time to time be, amended, varied, novated or supplemented.
(i) In this Deed a "subsidiary" of a company or corporation shall be
construed as a reference to any company or corporation:
(iii) which is controlled, directly or indirectly, by the first-mentioned
company or corporation;
(iv) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(v) 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.
(j) In this Deed:
(i) references, in relation to any person, to where it "belongs" for
VAT purposes are references to where it belongs for the purposes of
section 9 of the Value Added Tax Act 1994 in relation to both
services to be supplied by and services to be supplied to such
person in connection with the transactions contemplated by the
Relevant Documents; and
(ii) references in the context of VAT to "member states of the European
Union" and "the European Union" shall be construed as references to
"member States" and "the territory of the Community" as such terms
are used in the Value Added Tax Act 1994 and legislation
supplemental thereto.
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PART 2
DECLARATION OF TRUST AND OPERATION OF TRUST
2. DECLARATION OF TRUST
2.1 DECLARATION OF TRUST
The Receivables Trustee hereby declares that it shall hold all Trust Property
absolutely upon the trusts herein contained (and for the purposes referred to
in this Clause 2.1) for the Transferor Beneficiary and the Excess Interest
Beneficiary as the initial Beneficiaries and for each nominated subsidiary of
the Transferor Beneficiary and the Excess Interest Beneficiary which accedes
from time to time to the RSA as an Additional Transferor and for each other
person that becomes a Beneficiary pursuant to Clause 4 and shall hold the Trust
Property for the purpose of receiving amounts arising therefrom and
transferring and distributing such amounts in accordance with the provisions
hereof as such provisions may be amended, supplemented or varied from time to
time in the manner provided herein. The Beneficiaries acknowledge that any
other duties of the Receivables Trustee as set out herein and in any of the
Relevant Documents shall be incidental and ancillary to the foregoing and to
the granting of interests by the Receivables Trustee to the Beneficiaries in
the manner provided in Clause 4. Such trusts shall hereinafter be referred to
as the "RECEIVABLES TRUST".
2.2 APPLICATION OF TRUST PROPERTY
The Receivables Trustee shall apply Trust Property in the manner and order of
priority set out in Clause 5 and shall perform calculations and allocations in
a manner consistent with the principles set out in the First Schedule, as such
principles may be amended, supplemented or varied from time to time in the
manner provided herein.
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3. RIGHTS OF BENEFICIARIES
3.1 UNDIVIDED INTEREST AND OTHER INTERESTS IN TRUST PROPERTY
Each Investor Beneficiary and each Transferor Beneficiary shall be, inter alia,
beneficially entitled to an Undivided Interest in the Eligible Receivables Pool
and related Principal Collections and Finance Charge Collections in a
proportion calculated in the manner set out herein. Each Transferor Beneficiary
shall also be beneficially entitled to its pro rata share of the entire
Ineligible Receivables Pool and related Ineligible Collections. Each
Beneficiary will be also entitled to Trust Property specified as being the
beneficial entitlement of such Beneficiary.
3.2 RIGHTS OF BENEFICIARIES
Each Beneficiary of the Receivables Trust will belong to one of the categories
of Beneficiaries set out below for the purposes of this Deed. The calculation
of its beneficial entitlement to Trust Property, unless otherwise specified
herein, shall be specified in any related Supplement. The categories of
Beneficiaries are as follows:
(k) INVESTOR BENEFICIARY
The beneficial entitlement of each Investor Beneficiary to Trust Property
shall be specified in the related Supplement and shall be expressed to
constitute or form part of a Series.
(l) ENHANCEMENT PROVIDER
If the related Supplement specifies that an Enhancement Provider is to be
a Beneficiary of the Receivables Trust, the beneficial entitlement of
such Enhancement Provider to Trust Property shall be specified in the
related Supplement and shall be expressed to constitute or form part of a
Series.
(m) EXCESS INTEREST BENEFICIARY
The beneficial entitlement of each Excess Interest Beneficiary to Trust
Property at any time shall be to its pro rata share of the Finance Charge
Collections and Acquired Interchange in respect of any Monthly Period
allocable to any Applicable Series after Finance Charge Collections and
Acquired Interchange have been allocated to each other Beneficiary
forming part of such Series or group of Series, if applicable, and have
been utilised by making payments to the Enhancement Provider (if the
Enhancement Provider is not a Beneficiary) on the related Transfer Date
("EXCESS FINANCE CHARGE AMOUNTS").
(n) TRANSFEROR BENEFICIARY
The beneficial entitlement of each Transferor Beneficiary to Trust
Property at any time shall be as follows:-
(i) the beneficial entitlement of the Transferor Beneficiary to
Principal Receivables which are Eligible Receivables (which shall
include Principal Collections in respect of such Receivables which
represent Trust Property) shall be equal to its pro rata share of
the Transferor Percentage of Principal Receivables which are
Eligible Receivables from time to time assigned or purported to be
assigned to the Receivables Trust (which shall include Principal
Collections in respect of such Receivables which represent Trust
Property) PROVIDED, HOWEVER, that the
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Transferor Percentage shall be calculated for such purpose on the
basis that the Investor Percentage of each Series is calculated as
the Floating Investor Percentage of such Series;
(ii) the beneficial entitlement of each Transferor Beneficiary to
Finance Charge Collections shall be equal to its pro rata share of
the Transferor Percentage of Finance Charge Receivables from time
to time assigned or purported to be assigned to the Receivables
Trust;
(iii) each Transferor Beneficiary shall be beneficially entitled to its
pro rata share of all Ineligible Receivables forming part of the
Ineligible Receivables Pool from time to time; and
(iv) each Transferor Beneficiary shall be beneficially entitled to its
pro rata share of all monies held in the Trust Accounts which
represent investment earnings accrued on Permitted Investments made
using monies deposited in such Trust Accounts, unless otherwise
provided with respect to Additional Trust Accounts in any related
Supplement
PROVIDED, HOWEVER, without prejudice to the preceding paragraphs, that
the beneficial entitlement of each Transferor Beneficiary to any other
Trust Property at any time shall be equal to the proportion that its pro
rata share of the Transferor Interest bears to the amount of Principal
Receivables which are Eligible Receivables from time to time assigned or
purported to be assigned to the Receivables Trust.
Notwithstanding the beneficial entitlement to Trust Property referred to in (a)
to (d) above, (A) except as provided in (B) below, each Beneficiary shall be
beneficially entitled to all monies held in any Trust Account from time to time
which are expressly segregated by or on behalf of the Receivables Trustee
(whether by way of separate Trust Account or ledger entry or otherwise) as
allocated to such Beneficiary; (B) the Beneficiaries constituting each Series
shall together be beneficially entitled in the manner and in the proportions
specified in the related Supplement to all monies held in any Trust Account
from time to time which are expressly segregated by or on behalf of the
Receivables Trustee (whether by way of separate Trust Account or ledger entry
or otherwise) as allocated to such Series; and (C) Finance Charge Receivables
shall not be allocated to each Beneficiary but the Beneficiaries shall be
beneficially entitled jointly to such Receivables PROVIDED, HOWEVER that the
beneficial entitlement of each Beneficiary to Finance Charge Collections shall
be specified in this Deed or in any related Supplement hereto.
3.3 ALLOCATION OF INVESTOR CASH AVAILABLE FOR ACQUISITION TO TRANSFEROR INTEREST
Following the calculation of amounts of Principal Collections available for
allocation to each Beneficiary, amounts held in the Trust Accounts calculated
as representing Investor Cash Available for Acquisition which are not to be
utilised on that day in funding the purchase of Eligible Receivables shall be
allocated to the Transferor Interest in order to increase the proportion of the
beneficial interest of such Investor Beneficiaries in the Eligible Receivables
Pool and to decrease the proportion of the beneficial interest of each
Transferor Beneficiary in the Eligible Receivables Pool pro tanto.
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3.4 NON-PETITION UNDERTAKING OF BENEFICIARIES
(a) It is a condition of the Receivables Trust (which by the execution of a
Supplement or an Accession Notice by a Beneficiary, such Beneficiary
consents and confirms) that each Beneficiary of the Receivables Trust
undertakes to the Receivables Trustee for the benefit of itself and as
trustee for each other Beneficiary that:
(i) it will 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
any Investor Beneficiary (unless specified otherwise in relation to
such Investor Beneficiary), the Receivables Trustee or any
successor trustee or the Receivables Trust or of any or all of the
revenues and assets of any of them nor participate in any ex parte
proceedings nor seek to enforce any judgment against any of such
persons;
(ii) the obligations of the Receivables Trustee under this Deed 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. No Beneficiary 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 Deed, which inability results from the
operation of the foregoing provisions of this Clause 3.4(a)(ii);
and
(iii) 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.
3.5 THE TRUST CERTIFICATES
The beneficial entitlement of each Transferor Beneficiary and each Investor
Beneficiary in the Receivables Trust shall be evidenced by a certificate (each
a "TRUST CERTIFICATE") substantially in the form set out in Exhibit A in the
case of each Transferor Beneficiary and substantially in the form set out in
the relevant Supplement in the case of each Investor Beneficiary.
3.6 THE TRUST CERTIFICATE REGISTER
(a) The Receivables Trustee shall cause to be kept and maintained at the
registered office or other agency of the Receivables Trustee maintained
outside of the United Kingdom a register (the "TRUST CERTIFICATE
REGISTER") which shall (i) record the identity of the Beneficiaries of
the Receivables Trust from time to time, their Classes, their respective
addresses in England, the applicable Acquisition Date, in respect of
Investor Beneficiaries, their Investor Interests and the related Series
to which they belong, and any other relevant information in respect
thereof and (ii) register transfers and exchanges of the beneficial
entitlements of such Beneficiaries under the Receivables Trust.
(b) The entries in the Trust Certificate Register shall be conclusive
evidence in the absence of manifest error, and the Beneficiaries, the
Receivables Trustee and the Trust Cash
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Manager and any Co-Trust Cash Manager shall be entitled to treat each
person whose identity is recorded in the Trust Certificate Register as
the owner of the related Investor Interest, notwithstanding notice to the
contrary or anything to the contrary contained herein.
(c) The Trust Certificate Register shall be available for inspection by any
Transferor Beneficiary, any Investor Beneficiary or any third party on
their respective behalves at any reasonable time upon reasonable prior
notice to the Receivables Trustee. No transfer or assignment of an
Investor Interest otherwise permitted hereunder shall be effective unless
and until it has been duly recorded in the Trust Certificate Register as
provided in this Clause 3.6.
3.7 DISPOSALS OF BENEFICIAL ENTITLEMENT
(a) The beneficial entitlement of any Beneficiary in the Receivables Trust
shall not be transferred, assigned, exchanged or otherwise conveyed or
disposed of (a "DISPOSAL") or subjected to any Encumbrance except in
accordance with this Clause 3.7 (unless specified otherwise in any
Supplement):
(i) any Transferor Beneficiary or any Excess Interest Beneficiary, may
make a Disposal of its pro rata share of the Transferor Interest or
Excess Interest (respectively) pursuant to a transfer of the whole
or substantially the whole of its properties and assets to any
person as provided in Clause 18.2.3 of the RSA PROVIDED, HOWEVER
that such person shall also expressly assume the duties and
obligations of the Transferor, Additional Transferor, Transferor
Beneficiary and Excess Interest Beneficiary (as applicable) under
the Relevant Documents and shall be the relevant person in respect
of which the occurrence of any Insolvency Event shall be
determined;
(ii) any Transferor Beneficiary or any Excess Interest Beneficiary, may
make a Disposal of, or create or grant any Encumbrance over, the
whole or any part of its pro rata share of the Transferor Interest
or Excess Interest (respectively) with the prior written consent of
Investor Beneficiaries representing in aggregate more than 50% of
the Aggregate Investor Interest (which consent may be given or
withheld without regard to reasonableness), PROVIDED, HOWEVER that
no such Disposal or Encumbrance will be permitted unless each of
the Rating Agencies confirms that such Disposal or Encumbrance will
not result in a downgrade or withdrawal of its then current rating
of any outstanding Related Debt;
(iii) any Beneficiary (other than any Transferor Beneficiary or any
Excess Interest Beneficiary) may make a Disposal of the whole or
any part of their beneficial entitlement or create or grant any
Encumbrance in respect of such beneficial entitlement with the
prior written consent of each Transferor Beneficiary (which consent
may be given or withheld without regard to reasonableness)
PROVIDED, HOWEVER that such Disposal, if made by an Investor
Beneficiary, shall be to a company which is associated with each
Transferor (within the meaning of section 42 of the Finance Act
1930), and Provided further that no such Disposal or Encumbrance
will be permitted unless the Receivables Trustee shall have
received prior written confirmation from the person to which such
Disposal is to
9
be made or Encumbrance to be granted or created in its favour that
such person complies with the matter referred to in Clause
4.2(c)(vi).
It is a condition of the Receivables Trust (to which by the execution of a
Supplement or an Accession Notice by a Beneficiary, such Beneficiary consents
and confirms) that each Beneficiary of the Receivables Trust undertakes to the
Receivables Trustee for the benefit of itself and as trustee for each other
Beneficiary that it will not make any Disposal or create or grant any
Encumbrance in respect of its beneficial entitlement in the Receivables Trust
except in accordance with this Clause 3.7 and acknowledges that any attempt to
do so shall be void.
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4. ADDITIONAL BENEFICIARIES AND TENDER OF TRUST CERTIFICATES
4.1 ACQUISITIONS AND ADDITIONAL BENEFICIARIES
Each person that is specified as part of a Series that makes a payment to the
Receivables Trustee as a contribution to Trust Property pursuant to a
Supplement shall, subject to the Receivables Trustee receiving the prior
written consent of all existing Beneficiaries, and subject to the issue of a
duly executed and authenticated Trust Certificate and the provisions of this
Clause 4, become a Beneficiary of the Receivables Trust upon such payment being
made (an "ACQUISITION").
(a) In order for any Acquisition to be effective, the Receivables Trustee
shall issue to each Transferor Beneficiary for execution and re-delivery
to the Receivables Trustee for authentication under Clause 4.2(c) one or
more Investor Certificates evidencing, in aggregate, the principal amount
of the beneficial entitlement to Trust Property of such Additional
Beneficiaries following such Acquisition as set out in the related
Supplement.
(b) Each of such Investor Certificates shall be substantially in the form set
out in the related Supplement for an Investor Beneficiary of the relevant
Class and shall bear upon its face the name of the Investor Beneficiary,
the Class of Investor Beneficiary to which such Investor Beneficiary
belongs (if specified by the Transferor Beneficiary in an Acquisition
Notice pursuant to Clause 4.2(b) below) and the Series to which such
Investor Beneficiary belongs.
(c) Except as specified in any Supplement, each Investor Beneficiary shall
rank pari passu and be equally and rateably entitled as provided herein
to the benefits hereof (except that unless specified in the related
Supplement, the Enhancement provided for any Series shall not be
available for any other Series) without preference, priority or
distinction on account of time or times of authentication and delivery,
all in accordance with the terms of this Deed and any related Supplement.
4.2 EXCHANGE OF CERTIFICATES
(a) An Acquisition may only be permitted by the Receivables Trustee in
accordance with directions given pursuant to Clause 4.2(a)(i) or (ii) and
in any event with the prior written consent of each Transferor
Beneficiary (such consent to be set out in the related Supplement and to
be evidenced by the execution of the relevant Investor Certificate by
each Transferor Beneficiary as set out in this Clause 4.2) and each
existing Investor Beneficiary:
(i) each Transferor Beneficiary may direct the Receivables Trustee that
an Acquisition shall be made and in exchange for tendering the
Transferor Certificate to the Receivables Trustee receive (1) one
or more Investor Certificates as specified in the relevant
Acquisition Notice for execution and re-delivery to the Receivables
Trustee; and (2) a reissued Transferor Certificate (any such
Acquisition, a "TRANSFEROR ACQUISITION"); and
(ii) in addition, to the extent permitted in any Supplement relating to
an Investor Beneficiary, such Investor Beneficiary may, in
accordance with the terms and conditions of the relevant
Supplement, together with each Transferor Beneficiary, direct the
Receivables Trustee that an Acquisition shall be made
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and in exchange for tendering the relevant Investor Certificates
and the Transferor Certificate to the Receivables Trustee receive
(1) one or more Investor Certificates as specified in the relevant
Acquisition Notice for execution and re-delivery to the Receivables
Trustee; and (2) a reissued Transferor Certificate (any such
Acquisition, an "INVESTOR ACQUISITION").
(b) Each Transferor Beneficiary (in the case of a Transferor Acquisition) or
each Transferor Beneficiary and the relevant Investor Beneficiaries (in
the case of an Investor Acquisition) may direct the Receivables Trustee
that an Acquisition shall be made by notifying the Receivables Trustee in
writing (an "ACQUISITION NOTICE"), in the case of the initial Acquisition
on the Initial Closing Date and, in the case of subsequent Acquisitions,
at least three Business Days in advance of the date upon which the
Acquisition is to occur (an "ACQUISITION DATE"). Any Acquisition Notice
shall state the following:
(i) the names, categories and designations (and Class thereof, if
applicable) of the Additional Beneficiaries who are to be parties
to such Acquisition (a "SERIES");
(ii) the Initial Investor Interest of each Additional Beneficiary (or
the method for calculating such Initial Investor Interest)
PROVIDED, HOWEVER, that the aggregate principal amount of the
Initial Investor Interests of all Additional Beneficiaries in the
relevant Series may not be greater than, in the case of a
Transferor Acquisition, the excess of the principal amount at the
beginning of the day on the Acquisition Date of the Transferor
Interest over the Minimum Transferor Interest or, in the case of an
Investor Acquisition, the aggregate amount on the Acquisition Date
of (A) the principal amount of the Investor Interest so exchanged
and (B) the excess of the principal amount of the Transferor
Interest after such Acquisition over the Minimum Transferor
Interest; and
(iii) the Enhancement Provider, if any, with respect to such Series, and
whether such Enhancement Provider is to be a Beneficiary of the
Receivables Trust.
(c) On any Acquisition Date, the Acquisition will only be effective upon the
Receivables Trustee authenticating and delivering the appropriate
Investor Certificates to the Additional Beneficiaries and the Receivables
Trustee shall not authenticate and deliver such Investor Certificates
unless it has received the following:
(i) a Supplement satisfying the criteria set out in Clause 4.3 executed
by each of the parties thereto (including all Transferor
Beneficiaries, and the Receivables Trustee) and specifying the
Principal Terms of the beneficial entitlement of the Series to
Trust Property and the supplements, amendments and variations to
this Deed as a consequence thereof;
(ii) the applicable Enhancement, if any;
(iii) the agreement, if any, pursuant to which the Enhancement Provider
agrees to provide its Enhancement, if any;
(iv) a Solvency Certificate from the Transferor and each Additional
Transferor;
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(v) written confirmation from each relevant Rating Agency that the
Acquisition will not result in such Rating Agency reducing or
withdrawing its then current rating on any outstanding Related
Debt;
(vi) written confirmation from each Additional Beneficiary and
Enhancement Provider, if any, that either (A) the usual place of
abode of such Additional Beneficiary and Enhancement Provider is
within the United Kingdom or (B) such Additional Beneficiary and
Enhancement Provider is a bank as defined for the purposes of
Section 349(3)(a) of the Income and Corporation Taxes Act 1988,
and, in each case, such Additional Beneficiary and Enhancement
Provider will be within the charge to United Kingdom corporation
tax as respects all amounts regarded as interest for United Kingdom
Tax purposes received by it under the transactions contemplated by
the relevant Acquisition;
(vii) the existing Transferor Certificate and any applicable Investor
Certificate as the case may be; and
(viii) an Officer's Certificate provided by the Transferor certifying
either (A) that (i) each class of Related Debt issued in
connection with the Acquisition shall be rated in one of the
three highest rating categories by at least one rating agency
recognised in the United Kingdom, (ii) each Investor
Beneficiary other than any Enhancement Provider shall have
associated with it a class of Related Debt, and (iii) the
Enhancement relating to the Series shall be provided by any
combination of subordination (except subordination by way of a
Collateral Interest), a letter of credit, a cash collateral
loan (other than a cash collateral loan providing for payment
from amounts due with respect to any Enhancement Invested
Amount), a surety bond, an insurance policy, or a spread or
reserve account funded from Excess Finance Charge Amounts, with
any surplus being payable by the person beneficially entitled
thereto to each Excess Interest Beneficiary pro rata to their
respective entitlements, to the extent not utilised as
Enhancement, but through no other means, or (B) it has
determined that, based on consultation with counsel, the
Acquisition is in the best interests of each Transferor
Beneficiary and its Affiliates.
Upon satisfaction of the above, the Receivables Trustee shall cancel the
existing Transferor Certificate and/or any applicable Investor Certificates, as
the case may be, issue to each applicable Investor Beneficiary (or as it may
direct) an appropriate Investor Certificate and issue to the Transferor
Beneficiary and, following its execution of an Accession Notice, any further
Transferor Beneficiary (or, in each case, as it may direct) a new Transferor
Certificate, in each case dated the Acquisition Date.
