Exhibit 4.19
C L I F F O R D CLIFFORD CHANCE LLP
C H A N C E
[O] 2008
BARCLAYCARD FUNDING PLC
as Investor Beneficiary
BARCLAYS BANK PLC
as Servicer, Transferor Beneficiary and Excess Interest Beneficiary
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SUPPLEMENTAL BENEFICIARIES SERVICING AGREEMENT
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THIS DEED is made on [o] 2008
BETWEEN:
(1) BARCLAYCARD FUNDING PLC, a company incorporated in England and Wales with
registered number 2530163, having its registered office at 1 Churchill
Place, London E14 5HP (as "INVESTOR BENEFICIARY" in respect of each
Series and the Investor Interest within the Receivables Trust); and
(2) BARCLAYS BANK PLC, a company incorporated in England and Wales with
registered number 1026167, acting through its business unit, Barclaycard,
whose principal place of business is at 1234 Pavilion Drive, Northampton,
NN4 7SG (in its capacities as "SERVICER", "TRANSFEROR BENEFICIARY" and
"EXCESS INTEREST BENEFICIARY" of the Receivables Trust).
INTRODUCTION
(A) The parties hereto entered into a beneficiaries servicing agreement dated
23 November 1999 (the "BENEFICIARIES SERVICING AGREEMENT").
(B) The parties hereto now wish to supplement the Beneficiaries Servicing
Agreement in order to give effect to certain provisions of Regulation AB
("REGULATION AB"), as promulgated by the U.S. Securities and Exchange
Commission (the "COMMISSION").
THIS DEED WITNESSES AS FOLLOWS:
1. DEFINITIONS
Save where the contrary is indicated or the context otherwise requires,
words and phrases as defined in or incorporated by reference into the
Beneficiaries Servicing Agreement shall have the same meanings herein.
2. AMENDMENT
With effect from the date of this Deed, the Beneficiaries Servicing
Agreement shall be amended so as to conform with the amendments contained
herein. Thereafter, without prejudice to any existing rights and
obligations, the Beneficiaries Servicing Agreement as so amended shall
continue in full force and effect as amended hereto.
In order to give effect to certain provisions of Regulation AB, the
parties hereto agree that the acknowledgements, representations and
warranties contained in Clause 2 of the Beneficiaries Servicing Agreement
are supplemented as follows:
2.7 ANNUAL CERTIFICATE OF SERVICER
The Servicer shall deliver to each Beneficiary and each Rating Agency on
or before the earlier of (i) the 90th day following the end of the
Servicer's fiscal year, and (ii) the day on which any annual report
required by the rules of the Commission to be filed in respect of such
fiscal year shall be due (the date so determined, the "ANNUAL DUE DATE"),
beginning with the fiscal year ending December 31, 2008, the statement of
compliance required under
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Item 1123 of Regulation AB, with respect to such fiscal year, which
statement will be in the form of an officer's certificate of the Servicer
(with appropriate insertions) to the effect that (a) a review of the
activities of the Servicer during such fiscal year and of its performance
under this Agreement was made under the supervision of the officer
signing such certificate and (b) to the best of such officer's knowledge,
based on such review, the Servicer has fulfilled all its obligations
under this Agreement in all material respects throughout such fiscal year
or, if there has been a failure to fulfil any such obligation in any
material respect, specifying each such failure known to such officer and
the nature and status thereof (or in such other form as the rules of the
Commission shall require at the time).
