Draft Date: 12 September 1999
Draft: 2
RECEIVABLES SECURITISATION AGREEMENT
BETWEEN
BARCLAYS BANK PLC
AS TRANSFEROR
AND
[*]
AS RECEIVABLES TRUSTEE
XXXXXXXX CHANCE
1
CONTENTS
Clause Page
1. Interpretation..................................................... 1
2. Offer Of Receivables............................................... 2
3. Acceptance Of Offer And Payment For Existing Receivables........... 7
4. Assignment Of Receivables.......................................... 8
5. Payment For Future Receivables...................................... 9
6. Perfection And Directions As To Payment............................ 10
7. Redesignation And Removal Of Accounts.............................. 12
8. Discount Percentage, Special Fees, Annual Fees And Acquired
Interchange........................................................ 14
9. Trust.............................................................. 16
10. Reductions In Receivables, Early Collections And Credit Adjustments 17
11. Breach Of Warranty ................................................ 18
12. Currency Of Account And Payment ................................... 19
13. Payments By The Transferor, Additional Transferors And The
Receivables Trustee................................................ 19
14. The Collection Agent And The Collection Agent Accounts ............ 21
15. [*] Operating Account And [*] Proceeds Account .................... 22
16. The Trustee Collection Account .................................... 22
17. Representations ................................................... 22
18. Covenants ......................................................... 23
19. Stamp Duty ........................................................ 25
20. Non-Petition ...................................................... 25
21. Benefit Of Agreement .............................................. 25
22. Disclosure Of Information ......................................... 26
23. Remedies And Waivers .............................................. 26
24. Partial Invalidity ................................................ 27
25. Counterparts ...................................................... 27
26. Notices ........................................................... 27
27. Termination Of Trust And Servicing Agreement ...................... 28
28. Law ............................................................... 28
29. Jurisdiction ...................................................... 28
SCHEDULE 1 Eligible Account Criteria................................... 29
SCHEDULE 2 Eligible Receivables........................................ 30
SCHEDULE 3 Form Of Offer............................................... 31
SCHEDULE 4 [Conditions Precedent To Subsequent Offers.................. 34
SCHEDULE 5 35
Part 1 Representations As To Matters Of Law.......................... 35
Part 2 Representations As To Matters Of Fact......................... 36
Part 3 Representations Relating To Receivables....................... 37
SCHEDULE 6 Notification Events......................................... 38
SCHEDULE 7 Form Of Solvency Certificate................................ 39
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THIS AGREEMENT is made the day of , 1999
BETWEEN
(1) BARCLAYS BANK PLC, an institution authorised under the Banking Xxx 0000,
acting through its business unit "Barclaycard", having its principal
place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxx XX0 0XX (the
"Transferor"); and
(2) [*], a company incorporated in Jersey having its registered office at
Xxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel
Islands in its capacity as Receivables Trustee.
WHEREAS
(A) The Transferor has owed to it at present and expects to have owed to it
in the future Receivables arising in the course of its business.
(B) The Transferor and the Receivables Trustee have agreed, upon the terms
and subject to the conditions of this Agreement, that the Transferor may
from time to time offer to assign all Receivables arising on Designated
Accounts (both Existing Receivables and Future Receivables) to the
Receivables Trustee.
(C) The Transferor and the Receivables Trustee have agreed, that subject to
the delivery of an Accession Notice, any member of the Barclays Group
which from time to time originates Accounts or to whom legal and
beneficial title to all or any Accounts is transferred (an "Additional
Transferor") may from time to time offer to assign all Existing
Receivables and Future Receivables arising on such transferred Accounts
subject to and in accordance with the conditions hereof.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Whenever used in this Agreement, the words and phrases defined in the
Master Definitions Schedule of even date herewith and signed by the
parties hereto shall, unless otherwise defined herein or the context
requires otherwise, bear the same meanings herein (including the recitals
hereto).
1.2 In this Agreement:
1.2.1 an "Article", "Clause", "Recital" or "Schedule" is, subject to any
contrary indication, a reference to an article or clause hereof or
a recital or schedule hereto;
1.2.2 "stamp duty" shall be construed as a reference to any stamp,
registration or other transaction or documentary tax (including,
without limitation, any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same);
1.2.3 a "subsidiary" of a company or corporation shall be construed as a
reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the first-
mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the first-
mentioned company or corporation; or
(c) which is a subsidiary of another subsidiary of the first-
mentioned company or corporation
and, for these purposes, a company or corporation shall be treated
as being controlled by another if that other company or
corporation is able to direct its affairs and/or to control the
composition of its board of directors or equivalent body; and
1.2.4 the "administration", "bankruptcy", "dissolution", "insolvency",
"liquidation", "receivership" or "winding-up" of any person shall
be construed so as to include any equivalent or analogous
proceedings under the laws of the jurisdiction in which such
person is incorporated (or, if not a company or corporation,
domiciled) or any jurisdiction in which such person carries on
business.
1.3 "L" and "Sterling" denote lawful currency for the time being of the
United Kingdom of Great Britain and Northern Ireland.
1.4 Save where the contrary is indicated, any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be,
such other agreement or document as the same may have been, or may
from time to time be, amended, varied, novated or supplemented;
1.4.2 a statute shall be construed as a reference to such statute as the
same may have been, or may from time to time be, amended or re-
enacted; and
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1.4.3 a time of day (including opening and closing of business) shall be
construed as a reference to London time.
1.5 Clause and Schedule headings are for ease of reference only.
1.6 Costs, charges, expenses or remuneration shall be deemed to include
references to VAT except where the context otherwise requires.