4.3 SUPPLEMENTS
(a) A Supplement shall be executed in order to effect each Acquisition which
shall:
(i) be executed (if each of them so chooses) by each Transferor
Beneficiary, the Receivables Trustee and each Additional
Beneficiary;
(ii) set out (if each of them so chooses) the consent of each Transferor
Beneficiary and each existing Investor Beneficiary to such
Acquisition;
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(iii) constitute, after the issuance of the relevant Investor
Certificates, a supplement by the Receivables Trustee to this Deed
which shall thereafter be read and construed as supplemented,
amended and varied by such Supplement;
(iv) specify the name and category of each Additional Beneficiary (and
Class thereof, if applicable) and, if there is more than one
Additional Beneficiary, the rights and priorities of each
Additional Beneficiary vis-a-vis the other Additional Beneficiaries
constituting the new Series;
(v) set out the principal terms of such Series (all such terms the
"PRINCIPAL TERMS") which may include, without limitation, the
following:
(A) the Initial Investor Interests (or the method for calculating
such Initial Investor Interest) of such Series;
(B) the Initial Investor Interest (or the method for calculating
such Initial Investor Interest) of each Additional Beneficiary;
(C) the method of determining any Adjusted Investor Interest, if
applicable;
(D) the nature and amount of any Related Debt issued or to be
issued by any such Additional Beneficiary in connection with
such Acquisition;
(E) the Closing Date;
(F) each Rating Agency rating the Related Debt referred to in (D)
above;
(G) the rights of each Transferor Beneficiary that have been
transferred to the Series pursuant to such Acquisition
(including any rights to allocations of Finance Charge
Collections and Principal Collections);
(H) the method of calculating Finance Charge Amounts to which such
Series will be entitled and the method by which such amounts
will be allocated between the Additional Beneficiaries within
such Series and the date or dates on which they will be paid
or, for the purpose of making calculations, accrue to such
Series and to each Additional Beneficiary within such Series
and, if applicable, with respect to other Series and the method
by which the Finance Charge Amounts of such other Series shall
be allocated to such Additional Beneficiaries within such other
Series;
(I) the method of calculating Principal Amounts to which such
Series will be beneficially entitled and the method by which
such amounts will be allocated between the Additional
Beneficiaries within such Series and the date or dates on which
they are expected to be paid to such Series and each Additional
Beneficiary within such Series and, if applicable, with respect
to other Series and the method by which the Investor Interests
of such Additional Beneficiaries within such other Series shall
amortize or accrete if applicable;
14
(J) the method of allocating Receivables in Defaulted Accounts for
such Series and each Additional Beneficiary within such Series
and the method for allocating Collections between such Series;
(K) any other Collections with respect to Receivables or other
amounts available to be paid with respect to such Series and
the method by which such Collections will be allocated between
the Additional Beneficiaries within such Series;
(L) the names of any accounts to be used by such Series and the
terms governing the operation of any such accounts and use of
moneys therein;
(M) the Series Trust Cash Management Fee Percentage;
(N) the Minimum Transferor Interest and the Series Termination
Date;
(O) the terms of any Enhancement with respect to such Series, and
the Enhancement Provider, if applicable;
(P) the terms governing any deposit into any account provided for
such Series;
(Q) whether Acquired Interchange or other fees will be included in
the funds available to be paid with respect to such Series;
(R) the priority of such Series with respect to any other Series;
(S) which Group, if any, such Series will be part of;
(T) the Minimum Aggregate Principal Receivables;
(U) whether such Series will or may be a Companion Series and the
Series with which it will be paired, if applicable (subject to
the Receivables Trustee having received any legal opinions or
other conditions precedent which it may require in order to
establish that the addition of such Companion Series or terms
thereof will not prejudice the Tax treatment of the Receivables
Trust or any of the Beneficiaries); and
(V) any other relevant terms of such Series (including whether or
not the beneficial entitlement of the Series will be pledged as
collateral for an issuance of any other securities, including
commercial paper); and
(vi) contain undertakings from each Additional Beneficiary in accordance
with Clause 3.4 and a confirmation from each Additional Beneficiary
in accordance with Clause 4.2(c)(vi) and Clause 4.3(c) and any
other undertaking and confirmation as reasonably requested by the
Transferor Beneficiaries.
(b) Subject to receipt of an Acquisition Notice from each Transferor
Beneficiary and, in the case of an Investor Acquisition, the relevant
Investor Beneficiaries, pursuant to Clause 4.2(b), the Receivables
Trustee shall arrange for a Supplement to be executed in accordance with
Clause 4.3(a).
15
(c) By its execution of a Supplement each Beneficiary consents and confirms
that the Receivables Trust may be amended from time to time in accordance
with the terms of this Deed and any such additional Supplement, PROVIDED
HOWEVER that:
(i) notice of all proposed supplements, variations and amendments to or
of the Receivables Trust shall be given to all Beneficiaries at
least three Business Days before any such supplement, amendment or
variation is due to take effect stating the date on which the same
is due to take effect (the "EFFECTIVE DATE") and no such
Supplement, variation or amendment shall have effect if any
Beneficiary gives notice to the Receivables Trustee objecting
thereto before the effective date; and
(ii) no material supplement, amendment or variation to or of the
Receivables Trust shall be effective unless and until the
Receivables Trustee has obtained the written consent of all persons
which are Beneficiaries at the time of such supplement, amendment
or variation.
4.4 ALLOCATION OF AMOUNTS PAID PURSUANT TO AN ACQUISITION
The amount paid by a Series (and any Enhancement in respect of such Series)
pursuant to an Acquisition as a contribution to Trust Property shall be
allocated to Beneficiaries of the Receivables Trust in the manner and in the
amounts as set out in the relevant Supplement.
4.5 ACCESSION OF ADDITIONAL TRANSFEROR AS TRANSFEROR BENEFICIARY
(a) Each person which becomes an Additional Transferor pursuant to Clause 2.7
of the RSA shall, subject to compliance with this Clause 4.5 and subject
to the prior written consent of all existing Beneficiaries, and on terms
approved by such existing Beneficiaries in writing, become a Transferor
Beneficiary of the Receivables Trust.
(b) In order for any accession of an Additional Transferor to be effective
the Receivables Trustee shall issue to the Additional Transferor, for
execution and re-delivery to the Receivables Trustee for authentication
under clause 4.5(d) below, a Transferor Certificate substantially in the
form attached as Exhibit A to this Deed.
(c) Except as may be specified herein in respect of the Transferor
Beneficiary or, in respect of any other Transferor Beneficiary, in the
relevant Accession Notice, each Transferor Beneficiary shall rank pari
passu with each other Transferor Beneficiary and be equally and rateably
entitled as provided herein to the benefits hereof without preference,
priority or distinction on account of time or times of authentication and
delivery, all in accordance with the terms of this Deed and any relevant
Accession Notice.
(d) No accession of an Additional Transferor shall be effective unless and
until the Receivables Trustee has authenticated and delivered a
Transferor Certificate to such additional Transferor Beneficiary
evidencing the share of the Transferor Interest which is held by such
Transferor Beneficiary, Provided that the Receivables Trustee shall not
so authenticate and deliver unless it has received such documents as it
shall have required pursuant to Clause 2.7 of the RSA.
(e) Upon receipt of the documents referred to in Clause 4.5(d), the
Receivables Trustee shall cancel the existing Transferor Certificate and
issue to the Transferor Beneficiary (or as it
16
may direct) an appropriate new Transferor Certificate dated the date of
the Accession Notice.
17
5. ALLOCATION AND APPLICATION OF COLLECTIONS
5.1 ESTABLISHMENT OF TRUST ACCOUNTS
(a) TRUSTEE COLLECTION ACCOUNT
(i) The Receivables Trustee has opened a bank account in its name for
the benefit of the Beneficiaries of the Receivables Trust, at the
Operating Bank (the "TRUSTEE COLLECTION ACCOUNT") bearing a
designation clearly indicating that the funds deposited therein are
held on trust for the benefit of the Beneficiaries of the
Receivables Trust.
(ii) The Receivables Trustee, as trustee of the Receivables Trust, shall
possess all legal right, title and interest in all funds on deposit
from time to time in the Trustee Collection Account and in all
proceeds thereof.
(iii) The Receivables Trustee shall establish two ledgers relating to the
Trustee Collection Account entitled (1) "PRINCIPAL COLLECTIONS
LEDGER" and (2) "FINANCE CHARGE COLLECTIONS LEDGER" and shall from
time to time promptly upon their identification, allocate amounts
identified as representing Principal Collections to the Principal
Collections Ledger and amounts identified as representing Finance
Charge Collections to the Finance Charge Collections Ledger.
(iv) The Receivables Trustee at all times shall maintain accurate
records reflecting each transaction in the Trustee Collection
Account and each debit or credit recorded in any ledger relating
thereto (including, without limitation, the Principal Collections
Ledger and Finance Charge Collections Ledger).
(b) TRUSTEE ACQUISITION ACCOUNT
(i) The Receivables Trustee has opened a bank account in its name for
the benefit of the Beneficiaries of the Receivables Trust, at the
Operating Bank (the "TRUSTEE ACQUISITION ACCOUNT") bearing a
designation clearly indicating that the funds deposited therein are
held on trust for the benefit of the Beneficiaries of the
Receivables Trust.
(ii) The Receivables Trustee, as trustee of the Receivables Trust, shall
possess all legal right, title and interest in all funds on deposit
from time to time in the Trustee Acquisition Account and in all
proceeds thereof.
(iii) The Receivables Trustee at all times shall maintain accurate
records reflecting each transaction in the Trustee Acquisition
Account and all debits and credits recorded in any ledger relating
thereto.
(c) ADDITIONAL TRUST ACCOUNTS
(i) The Receivables Trustee may from time to time open Additional Trust
Accounts in its name for the benefit of the Beneficiaries of the
Receivables Trust at the Operating Bank or at any other Qualified
Institution as specified in
18
any Supplement which shall bear a designation clearly indicating
that the funds deposited therein are held on a separate trust for
the benefit of the Beneficiaries of the Receivables Trust.
(ii) The Receivables Trustee, as trustee of the Receivables Trust, shall
possess all legal right, title and interest in all funds on deposit
from time to time in such Additional Trust Accounts and in all
proceeds thereof.
(iii) The Receivables Trustee at all times shall maintain accurate
records reflecting each transaction in any Additional Trust Account
and all debits and credits recorded in any ledger relating thereto.
(d) REPLACEMENT OF OPERATING BANK
If at any time the existing Operating Bank ceases to be a Qualified
Institution the Trust Cash Manager or, if applicable, any Co-Trust Cash
Manager shall notify the Receivables Trustee and the Receivables Trustee
shall within 10 Business Days of being notified establish (or direct the
Trust Cash Manager or Co-Trust Cash Manager to establish) new Trust
Accounts meeting the conditions specified with respect to each such Trust
Account with a Qualified Institution which shall become the new Operating
Bank, and shall transfer any cash or any investments to such new Trust
Accounts. If the Receivables Trustee shall fail to establish the new
Trust Accounts as required by this Clause 5.1(d) the Trust Cash Manager
or any Co-Trust Cash Manager shall be authorised to establish the Trust
Accounts itself.
(e) POWER OF INVESTMENT
(i) The Receivables Trustee shall deposit all monies received by it in
respect of Trust Property in the Trust Accounts in accordance with
the provisions of this Clause 5 in a manner consistent with the
principles set out in the First Schedule and shall invest funds on
deposit in such Trust Accounts allocable to any Series in
accordance with Clause 5.1(f).
(ii) The power of investment of the Receivables Trustee shall be limited
to the power set out in Clause 5.1(e)(i) and the Trustee
Investments Act 1961 shall not apply to the Receivables Trustee.
(iii) The Receivables Trustee acknowledges that subject to the
obligations of the Receivables Trustee to allocate or distribute
funds in accordance with this Deed and any Supplement, the Trust
Cash Manager and any Co-Trust Cash Manager may give the Receivables
Trustee advice consistent with the terms of this Deed and any
Supplement with regard to undertaking the investments referred to
in Clause 5.1(e)(i) in accordance with the provisions of this Deed.
(f) ADMINISTRATION OF THE TRUST ACCOUNTS
Funds on deposit in the Trust Accounts relating to any Series which are not to
be utilised on any Business Day in providing consideration for new Receivables
shall be invested in accordance with the following provisions of this Clause
5.1(f).
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(i) Unless specified otherwise in any Supplement, the administration
and investment of such funds shall be undertaken on the advice of
the Trust Cash Manager or any Co-Trust Cash Manager and shall be in
the name of and for and on behalf of the Receivables Trustee as
trustee of the Receivables Trust. All normal costs incurred by
making and changing investments will be paid out of investment
interest and earnings. The funds will be invested in Permitted
Investments only.
(ii) Permitted Investments purchased or otherwise acquired for and on
behalf of the Receivables Trustee shall be denominated in the same
currency as the funds utilised and shall be on terms such that, if
they are funds which represent Investor Cash Available for
Acquisition, they would be available on the next Business Day or,
otherwise, (A) they would be available on or prior to the Transfer
Date related to the Monthly Period in which such funds were
processed for collection or such other date as may be specified in
the related Supplement and that (B) the amounts invested will be
re-credited to the relevant Trust Account together with any
investment earnings thereon.
(iii) If any Permitted Investments are made for and on behalf of the
Receivables Trustee in accordance with the provisions of this Deed
or any Supplement, the deposit receipt, contract, confirmation or
equivalent document or evidence that the transaction has occurred
will be retained by or on behalf of the Receivables Trustee.
Except as provided in any Supplement, with respect to Trust Accounts specified
in such Supplement, for the purposes of determining the availability of funds
or the balances in the Trust Accounts for any reason, all investment earnings
on such funds shall be deemed not to be available or to be on deposit and the
beneficial entitlement to such investment earnings will belong to the
Transferor Beneficiary in accordance with Clause 3.2(d)(iv).
(g) ACKNOWLEDGEMENT OF THE BENEFICIARIES
The Beneficiaries acknowledge that:
(i) it is not intended that the Receivables Trustee should have any
discretion with respect to the investment of funds as referred to
in Clause 5.1(e) and (f) or that the duties of the Receivables
Trustee should include any form of fund management;
(ii) accordingly the provisions of Clause 5.1(e) and (f) (and all
related provisions of the Relevant Documents) have been drawn so as
to specify to the maximum extent practicable the manner in which
the Trust Cash Manager is to advise the Receivables Trustee from
time to time to invest the funds referred to in Clause 5.1(e) and
(f);
(iii) subject to and in accordance with Clause 7.1(g), the duties of the
Receivables Trustee with regard to the making of any such
investments will be fully discharged by the Receivables Trustee's
acting on the advice of the Trust Cash Manager or, if applicable,
any Co-Trust Cash Manager in relation thereto; and
20
(iv) the investment of any funds by the Receivables Trustee in
accordance with Clause 5.1(e) and (f) shall be wholly incidental
and ancillary to the functions of the Receivables Trustee as
described in Clause 2.1.
5.2 COLLECTIONS AND ALLOCATIONS
(a) BARCLAYCARD OPERATING ACCOUNT
(i) The Receivables Trustee shall direct the Transferor and each
Additional Transferor that Collections held by the Transferor or,
as the case may be, such Additional Transferor on trust in the
Barclaycard Operating Account or Additional Transferor Operating
Account for the benefit of the Receivables Trustee shall be
transferred to the Trustee Collection Account as promptly as
possible after the Date of Processing of such Collections but in no
event later than the second Business Day following such Date of
Processing. The date of any such transfer shall be referred to
hereafter as the "RELEVANT DATE".
(ii) Notwithstanding sub-paragraph (i) above, if the Transferor or any
Additional Transferor or any of their respective subsidiaries or
Affiliates is Trust Cash Manager or Co-Trust Cash Manager, the
Receivables Trustee shall seek to ensure that such monies held on
trust in the Barclaycard Operating Account or the relevant
Additional Transferor Operating Account that are identified as
representing Ineligible Collections, shall not be transferred to
the Trustee Collection Account but, shall be transferred to each
Transferor Beneficiary to the extent of its pro rata share or as
such Transferor Beneficiary may direct whereupon such monies shall
cease to be Trust Property and shall be owned by the Transferor
Beneficiary absolutely.
(b) APPLICATION OF MONIES IN THE TRUSTEE COLLECTION ACCOUNT
On the Relevant Date the Receivables Trustee shall, based on the Daily
Report maintained by the Trust Cash Manager or, if applicable, any Co-
Trust Cash Manager pursuant to Clause 9.5(a) with respect to the related
Date of Processing, promptly following the transfer of monies from the
Barclaycard Operating Account as referred to in Clause 5.2(a) on such
Relevant Date, identify amounts, if any, included in such transfer
representing the following:
- Incorrect Payments;
- Principal Collections;
- Finance Charge Collections; and
- Ineligible Collections (not distributed to the Transferor
Beneficiaries pursuant to Clause 5.2(a)(ii) above),
and apply such amounts on the Relevant Date in accordance with this
Clause 5. In particular, the Receivables Trustee shall instruct the
Operating Bank to make the following transfers which shall have been
calculated in a manner consistent with the principles set out in the
First Schedule as modified by any Supplement:
21
(i) the amount of any Incorrect Payments notified to the Receivables
Trustee which have not previously been allocated as Collections
representing Trust Property to the Barclaycard Operating Account
or, if applicable, the relevant Additional Transferor Operating
Account, whereupon such monies shall cease to be Trust Property and
shall be owned by each Transferor Beneficiary absolutely to the
extent of its pro rata share;
(ii) the amount of Ineligible Collections notified to the Receivables
Trustee which have not previously been allocated as Principal
Collections to the Barclaycard Proceeds Account or, if applicable,
the relevant Additional Transferor Proceeds Account, whereupon such
monies shall cease to be Trust Property and shall be owned by each
Transferor Beneficiary absolutely to the extent of its pro rata
share;
(iii) the aggregate amount of Investor Cash Available for Acquisition
which is utilised as determined pursuant to the related Supplement
from the Trustee Collection Account to the Trustee Acquisition
Account (and a corresponding adjustment shall be made to the
Principal Collections Ledger);
(iv) the Transferor Cash Available for Acquisition from the Trustee
Collection Account to the Trustee Acquisition Account (and a
corresponding adjustment shall be made to the Principal Collections
Ledger);
(v) the aggregate amount of Principal Collections allocated to the
Investor Interests of any Series minus the Investor Cash Available
for Acquisition of such Series (as referred to in (iii) above) to
such account or accounts specified in or pursuant to the related
Supplement for such Series;
(vi) the Transferor Finance Charge Amount and, on each Transfer Date,
the Transferor Acquired Interchange Amount from the Trustee
Collection Account to the Barclaycard Proceeds Account or, if
applicable, the relevant Additional Transferor Proceeds Account or
as each Transferor Beneficiary may direct (and a corresponding
adjustment shall be made to the Finance Charge Collections Ledger)
whereupon such monies shall cease to be Trust Property and shall be
owned by the Transferor Beneficiaries absolutely to the extent of
their pro rata shares; and
(vii) on each Transfer Date or other date specified in a related
Supplement with respect to a Series each Finance Charge Amount and
all Acquired Interchange allocable to such Series from the Trustee
Collection Account to such account or accounts as may be specified
in or pursuant to such related Supplement for such Series (and a
corresponding adjustment shall be made to the Finance Charge
Collections Ledger).
Amounts remaining in the Trustee Collection Account after the application
of monies referred to above and in any Supplement shall either remain
deposited in the Trustee Collection Account until such time as they are
utilised on succeeding Business Days in accordance with this Deed and any
Supplement or are invested in Permitted Investments in accordance with
Clause 5.1(f).
22
(c) APPLICATION OF MONIES IN THE TRUSTEE ACQUISITION ACCOUNT
On the Relevant Date the Receivables Trustee shall, promptly following
the transfers of monies from the Trustee Collection Account as referred
to in Clause 5.2(b) apply such amounts transferred to the Trustee
Acquisition Account in accordance with this Clause 5. In particular the
Receivables Trustee shall instruct the Operating Bank to make the
following transfers from the Trustee Acquisition Account which have been
calculated in a manner consistent with the principles set out in the
First Schedule as modified by any Supplement:
(i) the amount of Purchase Price required to fund acceptance of an
Offer (pursuant to the terms and subject to the conditions of the
RSA) to the Barclaycard Proceeds Account or the Additional
Transferor Proceeds Account whereupon such monies shall cease to be
Trust Property and shall be owned by the Transferor or, as the case
may be, the Additional Transferor absolutely PROVIDED HOWEVER, that
no amount of Investor Cash Available for Acquisition shall be used
to fund that portion of the Purchase Price which is notified by the
Transferor or, as the case may be, the Additional Transferor to be
in respect of Ineligible Receivables;
(ii) the amount required to meet the obligation of the Receivables
Trustee to make payments in respect of Future Receivables in
accordance with Clause 5.1 of the RSA (and pursuant to the terms
and subject to the conditions of the RSA) to the Barclaycard
Proceeds Account or the relevant Additional Transferor Proceeds
Account whereupon such monies shall cease to be Trust Property and
shall be owned by the Transferor or, as the case may be, the
Additional Transferor absolutely, PROVIDED HOWEVER, that no amount
of Investor Cash Available for Acquisition shall be used to fund
that portion of the Purchase Price which is notified by the
Transferor or, as the case may be, the Additional Transferor to be
in respect of Ineligible Receivables;
(iii) on behalf of any Series in accordance with the related Supplement,
the amount of Investor Cash Available for Acquisition required to
be applied to the Transferor Interest in order to increase the
proportion of the beneficial interest of the Investor Beneficiaries
of such Series in the Eligible Receivables Pool, to the Barclaycard
Proceeds Account and any Additional Transferor Proceeds Account(s)
pro rata to each Transferor Beneficiary's entitlement to such
monies whereupon such monies shall cease to be Trust Property and
shall be owned by each Transferor Beneficiary absolutely to the
extent of its pro rata share; and
(iv) the amount of non-utilised Transferor Cash Available for
Acquisition to the Barclaycard Proceeds Account and the relevant
Additional Transferor Proceeds Account(s) pro rata to each
Transferor Beneficiary's entitlement to such monies whereupon such
monies shall cease to be Trust Property and shall be owned by each
Transferor Beneficiary to the extent of its pro rata share
absolutely.