2.8 ANNUAL SERVICING REVIEW
If required by Rules 13a-18 or 15d-18 of the U.S. Securities Exchange Act
of 1934 (the "EXCHANGE ACT") and Item 1122 of Regulation AB (the
"ASSESSMENT RULES"), the Servicer shall deliver to the Beneficiaries on
or before the Annual Due Date, a report regarding the Servicer's
assessment of compliance (an "ASSESSMENT OF COMPLIANCE") with the
applicable servicing criteria as set forth in Item 1122(d) of Regulation
AB, as such criteria may be amended from time to time, during the
immediately preceding fiscal year. For the purposes of the foregoing, the
parties agree that the Assessment of Compliance shall address each of the
servicing criteria identified as applicable in Exhibit A attached hereto
as the same may be amended from time to time to reflect changes to
Regulation AB or for any other reason (the servicing criteria so
identified, the "APPLICABLE SERVICING CRITERIA"). As of the date hereof,
the Assessment Rules require a report signed by an authorised officer of
the Servicer that contains the following:
(a) A statement by such officer of his or her responsibility for
assessing compliance with the Applicable Servicing Criteria;
(b) A statement by such officer that such officer used the Servicing
Criteria to assess compliance with the Applicable Servicing
Criteria;
(c) An assessment by such officer of the Servicer's compliance with
the Applicable Servicing Criteria for the period consisting of the
preceding calendar year, including disclosure of any material
instance of non-compliance with respect thereto during such
period, which assessment shall be based on the activities it
performs with respect to asset-backed securities transactions
taken as a whole involving the Servicer that are backed by the
same asset type as the Receivables; and
(d) A statement that a registered public accounting firm has issued an
attestation report on the Servicer's Assessment of Compliance (an
"ATTESTATION REPORT") for the period consisting of the preceding
calendar year, which Attestation Report(s) must be made in
accordance with the standards for attestation reports issued or
adopted by the U.S. Public Company Accounting Oversight Board.
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2.9 ANNUAL SERVICING REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS;
COPIES OF REPORTS AVAILABLE; COMPLIANCE REQUIREMENTS; STATIC
POOL DATA
(a) If required by the Assessment Rules, on or before the Annual Due
Date, the Servicer shall cause a registered public accounting firm
(who may also render other services to the Servicer or the
Beneficiary) to furnish to the Servicer, the Beneficiary and each
Rating Agency attestation report on the Assessments of Compliance
with respect to the Servicer during the related fiscal year
delivered by such accountants pursuant to Rule 13a-18 or Rule
15d-18 of the Exchange Act and Item 1122 of Regulation AB, which
an Attestation Report(s) must be made in accordance with the
standards for attestation reports issued or adopted by the U.S.
Public Company Accounting Oversight Board.
(b) The Servicer shall cause each sub-contractor and each
sub-servicer, each as determined by the Servicer to be
"participating in the servicing function" within the meaning of
Item 1122 of Regulation AB, to deliver to the Servicer an
Assessment of Compliance and accountants' Attestation Report as
and when provided in Clause 2.8 above.
(c) If the Servicer cannot deliver an Assessment of Compliance or
Attestation Report by the date required hereunder, the
Beneficiaries may permit a cure period for the Servicer to deliver
such Assessment of Compliance or Attestation Report, but in no
event more than 15 days.
(d) To the extent the Receivables Trustee, Barclaycard Funding PLC
(the MTN issuing entity) and/or Gracechurch Card Programme Funding
Limited (the issuing entity) (together the "PROGRAMME ENTITIES"
and each a "PROGRAMME ENTITY") is required pursuant to Item 1105
of Regulation AB to provide static pool data, the Servicer shall
establish, maintain and keep up-to-date a website providing such
static pool data in accordance with Item 1105 of Regulation AB on
behalf of the Programme Entities or Programme Entity, as the case
may be.
The Servicer shall indemnify and hold harmless each Programme
Entity from and against any reasonable loss, liability, expense,
damage or injury suffered or sustained by reason of any fraud,
wilful misconduct or negligent acts or omissions of the Servicer
with respect to such website or such static pool data or the
provision of such static pool data, 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. Any such
indemnification shall be payable by the Servicer itself and not be
payable from the Trust Property of the Receivables Trust. The
provisions of this indemnity shall run directly to and be
enforceable by an injured party subject to the limitations hereof.
