Exhibit 10.4
CONFORMED COPY
23 November 1999
GRACECHURCH RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
and
BARCLAYS BANK PLC
acting through its business division
BARCLAYCARD
----------------------------------------------------------------
TRUST SECTION 75 INDEMNITY
----------------------------------------------------------------
CLIFFORD CHANCE
This Deed of Indemnity is made on 23 November 1999
BETWEEN:
(1) GRACECHURCH RECEIVABLES TRUSTEE LIMITED, a company incorporated
in Jersey with company registration number 75210 and having its
registered office at Normandy House, Grenville Street, St. Helier,
Jersey JE2 4UF in its capacity as trustee of the Receivables Trust (the
"RECEIVABLES TRUSTEE", which term shall include any successor of
Gracechurch Receivables Trustee Limited in its capacity as trustee of
the Receivables Trust); and
(2) BARCLAYS BANK PLC acting through its business division BARCLAYCARD,
whose principal place of business is located at 1234 Pavilion Drive,
Northampton NN4 7SG ("BARCLAYCARD", which term shall include any
successors or permitted assigns).
WHEREAS
(A) Barclaycard is the legal owner of certain Receivables.
(B) Barclaycard has entered into certain agreements pursuant to which it
has agreed to make offers from time to time to transfer by way of
assignment certain of such Receivables to the Receivables Trustee.
(C) Barclaycard has certain potential liabilities in its capacity as
original Creditor with respect to Receivables under Section 75 of the
Consumer Credit Act 1974 (each, a "TRANSFEROR SECTION 75 LIABILITY").
The Receivables Trustee has agreed to indemnify Barclaycard pursuant to
the terms of and subject to the conditions of this Deed in respect of
such claims.
NOW THIS DEED WITNESSETH as follows:
INTERPRETATION
1.1 Whenever used in this Deed and in the Recitals hereto, the words and
phrases defined in the Master Definitions Schedule dated as of the date
hereof and signed by the Receivables Trustee and Barclaycard in its
capacity as Transferor, Transferor Beneficiary, Excess Interest
Beneficiary and Servicer shall, unless otherwise defined herein or the
context requires otherwise, bear the same meanings herein.
1.2 Wherever used in this Deed and in the Recitals hereto, the words
"Supplier", "Creditor" and "Debtor" shall bear the meanings ascribed
thereto in the Consumer Credit Act 1974.
1.3 In Clause 3 of this Deed the words "Aggregate Investor Indemnity
Amount", "Applicable Series" and "Excess Spread" shall bear the same
meanings herein as used in the Series 99-1 Supplement dated 23 November
1999 to the Declaration of Trust and Trust Cash Management Agreement
dated 23 November 1999.
- 1 -
2. INDEMNITY
The Receivables Trustee hereby undertakes to indemnify and hold
harmless Barclaycard in respect of any loss suffered by Barclaycard
arising from any claim or set-off by any Obligor with respect to any
Transferor Section 75 Liability with respect to Receivables
constituting Trust Property; PROVIDED, HOWEVER, that:
(i) any recovery by Barclaycard :
(a) in accordance with its statutory right of indemnification
from Suppliers; and
(b) made pursuant to its rights of "CHARGE-BACK" (if any) under
the operating regulations of the relevant payment system in
respect of the transaction giving rise to the relevant
Transferor Section 75 Liability,
will be applied to reduce the loss of Barclaycard for the purpose of
ascertaining claims under this Deed; and
(ii) the maximum liability of the Receivables Trustee hereunder in
respect of any Transferor Section 75 Liability will be
limited to an amount equal to the Credit Advance relating to
the transaction giving rise to that Transferor Section 75
Liability.
3. Claims made by Barclaycard pursuant to this Deed will only be payable
to the extent the amount of the Aggregate Investor Indemnity Amount
allocable to each Applicable Series can be met from Excess Spread
available to each Applicable Series for distribution for such purposes
in accordance with the relevant Supplement.
4. This Deed shall be governed and construed in accordance with the laws of
England.
5. (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 5(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.
- 2 -
IN WITNESS whereof this Deed has been executed as a deed by and on behalf of
the Receivables Trustee and Barclaycard and is intended to be and is hereby
delivered on the date above written.
Signed for and on behalf of )
GRACECHURCH RECEIVABLES ) PETER S. CROOK
TRUSTEE LIMITED )
pursuant to a resolution of the Board )
EXECUTED as a deed by )
BARCLAYS BANK PLC )
acting through its business division ) MARK WINTER
BARCLAYCARD )
by its duly authorised )
attorney in the presence of: )
SHARARE HAU
- 3 -