(d) APPLICATION OF MONIES IN ADDITIONAL TRUST ACCOUNTS
23
Amounts deposited in Additional Trust Accounts shall be applied in
accordance with the provisions of any related Supplement and Clause
5.1(f).
(e) ANNUAL FEES
Notwithstanding any provision of the RSA which provides that Receivables
representing Annual Fees assigned to the Receivables Trustee ("ANNUAL FEE
RECEIVABLES") constitute Finance Charge Receivables or Principal
Receivables for the purpose of calculating the Purchase Price of
Receivables assigned to the Receivables Trustee, the Receivables Trustee
shall, if so directed by each Transferor Beneficiary by prior notice in
writing to the Trust Cash Manager or, if applicable, any Co-Trust Cash
Manager, the Receivables Trustee and the Rating Agencies, treat such
Annual Fee Receivables (and Collections in respect thereof) for the
purposes of this Deed and any Supplement in such manner as specified in a
certificate to the Receivables Trustee, PROVIDED, HOWEVER, that (i) any
such certificate shall have effect only in relation to Receivables which
are acquired by the Receivables Trustee (whether as Existing Receivables
or as Future Receivables) after the time when such certificate is issued;
and (ii) in the absence of such certificate, such Annual Fee Receivables
shall be treated as Finance Charge Receivables and Collections in respect
thereof shall be treated as Finance Charge Collections, PROVIDED FURTHER,
HOWEVER, that any designation by any Transferor Beneficiary of Annual Fee
Receivables as Principal Receivables shall not be of any effect unless
such Transferor Beneficiary certifies in such certificate that it has
received an Opinion of Counsel that the treatment specified for Annual
Fees and Collections in respect thereof will not have any material
adverse effect on the treatment of the Receivables Trust and the
Beneficiaries for Tax purposes in the United Kingdom.
(f) ALLOCATIONS FOR THE TRANSFEROR BENEFICIARIES
(i) Unless and until the Receivables Trust is terminated in accordance
with Clause 6.3 or Clause 8.1, and unless otherwise stated in any
Supplement, the Receivables Trustee (acting on the advice received
from the Trust Cash Manager or, if applicable, any Co-Trust Cash
Manager) shall, prior to the close of business on the Relevant Date
on which amounts are deposited in the Trustee Collection Account,
allocate to the Transferor Beneficiaries the following amounts as
set out below:
(W) by credit to the Trustee Collection Account (to be recorded in
the Principal Collections Ledger) an amount of Principal
Collections equal to the product of (1) the Transferor
Percentage on the Date of Processing of such Principal
Collections and (2) the aggregate amount of Principal
Collections processed on such Date of Processing, PROVIDED,
HOWEVER, that the amount to be so credited for the Transferor
Beneficiaries pursuant to this Clause 5.2(f)(i)(A) with respect
to any Relevant Date shall be allocated to the Transferor
Beneficiaries but shall be transferred to the Transferor
Beneficiaries only to the extent that the Transferor Interest
on such Relevant Date is greater than zero (after giving effect
to the inclusion in the Receivables Trust of all Receivables
created on or prior to such Relevant Date and the application
of payments referred to in Clause
24
5.2(c)). Failing this, such amount shall be allocated to the
Transferor Beneficiary and shall be considered as "UNAVAILABLE
INVESTOR PRINCIPAL COLLECTIONS" and credited to the Trustee
Collection Account (to be recorded in the Principal Collections
Ledger and identified for the benefit of the Transferor Beneficiary
as Unavailable Principal Collections);
(X) if on such Relevant Date there are additional amounts allocable
to the Transferor Beneficiaries pursuant to any Supplement as a
result of the Investor Interests of the relevant Series on such
Relevant Date being less than the amount of Principal
Collections allocable to such Series, deposit such amounts in
the Trustee Acquisition Account;
(Y) if on such Relevant Date the Transferor Interest minus the
amount calculated pursuant to paragraphs (A) and (B) is greater
than zero, deposit in the Trustee Acquisition Account an amount
of Unavailable Principal Collections to the extent of such
Transferor Interest (unless specified otherwise in any
Supplement);
(Z) subject to Clause 5.2(e), by credit to the Trustee Collection
Account (to be recorded in the Finance Charge Collections
Ledger) an amount equal to the product of (1) the Transferor
Percentage on the Date of Processing of such Finance Charge
Collections and (2) the aggregate amount of Finance Charge
Collections processed on such Date of Processing (the
"TRANSFEROR FINANCE CHARGE AMOUNT");
(AA)subject to Clause 5.2(a)(ii), the aggregate amount of
Ineligible Collections processed on such Date of Processing
which were deposited in the Trustee Collections Account on such
Relevant Date; and
(BB)on each Transfer Date the aggregate amount of Acquired
Interchange deposited by the Transferor and each Additional
Transferor in the Trustee Collection Account less the aggregate
amount of such Acquired Interchange allocated to any Applicable
Series (the "TRANSFEROR ACQUIRED INTERCHANGE AMOUNT").
(ii) Notwithstanding anything in this Deed to the contrary, unless
otherwise stated in any Supplement, the amount allocated pursuant
to Clause 5.2(f)(i) above shall be applied as follows:
(A) the amount identified in Clause 5.2(f)(i)(A) above which was
credited to the Trustee Collection Account (and recorded in the
Principal Collections Ledger) for the Transferor Beneficiaries
together with the amounts deposited in the Trustee Acquisition
Account pursuant to Clause 5.2(f)(i)(B) and 5.2(f)(i)(C)
("TRANSFEROR CASH AVAILABLE FOR ACQUISITION") shall be utilised
in funding the Receivables Trustee in making payments to the
Transferor and each Additional Transferor in respect of an
Offer pursuant to Clause 5.2(c)(i) or in respect of Future
Receivables pursuant to Clause 5.2(c)(ii) PROVIDED, HOWEVER,
that the amount of Transferor Cash Available for Acquisition
not so utilised shall
25
be applied in accordance with Clause 5.2(c)(iv) and the Transferor
Interest reduced accordingly;
(B) the Transferor Finance Charge Amount and, on each Transfer
Date, the Transferor Acquired Interchange Amount, in accordance
with Clause 5.2(b)(vi); and
(C) the amount identified in Clause 5.2(f)(i)(E) above, in
accordance with Clause 5.2(b)(ii).
(D) Each Transferor Beneficiary shall be obliged to fund the
Receivables Trustee in respect of payments to be made to the
Transferor and each Additional Transferor on any Business Day
in excess of the Investor Cash Available for Acquisition to the
extent of its pro rata share and the Receivables Trustee will
utilise on such Business Day in accordance with the provisions
of this Deed the Transferor Cash Available for Acquisition
towards such payments to be made to the Transferor and each
Additional Transferor as set out in Clause 5.2 (f)(ii)(A)
above. The Receivables Trustee acknowledges (and the
Transferor by its execution of this Deed and each Additional
Transferor by its execution of an Accession Notice also
acknowledges) that to the extent the Transferor Cash Available
for Acquisition is less than the aggregate amount of the
payments to the Transferor and each Additional Transferor to be
funded by the Transferor Beneficiaries on any Business Day,
such shortfall shall be met by a reduction in the aggregate
amount payable to the Transferor and each Additional Transferor
by the amount of such shortfall (as set out in Clause 13.3 of
the RSA) and an increase in the Transferor Interest by the same
amount;
(E) The Receivables Trustee shall from time to time, acting on the
advice of the Trust Cash Manager or any Co-Trust Cash Manager,
on each Transfer Date transfer monies credited to Trust
Accounts which represent investment earnings accrued on
Permitted Investments made using monies deposited in such Trust
Accounts and to which the Transferor Beneficiaries are
beneficially entitled pursuant to Clause 3.2(d)(iv) (less any
amount deducted to meet costs incurred in making and changing
investments as provided in Clause 5.1(f)(i)) to each Transferor
Beneficiary to the extent of its pro rata share as it may
direct, whereupon such monies shall cease to be Trust Property
and shall be owned by such Transferor Beneficiary absolutely.
After any Unavailable Principal Collections have been allocated
to one Beneficiary they shall in no circumstances be
reallocated to another Beneficiary.
5.3 ADJUSTMENTS
(a) RECEIVABLES IN DEFAULTED ACCOUNTS, CREDIT ADJUSTMENTS AND REDUCTIONS IN
RECEIVABLES
If at any time prior to the dissolution of the Receivables Trust for any
reason whatsoever, any Principal Receivable becomes a Receivable in a
Defaulted Account or a Reduction
26
or a Credit Adjustment is required in relation to any Principal
Receivable the amount of such Receivable in a Defaulted Account or the
subject of a Credit Adjustment or a Reduction shall be allocated among
the Beneficiaries as follows:
(i) in the case of a Receivable in a Defaulted Account which was an
Eligible Receivable prior to such time such Account became a
Defaulted Account, by allocating such amount between each
Transferor Beneficiary and each Series in accordance with their
beneficial entitlement to Trust Property at such time (as
calculated in a manner consistent with the principles set out in
the First Schedule (as amended by any Supplement)), reducing the
Transferor Interest accordingly and treating the resulting Investor
Default Amount for each Series as provided in the related
Supplement;
(ii) in the case of a Credit Adjustment or a Reduction by allocating
such amount to each Transferor Beneficiary to the extent of its pro
rata share and reducing the Transferor Interest accordingly until
such time as the Transferor Interest shall be zero, PROVIDED,
HOWEVER, that if the amount of such Credit Adjustment or Reduction
is greater than the amount of the Transferor Interest on such date
of determination then the Receivables Trustee shall seek to enforce
its remedy against the Transferor and each Additional Transferor
under Clause 10.3 of the RSA which provides that the Transferor or
relevant Additional Transferor shall make a payment to the
Receivables Trustee in accordance with Clause 10.4 of the RSA; and
(iii) in the case of a Receivable in a Defaulted Account which was an
Ineligible Receivable prior to such time as such Account became a
Defaulted Account, by reducing the Transferor Ineligible Interest
by the amount of such Receivable in a Defaulted Account until such
time as the Ineligible Receivables Pool reaches zero;
and the entitlement of the Beneficiaries to Trust Property shall be
affected accordingly. The Receivables Trustee shall maintain at all
times accurate records reflecting Receivables in Defaulted Accounts,
Credit Adjustments or Reductions and the allocation thereof amongst the
Beneficiaries.
(b) INCORRECT PAYMENTS
If from time to time payments of monies are incorrectly paid into the
Trustee Collection Account ("INCORRECT PAYMENTS"), such monies may
incorrectly be deemed to be Collections representing Trust Property and
allocated in a manner consistent with the principles set out in the First
Schedule (as amended by any Supplement) unless prior to such allocation
the Receivables Trustee is notified by the Trust Cash Manager or any Co-
Trust Cash Manager that such monies are Incorrect Payments.
Notwithstanding the above, promptly following the notification to the
Receivables Trustee by the Trust Cash Manager or Co-Trust Cash Manager
that such payments were incorrectly deemed to be Trust Property and have
been incorrectly allocated, the Receivables Trustee shall:
27
(i) apply Trust Property in a manner consistent with the principles set
out in the First Schedule (as amended by any Supplement) to repay
such Incorrect Payments; and
(ii) amend its books of account to record that (A) the Eligible
Receivables Pool has been increased by the amount of Principal
Receivables, if any, previously incorrectly deducted and that
Incorrect Payments incorrectly allocated as Principal Collections
have been repaid, (B) the Transferor Interest has been increased by
the same amount of Principal Receivables, if any, which were
incorrectly added to the Eligible Receivables Pool and (C)
following any deduction from Finance Charge Collections for such
purpose, Incorrect Payments incorrectly allocated as Finance Charge
Collections, if any, have been repaid;
and the entitlement of the Beneficiaries to Trust Property shall be
adjusted accordingly.
(c) ALLOCATED INELIGIBLE COLLECTIONS
If from time to time payments of monies into the Trustee Collection
Account representing Ineligible Collections are incorrectly deemed to be
Principal Collections in respect of Eligible Receivables such monies may
be allocated as such in accordance with the provisions of the First
Schedule (as amended by any Supplement) unless prior to such allocation
the Receivables Trustee is notified by the Trust Cash Manager or any Co-
Trust Cash Manager that such monies are Ineligible Collections
("ALLOCATED INELIGIBLE COLLECTIONS"). Notwithstanding the above,
promptly following the notification to the Receivables Trustee by the
Trust Cash Manager or such Co-Trust Cash Manager that Allocated
Ineligible Collections have been so allocated as Principal Collections in
respect of Eligible Receivables, the Receivables Trustee shall:
(i) apply Trust Property in a manner consistent with the principles set
out in the First Schedule (as amended by any Supplement) to re-
apply such Allocated Ineligible Collections correctly; and
(ii) amend its books of account to record that (A) the Ineligible
Receivables Pool has been decreased by the amount of Allocated
Ineligible Collections previously incorrectly allocated as
Principal Collections and the Eligible Receivables Pool has been
increased by the same amount and (B) the Transferor Ineligible
Interest has been decreased by the same amount so subtracted from
the Ineligible Receivables Pool and the Transferor Interest has
been increased by the amount so added to the Eligible Receivables
Pool;
and the entitlement of the Beneficiaries to Trust Property shall be
adjusted accordingly.
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(d) INELIGIBLE RECEIVABLES
If from time to time Ineligible Receivables are assigned to the
Receivables Trustee as a result of a breach of representation by the
Transferor or any Additional Transferor pursuant to Clause 17.2 or 17.3
of the RSA, payments to the Transferor or such Additional Transferor in
respect thereof were incorrectly funded by the Beneficiaries on the basis
that such Receivables were Principal Receivables which are Eligible
Receivables. Notwithstanding the remedies available to the Receivables
Trustee pursuant to the RSA, in such circumstances the Receivables
Trustee shall ensure that such error is corrected by:
(i) reducing the Transferor Interest by the amount of such Ineligible
Receivables until such time as it reaches zero PROVIDED, HOWEVER,
that if the amount of such Ineligible Receivables exceeds the
amount of the Transferor Interest on such date of determination
then the Receivables Trustee shall also require the Transferor or
such Additional Transferor to make a payment of cash to the
Receivables Trustee equal to the amount of such excess in order to
comply with the provisions of Clause 11.1 of the RSA; and
(ii) amending its books of account to record that (A) the Eligible
Receivables Pool has been decreased by the amount of Ineligible
Receivables previously incorrectly added to the Eligible
Receivables Pool and, subject to Clause 11.3 of the RSA, the
Ineligible Receivables Pool has been increased by the same amount,
and (B) the Transferor Ineligible Interest has been increased by
the same amount so added to the Ineligible Receivables Pool;
and the entitlement of the Beneficiaries to Trust Property shall be
adjusted accordingly.
29
6. PAY OUT EVENTS
6.1 TRUST PAY OUT EVENTS
If any one of the following events (each a "TRUST PAY OUT EVENT") shall occur:
(a) the Transferor or any Additional Transferor shall consent or take any
corporate action in relation to the appointment of a receiver,
administrator, administrative receiver, liquidator, trustee or similar
officer of it or relating to all or substantially all of its revenues and
assets;
(b) proceedings shall be initiated against the Transferor or any Additional
Transferor under any applicable liquidation, insolvency, composition, re-
organisation or similar laws for its winding up, dissolution,
administration or re-organisation and such proceedings are not discharged
within 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;
(c) a duly authorised officer of the Transferor or any Additional Transferor
shall admit in writing that the Transferor or relevant 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 payment of its
obligations with a view to the general readjustment or rescheduling of
its indebtedness;
(d) the Transferor or any Additional Transferor shall become unable for any
reason to transfer Receivables arising on Designated Accounts to the
Receivables Trust in the manner contemplated in the RSA;
(e) the Transferor or any Additional Transferor ceases to be resident for tax
purposes in the United Kingdom or otherwise ceases to be within the
charge to United Kingdom corporation tax; or
(f) either
(i) a change in law or its interpretation or administration results in
the Receivables Trustee becoming liable to make any payment on
account of tax (other than stamp duty payable in the United Kingdom
in respect of the transfer of Receivables pursuant to the RSA); or
(ii) any tax authority asserts a tax liability against, or takes any
other action in relation to, the Transferor or any Additional
Transferor or any of their respective subsidiaries in connection
with the transactions provided for in the Relevant Documents and as
a result of any of the foregoing there could be an adverse effect
on the position of all or any of such companies which is more than
trivial, Provided that:
(A) without prejudice to the generality of this Clause 6.1(f)(ii),
it will be established for the purposes hereof that there could
be such an adverse
30
effect which is more than trivial if the Transferor or such
Additional Transferor obtains an Opinion of Counsel to that
effect; and
(B) an event falling within this Clause 6.1(f)(ii) shall be treated
as occurring on the date on which the Transferor or relevant
Additional Transferor (in either case in its capacity as a
Transferor Beneficiary) gives notice in writing thereof to the
Receivables Trustee.
then:
(1) in the case of a Trust Pay Out Event under paragraph (a), (b) or
(c) (any such event an "INSOLVENCY EVENT") above, a Series Pay Out
Event will occur in respect of each Series and each Beneficiary
within such Series and each Transferor Beneficiary (and the
provisions of Clause 6.2 and 6.3 will become applicable); or
(2) in the case of any other Trust Pay Out Event a Series Pay Out Event
will occur in respect of each Series and each Beneficiary within
such Series (and the provisions of Clause 6.2 will become
applicable),
in each case without any notice or other action on the part of the Receivables
Trustee or any Beneficiary immediately upon the occurrence of such event.
6.2 SERIES PAY OUT EVENTS
Subject to Clause 6.1, Series Pay Out Events with respect to any Series and
each Beneficiary within such Series will be specified in any related
Supplement.
6.3 ADDITIONAL RIGHTS UPON THE OCCURRENCE OF CERTAIN EVENTS
(a) If a Trust Pay Out Event under Clause 6.1(a), (b) or (c) above occurs in
respect of any Transferor Beneficiary on such day (the "APPOINTMENT
DAY"), the following effects shall occur:
(i) the applicable Transferor Beneficiary shall immediately give notice
to the Receivables Trustee of the occurrence of such Insolvency
Event;
(ii) subject to (iii) below, Future Receivables coming into existence on
or following the Appointment Day will not be assigned to the
Receivables Trustee;
(iii) Finance Charge Receivables, whenever created, accrued in respect of
Principal Receivables which have been assigned to the Receivables
Trustee shall continue to form part of the Trust Property of the
Receivables Trust and Collections with respect thereto shall
continue to be allocated and applied in accordance with Clause 5;
(iv) the Receivables Trustee shall not be obliged nor entitled to accept
any further Offers to purchase Receivables from the Transferor or
any Additional Transferor; and
(v) subject to completion of the liquidation, winding-up and
dissolution procedures described below the Receivables Trust will
be dissolved.
31
(b) Within 15 days of the Appointment Day, the Receivables Trustee shall:
(i) cause to be published a notice in an Authorised Newspaper that an
Insolvency Event has occurred, that the Receivables Trustee intends
to sell, dispose of or otherwise liquidate the Receivables which
constitute Trust Property in a commercially reasonable manner and
that subject to completion of such sale, disposal or other
liquidation, the Receivables Trust will be dissolved; and
(ii) send written notice to the Beneficiaries describing the provisions
of this Clause 6.3 and requesting instructions from such
Beneficiaries. Unless within 60 days from the day notice pursuant
to sub-paragraph (i) above is first published, the Receivables
Trustee shall have received written instructions from Beneficiaries
representing more than 50 per cent. of the Aggregate Investor
Interest, each Transferor Beneficiary and each Excess Interest
Beneficiary (in each case if not subject to an Insolvency Event)
and any other person specified as so entitled in any Supplement to
the effect that such Beneficiaries and persons, if any, disapprove
of the liquidation of the Receivables which constitute Trust
Property and any other assets and wish to continue with the
Receivables Trustee accepting Offers and purchasing Receivables
pursuant to the terms and subject to the conditions of the RSA as
before such Insolvency Event, the Receivables Trustee shall
promptly sell, dispose of or otherwise liquidate the Receivables
and other assets in a commercially reasonable manner and on
commercially reasonable terms, which shall include the solicitation
of competitive bids. The Receivables Trustee may obtain a prior
determination from any such insolvency officer referred to in
paragraph (a) of Clause 6.1 that the terms and manner of any
proposed sale, disposition or liquidation are commercially
reasonable (which determination the Receivables Trustee shall be
entitled to regard as conclusive). The provisions of Clause 6.1
and Clause 6.3 shall not be deemed to be mutually exclusive.