2.10 CO-SERVICERS
The provisions of Clauses 2.7, 2.8 and 2.9 shall apply to each
Co-Servicer to the extent they provide servicing functions with respect
to the Receivables or make available static pool data in respect of
Receivables which they have transferred to the Receivables Trust.
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3. COUNTERPARTS
This Deed may be executed in any number of counterparts each of which
when executed and delivered shall be an original, but all the
counterparts together shall constitute one and the same instrument.
4. GOVERNING LAW
This Deed shall be governed by and construed in accordance with English
law.
5. JURISDICTION
Each of the parties hereto agrees for the benefit of the others that the
courts of England shall have jurisdiction to hear and determine any suit,
action or proceedings, and to settle any disputes, which arise out of or
in connection with this Deed (respectively, "PROCEEDINGS" and "DISPUTES")
and, for such purposes, irrevocably submits to the jurisdiction of such
courts.
5.1 APPROPRIATE FORUM
Each of the parties hereto irrevocably waives any objection which it
might now or hereafter have to the courts of England being nominated as
the forum to hear and determine any Proceedings and to settle any
Disputes, and agrees not to claim that any such court is not a convenient
or appropriate forum.
5.2 NON-EXCLUSIVITY
The submission to the jurisdiction of the courts of England shall not
(and shall not be construed so as to) limit the right of any party to
take Proceedings in any court of competent jurisdiction, nor shall the
taking of Proceedings in any one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction (whether concurrently or
not) if and to the extent permitted by law.
6. CONTRACT (RIGHTS OF THIRD PARTIES) ACT
A person who is not a party to this Deed (other than Gracechurch Card
Programme Funding Limited and Gracechurch Receivables Trustee Limited)
has no right under the Contract (Rights of Third Parties) Act 1999 to
enforce any term of this Deed but this does not affect any right or
remedy of a third party which exists or is available apart from that Act.
IN WITNESS HEREOF the parties hereto have executed and delivered this Deed on
the date written at the start of the Deed.
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EXECUTION PAGE
INVESTOR BENEFICIARY
EXECUTED and DELIVERED as a Deed on behalf of )
BARCLAYCARD FUNDING PLC )
By two Directors, being )
)
)
SERVICER, TRANSFEROR BENEFICIARY AND
EXCESS INTEREST BENEFICIARY
EXECUTED and DELIVERED as a Deed on behalf of )
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
in the presence of:
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EXHIBIT A
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the [Servicer] [Co-Servicer]
shall address the criteria identified below as "Applicable Servicing Criteria":
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REFERENCE SERVICING CRITERIA APPLICABLE INAPPLICABLE
SERVICING SERVICING
CRITERIA CRITERIA
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GENERAL SERVICING CONSIDERATIONS
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1122(d)(1)(i) Policies and procedures are instituted to monitor any X
performance or other triggers and events of default
in accordance with the transaction agreements.
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1122(d)(1)(ii) If any material servicing activities are outsourced X
to third parties, policies and procedures are
instituted to monitor the third party's performance
and compliance with such servicing activities.
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1122(d)(1)(iii) Any requirements in the transaction agreements to X
maintain a back-up servicer for the credit card loans
are maintained.
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1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in X
effect on the party participating in the servicing
function throughout the reporting period in the
amount of coverage required by and otherwise in
accordance with the terms of the transaction
agreements.
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CASH COLLECTION AND ADMINISTRATION
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1122(d)(2)(i) Payments on credit card accounts are deposited into X
the appropriate custodial bank accounts and related
bank clearing accounts no more than two business days
following receipt.
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an X
obligor or to an investor are made only by authorized
personnel.
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1122(d)(2)(iii) Advances of funds or guarantees regarding X
collections, cash flows or distributions, and any
interest or other fees charged for such advances, are
made, reviewed and approved as specified in the
transaction agreements.
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1122(d)(2)(iv) The related accounts for the transaction, such as X
cash reserve accounts or accounts established for
overcollateralization, are separately maintained
(e.g., with respect to commingling of cash) as set
forth in the transaction agreements.