2. OFFER OF RECEIVABLES
2.1 The Transferor may (subject to receipt by the Receivables Trustee of the
documents referred to in the Closing Documents List in form and substance
satisfactory to the Receivables Trustee), by delivering to the
Receivables Trustee an Offer substantially in the form set out in the
Third Schedule:
2.1.1 nominate all existing Accounts of a Specified Product Line to be
Designated Accounts (but excluding those existing Accounts which
have been identified on the Transferor's system as being excluded
from such nomination); and/or
2.1.2 nominate all future Accounts in respect of a Specified Product
Line to be Designated Accounts, which nomination shall be deemed
to be a nomination of all Accounts which come into existence under
that Specified Product Line during the next Monthly Period (unless
and to the extent that such Accounts have been identified on the
Transferor's system as from the relevant Account Creation Date as
being excluded from such nomination),
and offer to the Receivables Trustee in respect of the Initial Offer Date
an assignment of:
(A) in respect of existing Accounts on a Specified Product Line
nominated as Designated Accounts:
(a) all Existing Receivables under each Account nominated in
such Offer;
(b) all Future Receivables under each such Account which are
not Finance Charge Receivables in respect of Principal
Receivables until the earliest of:
(i) in respect of each such Account, such time (if any)
as such Account becomes a Redesignated Account;
(ii) the termination of the Receivables Trust; or
(iii) the occurrence of an Insolvency Event;
(c) all Future Receivables under each Account nominated in such
Offer which are Finance Charge Receivables in respect of
Receivables which are assigned (or purported to be
assigned) to the Receivables Trustee pursuant to paragraphs
(a) and (b) above;
(d) (to the extent such are capable of assignment) the benefit
of each guarantee or insurance policy obtained by the
Transferor in respect of the obligations of an Obligor to
make payments on any such Account,
(B) in respect of future Accounts arising on a Specified Product Line
nominated as Designated Accounts during the next Monthly Period:
(a) all Future Receivables under each such Account which are
not Finance Charge Receivables in respect of Principal
Receivables until the earliest of:
(i) in respect of each such Account, such time (if any)
as such Account becomes a Redesignated Account;
(ii) the termination of the Receivables Trust; or
(iii) the occurrence of an Insolvency Event;
(b) all Future Receivables under each Account nominated in such
Offer which are Finance Charge Receivables in respect of
Receivables which are assigned (or purported to be
assigned) to the Receivables Trustee pursuant to paragraph
(a) above; and
(c) (to the extent such are capable of assignment) the benefit
of each guarantee or insurance policy obtained by the
Transferor in respect of the obligations of an Obligor to
make payments on any such Account; and
(C) the benefit of all amounts representing Acquired Interchange in
respect of each Monthly Period.
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2.2 The Transferor or any Additional Transferor may on any Offer Date falling
prior to the termination of the Receivables Trust or on any other
Business Day with the written consent of [*] by delivering to the
Receivables Trustee an Offer substantially in the form set out in the
Third Schedule:
2.2.1 nominate all existing Accounts of a Specified Product Line to be
Designated Accounts (but excluding those existing Accounts which
have been identified on the Transferor's or, as the case may be,
such Additional Transferor's system as being excluded from such
nomination); and/or
2.2.2 nominate all future Accounts in respect of a Specified Product
Line to be Designated Accounts, which nomination shall be deemed
to be a nomination of all Accounts which come into existence under
that Specified Product Line during the next Monthly Period or, if
the Offer is not made on an Offer Date, during the current or (if
specified) the next following Monthly Period (unless and to the
extent that such Accounts have been identified on the Transferor's
or, as the case may be, such Additional Transferor's system as
being excluded from such nomination).
and offer to the Receivables Trustee in respect of that Offer Date an
assignment of:
(A) in respect of existing Accounts on a Specified Product Line
nominated as Designated Accounts:
(a) all Existing Receivables under each Account nominated in
such Offer;
(b) all Future Receivables under each such Account which are
not Finance Charge Receivables in respect of Principal
Receivables until the earliest of:
(i) in respect of each such Account, such time (if any)
as such Account becomes a Redesignated Account;
(ii) the termination of the Receivables Trust; or
(iii) the occurrence of an Insolvency Event;
(c) all Future Receivables under each such Account which are
Finance Charge Receivables in respect of Receivables which
are assigned (or purported to be assigned) to the
Receivables Trustee pursuant to paragraphs (a) and (b)
above; and
(d) (to the extent such are capable of assignment) the benefit
of each guarantee or insurance policy obtained by the
Transferor in respect of the obligations of an Obligor to
make payments on any such Account,
(B) in respect of future Accounts arising on a Specified Product Line
nominated as Designated Accounts during the next Monthly Period or
specified Monthly Period if the Offer is not made on an Offer
Date:
(a) all Future Receivables under each such Account which are
not Finance Charge Receivables in respect of Principal
Receivables until the earliest of:
(i) in respect of each such Account, such time (if any)
as such Account becomes a Redesignated Account;
(ii) the termination of the Receivables Trust; or
(iii) the occurrence of an Insolvency Event;
(b) all Future Receivables under each such Account which are
Finance Charge Receivables in respect of Receivables which
are assigned (or purported to be assigned) to the
Receivables Trustee pursuant to paragraph (a) above; and
(c) (to the extent such are capable of assignment) the benefit
of each guarantee or insurance policy obtained by the
Transferor in respect of the obligations of an Obligor to
make payments on any such Account.
Provided, however, that prior to or simultaneously with the making of
each such Offer in respect of an Offer Date, the Transferor or, as the
case may be, such Additional Transferor shall have satisfied the
conditions precedent set out in the Fourth Schedule unless such
conditions precedent have been waived in writing by the Receivables
Trustee (if it has received written confirmation from each relevant
Rating Agency that such waiver will not result in such Rating Agency
reducing or withdrawing its then current rating on any outstanding
Related Debt).