(c) The proceeds from the sale, disposition or liquidation of the Receivables
and other assets of the Receivables Trust pursuant to paragraph (b) above
("INSOLVENCY PROCEEDS") shall be treated as Collections in respect of the
Receivables and other assets of the Receivables Trust and shall be
allocated and applied in accordance with the provisions of Clause 5.
Insolvency Proceeds shall be allocated to Finance Charge Receivables and
Principal Receivables in the same proportion such Receivables bore to one
another on the immediately preceding Determination Date.
(d) Unless the Receivables Trustee receives written instructions from
Beneficiaries and other persons as provided in Clause 6.3(b)(ii), on the
day following the last Transfer Date following the Monthly Period during
which the proceeds referred to in paragraph (c) above are distributed to
the Beneficiaries, and subject to the condition that the Aggregate
Investor Interest shall have been reduced to zero as a result of such
distributions, the Receivables Trustee shall take any and all necessary
additional steps to ensure that the Receivables Trust is dissolved. To
this intent if any Trust Property exists following the distribution of
the proceeds referred to in the previous sentence, the Receivables
Trustee shall execute and deliver such instruments of transfer and
assignment, in each case without recourse to the Receivables Trustee, as
shall be necessary to vest in each
32
Transferor Beneficiary as residuary beneficiary or, as it may direct, all
right, title and interest of the Receivables Trustee in such Trust
Property and the Receivables Trustee shall follow any reasonable
direction of the Transferor Beneficiaries in that regard. The
Receivables Trustee shall be entitled to be indemnified from the proceeds
referred to above and Trust Property allocated to the Transferor
Beneficiaries for any expenses incurred in connection with the
performance of the Receivables Trustee of its obligations under this
paragraph (d).
(e) The Receivables Trustee may appoint a sub-agent or agents and such other
professional advisers as it deems necessary or prudent to assist with its
responsibilities pursuant to this Clause 6 with respect to competitive
bids.
33
PART 3
THE RECEIVABLES TRUSTEE AND THE RECEIVABLES TRUST
7. THE RECEIVABLES TRUSTEE
7.1 DUTIES OF THE RECEIVABLES TRUSTEE
(a) The Receivables Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Deed to the extent required
or permitted under and in compliance with applicable law and regulations.
All of the following provisions of this Clause 7.1 are subject and
without prejudice to Clause 2.1 and shall be construed having regard to
Clause 2.1.
(b) The duties of the Receivables Trustee shall be to operate the Trust
Accounts and fund the purchase of Receivables in accordance with the
provisions of this Deed and any Relevant Document in a manner consistent
with the principles set out in the First Schedule. The Receivables
Trustee shall take those reasonable steps available to it to ensure that
any movements of monies into and out of the Trust Accounts on any
Business Day shall be for value on the same day.
(c) The Receivables Trustee shall, if it has actual knowledge of the same,
act promptly to exercise its rights under any bank mandate relating to a
bank account in respect of which it is a beneficiary of a trust declared
over such account to prevent monies representing Trust Property being
paid from such bank account to a bank account which is not a Trust
Account and which was overdrawn at the close of business on the preceding
Business Day in London only (unless the Receivables Trustee shall have
received evidence satisfactory to it that such overdraft has been
satisfied). The Receivables Trustee shall cease to exercise such rights
at such time as the relevant bank account ceases to be overdrawn.
(d) The Receivables Trustee shall maintain proper books of account in respect
of its duties as trustee of the Receivables Trust and shall maintain
records of all assets held by it and all payments made by it in such
capacity.
(e) The Receivables Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Receivables Trustee which are specifically required to
be furnished pursuant to any provision of this Deed or any Relevant
Document, shall cause them to be examined to determine whether they
substantially conform to the requirements of this Deed or such Relevant
Document.
(f) The Receivables Trustee shall from time to time, on receipt of a
Defaulted Accounts Instruction Notice from each Beneficiary, enter into
an agreement to assign the Receivables in any Defaulted Account which has
been notified to the Beneficiaries as being a Defaulted Account (as
specified in the Defaulted Accounts Instruction Notice). The Receivables
Trustee shall take any action or execute any document or documents which
shall be required in order to give effect to such assignment.
(g) The appointment of the Trust Cash Manager pursuant to Clause 9.1(a), and
any Co-Trust Manager pursuant to Clause 9.1(b) and the implementation of
advice received from the Trust Cash Manager or any Co-Trust Cash Manager,
shall (unless and until terminated) be deemed to constitute performance
by the Receivables Trustee of its fiduciary
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obligations hereunder or pursuant to any fiduciary duties on trustees
implied by law in respect of such matters. Without prejudice to the
foregoing, it is expressly agreed and acknowledged that no delegation by
the Receivables Trustee will absolve or release the Receivables Trustee
from its liabilities or obligations hereunder in the event that the Trust
Cash Manager or any Co-Trust Cash Manager shall default in the
performance of its obligations as Trust Cash Manager or Co-Trust Cash
Manager, as the case may be.
(h) The Receivables Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of any Investor Beneficiary relating to the time,
method and place of conducting any proceeding for any remedy available to
the Receivables Trustee, or exercising any trust, discretion or power
conferred upon the Receivables Trustee in relation to such Investor
Beneficiary, under this Deed or any Relevant Document.
(i) The Receivables Trustee shall not be charged with knowledge of any
failure by the Trust Cash Manager or any Co-Trust Cash Manager referred
to in Clause 11.1 unless the Receivables Trustee receives written notice
of such failure from the Trust Cash Manager, any Co-Trust Cash Manager or
any Investor Beneficiary adversely affected thereby.
(j) The Receivables Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or
powers, if it believes that the repayment of such funds or adequate
indemnity against such risk or liability is not assured to it to its
reasonable satisfaction, and none of the provisions contained in this
Deed or any Relevant Document shall in any event require the Receivables
Trustee to perform or procure the performance of, or be responsible for
the manner of the performance of, any of the obligations of the Trust
Cash Manager or any Co-Trust Cash Manager under this Deed.
(k) Except for actions expressly authorised herein or in any Supplement, the
Receivables Trustee shall take no action to impair the interests of the
Beneficiaries of the Receivables Trust in any Receivable now existing or
hereafter created or to impair the value of any Receivable now existing
or hereafter created.
(l) Other than as expressly contemplated in this Deed or any Relevant
Document, the Receivables Trustee shall have no power to deal with Trust
Property or supplement, amend or vary the Receivables Trust.
(m) If at any time the Receivables Trustee shall have reasonable grounds to
believe that advice received from the Trust Cash Manager or any Co-Trust
Cash Manager is incorrect, it shall promptly notify the Trust Cash
Manager or such Co-Trust Cash Manager of such matter PROVIDED, HOWEVER,
that if the Trust Cash Manager or Co-Trust Cash Manager disagrees that
such advice is incorrect the Receivables Trustee shall promptly act in
accordance with the advice given by the Trust Cash Manager or Co-Trust
Cash Manager and shall be entitled so to do.
7.2 CERTAIN MATTERS AFFECTING THE RECEIVABLES TRUSTEE
Except as otherwise provided in Section 7.1:
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(a) the Receivables Trustee may rely on and shall be protected in acting, or
in refraining from acting in accordance with, any Offer, the initial
report, the Daily Report, the Monthly Trust Cash Manager's Report, the
Annual Trust Cash Manager's Report, the monthly payment instructions and
notification to the Receivables Trustee, the monthly Investor
Beneficiaries statement, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been
signed or presented to it pursuant to this Deed or any Relevant Document
by the proper party or parties;
(b) the Receivables Trustee may rely on any Opinion of Counsel addressed to
it, and any such Opinion of Counsel shall be full and complete
authorisation and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel;
(c) the Receivables Trustee shall be entitled to assume, for the purposes of
exercising any power, trust, authority, duty or discretion under or in
relation to any Relevant Document that such exercise will not adversely
affect the interest of the Investor Beneficiaries if each Rating Agency
has given written confirmation that such Rating Agency would not, as a
result of such exercise, reduce or withdraw its then current rating of
any outstanding Related Debt;
(d) the Receivables Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Deed or the RSA or any
agreement relating to any Enhancement, or to institute, conduct or defend
any litigation hereunder or in relation hereto, at the request, order or
direction of an Investor Beneficiary or any Enhancement Provider,
pursuant to the provisions of this Deed, unless such Investor Beneficiary
or Enhancement Provider shall have offered to the reasonable satisfaction
of the Receivables Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Receivables Trustee
of the obligations, upon the occurrence of any Trust Cash Manager Default
(which has not been cured), to exercise such of the rights and powers
vested in it by this Deed or the RSA and any agreement relating to any
Enhancement, and to use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs;
(e) the Receivables Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorised or within the discretion or rights or powers conferred upon it
by this Deed or any Relevant Document;
(f) the Receivables Trustee shall not be bound to make any investigation into
any facts or matters stated in any Offer, the initial report, the Monthly
Trust Cash Manager's Report, the Daily Report, the Annual Trust Cash
Manager's Report, the monthly payment instructions and notification to
the Receivables Trustee, the monthly Investor Beneficiaries statement,
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing so to do by any Investor
Beneficiary which could be adversely affected if the Receivables Trustee
does not perform such acts;
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(g) the Receivables Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys or a custodian, and the Receivables Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent, attorney or custodian appointed with all due care by it hereunder;
and
(h) the Receivables Trustee shall not be required to make any initial or
periodic examination of any documents or records related to the
Receivables or the Designated Accounts for the purpose of establishing
the presence or absence of defects, the compliance by Barclays Bank PLC
or any Additional Transferor or Co-Trust Cash Manager with its
representations and warranties or for any other purpose.
7.3 RECEIVABLES TRUSTEE NOT LIABLE FOR VALIDITY OR SUFFICIENCY
Except as set forth in Clause 7.12, the Receivables Trustee makes no
representations as to the validity or sufficiency of this Deed or any
Relevant Document or of the beneficial entitlement of the Beneficiaries
to Trust Property as evidenced by the Trust Certificates (other than the
certificate of authentication on the Trust Certificates) or of any
Receivable or related document. The Receivables Trustee shall not be
accountable for the use or application by the Transferor or any
Additional Transferor of any of its beneficial entitlement to Trust
Property or of the proceeds of any transfer of its beneficial
entitlement, or for the use or application of any funds paid to the
Transferor or any Additional Transferor in respect of the Receivables or
deposited in or withdrawn from any Trust Account by the Trust Cash
Manager or any Co-Trust Cash Manager.
7.4 RESIGNATION OR REMOVAL OF THE RECEIVABLES TRUSTEE
(a) The Receivables Trustee may at any time resign and be discharged from the
Receivables Trust hereby created by giving written notice thereof to the
Transferor Beneficiary. Upon receiving such notice of resignation, each
Transferor Beneficiary shall be vested jointly with the power to appoint
a successor trustee and shall promptly appoint such successor trustee as
detailed in Clause 7.5 by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Receivables Trustee
and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted within 30 days after the giving
of such notice of resignation, the resigning Receivables Trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time the Receivables Trustee shall be legally unable to act, or
shall be adjudged insolvent, or a receiver of the Receivables Trustee or
of its property shall be appointed, or any public officer shall take
charge or control of the Receivables Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then the Transferor Beneficiaries may collectively, but shall not be
required to, remove the Receivables Trustee and promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Receivables Trustee so removed and
one copy to the successor trustee.
(c) The Beneficiaries may at any time by unanimous vote resolve to remove the
Receivables Trustee as trustee of the Receivables Trust and shall do so
by giving written notice thereof to the Receivables Trustee. Upon such
notice of removal being given each
37
Transferor Beneficiary shall be vested jointly with the power to appoint
a successor trustee and shall promptly appoint such successor trustee as
detailed in Clause 7.5 by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Receivables Trustee being
removed and one copy to the successor trustee.
(d) Any resignation or removal of the Receivables Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Clause 7.4
shall not become effective until:
(i) acceptance of appointment by the successor trustee as provided in
Clause 7.5 hereof and any liability of the Receivables Trustee
arising hereunder shall survive such appointment of a successor
trustee; and
(ii) confirmation has been received from each Rating Agency that the
appointment of the successor trustee will not result in such Rating
Agency reducing or withdrawing its then current rating on any
outstanding Related Debt.
7.5 SUCCESSOR RECEIVABLES TRUSTEE
(a) Any successor trustee appointed as provided in Clause 7.4 hereof shall,
unless each Transferor Beneficiary requires otherwise, be a person
belonging outside the member states of the European Union for VAT
purposes and shall execute, acknowledge and deliver to each Transferor
Beneficiary and to its predecessor Receivables Trustee an instrument
accepting such appointment hereunder and transferring the Trust Property
to such successor trustee, and thereupon the resignation or removal of
the predecessor Receivables Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall
become fully vested with the Trust Property and all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect
as if originally named as Receivables Trustee herein. The predecessor
Receivables Trustee shall deliver to the successor trustee all documents
and statements held by it hereunder, and each Transferor Beneficiary and
the predecessor Receivables Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor trustee all
Trust Property and such rights, powers, duties and obligations.
(b) Upon acceptance of appointment by a successor trustee as provided in this
Clause 7.5, such successor trustee shall mail notice of such succession
hereunder to all Beneficiaries.
7.6 APPOINTMENT OF CO-RECEIVABLES TRUSTEE OR SEPARATE RECEIVABLES TRUSTEE
(a) Notwithstanding any other provisions of this Deed, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Property may at the time be located, the
Receivables Trustee shall have the power and may execute and deliver all
instruments to appoint one or more persons to act as a co-trustee or co-
trustees, or separate trustee or separate trustees, of all or any part of
the Receivables Trust, and to vest in such person or persons, in such
capacity and for the benefit of the Beneficiaries, such title to the
Receivables Trust or any Trust Property or any part thereof, and, subject
to the other provisions of this Clause 7.6, such powers, duties,
obligations, rights and trusts as the Receivables Trustee may consider
necessary or desirable. No notice to Beneficiaries of the appointment of
any co-trustee or separate trustee shall be required under Clause 7.5
hereof. The Receivables Trustee shall be
38
required to obtain the prior written consent of the Transferor
Beneficiaries before making any appointment pursuant to this Clause
7.6(a) and no such appointment shall be valid unless such consent has
been obtained PROVIDED, HOWEVER that the Transferor Beneficiaries shall
be entitled to withhold their consent only if it is not established to
their reasonable satisfaction that (so far as is consistent with the
legal requirements referred to in this Clause 7.6(a)) the relevant co-
trustee or co-trustees or separate trustee or separate trustees will
belong outside the member states of the European Union or (if the
foregoing is not consistent with the said legal requirements) within the
member states of the European Union but outside the United Kingdom for
the purposes of the Value Added Tax Act 1994.
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Receivables Trustee shall be conferred or imposed upon and
exercised or performed by the Receivables Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorised to act separately
without the Receivables Trustee joining in such act), except to the
extent that under any laws of any jurisdiction in which any
particular act or acts are to be performed (whether as Receivables
Trustee hereunder or as successor to the Trust Cash Manager or any
Co-Trust Cash Manager hereunder), the Receivables Trustee shall be
incompetent or unqualified to perform such act or acts, in which
events such rights, powers, duties and obligations (including the
holding of title to the Receivables Trust or any Trust Property or
any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Receivables Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Receivables Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Receivables Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Deed and the conditions of this Clause 7. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested
with the estates or property specified in its instrument of appointment,
either jointly with the Receivables Trustee or separately, as may be
provided therein, subject to all the provisions of this Deed,
specifically including every provision of this Deed relating to the
conduct of, affecting the liability of, or affording protection to, the
Receivables Trustee. Every such instrument shall be filed with the
Receivables Trustee and a copy thereof given to the Trust Cash Manager
and any Co-Trust Cash Manager.
(d) Any separate trustee or co-trustee may at any time constitute the
Receivables Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by
39
law, to do any lawful act under or in respect to this Deed or any
Relevant Document on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Receivables Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
7.7 TAX RETURNS
In the event that the Receivables Trustee shall be required to file tax
returns, the Receivables Trustee, as soon as practicable after it is made aware
of such requirement, shall prepare or cause to be prepared any tax returns
required to be filed by the Receivables Trust and, to the extent possible,
shall file such returns at least five days before such returns are due to be
filed. The Receivables Trustee is hereby authorised to sign any such return on
behalf of the Receivables Trust. The Receivables Trustee will instruct the
Trust Cash Manager or, if applicable, any Co-Trust Cash Manager to prepare or
cause to be prepared all tax information required by law to be distributed to
Beneficiaries and to deliver such information to the Receivables Trustee at
least five Business Days prior to the date it is required by law to be
distributed to Beneficiaries. The Receivables Trustee will instruct the Trust
Cash Manager or, if applicable, any Co-Trust Cash Manager, upon request, to
furnish the Receivables Trustee with all such information known to the Trust
Cash Manager or Co-Trust Cash Manager as may be reasonably required in
connection with the preparation of all tax returns of the Receivables Trust.
In no event shall the Receivables Trustee, the Trust Cash Manager or any Co-
Trust Cash Manager be liable for any liabilities, costs or expenses of the
Receivables Trust, the Investor Beneficiaries or any other person arising under
any tax law (or any interest or penalty with respect thereto or arising from a
failure to comply therewith).
7.8 RECEIVABLES TRUSTEE MAY ENFORCE CLAIMS WITHOUT BENEFICIARIES
To the extent permitted by law, all rights of action and claims under this Deed
or any Relevant Document or with respect to any Beneficiary (including any
Enhancement Provider) and any related Supplement may be prosecuted and enforced
by the Receivables Trustee without the joining of any Beneficiary (including
any Enhancement Provider) in any proceeding relating thereto, and any such
proceeding instituted by the Receivables Trustee shall be brought in its own
name as trustee. Any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Receivables Trustee, its agents and legal advisers, constitute Trust
Property and be for the rateable benefit of any Beneficiaries in respect of
which such judgment has been obtained.
7.9 SUITS FOR ENFORCEMENT
If a Trust Cash Manager Default shall occur and be continuing, the Receivables
Trustee shall, if it is so directed by Investor Beneficiaries representing in
aggregate more than 50% of the Aggregate Investor Interest, subject to the
provisions of Clause 7.1, proceed to protect and enforce its rights and the
rights of any Investor Beneficiaries under this Deed or any Relevant Document
by a suit, action or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement contained in this Deed or
any Relevant Document or in aid of the execution of any power granted in this
Deed or for the enforcement of any other legal, equitable or other remedy as
the Receivables Trustee, being advised by counsel, shall deem most effective to
protect and enforce any of the rights of the Receivables Trustee or any
Investor Beneficiary.
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7.10 CONSIDERATION OF THE INTERESTS OF THE BENEFICIARIES
(a) The Receivables Trustee shall, as regards all the powers, trusts,
authorities, duties and discretions vested in it under this Deed or other
Relevant Documents, except where expressly provided otherwise, have
regard to the interests of the Investor Beneficiaries, the Transferor
Beneficiaries, the Enhancement Providers and the Excess Interest
Beneficiaries.
(b) Where, in the opinion of the Receivables Trustee, there is a conflict
between the interests of certain Beneficiaries and the interests of any
of the other Beneficiaries, the Receivables Trustee shall,
notwithstanding anything to the contrary contained in this Deed or other
Relevant Documents, have regard first to the interests of the Investor
Beneficiaries, then to the Transferor Beneficiaries, then to the
interests of the Enhancement Providers and then to the interests of the
Excess Interest Beneficiaries and, subject to any other claims it may
otherwise have against the Receivables Trustee including, without
limitation, pursuant to Clauses 7.12 and 7.13, no Transferor Beneficiary,
Enhancement Provider or Excess Interest Beneficiary shall have a claim
against the Receivables Trustee for so doing.
(c) Notwithstanding (a) and (b) above, where the Receivables Trustee is
required under this Deed or other Relevant Documents to have regard to
the interests of each of the Investor Beneficiaries (as among themselves)
and where, in the opinion of the Receivables Trustee, there is a conflict
between the interests of the Investor Beneficiaries (as between
themselves), the Receivables Trustee shall be entitled to act in
accordance with directions received from such Investor Beneficiaries
pursuant to Clause 7.11 and no Investor Beneficiaries shall have any
claim against the Receivables Trustee for so doing.
7.11 RIGHTS OF INVESTOR BENEFICIARIES TO DIRECT THE RECEIVABLES TRUSTEE
Investor Beneficiaries representing in aggregate more than 50% of the Aggregate
Investor Interest (or, with respect to any remedy, trust or power that does not
relate to all Series, 50% of the Aggregate Investor Interest represented by
such Series to which such remedy, trust or power relates) shall have the right
to direct the Receivables Trustee in the exercise of any discretion, trust or
power conferred on the Receivables Trustee and also the time, method and place
of conducting any proceeding for any remedy available to the Receivables
Trustee, PROVIDED, HOWEVER, that subject to Clause 7.1, the Receivables Trustee
shall have the right to decline to follow any such direction if the Receivables
Trustee being advised by counsel determines that the action so directed may not
lawfully be taken, or if the Receivables Trustee in good faith shall determine
that the proceedings so directed would be illegal or involve it in personal
liability or be unduly prejudicial to the rights of Series not parties to such
direction; and provided further that nothing in this Deed shall impair the
right of the Receivables Trustee to take any action deemed proper by the
Receivables Trustee and which is not inconsistent with such direction of such
Series.