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1122(d)(2)(v) Each custodial account is maintained at a depository X
institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent X
unauthorized access.
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for X
all asset-backed securities related bank accounts,
including custodial accounts and related bank
clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared within 30
calendar days after the bank statement cutoff date,
or such other number of days specified in the
transaction agreements; (C) reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are
resolved within 90 calendar days of their original
identification, or such other number of days
specified in the transaction agreements.
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INVESTOR REMITTANCES AND REPORTING
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1122(d)(3)(i) Reports to investors, including those to be filed X
with the Commission, are maintained in accordance
with the transaction agreements and applicable
Commission requirements. Specifically, such reports
(A) are prepared in accordance with timeframes and
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REFERENCE SERVICING CRITERIA APPLICABLE INAPPLICABLE
SERVICING SERVICING
CRITERIA CRITERIA
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other terms set forth in the transaction agreements;
(B) provide information calculated in accordance with
the terms specified in the transaction agreements;
(C) are filed with the Commission as required by its
rules and regulations; and (D) agree with investors'
or the trustee's records as to the total unpaid
principal balance and number of pool assets serviced
by the Servicer.
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted X
in accordance with timeframes, distribution priority
and other terms set forth in the transaction
agreements.
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1122(d)(3)(iii) Disbursements made to an investor are posted within X
two business days to the Servicer's investor records,
or such other number of days specified in the
transaction agreements.
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1122(d)(3)(iv) Amounts remitted to investors per the investor X
reports agree with cancelled checks, or other form of
payment, or custodial bank statements.
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POOL ASSET ADMINISTRATION
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1122(d)(4)(i) Collateral or security on pool assets is maintained X
as required by the transaction agreements or related
asset pool documents.
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1122(d)(4)(ii) Pool assets and related documents are safeguarded as X
required by the transaction agreements
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset X
pool are made, reviewed and approved in accordance
with any conditions or requirements in the
transaction agreements.
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1122(d)(4)(iv) Payments on credit card accounts, including any X
payoffs, made in accordance with the related credit
card account documents are posted to the Servicer's
obligor records maintained no more than two business
days after receipt, or such other number of days
specified in the transaction agreements, and
allocated to principal, interest or other items
(e.g., escrow) in accordance with the related asset
pool documents.
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1122(d)(4)(v) The Servicer's records regarding the accounts agree X
with the Servicer's records with respect to an
obligor's unpaid principal balance.
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1122(d)(4)(vi) Changes with respect to the terms or status of an X
obligor's account (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
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1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., X
forbearance plans, modifications and deeds in lieu of
foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in
accordance with the timeframes or other requirements
established by the transaction agreements.
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1122(d)(4)(viii) Records documenting collection efforts are maintained X
during the period an Account is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis,
or such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent Accounts including, for
example, phone calls, letters and payment
rescheduling plans in cases where delinquency is
deemed temporary (e.g., illness or unemployment).
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1122(d)(4)(ix) Adjustments to interest rates or rates of return for X
Accounts with variable rates are computed based on
the related Account documents.
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1122(d)(4)(x) Regarding any funds held in trust for an obligor X
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's pool asset
documents, on at least an annual basis, or such other
period specified in the transaction agreements; (B)
interest on
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REFERENCE SERVICING CRITERIA APPLICABLE INAPPLICABLE
SERVICING SERVICING
CRITERIA CRITERIA
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such funds is paid, or credited, to obligors in
accordance with applicable pool asset documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related pool asset, or such other number of days
specified in the transaction agreements.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or X
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the
transaction agreements.
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1122(d)(4)(xii) Any late payment penalties in connection with any X
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
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1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted X
within two business days to the obligor's records
maintained by the servicer, or such other number of
days specified in the transaction agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible X
accounts are recognized and recorded in accordance
with the transaction agreements.
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1122(d)(4)(xv) Any external enhancement or other support, identified X
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
transaction agreements.
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