2.3 Every Offer delivered by the Transferor pursuant to Clause 2.1 or by the
Transferor or an Additional Transferor Clause 2.2 shall:
2.3.1 (i) specify that the Accounts nominated pursuant to Clauses
2.1.1(A) or 2.2.1(A) have been identified by the Transferor or, as
the case may be, such Additional Transferor, on its system, and/or
(ii)
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undertake that its system will identify those Accounts nominated
pursuant to Clauses 2.1.2(B) or 2.2.2(B), as from the relevant
Account Creation Date, as Designated Accounts in respect of which
an assignment of Existing Receivables and Future Receivables is
being offered to the Receivables Trustee;
2.3.2 in respect of Existing Receivables arising in Designated Accounts
nominated under Clauses 2.1.1(A)(a) or 2.1.2(A)(a):
(a) specify the aggregate amount of the Eligible Receivables
comprised therein;
(b) specify the total Outstanding Face Amount of the Principal
Receivables and the total outstanding balance of the
Finance Charge Receivables comprised in such Eligible
Receivables; and
(c) specify the aggregate amount of the Ineligible Receivables
comprised therein;
2.3.3 be delivered no later than 12.00 noon on the Offer Date relating
thereto; and
2.3.4 constitute an offer by the Transferor or, as the case may be, such
Additional Transferor to sell and assign to the Receivables
Trustee absolutely all of the Transferor's right, title and
interest in and to the Existing Receivables and Future Receivables
arising on each Account nominated in the Offer at the related
Purchase Price therefor on the terms and conditions of this
Agreement, together with (to the extent such are capable of
assignment) the benefit of each guarantee or insurance policy
obtained by the Transferor or, as the case may be, such Additional
Transferor, in respect of the obligations of an Obligor to make
payments on any such Receivables and, in the case of an Offer
delivered pursuant to [Clause 2.1], the benefit of all amounts
representing Acquired Interchange in respect of each Monthly
Period.
2.4 The Transferor and, upon execution of an Accession Notice, each
Additional Transferor agrees to maintain a system which, during the term
of this Agreement, will identify any Accounts which are excluded from
nomination as Designated Accounts in an Offer made pursuant to Clause 2.1
or Clause 2.2. The Transferor and upon execution of an Accession Notice,
each Additional Transferor further agrees to deliver to the extent
permitted by applicable law, on or before the twentieth Business Day (or
within such period as may otherwise be agreed between the Transferor and
(upon execution of an Accession Notice, each Additional Transferor) and
the Servicer) on behalf of the Receivables Trustee may at any time in
writing request, a computer file or microfiche list containing a true and
complete list of all Designated Agreements each identified by a specific
number identifying such Designated Agreement. Provided however, that the
Servicer on behalf of the Receivables Trustee may not request such list
or information more than once during any calendar year unless an
Insolvency Event has occurred and is subsisting, in which case such
request may be made at any time with reasonable frequency.
2.5 The Transferor and upon execution of an Accession Notice, each Additional
Transferor agrees not to alter the file designation with respect to any
Designated Account during the term of this Agreement unless and until
such Designated Account becomes a Removed Account.
2.6 The Transferor and upon execution of an Accession Notice, each Additional
Transferor agrees that if any Offer shall lapse before it is accepted in
accordance with Clause 3.5 it will ensure the Accounts which are
nominated in such lapsed Offer are identified (either at the time of such
lapse the relevant Account Creation Date, as applicable) as not being
Designated Accounts in its system.
2.7 The Transferor may, at any time after the Initial Offer Date, designate
any subsidiary of the Transferor which originates Accounts in the course
of its business and/or to which the Transferor's right, title and
interest in and to Designated Accounts have been assigned as an
Additional Transferor for the purpose of making Offers under this
Agreement, by delivering or procuring the delivery to the Receivables
Trustee of an Accession Notice duly executed by the Transferor and such
nominated subsidiary of the Transferor in such form as the Receivables
Trustee may require together with such other documents (including legal
opinions) as the Receivables Trustee shall require and such nominated
subsidiary shall not be admitted as an Additional Transferor for the
purposes of this Agreement until such time as the Receivables Trustee
shall have confirmed to the Transferor and the Additional Beneficiary
that it has received the Accession Notice and such other prescribed
documents in form and substance satisfactory to the Receivables Trustee.
3. ACCEPTANCE OF OFFER AND PAYMENT FOR EXISTING RECEIVABLES
3.1 Subject to the receipt of the required funds by the Receivables Trustee
from or on behalf of the Beneficiaries, the Receivables Trustee shall
accept any Offer made in accordance with Clause 2.3 in the manner
specified in Clause 3.5.
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3.2 In consideration of the commitment of the Receivables Trustee described
in Clause 3.1, the Transferor shall pay on the date hereof and each
Additional Transfer shall pay on the date of its accession hereunder the
sum of L1 to the Receivables Trustee (receipt whereof is hereby
acknowledged).
3.3 Each Offer shall be accepted by the Receivables Trustee only with respect
to the Existing Receivables and Future Receivables on Accounts nominated
therein and any purported form of acceptance of an Offer otherwise than
in the manner specified in Clause 3.5 shall be null and void and of no
effect (and for the avoidance of doubt nothing in this Agreement or in
any Offer shall of itself operate so as to convey or transfer to any
person any beneficial interest in any Receivables).
3.4 Each Offer shall be irrevocable and binding on the Transferor or, as the
case may be, an Additional Transferor, until (if not accepted before such
time) close of business on the Business Day immediately succeeding the
Offer Date relating thereto or, if the Offer is not made on an Offer
Date, the Business Day immediately succeeding the day the Offer is made
(or such longer period of time for acceptance as may be agreed upon by
the Transferor or, as the case may be, an Additional Transferor, and the
Receivables Trustee), when that Offer shall lapse.