7.12 REPRESENTATIONS AND WARRANTIES OF THE RECEIVABLES TRUSTEE
The Receivables Trustee represents and warrants on the date hereof and on each
Acquisition Date that:
(i) the Receivables Trustee has full power, authority and right to execute,
deliver and perform this Deed and each Relevant Document, and has taken
all necessary action to
41
authorise the execution, delivery and performance by it of this Deed and
each Relevant Document; and
(ii) each of this Deed and each Relevant Document has been duly executed and
delivered by the Receivables Trustee.
7.13 COVENANTS BY THE RECEIVABLES TRUSTEE
(a) Save as provided for or as contemplated in this Deed and the Receivables
Trust constituted hereby, the Receivables Trustee hereby covenants in
favour of the Beneficiaries in its capacity as Receivables Trustee and
also in its capacity as purchaser of the Receivables pursuant to the RSA
that it shall not, without the prior written consent of each of the
Beneficiaries:
(i) carry on any business other than as trustee of the Receivables
Trust and in respect of that business shall not engage in any
activity or do anything whatsoever except:
(A) hold, and exercise its rights in respect of, the Trust Property
and perform its obligations in respect of the Trust Property;
(B) preserve and/or exercise and/or enforce any of its rights and
perform and observe its obligations under the Relevant
Documents;
(C) pay dividends or make other distributions to the extent
required by applicable law;
(D) use, invest or dispose of any of its property or assets in the
manner provided in or contemplated by the Relevant Documents;
and
(E) perform any and all acts incidental to or otherwise necessary
in connection with (A), (B), (C) or (D) above;
(ii) incur any indebtedness whatsoever (other than as expressly
contemplated herein or any Supplement) or give any guarantee or
indemnity in respect of any indebtedness;
(iii) create any Encumbrance whatsoever over any of its assets, or use,
invest, sell or otherwise dispose of any part of its assets
(including any uncalled capital) or undertaking, present or future,
other than as expressly contemplated by this Deed and any Relevant
Document;
(iv) consolidate or merge with any other person or convey or transfer
its properties or assets to any person;
(v) permit the validity or effectiveness of the Receivables Trust to be
supplemented, amended, varied, terminated, postponed or discharged
(other than as expressly contemplated herein or in any Supplement);
and
(vi) have an interest in any bank account other than a Trust Account and
the bank account in Jersey referred to in Clause 7.13(b)(ii).
42
(b) the Receivables Trustee hereby covenants in favour of the Beneficiaries
that it shall:
(i) maintain all necessary licences, authorisations and covenants and
do all other such things necessary to ensure its continued
corporate existence and carry out its obligations under the
Relevant Documents to which it is party;
(ii) unless agreed otherwise by each Transferor Beneficiary in writing,
open and maintain a bank account in Jersey in its own name for the
purpose of receiving and making payments to be made otherwise than
in its capacity as Receivables Trustee (including making payments
of Trust Cash Management Fee to the Trust Cash Manager or any Co-
Trust Cash Manager); and
(iii) ensure that all instructions given by or on behalf of the
Receivables Trustee for:
(1) the transfer of moneys into;
(2) the allocation of moneys held in;
(3) the transfer of moneys between; or (as the case may be)
(4) the distribution of moneys out of
the Trust Accounts are given in Jersey and that no such transfers,
allocations or distributions are made without such instructions
first having been given in Jersey with respect to the transfer,
allocation or distribution in question.
(c) Save as otherwise provided or as otherwise contemplated in this Deed
(including the proviso to Clause 7.11) the Receivables Trustee hereby
covenants in favour of the Beneficiaries that it will not exercise any
discretion (whether to consent or request or otherwise) vested in it
pursuant to the terms of this Deed or the RSA unless it is so directed in
accordance with Clause 7.11.
7.14 SUPPLEMENT TO TRUSTEE ACT 1925
The rights, powers, duties and obligations conferred or imposed upon the
Receivables Trustee by this Deed shall, unless otherwise specified herein or in
any Supplement, be supplemental to any rights, powers, duties and obligations
conferred or imposed upon the Receivables Trustee under the law generally and
in particular the Trustee Act 1925.
7.15 FEES, COSTS AND EXPENSES OF THE RECEIVABLES TRUSTEE
(a) As full compensation for its duties and activities as Receivables Trustee
and as reimbursement for any costs and expenses incurred by it in
connection therewith (including, without limitation, amounts in respect
of stamp duty (if applicable) but excluding amounts in respect of Trust
Cash Management Fee) the Receivables Trustee shall be entitled to be
indemnified by the Beneficiaries for such costs and expenses with respect
to each Monthly Period, provided that recourse under such indemnity shall
be limited solely to the extent of Trust Property allocated to the
Beneficiaries, as provided in this Deed and any Supplement, on the
related Transfer Date (each such fee and reimbursement of costs and
expenses, a "TRUSTEE PAYMENT AMOUNT" and the aggregate of such fees and
reimbursement of such costs and expenses payable on a Transfer Date,
43
together with the amount of any Trustee Fee payable on such date in
accordance with Clause 7.16, shall be the "AGGREGATE TRUSTEE PAYMENT
AMOUNT").
(b) The share of the Aggregate Trustee Payment Amount allocable to and borne
by the Investor Beneficiaries of a particular Series with respect to any
Monthly Period (the "INVESTOR TRUSTEE PAYMENT") will be determined in
accordance with the relevant Supplement.
7.16 TRUSTEE FEE
In consideration of the undertaking and performance by the Receivables Trustee
of its fiduciary duties hereunder the Beneficiaries shall pay to the
Receivables Trustee a fee of [GBP]5,000 per annum (the "TRUSTEE FEE"). The
said fee shall be payable in 12 equal instalments on each Transfer Date
commencing with the first Transfer Date and, for the purposes of the Relevant
Documents, the amount so payable on any Transfer Date shall be included in the
Aggregate Trustee Payment amount for the Transfer Date in question.
7.17 LIMITATION
It is acknowledged that:-
(a) the Receivables Trustee shall have no power and no duty to carry
out (or procure the carrying out of) any of the functions which the
Servicer agrees to carry out under the Beneficiaries Servicing
Agreement; and
(b) the Trust Cash Manager and, by its execution of the relevant
Accession Notice, any Co-Trust Cash Manager agrees to perform its
functions hereunder solely in order to enable the Receivables
Trustee to perform its functions hereunder and, for so long as the
Receivables Trust continues, neither the Trust Cash Manager nor any
Co-Trust Cash Manager shall be obliged or entitled to act on behalf
of or on the instructions of the Beneficiaries.
7.18 DISCLOSURE OF INFORMATION
(a) The Receivables Trustee and, by its execution of a Supplement, each
Investor Beneficiary agrees not to disclose to any person any information
which it receives pursuant to or in connection with any Relevant Document
("RELEVANT INFORMATION") except and only to the extent permitted by
applicable law:
(i) if required in connection with the performance of its duties under
such Relevant Document;
(ii) if required in order to enforce the rights of any Beneficiary;
(iii) 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
(iv) pursuant to any Requirement of Law.
(b) The Receivables Trustee and, by its execution of a Supplement, each
Investor Beneficiary agrees to take such measures as shall be reasonably
requested by the Transferor or any Additional Transferor, to protect and
maintain the security and
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confidentiality of all Relevant Information and, in connection therewith,
shall allow the Transferor and any Additional Transferor to inspect its
security and confidentiality arrangements from time to time during normal
business hours and upon reasonable notice being given.
(c) If the Receivables Trustee or any Investor Beneficiary is required by any
Requirement of Law to disclose any Relevant Information, the Receivables
Trustee or such Investor Beneficiary shall provide the Transferor and
each Additional Transferor with prompt written notice, unless such notice
is prohibited by law, of any such request or requirement. The
Receivables Trustee or relevant Investor Beneficiary 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.
8. TERMINATION OF THE RECEIVABLES TRUST AND PERPETUITY
8.1 TERMINATION OF THE RECEIVABLES TRUST
If the Receivables Trust has not otherwise been dissolved pursuant to Clause
6.3 hereof, on any Business Day on which (i) the Aggregate Investor Interest is
reduced to zero, (ii) there are no Finance Charge Collections or other Trust
Property allocated to any Beneficiaries other than any Transferor Beneficiary
or any Excess Interest Beneficiary and (iii) there is no commitment on the part
of any Beneficiary to make contributions to meet payments in respect of the
assignment of Receivables to the Receivables Trust, then the Transferor
Beneficiaries may jointly by written notice to the Receivables Trustee direct
that the Receivables Trust be dissolved.
8.2 TERMINATION RIGHTS OF TRANSFEROR BENEFICIARIES
(a) Following the delivery of a notice of dissolution in the circumstances
contemplated in Clause 8.1 and the surrender of the Transferor
Certificate, the Receivables Trustee shall execute and deliver such
instruments of transfer and re-assignment, in each case without recourse,
as shall be reasonably requested by each Transferor Beneficiary at the
expense of such Transferor Beneficiary, to the extent of its pro rata
share, to vest in such Transferor Beneficiary or as it may direct to the
extent of such Transferor Beneficiary's pro rata share all right, title
and interest of the Receivables Trustee in the Trust Property including
Receivables in existence or arising on Designated Accounts, all moneys
due or to become due with respect to such Receivables (including all
accrued interest theretofore posted as Finance Charge Receivables) and
all proceeds of such Receivables and Insurance Proceeds relating to such
Receivables and Acquired Interchange (if any) allocable to the
Receivables Trust pursuant to any Supplement.
(b) Following the conveyance of the Trust Property to each Transferor
Beneficiary or as such Transferor Beneficiary may direct pursuant to this
Clause 8.2, the Receivables Trust shall be dissolved.
8.3 PERPETUITY PERIOD
The perpetuity period for the purposes of this Deed is the period of 80
years from the date hereof.
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PART 4
APPOINTMENT AND DUTIES OF TRUST CASH MANAGER AND CO-TRUST CASH
MANAGERS
9. TRUST CASH MANAGEMENT FUNCTIONS
9.1 ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS RELATING TO THE TRUST CASH
MANAGER
(a) The Receivables Trustee hereby appoints Barclays Bank PLC and Barclays
Bank PLC agrees to act as the Trust Cash Manager for the Receivables
Trustee under this Deed. By its execution of a Supplement each Investor
Beneficiary consents to Barclays Bank PLC acting as Trust Cash Manager.
(b) Any Additional Transferor may, if the relevant Accession Notice so
specifies, be appointed by the Receivables Trustee to carry out Trust
Cash Management under this Deed (a "CO-TRUST CASH MANAGER") (and by its
execution of a Supplement each Investor Beneficiary consents to the
appointments of Co-Trust Cash Managers being made in accordance with this
Clause 9.1(b)). If any Accession Notice in respect of an Additional
Transferor does not specify that such Additional Transferor is to be
appointed a Co-Trust Cash Manager then the Trust Cash Manager shall be
deemed to be appointed by the Receivables Trustee as cash manager in
respect of all cash management functions set out in this Deed as the same
apply to such Additional Transferor.
(c) The Trust Cash Manager shall make the calculations referred to in Clause
2.2 and Clause 5 of this Deed (and any Co-Trust Cash Manager shall make
those of such calculations and perform such functions which it is
authorised to make and perform pursuant to the terms of its appointment)
for the purpose of enabling the Receivables Trustee to make the
allocations referred to herein and shall give such advice as may be
necessary to enable the Receivables Trustee to effect all transfers which
are to be made, in relation to such calculations and allocations, in
accordance with this Deed. The Trust Cash Manager and any Co-Trust Cash
Manager shall further undertake any other Trust Cash Management or
related functions necessary or desirable to enable the Receivables
Trustee to exercise the rights and perform the duties and obligations of
the Receivables Trustee under this Deed. In carrying out its duties and
obligations under this Deed the Trust Cash Manager and any Co-Trust Cash
Manager shall follow such instructions in regard to the exercise of its
power and authority as the Receivables Trustee may from time to time
direct. Provided that nothing herein shall be taken to constitute the
Trust Cash Manager or any Co-Trust Cash Manager as an agent of the
Receivables Trustee
Without limiting the generality of the foregoing, and subject to Clause
11.1, the Trust Cash Manager and (to the extent authorised by the
relevant Accession Notice) any Co-Trust Cash Manager is hereby obliged,
authorised and empowered:
(i) to advise the Receivables Trustee to direct the Transferor to make
transfers from the Barclaycard Operating Account as set forth in
Clause 5.2(a)(i) of this Deed;
(ii) (unless such power and authority is revoked by the Receivables
Trustee on account of the occurrence of a Trust Cash Manager
Default pursuant to Clause 11.1) to advise the Receivables Trustee
to transfer moneys between the Trust
46
Accounts, and make withdrawals and payments from the Trust
Accounts, in accordance with this Deed and any Supplement; and
(iii) (unless such power and authority is revoked by the Receivables
Trustee on account of the occurrence of a Trust Cash Manager
Default pursuant to Clause 11.1), to advise the Receivables Trustee
in writing, as set forth in this Deed;
The Receivables Trustee agrees that it shall promptly act in accordance
with advice given by the Trust Cash Manager or any Co-Trust Cash Manager
to transfer moneys between the Trust Accounts and withdraw and pay funds
from any Trust Account and to take any action required under any
Enhancement at such time as required under this Deed and any Supplement.
The Receivables Trustee shall execute at the Trust Cash Manager's or any
Co-Trust Cash Manager's written request such documents prepared by the
Transferor and acceptable to the Receivables Trustee as may be reasonably
necessary or appropriate to enable the Trust Cash Manager or Co-Trust
Cash Manager to carry out its Trust Cash Management duties hereunder.
(d) Without prejudice to the provisions of Clause 6.1(d), in the event that
the Transferor is unable for any reason duly to assign Receivables
arising on a Designated Account to the Receivables Trustee in accordance
with the provisions of the RSA then, in any such event:
(i) the Trust Cash Manager and/or, if applicable, any Co-Trust Cash
Manager shall advise the Receivables Trustee to apply, after the
date of the purported assignment, all Principal Collections in
respect of Receivables and all amounts which would have constituted
Principal Collections which would have been assigned to the
Receivables Trustee but for the Transferor's (or as the case may
be, any Additional Transferor's) inability duly to assign such
Receivables, in accordance with the provisions of the Relevant
Documents as though such amounts are Principal Collections;
(ii) the Trust Cash Manager and/or, if applicable, any Co-Trust Cash
Manager shall advise the Receivables Trustee to apply such amounts
as Principal Collections on Receivables assigned to the Receivables
Trustee in accordance with Clause 5; and
(iii) for only so long as all Principal Collections and all amounts which
would have constituted Principal Collections are applied in
accordance with paragraphs (i) and (ii) above, Principal
Collections and all amounts which would have constituted Principal
Collections but for the Transferor's (or as the case may be, any
Additional Transferor's) inability duly to assign Receivables to
the Receivables Trustee that are charged-off in accordance with
this Deed and the Card Guidelines, shall continue to be applied in
accordance with Clause 5 and all Principal Receivables which would
have been assigned to the Receivables Trustee but for the
Transferor's (or as the case may be, any Additional Transferor's)
inability duly to assign Receivables to the Receivables Trustee
shall be deemed to be Principal Receivables for the purpose of
calculating the applicable Investor Percentage thereunder.
47
If the Receivables Trustee is unable pursuant to any Requirement of Law
to allocate payments on the Designated Accounts as described above in
accordance with the instructions of the Trust Cash Manager or any Co-
Trust Cash Manager, as applicable, the Trust Cash Manager or Co-Trust
Cash Manager shall, if such Requirement of Law thereafter ceases to
prevent such allocation, advise the Receivables Trustee to allocate
payments on each Designated Account with respect to the principal balance
of such Designated Account first to the oldest principal balance of such
Designated Account and to apply such payments as Collections in
accordance with Clause 5.
The parties hereto agree that Finance Charge Receivables (whenever
created) accrued in respect of Principal Receivables which have been
conveyed to the Receivables Trustee as trustee of the Receivables Trust,
or which would have been conveyed to the Receivables Trustee as trustee
of the Receivables Trust but for the above described inability duly to
assign such Receivables, shall continue to be a part of the Trust
Property notwithstanding any cessation of the assignment of additional
Principal Receivables to the Receivables Trustee and Collections with
respect thereto shall continue to be allocated and paid in accordance
with Clause 5.
9.2 TRUST CASH MANAGEMENT FEES
(a) As full compensation for its duties hereunder and as reimbursement for
any expense (but not including any part thereof which represents VAT in
respect of which it is entitled to repayment or credit from HM Customs &
Excise) incurred by it in connection therewith, the Trust Cash Manager
and any Co-Trust Cash Manager shall be entitled to receive from the
Receivables Trustee (solely to the extent of payments received from the
Beneficiaries utilising Trust Property allocated with respect thereto as
provided in this Deed and in any Supplement) a trust cash management fee
(the "TRUST CASH MANAGEMENT FEE") with respect to each Monthly Period,
payable monthly on the related Transfer Date, in an amount equal to the
aggregate of the Investor Trust Cash Management Fees and the Transferor
Trust Cash Management Fee. The aggregate of the Investor Trust Cash
Management Fees for any Monthly Period shall be an amount equal to one-
twelfth of the product of (i) the weighted average of the Series Trust
Cash Management Fee Percentages with respect to each Applicable Series
(based upon the Series Trust Cash Management Fee Percentage for each
Series and the Investor Interests (or such other amount as specified in
the related Supplement) of such Series, in each case as of the last day
of such Monthly Period (or as otherwise provided in the related
Supplement) and (ii) the average daily aggregate Outstanding Face Amount
of Principal Receivables during such Monthly Period. Any amount payable
under this Clause 9.2(a) shall be inclusive of VAT thereon, if
applicable, and the application of section 89 of the Value Added Tax Act
1994 shall be excluded in relation thereto. Any Co-Trust Cash Manager
shall be entitled to such portion of the Trust Cash Management Fee as
shall be specified in the relevant Accession Notice pursuant to which
such Co-Trust Cash Manager is appointed.
(b) The share of the Trust Cash Management Fee payable by the Receivables
Trustee to the Trust Cash Manager and any Co-Trust Cash Manager which is
to be met by the Receivables Trustee from payments made by the Investor
Beneficiaries of a particular Series to the Receivables Trustee with
respect to each Monthly Period (the "INVESTOR
48
TRUST CASH MANAGEMENT FEE" with respect to such Series) will each
determined in accordance with the relevant Supplement.
(c) The portion of the Trust Cash Management Fee (the "TRANSFEROR TRUST CASH
MANAGEMENT FEE") with respect to any Monthly Period not to be met by the
Receivables Trustee from payments made by the Investor Beneficiaries of a
particular Series pursuant to any related Supplement shall be paid to the
Receivables Trustee by each Transferor Beneficiary to the extent of its
pro rata share from the Transferor Finance Charge Amount and Transferor
Acquired Interchange Amount or other Trust Property allocable to such
Transferor Beneficiary on the related Transfer Date. In no event shall
the Investor Beneficiaries of any Series be liable to the Trust Cash
Manager or any Co-Trust Cash Manager for the share of the Trust Cash
Management Fee with respect to any Monthly Period to be met by the
Receivables Trustee from payments to be made by any Transferor
Beneficiary from Trust Property allocated to such Transferor Beneficiary
PROVIDED, HOWEVER, that the amount of Transferor Trust Cash Management
Fee to be paid to the Receivables Trustee by the Transferor Beneficiaries
in any Monthly Period shall not exceed the aggregate amount of the
Transferor Finance Charge Amount and Transferor Acquired Interchange
Amount for such Monthly Period.
(d) It is a condition of the Receivables Trust (which by the execution of a
supplement by a Beneficiary, such Beneficiary consents and confirms) that
each Beneficiary of the Receivables Trust undertakes to the Receivables
Trustee for the benefit of itself and as trustee for each other
Beneficiary that it will pay to the Receivables Trustee the share of the
Trust Cash Management Fee payable by the Receivables Trustee to the Trust
Cash Manager and any Co-Trust Cash Manager pursuant to Clause 9.2(a)
which is to be met by the Receivables Trustee from payments to be made by
such Beneficiary to the Receivables Trustee as calculated and specified
in such Supplement.
9.3 REPRESENTATIONS AND WARRANTIES OF THE TRUST CASH MANAGER AND CO-TRUST CASH
MANAGERS
(i) Barclays Bank PLC, as initial Trust Cash Manager hereby makes, (ii) any Co-
Trust Cash Manager, by its appointment pursuant to the relevant Accession
Notice, shall be deemed to make, and (iii) any Successor Trust Cash Manager by
its appointment hereunder shall make, (in the case of (ii) and (iii) with
appropriate modifications to Clause 9.3(a) to reflect the Co-Trust Cash
Manager's or Successor Trust Cash Manager's organisation), the following
representations and warranties on which the Receivables Trustee has relied in
appointing Barclays Bank PLC as the initial Trust Cash Manager and, whenever
appropriate, any Co-Trust Cash Manager or Successor Trust Cash Manager.
(a) ORGANISATION It is a corporation duly incorporated under the laws of
England with full corporate power, authority and legal right to own its
assets and conduct its business as such assets are presently owned and
its business as presently conducted and with power to enter into the
Relevant Documents 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 its performance of its
obligations thereunder has been duly taken.
49
(b) DUE AUTHORIZATION All acts, conditions and things required to be done,
fulfilled and performed in order (i) to enable it lawfully to enter into,
exercise its rights under and perform and comply with the obligations
expressed to be assumed by it in each Relevant Document, (ii) to ensure
that the obligations expressed to be assumed by it in each Relevant
Document are legal, valid and binding on it and (iii) to make each
Relevant Document and each such assignment admissible in evidence in
England have been done, fulfilled and performed save for the payment of
stamp duty in the United Kingdom in respect of any such assignment under
any applicable law.
(c) NO VIOLATION The execution and delivery of each Relevant Document by the
Trust Cash Manager or Co-Trust Cash Manager, as the case may be, and the
exercise of its rights and the performance of its obligations thereunder
will not conflict with or violate any Requirement of Law.
(d) BINDING OBLIGATION The obligations expressly to be assumed by it in each
Relevant Document are legal and valid obligations binding on it and
enforceable against it in accordance with its terms, subject to
applicable bankruptcy laws, other similar laws affecting creditors'
rights, general equitable principles and other limitations on enforcement
in the jurisdiction of the Obligor.
(e) NO PROCEEDINGS There are no proceedings or investigations pending or, to
the best of its knowledge threatened against it before any court,
regulatory body, arbitral tribunal or public or administrative body or
agency (i) asserting the invalidity of any Relevant Document; (ii)
seeking to prevent the entering into of any of the transactions
contemplated by any Relevant Document; (iii) seeking any determination or
ruling that, in the reasonable opinion of the Trust Cash Manager or Co-
Trust Cash Manager, as the case may be, 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.
(f) NO CONFLICT The execution and delivery of each Relevant Document and the
exercise by the Trust Cash Manager or Co-Trust Cash Manager, as the case
may be, of its rights and the performance of its obligations thereunder
will not conflict with, result in any breach of the material terms and
provisions of, or constitute (with or without notice or lapse of time or
both) a default under, any agreement, indenture, contract, mortgage,
trust deed or other instrument to which it is a party or by which it or
any of its assets is otherwise bound.
9.4 COMPLIANCE WITH REQUIREMENTS OF LAW
The Trust Cash Manager and any Co-Trust Cash Manager shall maintain any
qualifications or consents required under Requirements of Law for it to carry
out its duties as Trust Cash Manager or Co-Trust Cash Manager under this Deed,
the failure to comply with which would have a Material Adverse Effect on the
interests of the Receivables Trustee, any Investor Beneficiary or any
Enhancement Provider.
9.5 REPORTS AND RECORDS FOR THE RECEIVABLES TRUSTEE
(a) DAILY REPORTS:
50
On each Business Day, the Trust Cash Manager or, if applicable, any Co-
Trust Cash Manager, shall prepare and make available, with reasonable
prior notice, at the office of the Trust Cash Manager or, if applicable,
the Co-Trust Cash Manager for inspection by the Receivables Trustee or
its agents during normal business hours, a record (a "DAILY REPORT") with
respect to the preceding Date of Processing setting out.
(i) the aggregate amount of Collections representing Trust Property
processed by the Trust Cash Manager or, if applicable, Co-Trust
Cash Manager, on such Date of Processing;
(ii) the aggregate amount of Collections representing Trust Property to
be transferred (or to be distributed pursuant to Clause 5.2(a)(ii))
with respect to such Date of Processing on a Relevant Date pursuant
to Clause 5.2(a)(i) from the Barclaycard Operating Account and any
Additional Transferor Operating Account to the Trustee Collection
Account;
(iii) the aggregate amount of such Collections referred to in paragraph
(ii) which will be allocated pursuant to Clause 5.2(b), (A) to the
Trustee Collection Account (to be recorded in the Principal
Collections Ledger), (B) to repay Incorrect Payments in respect of
Finance Charge Receivables, (C) to the Trustee Collection Account
(to be recorded in the Finance Charge Collections Ledger) and (D)
as Ineligible Collections;
(iv) the aggregate amount to be transferred from the Trustee Collection
Account to the Trustee Acquisition Account with respect to such
Date of Processing on a Relevant Date pursuant to Clause
5.2(b)(iii) and 5.2(b)(iv) (and the corresponding adjustment made
to the Principal Collections Ledger);
(v) the aggregate amount to be transferred from the Trustee Acquisition
Account to the Barclaycard Proceeds Account and any Additional
Transferor Proceeds Account with respect to such Date of Processing
on a Relevant Date by way of Purchase Price for Receivables
pursuant to Clause 5.2(c)(i) and 5.2(c)(ii);
(vi) the aggregate amount to be transferred from the Trustee Acquisition
Account to the Barclaycard Proceeds Account and any Additional
Transferor Proceeds Account with respect to such Date of Processing
on a Relevant Date in respect of Investor Cash Available for
Acquisition required to be applied to the Transferor Interest in
the Eligible Receivables Pool pursuant to Clause 5.2(c)(iii); and
(vii) after taking into account (i) to (vi) above, (aa) the aggregate
amount of the Eligible Receivables Pool; (bb) the Aggregate
Investor Interest; (cc) the Transferor Interest and (dd) the
aggregate amount of the Ineligible Receivables Pool, in each case
at the close of business on such Date of Processing.
(b) MONTHLY TRUST CASH MANAGER'S REPORT
Unless otherwise stated in the related Supplement with respect to any
Series, on or before each Transfer Date the Trust Cash Manager or, if
applicable, any Co-Trust Cash Manager, shall forward to the Receivables
Trustee, any Enhancement Provider and each
51
Rating Agency, a report (a "MONTHLY TRUST CASH MANAGER'S REPORT") of a
Authorised Officer setting out with respect to the preceding Monthly
Period:
(i) the aggregate amount of Collections representing Trust Property
processed;
(ii) the aggregate amount of the applicable Investor Percentage of
Collections of Principal Receivables processed by the Trust Cash
Manager or, if applicable, any Co-Trust Cash Manager, pursuant to
Clause 5 with respect to each Applicable Series;
(iii) the aggregate amount of the applicable Investor Percentage of
Collections of Finance Charge Receivables processed by the Trust
Cash Manager or, if applicable, any Co-Trust Cash Manager, pursuant
to Clause 5 with respect to each Applicable Series;
(iv) the aggregate amount of Principal Receivables which are Eligible
Receivables and Finance Charge Receivables processed as of the end
of the last day of the preceding Monthly Period;
(v) the balance on deposit in each of the Trust Accounts with respect
to Collections representing Trust Property processed by the Trust
Cash Manager or, if applicable, any Co-Trust Cash Manager;
(vi) the aggregate amount, if any, of withdrawals, drawings or payments
under any Enhancement, if any, for each Series required to be made
in the manner provided in the related Supplement;
(vii) the sum of all amounts allocated to the Investor Beneficiaries of
each Series (or for a Series with more than one Class of Investor
Beneficiaries, each such Class) on such Transfer Date to be
utilised to meet their obligations to pay principal and interest
with regard to Related Debt on the immediately succeeding
Distribution Date or on a later Distribution Date (as specified in
a related Supplement);
(viii) the sum of all amounts paid and payable to each Transferor
Beneficiary;
(ix) the sum of all amounts payable to the Trust Cash Manager or any Co-
Trust Cash Manager by way of Investor Trust Cash Management Fee;
(x) the sum of all amounts paid or payable to each Excess Interest
Beneficiary; and
(xi) such other matters are set out in Exhibit B.
The Monthly Trust Cash Manager's Report shall be substantially in the form of
Exhibit B to this Deed, with such changes as the Trust Cash Manager or, if
applicable, Co-Trust Cash Manager, may reasonably determine to be necessary or
desirable or as it may agree from time to time with the Rating Agencies;
PROVIDED, HOWEVER, that no such changes shall serve to exclude information
required by the Deed or any Supplement.
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9.6 ANNUAL TRUST CASH MANAGER'S REPORT
On or before 28 February of each calendar year following the execution
of this Deed, the Trust Cash Manager, or if applicable any Co-Trust Cash
Manager, will deliver to the Receivables Trustee, any Enhancement
Provider and each Rating Agency, an Annual Trust Cash Manager's Report
substantially in the form of Exhibit C stating that (a) a review of the
activities of the Trust Cash Manager and, if applicable, any Co-Trust
Cash Manager during the twelve-month period ending 31 December of such
year, or for the initial period, from the Initial Closing Date until 31
December 1999 and of its performance under the Deed was made under the
supervision of the officer signing such report and (b) to the best of
such officer's knowledge, based on such review, the Trust Cash Manager
and any Co-Trust Cash Manager has fully performed all its obligations
under this Deed throughout such period, or, if there has been a default
in the performance of any such obligation, specifying each such default
known to such officer and the nature and status thereof. A copy of such
report may be obtained by any Investor Beneficiary by request in writing
to the Receivables Trustee pursuant to Clause 12.5(b)(ii).
9.7 NOTICES TO BARCLAYS BANK PLC
In the event that Barclays Bank PLC and, if applicable, any Additional
Transferor appointed as a Co-Trust Cash Manager are no longer
respectively acting as Trust Cash Manager and Co-Trust Cash Manager, any
Successor Trust Cash Manager appointed pursuant to Clause 11.3 shall
deliver or make available to the Transferor each certificate and report
required to be prepared, forwarded or delivered thereafter pursuant to
Clauses 9.5 and 9.6.
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10. OTHER MATTERS RELATING TO THE TRUST CASH MANAGER AND ANY CO-TRUST CASH
MANAGER
10.1 LIABILITY OF THE TRUST CASH MANAGER AND ANY CO-TRUST CASH MANAGER
The Trust Cash Manager and any Co-Trust Cash Manager shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Trust Cash Manager or Co-Trust Cash Manager in such
capacity herein.
10.2 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF, THE
TRUST CASH MANAGER OR ANY CO-TRUST CASH MANAGER
Neither the Trust Cash Manager nor any Co-Trust Cash Manager shall consolidate
with or merge into any other corporation or convey or transfer its properties
and assets substantially as an entirety to any person, unless:
(a) the corporation formed by such consolidation or into which the Trust Cash
Manager or Co-Trust Cash Manager is merged or the person which acquires
by conveyance or transfer the properties and assets of the Trust Cash
Manager or Co-Trust Cash Manager substantially as an entirety, shall
expressly assume, by an agreement supplemental hereto, executed and
delivered to the Receivables Trustee in a form reasonably satisfactory to
the Receivables Trustee, the performance of the obligations of the Trust
Cash Manager or Co-Trust Cash Manager hereunder (to the extent that any
right, covenant or obligation of the Trust Cash Manager or Co-Trust Cash
Manager, as applicable hereunder, is inapplicable to the successor
entity, such successor entity shall be subject to such covenant or
obligation, or benefit from such right, as would apply, to the extent
practicable, to such successor entity);
(b) the Trust Cash Manager or Co-Trust Cash Manager shall have delivered to
the Receivables Trustee:
(i) an Officer's Certificate that such consolidation, merger,
conveyance or transfer and such supplemental agreement comply with
this Clause 10.2 and that all documentation referred to in (a)
above and any conditions precedent specified in such documentation
relating to such transaction have been complied with; and
(ii) an Opinion of Counsel that such supplemental agreement is legal,
valid, binding and enforceable with respect to the Trust Cash
Manager or Co-Trust Cash Manager;
(c) the Trust Cash Manager or Co-Trust Cash Manager shall have delivered
notice to each Rating Agency of such consolidation, merger, conveyance or
transfer.
10.3 LIMITATION ON LIABILITY OF THE TRUST CASH MANAGER, ANY CO-TRUST CASH
MANAGER AND OTHERS
(a) The directors, officers, employees or agents of the Trust Cash Manager or
any Co-Trust Cash Manager shall not be under any liability to the
Receivables Trust, the Receivables Trustee, the Investor Beneficiaries,
any Enhancement Provider or any other person hereunder or pursuant to any
document delivered hereunder, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Deed and any Supplement
PROVIDED, HOWEVER,
54
that this provision shall not protect the directors, officers, employees
and agents of the Trust Cash Manager or Co-Trust Cash Manager against any
liability which would otherwise be imposed by reason of wilful default,
bad faith or gross negligence in the performance of duties hereunder.
(b) Except as provided in Clause 10.4 with respect to the Receivables Trust
and the Receivables Trustee and its agents, neither the Trust Cash
Manager nor any Co-Trust Cash Manager shall be under any liability to the
Receivables Trust, the Receivables Trustee and its agents, the Investor
Beneficiaries, or any other person for any action in its capacity as
Trust Cash Manager or Co-Trust Cash Manager pursuant to this Deed or any
Supplement, PROVIDED, HOWEVER, that this provision shall not protect the
Trust Cash Manager or Co-Trust Cash Manager against any liability which
would otherwise be imposed by reason of wilful default, bad faith or
gross negligence in the performance of duties or by reason of its
reckless disregard of its obligations and duties hereunder or under any
Supplement.
(c) The Trust Cash Manager and any Co-Trust Cash Manager may rely in good
faith on any document of any kind prima facie properly executed and
submitted by any person respecting any matters arising hereunder.
10.4 TRUST CASH MANAGER AND CO-TRUST CASH MANAGER INDEMNIFICATION OF THE
RECEIVABLES TRUST AND THE RECEIVABLES TRUSTEE
The Trust Cash Manager and any Co-Trust Cash Manager shall indemnify and hold
harmless the Receivables Trustee and its agents, for and against any reasonable
loss, liability, expense, damage or injury suffered or sustained by reason of
any fraud, wilful misconduct or grossly negligent acts or omissions of the
Trust Cash Manager or Co-Trust Cash Manager, in its capacity as Trust Cash
Manager or Co-Trust Cash Manager, as the case may be, with respect to
activities of the Receivables Trustee pursuant to this Deed or any Supplement,
including, but not limited to any judgment, award, settlement, reasonable legal
fees and other costs or expenses properly incurred in connection with the
defence of any actual or threatened action, proceeding or claim PROVIDED,
HOWEVER, that the Trust Cash Manager or Co-Trust Cash Manager shall not:
(i) indemnify the Receivables Trustee if such acts, omissions or
alleged acts or omissions constitute or are caused by fraud,
negligence, or wilful misconduct by the Receivables Trustee or its
agents;
(ii) indemnify the Receivables Trust or any Investor Beneficiary for any
liabilities, costs or expenses of the Receivables Trust with
respect to any action taken by the Receivables Trustee at the
request of any Investor Beneficiary or any Series to which it
belongs;
(iii) indemnify the Receivables Trust, the Receivables Trustee or, any
Investor Beneficiary for any losses, claims or damages incurred by
any of them in their capacity as Beneficiaries of the Receivables
Trust; and
(iv) indemnify the Receivables Trust, the Receivables Trustee or any
Investor Beneficiary for any liabilities, costs or expenses of the
Receivables Trust, the Receivables Trustee or the Investor
Beneficiaries arising under any Tax law (or
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any interest or penalties with respect thereto or arising from a
failure to comply therewith) required to be paid by the Receivables
Trust, the Receivables Trustee or the Investor Beneficiaries in
connection herewith to any taxing authority.
Any such indemnification shall be payable by the Trust Cash Manager or Co-Trust
Cash Manager itself and not be payable from the Trust Property of the
Receivables Trust. The provision of this indemnity shall run directly to and
be enforceable by an injured party subject to the limitations hereof.
10.5 THE TRUST CASH MANAGER AND ANY CO-TRUST CASH MANAGER NOT TO RESIGN
The Trust Cash Manager shall not resign from the obligations and duties hereby
imposed on it except upon determination that (i) the performance of its duties
hereunder is no longer permissible under any Requirement of Law and (ii) there
is no reasonable action which the Trust Cash Manager could take to make the
performance of its duties hereunder permissible under any Requirement of Law.
Any such determination permitting the resignation of the Trust Cash Manager
shall be evidenced as to sub-paragraph (i) above by an Opinion of Counsel and
as to sub-paragraph (ii) by an Officer's Certificate, each to such effect
delivered to the Investor Beneficiaries (by delivery to the Receivables
Trustee). No such resignation shall become effective until a Successor Trust
Cash Manager shall have assumed the responsibilities and obligations of the
Trust Cash Manager in accordance with Clause 11.3 hereof. Any Co-Trust Cash
Manager shall not resign except either (i) in the circumstances and subject to
the requirements set out above with respect to the Trust Cash Manager or (ii)
where the obligations of such Co-Trust Cash Manager are wholly assumed from the
time of such resignation by the Trust Cash Manager.
10.6 DELEGATION OF DUTIES
In the ordinary course of business, the Trust Cash Manager and any Co-Trust
Cash Manager may at any time delegate any duties hereunder to any person who
agrees to conduct such duties, if applicable in accordance with the Card
Guidelines. Any such delegations shall not relieve the Trust Cash Manager or
such Co-Trust Cash Manager of its liabilities and responsibility with respect
to such duties, and shall not constitute a resignation within the meaning of
Clause 10.5 hereof. If any such delegation is to a party other than Barclays
Bank PLC or any Affiliate thereof notification thereof shall be given to each
Rating Agency.
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11. TRUST CASH MANAGER DEFAULTS
11.1 TRUST CASH MANAGER DEFAULTS
If any one of the following events (a "TRUST CASH MANAGER DEFAULT") shall occur
and be continuing:
(a) any failure by the Trust Cash Manager or any Co-Trust Cash Manager to
give advice or notice to the Receivables Trustee pursuant to an agreed
schedule of collections and allocations or to advise the Receivables
Trustee to make any required drawing, withdrawal, or payment pursuant to
the Relevant Documents on or before the date occurring five Business Days
after the date such payment, transfer, deposit, withdrawal or drawing or
such advice or notice is required to be made or given, as the case may
be, under the terms of this Deed or any Relevant Document;
(b) failure on the part of the Trust Cash Manager or any Co-Trust Cash
Manager duly to observe or perform in any respect any other covenants or
agreements of the Trust Cash Manager or Co-Trust Cash Manager set forth
in this Deed or any Relevant Document which has a Material Adverse Effect
on the interests of the Investor Beneficiaries of any Applicable Series
and which continues unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Trust Cash Manager or relevant Co-Trust Cash
Manager by the Receivables Trustee, or to the Trust Cash Manager or
relevant Co-Trust Cash Manager and the Receivables Trustee by an Investor
Beneficiary or Investor Beneficiaries representing in aggregate more than
one-half of the Investor Interests of any Applicable Series adversely
affected thereby and continues to have a Material Adverse Effect on the
interests of an Investor Beneficiary of any Applicable Series for such
period;
(c) delegation by the Trust Cash Manager or any Co-Trust Cash Manager of its
duties under this Deed to any other entity, except as permitted by Clause
10.6;
(d) any relevant representation, warranty or certification made by the Trust
Cash Manager or Co-Trust Cash Manager in this Deed or in any certificate
delivered pursuant hereto proves to have been incorrect when made, which
has a Material Adverse Effect on the interests of the Investor
Beneficiaries of any Applicable Series and continues to be incorrect in
any material respect for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Trust Cash Manager or relevant Co-Trust Cash
Manager by the Receivables Trustee or to the Trust Cash Manager or
relevant Co-Trust Cash Manager and the Receivables Trustee by an Investor
Beneficiary or Investor Beneficiaries representing in aggregate more than
one-half of the aggregate Investor Interests of any Applicable Series
adversely affected thereby and continues to have a Material Adverse
Effect on the interests of an Investor Beneficiary of any Applicable
Series affected for such period;
(e) the Trust Cash Manager or any Co-Trust Cash Manager shall consent to or
take any corporate action relating to the appointment of a receiver,
administrator, administrative receiver, liquidator, trustee or similar
officer of it or relating to all or substantially all of its revenues and
assets or an order of the court is made for its winding-up, dissolution,
administration or re-organisation (except for a solvent re-organisation)
and such order shall have remained in force undischarged or unstayed for
a period of 60 days or a
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receiver, administrator, administrative receiver, liquidator, trustee or
similar officer of it or relating to all of its revenues and assets is
legally and validly appointed; or
(f) a duly authorised officer of the Trust Cash Manager or any Co-Trust Cash
Manager shall admit in writing that the Trust Cash Manager or relevant
Co-Trust Cash Manager is unable to pay its debts as they fall due within
the meaning of Section 123(1) of the Insolvency Act 1986 or the Trust
Cash Manager or relevant Co-Trust Cash Manager makes a general assignment
for the benefit of or a composition with its creditors or voluntarily
suspends payment of its obligations with a view to the general
readjustment or rescheduling of its indebtedness;
then so long as such Trust Cash Manager Default shall not have been remedied,
either the Receivables Trustee at the direction of the Investor Beneficiaries
or Investor Beneficiaries representing in aggregate more than 662/3% of the
Aggregate Investor Interest, by notice then given in writing to the Trust Cash
Manager and any Co-Trust Cash Managers (and to the Receivables Trustee if given
by the Investor Beneficiaries) (a "TERMINATION NOTICE"), may terminate all of
the rights and obligations of the Trust Cash Manager and any Co-Trust Cash
Managers as Trust Cash Manager and Co-Trust Cash Managers respectively under
this Deed. For the avoidance of doubt, any Termination Notice given in
accordance with this Clause 11.1 shall terminate the appointment of both the
Trust Cash Manager and any Co-Trust Cash Manager regardless of which entity was
the subject of the Trust Cash Manager Default.