3.5 Each Offer may be accepted only by way of payment of the relevant amount
of the Purchase Price in respect of Existing Receivables the subject of
such Offer to be paid in cash in respect of such Offer being made by or
on behalf of the Receivables Trustee to the Transferor or, as the case
may be, the Additional Transferor in accordance with the Transferor's or,
as the case may be, the Additional Transferor, irrevocable instructions
set out in Clause 6.1 by no later than close of business on the Business
Day immediately succeeding the relevant Offer Date, or such longer period
of time for acceptance as may be agreed upon by the Transferor (or, as
the case may be, the Additional Transferor) and the Receivables Trustee
Provided, however, that the Offer made on the Initial Offer Date shall be
accepted by no later than close of business on the Initial Offer Date.
4. ASSIGNMENT OF RECEIVABLES
4.1 Upon acceptance of an Offer pursuant to Clause 3.5, all of the
Transferor's or, as the case may be, the Additional Transferor's, rights,
title and interest in and to:
4.1.1 the Existing Receivables under each Designated Account nominated
in that Offer; and
4.1.2 the Future Receivables under each such Designated Account which
are not Finance Charge Receivables in respect of Principal
Receivables, until the earliest of:
(a) in respect of each Designated Account, such time (if any),
as such Account becomes a Redesignated Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event;
4.1.3 all Future Receivables under each Account nominated in such Offer
which are Finance Charge Receivables in respect of Receivables
which are assigned (or purported to be assigned) to the
Receivables Trustee pursuant to paragraphs 4.1.1 and 4.1.2 above;
4.1.4 (to the extent such are capable of assignment) the benefit of each
guarantee or insurance policy obtained by the Transferor or, as
the case may be, the Additional Transferor, in respect of the
obligations of an Obligor to make payments on any such Designated
Account; and
4.1.5 (in respect of the Offer made on the Initial Offer Date) the
benefit of all amounts representing Acquired Interchange in
respect of each Monthly Period,
shall thereupon pass to the Receivables Trustee on the terms and
conditions of this Agreement and the Offer.
4.2 It is hereby agreed, for the avoidance of doubt, that no transfer or
purported transfer of Receivables pursuant to this Clause shall be
rendered ineffective or void or otherwise impaired by reason only of it
being subsequently discovered that the Account(s) relating to such
Receivables either:
4.2.1 did not arise under the relevant Specified Product Line relating
to such Account(s), as named in the relevant Offer; or
4.2.2 did arise under the Specified Product Line relating to such
Account(s) in the relevant Offer but were subsequently removed
from such Specified Product Line without having been redesignated
or removed in accordance with Clause 7.
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5. PAYMENT FOR FUTURE RECEIVABLES
5.1 In consideration of the assignment by the Transferor or any Additional
Transferor to the Receivables Trustee of Future Receivables coming into
existence on any day (which Receivables will have been automatically
assigned in equity to the Receivables Trustee) and the benefit of
Acquired Interchange in respect of each Monthly Period, the Receivables
Trustee shall pay to the Transferor or, as the case may be, such
Additional Transferor (and, in respect of the amount to be paid in cash,
in accordance with Clause 6.2), not later than the Business Day which is
two Business Days after the Date of Processing relating to such Future
Receivables or such longer period of time as may be agreed upon by the
Transferor or, as the case may be, such Additional Transferor and the
Receivables Trustee (with the prior written confirmation of each Rating
Agency that such increase in time shall not cause a downgrade in the then
current rating of any outstanding Related Debt), an amount equal to the
Outstanding Face Amount of the Principal Receivables comprised therein as
calculated by the Transferor or, as the case may be, such Additional
Transferor and notified to the Receivables Trustee by the Transferor or,
as the case may be, such Additional Transferor (and specifying the
aggregate amount of such Principal Receivables which are Ineligible
Receivables) by no later than 12.00 noon on such day for payment.
5.2 The Transferor and each Additional Transfer shall prepare and maintain a
daily activity report (the "Daily Activity Report") in connection with
the payment required under Clause 5.1 which shall specify with reference
to the Designated Accounts of the Transferor or, as the case may be, such
Additional Transferor (on an aggregate basis):
5.2.1 the outstanding balance of the Future Receivables which have
arisen and which have automatically been assigned in equity to the
Receivables Trustee since the previous Daily Activity Report and
which are Eligible Receivables;
5.2.2 the Outstanding Face Amount of the Principal Receivables which are
Eligible Receivables and the amount of the Finance Charge
Receivables comprised in such Eligible Receivables; and
5.2.3 the outstanding balance of Future Receivables which have arisen
and which have automatically been assigned in equity to the
Receivables Trustee since the previous Daily Activity Report and
which are Ineligible Receivables
Provided, however, that the Transferor and, upon its accession hereunder
each Additional Transferor agrees to deliver such Daily Activity Report
to the Receivables Trustee within three Business Days (or such other
period as may otherwise be agreed) after the Receivables Trustee may at
any time request.
6. PERFECTION AND DIRECTIONS AS TO PAYMENT
6.1 The Transferor hereby irrevocably directs the Receivables Trustee to make
each payment due to it pursuant to Clause 3.5 in respect of Existing
Receivables by payment into the [*] Proceeds Account, such payment when
so made to constitute payment by the Receivables Trustee to the
Transferor by way of acceptance of the Offer in respect of which the
payment is made pursuant to Clause 3.5.
6.2 The Transferor hereby directs the Receivables Trustee to make each
payment due to it pursuant to Clause 5.1 in respect of Future Receivables
by payment into the [*] Proceeds Account, such payment when so made to
constitute compliance by the Receivables Trustee with Clause 5.1 in
respect of the Future Receivables in respect of which the payment is
made.
6.3 The Receivables Trustee shall be irrevocably directed by terms of each
Accession Notice to make each payment due to the relevant Additional
Transferor pursuant to Clause 3.5 in respect of Existing Receivables by
payment into the proceeds account specified in such Accession Notice,
such payment when made to constitute payment by the Receivables Trustee
to such Additional Transferor by way of acceptance of the Offer in
respect of which the payment is made pursuant to Clause 3.5.