Notwithstanding the foregoing, a delay in or failure of performance referred to
in paragraph (a) above for a period of 10 Business Days or under paragraph (b),
(c) or (d) for a period of 60 Business Days, shall not constitute a Trust Cash
Manager Default if such delay or failure could not have been prevented by the
exercise of reasonable diligence by the Trust Cash Manager or relevant Co-Trust
Cash Manager and such delay or failure was caused by an act of God, acts of
declared or undeclared war, public disorder, rebellion, riot or sabotage,
epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes,
nuclear disasters or meltdowns, floods, power cuts or similar causes. The
preceding sentence shall not relieve the Trust Cash Manager or any Co-Trust
Cash Manager from using reasonable efforts to perform its obligations in a
timely manner in accordance with the terms of this Deed and any relevant
agreement and the Trust Cash Manager or relevant Co-Trust Cash Manager shall
provide the Receivables Trustee, any Enhancement Provider, the Transferor and
each Investor Beneficiary with an Officer's Certificate giving prompt notice of
such failure or delay by it, together with a description of the cause of such
failure or delay and its efforts so to perform its obligations.
11.2 EFFECT OF TERMINATION NOTICE
(a) After receipt by the Trust Cash Manager or relevant Co-Trust Cash Manager
of a Termination Notice pursuant to Clause 11.1, and on the date that a
Successor Trust Cash Manager shall have been appointed by the Receivables
Trustee pursuant to Clause 11.3, all authority and power of the Trust
Cash Manager and any Co-Trust Cash Managers under this Deed shall pass to
and be vested in a Successor Trust Cash Manager and, without limitation,
the Receivables Trustee is hereby appointed, authorised and empowered
(upon the failure of the Trust Cash Manager or any Co-Trust Cash Manager
to cooperate in a timely manner) in order to secure the performance of
the Trust Cash Manager or relevant Co-Trust Cash Manager in so doing to
execute and deliver, on behalf of the Trust Cash Manager or relevant Co-
Trust Cash Manager, as its attorney, all
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documents, records and other instruments upon the failure of the Trust
Cash Manager or relevant Co-Trust Cash Manager to execute or deliver such
documents, records or instruments, and to do and accomplish all other
acts or things necessary or appropriate to effect the purposes of such
transfer of such Trust Cash Manager or Co-Trust Cash Manager's rights and
obligations;
(b) The Trust Cash Manager and any Co-Trust Cash Manager agrees to use all
reasonable efforts and cooperate with the Receivables Trustee and such
Successor Trust Cash Manager in effecting the termination of the
responsibilities and rights of the Trust Cash Manager and any Co-Trust
Cash Manager to conduct Trust Cash Management hereunder including,
without limitation, the transfer to such Successor Trust Cash Manager of
all authority of the Trust Cash Manager or Co-Trust Cash Manager to carry
out Trust Cash Management functions in relation to the Receivables as
provided for under this Deed.
(c) The Trust Cash Manager and any Co-Trust Cash Manager shall promptly
transfer its electronic records or electronic copies thereof relating to
the Receivables to the Successor Trust Cash Manager in such electronic
form as the Successor Trust Cash Manager may reasonably request and shall
promptly transfer to the Successor Trust Cash Manager all other records,
correspondence and documents necessary for the Successor Trust Cash
Manager to carry out Trust Cash Management in relation to the Receivables
in the manner and at such times as the Successor Trust Cash Manager shall
reasonably request.
(d) To the extent that compliance with this Clause 11.2 shall require the
Trust Cash Manager or any Co-Trust Cash Manager to disclose to the
Successor Trust Cash Manager information of any kind which the Trust Cash
Manager or Co-Trust Cash Manager reasonably deems to be confidential, the
Successor Trust Cash Manager shall be required to enter into such
customary licensing and confidentiality agreements as the Trust Cash
Manager or Co-Trust Cash Manager shall reasonably deem necessary to
protect its interests.
(e) The Trust Cash Manager and any Co-Trust Cash Manager shall, on the date
of any transfer of its Trust Cash Management functions under this Deed,
transfer all of its rights and obligations under any Enhancement with
respect to any Beneficiaries to the Successor Trust Cash Manager.
(f) Upon the termination of the appointment of the Trust Cash Manager and any
Co-Trust Cash Manager pursuant to this Clause 11.2, any amounts in
respect of Collections of Receivables constituting Trust Property and any
other Trust Property in the possession of the Trust Cash Manager or Co-
Trust Cash Manager (or coming into the possession of the Trust Cash
Manager or Co-Trust Cash Manager at any time thereafter) shall be held on
trust by the Trust Cash Manager or Co-Trust Cash Manager, as applicable,
for and to the order of the Receivables Trustee.
11.3 RECEIVABLES TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR
(a) On and after the receipt by the Trust Cash Manager and any Co-Trust Cash
Manager of a Termination Notice pursuant to Clause 11.1, the Trust Cash
Manager and any Co-Trust Cash Manager shall continue to perform their
respective Trust Cash Management functions under this Deed until the date
specified in the Termination Notice or otherwise specified by the
Receivables Trustee in writing or, if no such date is specified in such
Termination Notice, or otherwise
59
specified by the Receivables Trustee, until a date mutually agreed upon
by the Trust Cash Manager, any Co-Trust Cash Manager and Receivables
Trustee. The Receivables Trustee shall notify each Rating Agency of such
removal of the Trust Cash Manager and any Co-Trust Cash Managers. The
Receivables Trustee shall, as promptly as possible after the giving of a
Termination Notice, appoint a successor Trust Cash Manager (the
"SUCCESSOR TRUST CASH MANAGER") which shall at the time of its
appointment as Successor Trust Cash Manager be an Eligible Trust Cash
Manager, and such Successor Trust Cash Manager shall accept its
appointment by a written assumption in a form acceptable to the
Receivables Trustee.
(b) Upon its appointment, the Successor Trust Cash Manager shall be the
successor in all respects to the Trust Cash Manager and any Co-Trust Cash
Managers with respect to Trust Cash Management functions under this Deed
and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Trust Cash Manager or any Co-Trust Cash
Manager by the terms and provisions hereof or any relevant Accession
Notice, and all references in this Deed to the Trust Cash Manager and any
Co-Trust Cash Manager shall be deemed to refer to the Successor Trust
Cash Manager. Any Successor Trust Cash Manager, by its acceptance of its
appointment, will automatically agree to be bound by the terms and
provisions of each agreement relating to Enhancement.
(c) In connection with such appointment and assumption, the Receivables
Trustee shall be entitled to such compensation, or may make such
arrangements for the compensation of the Successor Trust Cash Manager out
of Collections, as it and such Successor Trust Cash Manager shall agree
PROVIDED, HOWEVER, that no such compensation shall be in excess of the
Trust Cash Management Fee permitted to the Trust Cash Manager and any Co-
Trust Cash Managers pursuant to Clause 9.2.
(d) All authority and power granted to the Successor Trust Cash Manager under
this Deed shall automatically cease and terminate upon dissolution of the
Receivables Trust pursuant to Clause 6.3 or Clause 8.1 and shall pass to
and be vested in Barclays Bank PLC and, without limitation, Barclays Bank
PLC is hereby appointed, authorised and empowered to execute and deliver,
on behalf of the Successor Trust Cash Manager, as its attorney, in order
to secure the performance of the Successor Trust Cash Manager of the
matters, referred to in the next paragraph, all documents and other
instruments, and to do and accomplish all other acts or things necessary
or appropriate to effect the purposes of such transfer of rights in
relation to the Trust Cash Manager and any Co-Trust Cash Managers.
The Successor Trust Cash Manager agrees to cooperate with Barclays Bank
PLC in effecting the termination of the responsibilities and rights of
the Successor Trust Cash Manager to carry out Trust Cash Management
functions in relation to the Receivables constituting Trust Property.
The Successor Trust Cash Manager shall transfer its electronic records
relating to the Receivables constituting Trust Property to Barclays Bank
PLC in such electronic form as Barclays Bank PLC may reasonably request
and shall transfer all other records, correspondence and documents to
Barclays Bank PLC in the manner and at such times as Barclays Bank PLC
shall reasonably request. To the
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extent that compliance with this Clause 11.3 shall require the Successor
Trust Cash Manager to disclose to Barclays Bank PLC information of any
kind which the Successor Trust Cash Manager deems to be confidential,
Barclays Bank PLC shall be required to enter into such customary
licensing and confidentiality agreements as the Successor Trust Cash
Manager shall reasonably deem necessary to protect its interest.
11.4 NOTIFICATION OF TRUST CASH MANAGER DEFAULT
Within two Business Days after the Trust Cash Manager or any Co-Trust Cash
Manager becomes aware of any Trust Cash Manager Default, the Trust Cash Manager
or relevant Co-Trust Cash Manager, as the case may be, shall give prompt
written notice thereof to the Receivables Trustee, each Investor Beneficiary,
each Rating Agency and any Enhancement Provider. Upon any termination or
appointment of a Successor Trust Cash Manager pursuant to this Clause 11 the
Receivables Trustee shall give prompt written notice thereof to each Investor
Beneficiary at their respective addresses appearing in the Trust Certificate
Register.
11.5 WAIVER OF PAST DEFAULTS
Any Beneficiary which is adversely affected by any default by the Trust Cash
Manager or any Co-Trust Cash Manager or the Transferor or any Additional
Transferor may, with the prior written consent of all the other Beneficiaries,
instruct the Receivables Trustee to waive in writing any default by the Trust
Cash Manager, any Co-Trust Cash Manager, the Transferor or any Additional
Transferor in the performance of its obligations hereunder or in any Relevant
Document and its consequences, except a default which results directly in a
failure by the Receivables Trustee to make any required deposits or
distributions of Finance Charge Collections or Principal Collections relating
to such Series pursuant to Clause 5. Upon any such waiver of a past default,
such default shall be deemed not to have occurred. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
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PART 5
MISCELLANEOUS
12. MISCELLANEOUS PROVISIONS
12.1 ACKNOWLEDGEMENT REGARDING PAYMENTS
Each of the Receivables Trustee and the Transferor Beneficiary acknowledge and
confirm that Barclays Bank PLC shall apply any amounts due from the Receivables
Trustee to it in its capacity (i) as Transferor of the Receivables; and (ii) as
a Transferor Beneficiary of the Receivables Trust in or towards satisfaction of
any amounts then due to the Receivables Trustee from it in its capacity (i) as
Transferor of the Receivables; and (ii) as a Transferor Beneficiary of the
Receivables Trust, respectively. As a consequence of the foregoing it is
acknowledged and confirmed that as between Barclays Bank PLC as a Transferor
Beneficiary and the Receivables Trustee only net payments will be made to the
relevant parties.
12.2 ADDITIONAL TRANSFEROR PAYMENTS
The provisions of Clause 12.1 shall apply mutatis mutandis as between the
Receivables Trustee and each Additional Transferor in its capacity as
Additional Transferor of the Receivables and as a Transferor Beneficiary.
12.3 AMENDMENT
(a) This Deed may (i) be amended in writing from time to time by (insofar as
it relates to any of the provisions of this Deed) the Trust Cash Manager,
any Co-Trust Cash Manager each Transferor Beneficiary and the Receivables
Trustee, only with the prior written consent of each person who is a
Beneficiary at the time of such amendment and (ii) be amended in writing
from time to time by (insofar as it relates to the provisions of the
Receivables Trust) the Receivables Trustee at the direction jointly of
each Transferor Beneficiary and with the prior written consent of each
person who is a Beneficiary at the time of such amendment:
(A) at any time, PROVIDED, HOWEVER, that each Rating Agency shall have
notified each Transferor Beneficiary, the Trust Cash Manager, any
Co-Trust Cash Manager and the Receivables Trustee in writing that
such action will not result in a reduction or withdrawal of the
rating of any outstanding Related Debt (and in relation to which it
is a Rating Agency);
(B) to provide for additional Enhancement or substitute Enhancement
with respect to a Series (so long as the amount of such substitute
Enhancement, unless otherwise provided in any related Supplement,
is equal to the original Enhancement for such Series); and
(C) to change the definition of Eligible Account or Eligible
Receivable, PROVIDED, HOWEVER that any such change shall have no
effect in relation to any Receivables which shall have been
acquired by the Receivables Trustee before such change takes effect
and PROVIDED, THAT such action shall not, in the reasonable belief
of each Transferor Beneficiary, as evidenced by an Officer's
Certificate, have a Material Adverse Effect on the interests of any
Investor Beneficiary, PROVIDED, FURTHER, however that each Rating
Agency shall have notified each Transferor Beneficiary, the Trust
Cash Manager, any Co-Trust
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Cash Manager and the Receivables Trustee in writing that such
action will not result in a reduction or withdrawal of the rating
of any outstanding Related Debt (and in relation to which it is a
Rating Agency).
(b) This Deed or any Supplement may also be amended in writing from time to
time by the Trust Cash Manager, any Co-Trust Cash Manager, each
Transferor Beneficiary and the Receivables Trustee, in each case with the
prior written consent of all of the Beneficiaries, for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Deed or any Supplement or modifying in any manner
the rights of any Investor Beneficiary in any Applicable Series. The
Receivables Trustee may, but shall not be obliged to, enter into any such
amendment which affects the Receivables Trustee's rights, duties or
immunities under this Deed or otherwise.
(c) Promptly after the execution of any such amendment (other than an
amendment pursuant to paragraph (a)), the Receivables Trustee shall
furnish notification of the substance of such amendment to each
Applicable Series adversely affected and to each Rating Agency providing
a rating for any Related Debt outstanding in respect of such Applicable
Series.
(d) Without prejudice to any of the foregoing requirements for consent the
manner of obtaining such consents and of evidencing the authorisation of
the execution thereof by any Investor Beneficiaries shall be as
prescribed from time to time by the Receivables Trustee.
(e) Any Supplement executed and delivered pursuant to Clause 4.3, shall not
be considered an amendment to this Deed for the purpose of Clause 12.3(a)
and (b).
12.4 GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW
This Deed (and the Receivables Trust constituted hereby) shall be
governed by, and construed in accordance with the laws of England without
reference to its conflict of law provisions, and the obligations, rights
and remedies of the parties hereunder (including the immunities and
standard of care of the Receivables Trustee in the administration of the
Receivables Trust hereunder) shall be determined in accordance with such
laws.
(b) JURISDICTION
(i) Each of the parties hereto irrevocably agrees for the benefit of
each other party that the courts of England shall have exclusive
jurisdiction to hear and determine any suit, action or proceeding,
and to settle any disputes, which may arise out of or in connection
with this Deed, and for such purposes, irrevocably submit to the
exclusive jurisdiction of such courts.
(ii) Each of the parties hereto irrevocably waives any objection which
it might now or hereafter have to the courts of England referred to
in Clause 12.4(b)(i) being nominated as the forum to hear and
determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this Deed
and agrees not to claim that any such court is not a convenient or
appropriate forum.
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(iii) Each party hereto (if it is not incorporated in England)
irrevocably appoints the person specified against its name on the
execution pages hereof (or, in the case of a successor Receivables
Trustee or a Successor Trust Cash Manager the document appointing
such successor Receivables Trustee or Successor Trust Cash Manager,
as the case may be,) to accept service of any process on its behalf
and further undertakes to the other parties hereto that it will at
all times during the continuance of this Deed maintain the
appointment of some person in 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).
12.5 NOTICES
(a) Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in writing and may be made by telex, facsimile or
letter.
(b) Any communication, notice or document to be made or delivered by any one
person to another pursuant to this Deed shall (unless that other person
has by fifteen days' written notice to the other parties hereto specified
another address) be made or delivered to that other person at the address
identified below and shall be deemed to have been made or delivered when
despatched and confirmation of transmission received by the sending
machine (in the case of any communication made by facsimile) or (in the
case of any communication made by telex) when dispatched and the
appropriate answerback or identification symbol has been received by the
sender or (in the case of any communications made by letter) when left at
that address or (as the case may be) ten days after being deposited in
the post, postage prepaid, in an envelope addressed to it at that address
PROVIDED, HOWEVER, that each facsimile or telex communication made by one
party to another shall be made to that other person at the facsimile or
telex number notified to such party by that other person from time to
time;
(i) in the case of the Transferor Beneficiary, the Excess Interest
Beneficiary and the Trust Cash Manager, to Barclaycard, Barclays
Bank PLC, 1234 Pavillion Drive, Northampton NN4 7SG, Attention:
Timothy Gaffney, facsimile number: (01604) 253 163, with a copy to
Attention: Group General Counsel, facsimile number: (0171) 699
4036);
(ii) in the case of the Receivables Trustee at an address for service in
London at c/o Clifford Chance Secretaries Limited, 200 Aldersgate
Street, London EC1A 4JJ;
(iii) in the case of any additional Transferor Beneficiary, Excess
Interest Beneficiary and Co-Trust Cash Manager to the address
specified in the Accession Notice for such additional Transferor
Beneficiary, Excess Interest Beneficiary and Co-Trust Cash Manager;
(iv) in the case of an Investor Beneficiary in any Series, the address
specified in the Supplement relating to such Series;
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(v) in the case of the Enhancement Provider for a Series, the address,
if any, specified in the Supplement relating to such Series; and
(vi) in the case of the Rating Agency for Related Debt in respect of a
particular Investor Beneficiary, the address, if any, specified in
the Supplement relating to such Investor Beneficiary.
12.6 SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of this
Deed shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Deed and shall in no way
affect the validity or enforceability of the other provisions of this Deed or
of the rights of the Beneficiaries of the Receivables Trust.
12.7 ASSIGNMENT
Notwithstanding anything to the contrary contained herein, except as provided
in Clause 10.2, the rights and benefits of the Trust Cash Manager or any Co-
Trust Cash Manager under this Deed may not be assigned by the Trust Cash
Manager or relevant Co-Trust Cash Manager without the prior consent of Investor
Beneficiaries representing in aggregate 662/3% of the Investor Interests of
each Applicable Series.
12.8 FURTHER ASSURANCES
Barclays Bank PLC, any other Transferor Beneficiary, the Trust Cash Manager and
any Co-Trust Cash Manager agree to do and perform, from time to time, any and
all acts and to execute any and all further instruments required or reasonably
requested by the Receivables Trustee more fully to effect the purposes of this
Deed.
12.9 NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of the
Receivables Trustee, any Enhancement Provider or the Investor Beneficiaries,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
12.10 COUNTERPARTS
This Deed may be executed in two or more counterparts (and by different parties
on separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
12.11 THIRD PARTY BENEFICIARIES
(a) This Deed will inure to the benefit of and be binding upon the parties
hereto, each additional Transferor Beneficiary, each additional Co-Trust
Cash Manager, the Investor Beneficiaries and, to the extent provided in
the related Supplement, to the Enhancement Provider named therein and
their respective successors and permitted assigns as Beneficiaries of the
Receivables Trust; and
(b) Except as otherwise provided in this Clause 12 and Clause 9.1 hereof, no
other person will have any right or obligation hereunder.
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12.12 ACTIONS BY BENEFICIARIES
Any request, demand, authorisation, direction, notice, consent, waiver or other
act by a Beneficiary shall bind each and every successor of such Beneficiary.
12.13 VOTING BY INVESTOR BENEFICIARIES
Wherever provision is made in this Deed for voting by Investor Beneficiaries,
each Investor Beneficiary (including any Investor Beneficiary who acts in such
capacity in respect of more than one Series) shall be entitled to one vote in
respect of each E1 of that Investor Beneficiary's Investor Interests but shall
not be obliged to exercise such votes (or any of them) or to cast all of the
votes exercised the same way.
12.14 MERGER AND INTEGRATION
Except as specifically stated otherwise herein, this Deed sets forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Deed. This Deed
may not be modified, amended, waived or supplemented except as provided herein.
12.15 HEADINGS
The headings are for purposes of reference only and shall not otherwise affect
the meaning or interpretation of any provision hereof.
IN WITNESS WHEREOF, the Receivables Trustee and Barclays Bank PLC (in its
capacities as Trust Cash Manager, Transferor Beneficiary and Excess Interest
Beneficiary) have caused this agreement to be duly executed and delivered by
their duly authorised representatives as a deed on the day and year first above
written.
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SCHEDULE 1
GENERAL PRINCIPLES RELATING TO CALCULATIONS AND APPLICATIONS
(Note: references in this Schedule to the "Trust Cash Manager" shall be deemed
to include or substitute references to any Co-Trust Cash Manager which has
responsibility (as provided in the relevant Accession Notice) for such matters)
(A) GENERAL PRINCIPLES OF BENEFICIAL ENTITLEMENT
o Each Transferor Beneficiary and each Investor Beneficiary will acquire
Undivided Interests in the Receivables Trust by making a payment, upon
the terms and subject to the conditions of this Deed (as supplemented,
amended or varied from time to time), to the Receivables Trustee.
o Certain Trust Property may be specified as being the beneficial
entitlement of certain Beneficiaries or certain Series only.
o Trust Property will be held between an Eligible Receivables Pool and an
Ineligible Receivables Pool.
o Each Investor Beneficiary, each Enhancement Provider (if applicable),
each Excess Interest Beneficiary and each Transferor Beneficiary as
Beneficiaries of the Receivables Trust are each beneficially entitled to
share Trust Property and each such Beneficiary will acquire interests in
the Eligible Receivables Pool.
o The Transferor Beneficiaries (only) will be beneficially entitled to all
Receivables forming the Ineligible Receivables Pool and will be solely
entitled to all Collections in respect of Ineligible Receivables.