6.4 The Receivables Trustees shall be irrevocably directed by the terms of
each Accession Notice to make each payment due to the relevant Additional
Transferor pursuant to Clause 5.1 in respect of Future Receivables by
payment into the proceeds accounts specified in such Accession Notice,
such payment when so made to constitute compliance by the Receivables
Trustee which Clause 5.1 in respect of the Future Receivables in respect
of which the payment is made.
6.5 Subject to Clause 6.7, the Transferor and each Additional Transferor will
take all such steps and comply with all such formalities as the
Receivables Trustee may require to perfect or more fully to evidence or
secure title to the Receivables (and the benefit of any guarantee or
insurance policy in respect of the obligations of an Obligor to make
payments in respect thereof) assigned (or purported to be assigned)
pursuant to Clause 4 and the interest of the Receivables Trustee therein.
6.6 Subject to Clause 6.7, to secure the proprietary interest of the
Receivables Trustee relating to the Receivables (and the benefit of any
guarantee or insurance policy in respect of the obligations of an Obligor
to make
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payments in respect thereof) assigned (or purported to be assigned) to it
by the Transferor or, as the case may be, an Additional Transferor and
the performance of the Transferor's or, as the case may be, such
Additional Transferor's obligations in respect thereof, the Transferor
and, upon its accession hereunder, each Additional Transfer hereby
irrevocably appoints the Receivables Trustee as its attorney (with full
power of delegation) for the purpose of performing and complying with all
and any of the obligations of the Transferor or, as the case may be, such
Additional Transferor pursuant to Clause 6.3 hereunder whether in its own
name or in the name of the Receivables Trustee and in such manner as the
Receivables Trustee may consider appropriate, and the Transferor and,
upon its accession hereunder, each Additional Transferor hereby ratifies,
confirms and adopts and agrees to ratify, confirm and adopt whatsoever
the Receivables Trustee shall do or purport to do on its behalf by virtue
of and in accordance with this power of attorney, except in the case of
bad faith, fraud or gross negligence on the part of the Receivables
Trustee in so acting.
6.7 The Receivables Trustee (in its capacity as donee of the power of
attorney in Clause 6.4 or otherwise) hereby agrees that at any time:
6.7.1 no Notice of Assignment shall be given by it (or required by it to
be given) to any Obligor or any provider of any guarantee or
insurance policy in respect of the obligations of such Obligor;
and
6.7.2 no written assignment or transfer (whether by deed or otherwise)
of any Receivables (or any guarantee or insurance policy in
respect of the obligations of an Obligor to make payments in
respect thereof) assigned (or purported to be assigned) shall be
required,
unless at such time a Notification Event has occurred and is then
subsisting and such action is required in the opinion of the Receivables
Trustee (after consulting with such legal advisers as it deems necessary)
to effect the obligations of the Transferor or, as the case may be, an
Additional Transferor under Clause 6.3.
6.8 The Receivables Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Receivables Trust
other than as contemplated in this Agreement, the Declaration of Trust
and Trust Cash Management Agreement, any Supplement thereto and any
document related thereto.
7. REDESIGNATION AND REMOVAL OF ACCOUNTS
7.1 Each Designated Account shall continue to be a Designated Account until
such time, if any, that it becomes a Redesignated Account on the date
specified in respect of such Designated Account pursuant to Clause 7.3
(the "Redesignation Date").
7.2 Subject to Clause 7.7, the Transferor and each Additional Transferor may
at any time, and in its absolute discretion, notify the Receivables
Trustee in writing of (i) any Designated Account (which is not a
Cancelled Account, Defaulted Account or Zero Balance Account) which the
Transferor or such Additional Transferor wishes to cease to be a
Designated Account or (ii) any Specified Product Line in respect of which
the Transferor or such Additional Transferor wishes all Designated
Accounts existing under that Specified Product Line to cease to be
Designated Accounts, in each case with effect from such following date as
the Transferor or such Additional Transferor shall specify in that notice
(a "Redesignation Notice").
7.3 The Redesignation Date of a Designated Account shall be ascertained as
follows:
7.3.1 in the case of a Cancelled Account, the Redesignation Date shall
be the day on which the relevant Designated Account is recorded by
the Servicer as a Cancelled Account on the Servicer's computer
master file of Accounts;
7.3.2 in the case of a Zero Balance Account, the Redesignation Date
shall be the day on which the relevant Designated Account is
recorded by the Servicer as being a Zero Balance Account and
removed from the Servicer's computer master file of Accounts;
7.3.3 in the case of a Defaulted Account, the Redesignation Date shall
be the day on which the Receivables thereunder are recorded as
charged-off as uncollectible on the Servicer's computer master
file of Accounts. Notwithstanding any other provision hereof, any
Receivables in a Defaulted Account that are Ineligible Receivables
prior to such date shall be treated as Ineligible Receivables
rather than as Receivables in Defaulted Accounts; and
7.3.4 in the case of a Designated Account which is not a Cancelled
Account, Defaulted Account or Zero Balance Account, the
Redesignation Date shall be the day specified in the Redesignation
Notice.
7.4 On, and with effect from, the Redesignation Date in respect of a
Designated Account the following shall occur:
7.4.1 such Account shall cease to be a Designated Account and thereafter
shall be a Redesignated Account;
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7.4.2 all Receivables which were in existence prior to the Redesignation
Date shall, to the extent the Receivables Trustee has not paid for
such Receivables, be paid for by the Receivables Trustee in
accordance with this Agreement;
7.4.3 all Future Receivables generated on such Redesignated Account
which are Principal Receivables or Finance Charge Receivables in
respect of Receivables which were not in existence prior to such
Redesignation Date which come into existence on or after the
Redesignation Date shall not be assigned by the Transferor or, as
the case may be, such Additional Transferor to the Receivables
Trustee; and
7.4.4 all Future Receivables which are Finance Charge Receivables in
respect of Receivables which were in existence prior to such
Redesignation Date which come into existence on or following such
Redesignation Date shall continue to be automatically assigned by
the Transferor or, as the case may be, such Additional Transferor
to the Receivables Trustee and constitute Trust Property;
Provided, however, that, for the avoidance of doubt, no Receivable
assigned to the Receivables Trustee shall be reassigned to the Transferor
or any Additional Transferor except in the circumstances set out in
Clause 11.3.
7.5 The Transferor and each Additional Transferor shall maintain a system
which identifies each Redesignated Account in the Pool Index File until
the earlier of:
7.5.1 such time as Collections (equal to the Outstanding Face Amount of
each Principal Receivable and the outstanding balance of each
Finance Charge Receivable) have been received by the Receivables
Trustee in respect of every Receivable which has been assigned to
the Receivables Trustee in respect of that Account other than
Receivables which have been charged-off as uncollectible in
accordance with the Card Guidelines on the computer master file of
Accounts used by the Servicer; or
7.5.2 such time as all Receivables outstanding on such Account which
constitute Trust Property are re-assigned to the Transferor or, as
the case maybe, such Additional Transferor in the circumstances
set out in Clause 11.3.
7.6 At such time as the Transferor or an Additional Transferor ceases to be
obliged to identify each Redesignated Account as such in the Pool Index
File (in accordance with Clause 7.5) the Transferor and such Additional
Transferor may at any time thereafter, and in its absolute discretion,
notify the Receivables Trustee that it wishes to cease to identify such
Accounts as being Redesignated Accounts, with effect from such date as
the Transferor or, as the case may be, such Additional Transferor shall
specify in that notice (the "Removal Date"), and such Accounts shall then
be identified in the Pool Index File, in accordance with a system
maintained by the Transferor or, as the case may be, such Additional
Transferor for that purpose, as constituting "Removed Accounts".
Provided, however, that in respect of a Zero Balance Account, the
Transferor or, as the case may be, such Additional Transferor, shall
remove or have removed such designation on the Redesignation Date (which,
consequently, shall also be the Removal Date for such Account) and such
Zero Balance Account shall also constitute a Removed Account.
7.7 Neither the Transferor nor any Additional Transferor shall be permitted
to redesignate Designated Accounts pursuant to Clause 7.2 which are not
Cancelled Accounts, Defaulted Accounts or Zero Balance Accounts unless
the following conditions are satisfied:
7.7.1 such redesignation shall not, in the reasonable belief of the
Transferor or such Additional Transfer, cause a Pay Out Event to
occur;
7.7.2 the Transferor or, as the case may be, such Additional Transferor
shall represent and warrant to the Receivables Trustee that no
selection procedures believed by the Transferor or such Additional
Transferor to have a Material Adverse Effect were utilised in
selecting the Designated Accounts to be redesignated;
7.7.3 on or before the tenth Business Day prior to the Redesignation
Date, each Rating Agency and the Receivables Trustee shall have
received notice in writing from the Transferor or, as the case may
be, such Additional Transferor of such proposed redesignation and
the Transferor or such Additional Transferor and the Receivables
Trustee shall have received notice prior to the Redesignation Date
from each Rating Agency that such proposed redesignation will not
result in a downgrade or withdrawal of its then current rating of
any outstanding Related Debt;
7.7.4 the Transferor or, as the case may be, such Additional Transferor
and the Servicer shall certify to the Receivables Trustee that
Collections (equal to the Outstanding Face Amount of each
Principal Receivable and the outstanding balance of each Finance
Charge Receivable) have been received by the Receivables Trustee
in respect of every Receivable which has been assigned to the
Receivables Trustee in respect of that Account other than
Receivables which have been charged-off as
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uncollectible in accordance with the Card Guidelines on the
computer master file of Accounts used by the Servicer; and
7.7.5 the Transferor or, as the case may be, such Additional Transferor
shall have delivered to the Receivables Trustee an officer's
certificate confirming the items set out in Clauses 7.7.1 to 7.7.4
above.
Provided, however, that the Receivables Trustee may conclusively rely on
the officer's certificate referred to in Clause 7.7.5 above without
making enquiries with regard to the matters set out therein.
8. DISCOUNT PERCENTAGE, SPECIAL FEES, ANNUAL FEES AND ACQUIRED INTERCHANGE
8.1 The Transferor or any Additional Transferor may, at any time by giving
not less than 30 days' prior notice in writing to the Servicer, the
Receivables Trustee and the Rating Agencies, nominate a Discount
Percentage to apply to Principal Receivables from the date specified in
such notice for such period (or additional period) of time as the
Transferor or such Additional Transferor shall specify.
8.2 If the Transferor or any Additional Transferor notifies the Receivables
Trustee of the application of a Discount Percentage in accordance with
Clause 8.1 then, during the period of time specified by the Transferor or
such Additional Transferor under Clause 8.1, the relevant amount of any
Purchase Price to be paid pursuant to Clause 3.5 shall accordingly be
reduced by a percentage equal to the Discount Percentage, and the
obligation of the Receivables Trustee to make the payments referred to in
Clause 5.1 shall be likewise reduced.
8.3 No nomination by the Transferor or any Additional Transferor pursuant to
Clause 8.1 of a Discount Percentage or the period (or additional period)
of time for which it is to be effective shall be of any effect unless:
8.3.1 each Rating Agency has confirmed in writing that such proposed
nomination or increase in length of the relevant period will not
result in a downgrade or withdrawal of its then current rating of
any outstanding Related Debt;
8.3.2 the Transferor or such Additional Transferor has provided the
Receivables Trustee with a certificate in the form set out in the
Seventh Schedule, signed by an authorised officer of the
Transferor or such Additional Transferor confirming that:
(a) the performance of the portfolio of Designated Accounts is
such that in the reasonable opinion of the Transferor or
such Additional Transferor the yield of Finance Charge
Collections is not generating adequate cashflows for the
Beneficiaries of the Receivables Trust and the size of the
Discount Percentage is not intended solely to accelerate
distributions to the Excess Interest Beneficiary; and
(b) the Transferor or such Additional Transferor is able to pay
its debts within the meaning of section 123 of the
Insolvency Xxx 0000 and will not become unable to pay its
debts within the meaning of that section in consequence of
such Discount Percentage coming into effect, as at the date
on which the Discount Percentage or additional period is to
take effect.