(B) ADJUSTMENTS AND ALLOCATIONS OF COLLECTIONS
o Unless notified by the Trust Cash Manager as Incorrect Payments the
Receivables Trustee will regard all monies in the Trustee Collection
Account as Collections in respect of Receivables assigned to the
Receivables Trustee.
o An amount equal to Incorrect Payments previously allocated as Finance
Charge Collections will be deducted from Collections in respect of
Finance Charge Receivables prior to allocating Finance Charge Collections
for any purpose on the Business Day they are notified to the Receivables
Trustee.
o The benefit of Incorrect Payments previously allocated as Principal
Collections will be returned to the Transferor or, as appropriate, any
Additional Transferor prior to allocating Principal Collections for any
purpose on the Business Day they are notified to the Receivables Trustee
by adjusting the Transferor Interest.
o The benefit of Allocated Ineligible Collections will be reallocated to
the Transferor Beneficiaries after returning the benefit of Incorrect
Payments but prior to allocating Collections representing Trust Property
for any purpose on the Business Day they are notified to the Receivables
Trustee.
67
o Receivables assigned to the Receivables Trustee which were incorrectly
funded as Eligible Receivables will be reallocated to the Transferor
Beneficiaries after repaying Incorrect Payments and reallocating
Allocated Ineligible Collections representing Trust Property for any
purpose on the Business Day they are notified to the Receivables Trustee.
o The Eligible Receivables Pool will be increased by the amount of
adjustments in respect of Incorrect Payments previously allocated as
Collections and decreased by the amount of Receivables reallocated as
Ineligible Receivables and the Transferor Interest will be adjusted by
the amount of such adjustments.
o Collections representing Trust Property will be allocated as Principal
Collections, Finance Charge Collections or Ineligible Collections.
o A Discount Percentage of Principal Collections may be treated as Finance
Charge Collections for the purposes of Clause 4 of this Deed and this
Schedule.
o Each Transferor Beneficiary will be entitled to its pro rata share of a
portion of Principal Collections and Finance Charge Collections in each
case calculated by reference to the Transferor Percentage on a pari passu
basis with Principal Collections or Finance Charge Collections, as the
case may be, allocated to each Series.
o Each Series will, unless specified otherwise in the related Supplement,
be entitled to a portion of Principal Collections and Finance Charge
Collections in each case calculated by reference to the Investor
Percentage applicable to such Series on a pari passu basis with Principal
Collections or Finance Charge Collections as the case may be allocated to
other Series and each Transferor Beneficiary.
o Each Series will, if so specified in the related Supplement, be entitled
to a portion of Acquired Interchange in respect of any Monthly Period.
To the extent any Acquired Interchange is not allocated to all such
Series, such Acquired Interchange shall be allocated to the Transferor
Beneficiaries pro rata to their respective entitlements.
o Each Excess Interest Beneficiary will be entitled to its pro rata share
of Finance Charge Collections and Acquired Interchange allocated to each
Series which are not allocated to any other Beneficiary (whether or not a
member of such Series) or any Enhancement Provider as specified pursuant
to the related Supplement.
o The entitlement of each Investor Beneficiary to Principal Collections and
Finance Charge Collections and Acquired Interchange allocated to its
Series shall be specified in the related Supplement.
o The Transferor Beneficiaries will be solely entitled to Ineligible
Collections.
o Finance Charge Collections received during a Monthly Period will be
indefeasibly allocated to the Beneficiaries of the Receivables Trust by
no later than the related Transfer Date for such Monthly Period;
o Any obligation on the part of the Transferor to make a payment in respect
of an Eligible Receivable to the Receivables Trustee pursuant to Clause
11 of the RSA may be fulfilled by
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a reduction of the Transferor Interest and, in addition, where
appropriate, by an increase in the Transferor Ineligible Interest
PROVIDED, HOWEVER, that in the event, and to the extent, that the
Transferor Interest would be reduced below zero, the Transferor shall
remain obliged to make payment to the Receivables Trustee in accordance
with the provisions of this Deed and the RSA.
o A Trust Cash Management Fee will be payable by the Receivables Trustee to
the Trust Cash Manager and will be met by the Receivables Trustee from
payments made by the Beneficiaries to the Receivables Trustee utilising
Trust Property allocated to such Beneficiary on a pari passu basis as
more particularly specified in each related Supplement.
(C) ACQUIRING ADDITIONAL ENTITLEMENTS TO TRUST PROPERTY AND PAYMENTS FOR
RECEIVABLES
o During each Revolving Period applicable to a Series, as specified in the
related Supplement, the Receivables Trustee will utilise that portion of
Principal Collections allocated to such Series that is designated as
Investor Cash Available for Acquisition pursuant to the terms of the
related Supplement towards funding payments in respect of Receivables
which are Eligible Receivables to be made to the Transferor or, as
appropriate, any Additional Transferor.
o If insufficient Existing Receivables or Future Receivables which are
Eligible Receivables are available for any Series to fund (subject to the
maximum amount provided in the related Supplement) then amounts
calculated as available to such Series as Investor Cash Available for
Acquisition shall be allocated to the Transferor Interest or the Investor
Interests of other Series, if so provided in the related Supplement, in
order to increase the proportion of the beneficial interest of such
Series in the Eligible Receivables Pool until such time as such Series is
funding the Eligible Receivables Pool to the full extent provided in the
related Supplement.
o If all Series are unable to fund the amount payable by the Receivables
Trustee in respect of the total Existing Receivables and Future
Receivables on any Business Day then the balance together with the total
Outstanding Face Amount of Ineligible Receivables to be funded on such
Business Day will, subject to Clause 5.2(f)(ii) and Clause 12.1, be
provided by the Transferor Beneficiaries as set out in the following
paragraph.
Consequently, the amount payable by the Receivables Trustee to the
Transferor in respect of the total Existing Receivables and Future
Receivables on any Business Day shall be funded by the Series to the
extent of the aggregate Investor Cash Available for Acquisition with the
balance being provided by each Transferor Beneficiary to the extent of
its pro rata share of the Transferor Cash Available for Acquisition and,
subject to Clause 5.2(f)(ii) and Clause 12.1 by way of a decrease in the
amount of the Purchase Price payable in cash and a corresponding increase
in the Transferor Interest as set out in Clause 13.3 of the RSA.
o The beneficial interest of each Series in the Eligible Receivables Pool
shall, unless specified otherwise in a related Supplement, on each
Business Day:
(i) be decreased by the amount of Principal Collections allocated to
such Series; and
69
(ii) be increased by the amount of Investor Cash Available for
Acquisition utilised by the Receivables Trustee in making payments
in respect of Existing Receivables and Future Receivables and the
amount of Investor Cash Available for Acquisition allocated to the
Transferor Interest in order to increase the proportion of the
beneficial interest of such series.
PROVIDED, HOWEVER, that (i) and (ii) above shall have no effect on the
beneficial entitlement of (a) any Beneficiary to monies credited to any
Trust Account to which it is beneficially entitled or (b) any Series to
monies credited to any Trust Account to which the Beneficiaries
constituting such Series are together beneficially entitled.
o The beneficial interest of each Transferor Beneficiary in the Eligible
Receivables Pool shall, unless specified otherwise in any Supplement, on
each Business Day following the making of all adjustments:
(i) be decreased by its pro rata share of the amount of Principal
Collections and Investor Cash Available for Acquisition allocated
to the Transferor Beneficiary; and
(ii) be increased by its pro rata share of the amount of Transferor Cash
Available for Acquisition used to fund new Receivables and, subject
to Clause 5.2(f)(ii) and Clause 12.1, also increased by its pro
rata share of the increase in the Transferor Interest resulting
from the decrease in the Purchase Price payable by the Receivables
Trustee to the Transferor or, as appropriate, any Additional
Transferor as set out in Clause 13.3 of the RSA.
PROVIDED, HOWEVER, that (i) and (ii) above shall have no effect on the
beneficial entitlement of such Transferor Beneficiary to its pro rata
share of monies credited to any Trust Account to which it is beneficially
entitled.
o The Investor Interests of each Series and the beneficial interest in the
UK Receivables Trust of each Additional Beneficiary shall be increased or
decreased in the manner specified in the related Supplement.
o The Transferor Interest shall on each Business Day following the making
of all adjustments:
(i) be decreased by the amount of Transferor Cash Available for
Acquisition not used to fund new Receivables and Investor Cash
Available for Acquisition transferred to any Transferor Beneficiary
by credit to the Barclaycard Proceeds Account or, as the case may
be, any Additional Transferor Proceeds Account; and
(ii) be increased by the amount of Purchase Price payable by the
Receivables Trustee to be funded by such Transferor Beneficiary as
provided above.
PROVIDED, HOWEVER, that (i) and (ii) above shall have no effect on the
beneficial entitlement of any Transferor Beneficiary to its pro rata
share of monies credited to any Trust Account to which it is beneficially
entitled.
70
(D) TRANSFER DATE
o In respect of each Transfer Date and any relevant Series the Receivables
Trustee shall, unless specified otherwise in a related Supplement, ensure
that any Enhancement is utilised in accordance with the terms and subject
to the conditions of any related Supplement.
o On each Transfer Date or other date specified in a related Supplement
with respect to each Series the Receivables Trustee shall, unless
specified otherwise in a related Supplement, transfer amounts allocated
to such Series which have not been utilised in funding payments to be
made by the Receivables Trustee in respect of existing Receivables or
Future Receivables to the relevant Trust Account or bank account or
accounts specified in respect of such payments in the related Supplement.
(E) RELIANCE ON PROCEDURES OF TRUST CASH MANAGER
o The Receivables Trustee shall be entitled to consider due performance of
a set of procedures for calculations and allocations operated by the
Trust Cash Manager or any Co-Trust Cash Manager as conclusive evidence
that it has acted in a manner consistent with the principles set out in
this Schedule when performing its duties under the Receivables Trust.
71
SCHEDULE 2
FORM OF DEFAULTED ACCOUNTS INSTRUCTION NOTICE
To: Receivables Trustee
From: [Beneficiary]
Date:
DEFAULTED ACCOUNTS INSTRUCTION NOTICE
Capitalised terms used in this Notice are defined in the Master Definitions
Schedule dated 23 November 1999 between the Transferor, the Receivables Trustee
and the Investor Beneficiary unless otherwise specified.
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]__] (the "DEFAULTED
RECEIVABLES").
We hereby instruct you to enter into an agreement to assign the Defaulted
Receivables for such consideration as may be agreed with the assignee, Provided
that 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.
If it is not possible to enter into an agreement to assign the Defaulted
Receivables as specified above you shall notify us accordingly and request
further instructions.
______________________________
[Beneficiary]
72
EXHIBIT A
FORM OF TRANSFEROR CERTIFICATE
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
(incorporated in Jersey having its registered office at Normandy House,
Grenville Street, St. Helier, Jersey JE2 4UF)
THIS CERTIFICATE SHALL BE AUTHENTICATED AND RETAINED
OUTSIDE THE UNITED KINGDOM
RECEIVABLES TRUST
Transferor Certificate
Evidencing an undivided interest and other interests in the trust constituted
by the Declaration of Trust dated 1 November 1999, amended and restated as a
Declaration of Trust and Trust Cash Management Agreement pursuant to a Deed of
Amendment and Restatement dated 23 November 1999, between Gracechurch
Receivables Trustee Limited, Barclays Bank PLC and Barclaycard Funding PLC (the
"DECLARATION OF TRUST AND TRUST CASH MANAGEMENT AGREEMENT")
NOT AN INTEREST IN OR OBLIGATION OF BARCLAYS BANK PLC OR
ANY AFFILIATE THEREOF
This Certificate certifies that [each of]* Barclays Bank PLC [and [ ]]* is a
Beneficiary of the Receivables Trust and as such is beneficially entitled to
Trust Property in the amount and in the manner set out in the Declaration of
Trust and Trust Cash Management Agreement as supplemented by any Accession
Notice and any Supplement to the Declaration of Trust and Trust Cash Management
Agreement executed from time to time in respect of any additional Series.
Terms defined in the Master Definitions Schedule dated 1999 shall have
the same meaning in this Transferor Certificate.
PLEASE NOTE THE FOLLOWING:
1. The Transferor Certificate is in registered form and evidences the
[aggregate]* beneficial entitlement of [each of]* Barclays Bank PLC [and
[ ]]* in the Receivables Trust.
2. No transfer of this Transferor Certificate or Disposal of the aggregate
beneficial entitlement of Barclays Bank PLC [or [ ]]* in the Receivables
Trust shall be permitted except in accordance with Clauses 3.7 and 4.2(a)
and (ii) of the Trust Cash Management Agreement.
3. The entries in the Trust Certificate Register shall be conclusive in the
absence of manifest error and the Trust Cash Manager and the Receivables
Trustee shall be entitled to treat [each of]* Barclays Bank PLC [and [
]] (as the person[s] in whose name[s] this Transferor Certificate is
[jointly]* registered) as the owner hereof and the person[s]
73
beneficially entitled to Trust Property as a consequence thereof [to the
extent of their pro rata share specified below:]
[The pro rata share of each of Barclays Bank PLC and ["] is as follows:
Barclays Bank PLC ["]%
[ ] ["]%]
4. Unless the Certificate of Authentication hereon has been executed by or
on behalf of the Receivables Trustee by manual signature, [neither]
Barclays Bank PLC [nor [ ]] shall [not]* be registered in the Trust
Certificate Register as holder of this Transferor Certificate.
IN WITNESS WHEREOF, [each of]* Barclays Bank PLC [and [ ]] has executed this
Transferor Certificate as a deed.
Signed for and on behalf of )
BARCLAYS BANK PLC )
by its duly authorised attorney )
..............................................
in the presence of: )
Name: .................................................
Occupation: .................................................
Address: .................................................
Date:
[[ ]
By:
Name:
Title:
Date: ]*
CERTIFICATE OF AUTHENTICATION
* delete or complete as appropriate
74
This is the Transferor Certificate referred to in the above mentioned Trust
Cash Management Agreement.
[o]
By:
Name:
Title:
Date:
75
EXHIBIT B
FORM OF MONTHLY TRUST CASH MANAGER'S REPORT
-------------------------
RECEIVABLES TRUST
-------------------------
5. Capitalised terms used in this Report have their respective meanings set
forth in the Master Definitions Schedule PROVIDED, HOWEVER, that the
"PRECEDING MONTHLY PERIOD" shall mean the Monthly Period immediately
preceding the calendar month in which this Certificate is delivered.
This Report is delivered pursuant to Clause 9.5(b) of the Declaration of
Trust and Trust Cash Management Agreement. References herein to certain
Clauses are references to the respective Clauses of the Declaration of
Trust and Trust Cash Management Agreement.
6. Barclays Bank PLC is Trust Cash Manager under the Declaration of Trust
and Trust Cash Management Agreement. [or substitute reference to Co-Trust
Cash Manager if applicable]
7. The undersigned is an Authorised Officer.
8. The date of this Report is a date on or before a Transfer Date under the
Declaration of Trust and Trust Cash Management Agreement.
9. The aggregate amount of Collections processed [GBP]_________________
during the preceding Monthly Period in respect
of Designated Accounts was equal to (excluding
Acquired Interchange)
10. The Aggregate Investor Percentage of [GBP]_________________
Receivables processed during the preceding
Monthly Period in respect of Designated
Accounts was equal to
11. The amount in paragraph 6 above in respect of [GBP]_________________
Principal Receivables which are Eligible
Receivables
12. The amount in paragraph 6 above in respect of [GBP]_________________
Finance Charge Receivables
76
13. The Aggregate Investor Percentage of Principal [GBP]_________________
Collections processed by the Trust Cash
Manager/Co-Trust Cash Manager during the
preceding Monthly Period was equal to
14. The Aggregate Investor Percentage of Finance [GBP]_________________
Charge Collections processed by the Trust Cash
Manager/Co-Trust Cash Manager during the
preceding Monthly Period was equal to
(excluding Annual Fees and Acquired
Interchange)
15. The aggregate amount of Receivables processed [GBP]_________________
by the Trust Cash Manager/Co-Trust Cash
Manager as of the end of the last day of the
preceding Monthly Period
16. Ofthe balance recorded in the Finance Charge [GBP]_________________
Collections Ledger, the amount attributable to
the Aggregate Investor Percentage of Finance
Charge Collections processed by the Trust Cash
Manager/Co-Trust Cash Manager during the
preceding Monthly Period
17. Ofthe balance recorded in the Principal [GBP]_________________
Collections Ledger, the amount attributable to
the Aggregate Investor Percentage of Principal
Collections processed by the Trust Cash
Manager/Co-Trust Cash Manager during the
preceding Monthly Period
18. Ofthe balance recorded in the Principal [GBP]_________________
Collections Ledger the aggregate amount
calculated as Investor Cash Available for
Acquisition for each Applicable Series during the
preceding Monthly Period
19. The aggregate amount, if any, of withdrawals, [GBP]_________________
drawings or payments under any Enhancement,
if any, required to be made with respect to any
Applicable Series for the preceding Monthly
Period
77
20. The aggregate amount of the Acquired [GBP]_________________
Interchange to be recorded in the Finance
Charge Collections Ledger on the Transfer Date
of the current month is equal to
21. The aggregate amount of all sums to be [GBP]_________________
distributed to the Investor Beneficiaries of each
Applicable Series on the succeeding Distribution
Date to be utilised to meet their obligations to
pay principal with regard to Related Debt
22. The aggregate amount of all sums to be [GBP]_________________
distributed to the Investor Beneficiaries of each
Applicable Series on the succeeding Distribution
Date to be utilised to meet their obligations to
pay interest with regard to Related Debt
23. To the knowledge of the undersigned, there are no Encumbrances on any
Receivables in the Receivables Trust except as described below:
[If applicable, insert "None."]
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
_____ day of ______________________, _________.
BARCLAYS BANK PLC
Trust Cash Manager
By: ..............................
Name:
Title:
[or substitute reference to Co-Trust Cash Manager if applicable]
78
EXHIBIT C
FORM OF ANNUAL TRUST CASH MANAGER'S CERTIFICATE
BARCLAYS BANK PLC
-------------------------
RECEIVABLES TRUST
-------------------------
[substitute references to Barclays/Trust Cash Manager with appropriate
references to any Co-Trust Cash Manager if applicable]
The undersigned, a duly authorised representative of Barclays Bank PLC
("BARCLAYS"), as Trust Cash Manager pursuant to the Declaration of Trust and
Trust Cash Management Agreement (as amended and restated on 23 November 1999)
(the "DECLARATION OF TRUST AND TRUST CASH MANAGEMENT AGREEMENT") by and between
Gracechurch Receivables Trustee Limited as trustee (the "RECEIVABLES TRUSTEE")
and Barclays, does hereby certify that:
1. Barclays is Trust Cash Manager under the Declaration of Trust and Trust
Cash Management Agreement.
2. The undersigned is duly authorised to execute and deliver this
Certificate to the Receivables Trustee.
3. This Certificate is delivered pursuant to Clause 9.6 of the Declaration
of Trust and Trust Cash Management Agreement.
4. A review of the activities of the Trust Cash Manager during [the period
from the Initial Closing Date until] [the twelve-month period ended __
], ______ was conducted under the supervision of the undersigned.
5. Based on such review, the Trust Cash Manager has, to the best of the
knowledge of the undersigned, fully performed all its obligations under
the Declaration of Trust and Trust Cash Management Agreement throughout
such period and no default in the performance of such obligations has
occurred or is continuing except as set out in paragraph 6 below.
6. The following is a description of each default in the performance of the
Trust Cash Manager's obligations under the provisions of the Declaration
of Trust and Trust Cash Management Agreement, including any Supplement,
known to the undersigned to have been made during such period which sets
out in detail (i) the nature of each such default, (ii) the action taken
by the Trust Cash Manager, if any, to remedy each such default and (iii)
the current status of each such default:
79
[If applicable, insert "None."]
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
_____ day of ______________________, _________.
...............................
Name:
Title:
80
Schedule to Monthly
Trust Cash Manager's Certificate1
BARCLAYS BANK PLC
AS TRUST CASH MANAGER
-------------------------
RECEIVABLES TRUST
-------------------------
- -------------------------------------------------------------------------------
1A separate schedule is to be attached for each Series, with appropriate
changes and additions to reflect the specifics of the relates Series
Supplement.
81
RECEIVABLES TRUSTEE
Executed as a deed by )
GRACECHURCH RECEIVABLES )
TRUSTEE LIMITED ) PETER S. CROOK
pursuant to a resolution of )
the Board )
Process Agent
Clifford Chance Secretaries Limited
200 Aldersgate Street
London EC1A 4JJ
TRUST CASH MANAGER AND TRANSFEROR BENEFICIARY
AND EXCESS INTEREST BENEFICIARY
Signed for and on behalf of )
BARCLAYS BANK PLC ) MARK WINTER
by its duly authorised attorney )
in the presence of: )
GINA HARTNETT
Name: GINA HARTNETT
Occupation: TRAINEE SOLICITOR
Address: 200 ALDERSGATE STREET
LONDON EC1A 4JJ
82