8.4 From time to time, the Transferor and each Additional Transferor may levy
a Special Fee on Accounts (including Designated Accounts) whether at one
time or on an ongoing basis, and may in respect of such Special Fees on
or after the date on which they are first levied on Designated Accounts,
designate in a certificate to the Receivables Trustee whether such
Special Fees shall be treated as Finance Charge Receivables or as
Principal Receivables, Provided, however, that in the absence of such
certificate, such Special Fees shall be treated as Finance Charge
Receivables, Provided further, however, that the Transferor or such
Additional Transferor may not designate Special Fees as Principal
Receivables unless it certifies in such certificate that it has received
an Opinion of Counsel that such Special Fees constitute, for the purpose
of tax in the United Kingdom, repayment in whole or in part of an advance
to an Obligor.
8.5 The Transferor and each Additional Transferor may, at any time by giving
notice in writing to the Servicer, the Receivables Trustee and the Rating
Agencies, designate in a certificate to the Receivables Trustee whether
Future Receivables arising after that time and Existing Receivables
comprised in offers accepted by the Receivables Trustee after that time
in respect of (in each case) Annual Fees shall be treated as Finance
Charge Receivables or as Principal Receivables Provided, however, in the
absence of such certificate, such Receivables in respect of Annual Fees
shall be treated as Finance Charge Receivables; Provided further,
however, that any designation of Annual Fees as Principal Receivables
shall not be of any effect unless the Transferor or, as the case may be,
such Additional Beneficiary certifies in such certificate that it has
received an Opinion of Counsel that such Annual Fees constitute, for the
purpose of tax in the United Kingdom, repayment in whole or in part of an
advance to an Obligor.
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8.6 On or before each Transfer Date, the Transferor and each Additional
Transferor shall notify the Receivables Trustee of the amount of Acquired
Interchange with respect to the preceding Monthly Period.
8.7 On each Transfer Date, the Transferor and each Additional Transferor
shall cause to be paid to the Receivables Trustee by depositing into the
Trustee Collection Account, in immediately available funds, an amount
equal to the amount of Acquired Interchange.
9. TRUST
9.1 If for any reason any Receivable arising on a Designated Account cannot
be duly assigned to the Receivables Trustee as contemplated hereby but
the Receivables Trustee has accepted the Offer relating to that
Receivable then, with effect from the date on which the Receivables
Trustee accepted such Offer, that Receivable shall be treated as if it
had been validly and duly assigned to the Receivables Trustee and the
Transferor or, as the case may be, the Additional Transferor shall hold
the same and all Collections related thereto on trust absolutely for the
Receivables Trustee and all such Collections shall be applied as if such
Receivable had been validly and duly assigned.
9.2 The provisions of Clause 9.1 shall be without prejudice to:
9.2.1 any obligations or representations of the Transferor or, as the
case may be, such Additional Transferor hereunder in respect of
any Receivables; and
9.2.2 any liabilities of the Transferor or such Additional Transferor or
rights of the Receivables Trustee in relation to any breach or
inaccuracy on the part of the Transferor or, as the case may be,
such Additional Transferor of the matters referred to in Clause
9.2.1.
9.3 All Collections in respect of any Receivables constituting Trust Property
received by Barclays Bank PLC (whether or not the appointment of Barclays
Bank PLC as Servicer under the Beneficiaries Servicing Agreement has been
terminated) shall, pending their application to the Trustee Collection
Account, be held on trust for and to the order of the Receivables
Trustee.
10. REDUCTIONS IN RECEIVABLES, EARLY COLLECTIONS AND CREDIT ADJUSTMENTS
10.1 If the amount paid or payable in respect of any Principal Receivable
which has been assigned by the Transferor or any Additional Transferor to
the Receivables Trustee is reduced (other than in respect of a Transferor
Section 75 Liability, Additional Transferor Section 75 Liability or a
Credit Adjustment) after the Offer Date relating thereto by reason of:
10.1.1 any set-off or counterclaim as between an Obligor and
the Transferor or any Additional Transferor; or
10.1.2 any other matter as between an Obligor and the Transferor or
any Additional Transferor,
(each of 10.1.1 and 10.1.2 above a "Reduction")
and the Transferor or such Additional Transferor has received a benefit
in money or money's worth as a consequence of such Reduction (including,
without limitation, any reduction in any liability owing by the
Transferor or such Additional Transferor to such Obligor) then the
Transferor or such Additional Transferor shall nevertheless for the
purposes of this Agreement be treated as having been paid the amount of
such reduction on the date of such reduction in addition to any other
amounts which may be paid or payable in respect of such Receivable.
10.2 If any Existing Receivable which is purported to be assigned pursuant to
any Offer made pursuant to the terms of this Agreement shall have been
collected in whole or in part prior to the time of such purported
assignment, then the portion thereof which shall have been so collected
(an "Early Collection") shall be treated for the purposes of this
Agreement as having been collected by the Transferor or, as the case may
be, the relevant Additional Transferor immediately following such
purported assignment thereof.
10.3 If any Principal Receivable which has been assigned by the Transferor or
any Additional Transferor to the Receivables Trustee is reduced after the
Offer Date relating thereto by reason of a Credit Adjustment then the
Transferor or such Additional Transferor shall nevertheless for the
purposes of this Agreement be treated as having been paid the amount of
such Credit Adjustment on the date of such Credit Adjustment in addition
to any other amounts which may be paid or payable in respect of such
Receivable.
10.4 Subject to Clause 13.3, the Transferor or, as the case may be, such
Additional Transferor shall be obliged to pay to the credit of the
Trustee Collection Account an amount equal to the amount of each
Reduction (as referred to in Clause 10.1), Early Collection (as referred
to in Clause 10.2) or Credit Adjustment (as referred to in Clause 10.3)
by no later than the second Business Day following the date on which it
became aware of
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such Reduction, Early Collection or Credit Adjustment (as the case may
be) or was notified thereof by the Servicer.
11. BREACH OF WARRANTY
11.1 If, in respect of any Principal Receivable which has been assigned to the
Receivables Trustee, any representation referred to in Clause 17.2 or
17.3 proves at any time to have been incorrect when made, the Transferor
or, as the case may be, the relevant Additional Transferor shall be
treated as having received by way of a Collection the Outstanding Face
Amount of such Principal Receivable and, subject to Clause 13.3, the
Transferor or, as the case may be, the relevant Additional Transferor
shall be obliged to pay by no later than the Business Day following the
date on which such representation becomes known to the Transferor or, as
the case may be, the relevant Additional Transferor to be incorrect, an
amount equal to the Outstanding Face Amount of such Principal Receivable
to the Trustee Collection Account under advice to that effect to the
Receivables Trustee, Provided, however, that such Receivable shall not be
re-assigned to the Transferor or such Additional Transferor but shall
thereafter be treated as an Ineligible Receivable unless and until all
Receivables outstanding on the relevant Account are re-assigned to the
Transferor or such Additional Transferor in the circumstances set out in
Clause 11.3.
11.2 The fulfilment of the Transferor's or, as the case may be, the relevant
Additional Transferor's obligation to make payments to the Receivables
Trustee required pursuant to Clause 11.1 in respect of a Principal
Receivable or (as the case may be) all the Principal Receivables of an
Obligor shall be in full satisfaction and discharge of any rights or
remedies which the Receivables Trustee may otherwise have had with
respect to such Principal Receivable as a result of any breach,
anticipatory breach or other circumstance on the part of or affecting the
Transferor or the Additional Transferor arising under this Agreement in
relation to such Receivable or (as the case may be) the Obligor
concerned, and accordingly, the Receivables Trustee hereby acknowledges
that it will have no further or other rights with respect to such
Principal Receivable as a result of or in connection with any such
breach, anticipatory breach or other circumstance.
11.3 In the event that:
11.3.1 each and every Principal Receivable which has been assigned to
the Receivables Trustee in respect of an Account and which
remains outstanding proves to have been assigned to the
Receivables Trustee in circumstances where any representation
referred to in Clause 17.2 and 17.3 proves at any time to have
been incorrect when made with respect to such Principal
Receivables;
11.3.2 the Transferor or any Additional Transferor has re-designated
such Account as a Redesignated Account pursuant to Clause 7.2; and
11.3.3 the obligation of the Transferor or such Additional Transfer with
respect to such Principal Receivables as set out in Clause 11.1
has been fulfilled
then the Transferor or, as the case may be, such Additional Transferor
may by five Business Days written notice require the Receivables Trustee
(at the expense of the Transferor or, as the case may be, such Additional
Transferor) to offer to reassign all (but not some only) of the
Receivables outstanding on such Redesignated Account which constitute
Trust Property to the Transferor or, as the case may be, such Additional
Transfer for a nominal consideration not to exceed L1 pursuant to an
instrument to be executed and maintained, if so requested by the
Transferor or such Additional Transferor, outside of the United Kingdom.
Following such re-assignment such Receivables shall be owned by the
Transferor or, as the case may be, such Additional Transferor absolutely
and such Account shall constitute and be identified as a Removed Account
from the date of such re-assignment (which shall also constitute the
relevant Removal Date).
12. CURRENCY OF ACCOUNT AND PAYMENT
12.1 Sterling is the currency of account and payment for each and every sum at
any time due from any person hereunder Provided, however, that:
12.1.1 each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred; and
12.1.2 each payment which is expressed herein to be payable in another
currency shall be made in that other currency.
12.2 If any sum due from a person (a "relevant person") under this Agreement
or any order or judgment given or made in relation hereto has to be
converted from the currency (the "first currency") in which the same is
payable hereunder or under such order or judgment into another currency
(the "second currency") for the purpose of (i) making or filing a claim
or proof against the relevant person, (ii) obtaining an order or judgment
in any court or other tribunal or (iii) enforcing any order or judgment
given or made in relation
13
hereto, the relevant person shall indemnify and hold harmless the person
to whom such sum is due from and against any loss suffered as a result of
any discrepancy between (a) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second
currency and (b) the rate or rates of exchange at which such person may
in the ordinary course of business purchase the first currency with the
second currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
12.3 All payments made by any person hereunder shall be made free and clear of
and without any deduction for or on account of any set-off or
counterclaim unless otherwise agreed in writing by the Transferor and the
Receivables Trustee or, as the case may be, such Additional Transferor
and the Receivables Trustee.
13. PAYMENTS BY THE TRANSFEROR, ADDITIONAL TRANSFERORS AND THE RECEIVABLES
TRUSTEE
13.1 On each date upon which this Agreement requires an amount to be paid in
cash by or on behalf of the Transferor or any Additional Transferor to
the Receivables Trustee, the Transferor or, as the case may be, such
Additional Transferor shall, save as expressly provided otherwise herein,
make the same available to the Receivables Trustee:
13.1.1 where such amount is denominated in Sterling by payment in
Sterling and in same day funds (or in such other funds as may for
the time being be customary in London for the settlement of
international banking transactions in Sterling) to such account
and bank in London as the Receivables Trustee shall have specified
in writing for this purpose at least two Business Days prior to
such amount becoming payable; or
13.1.2 where such amount is denominated in a currency other than
Sterling, by payment in such currency and in immediately
available, freely transferable, cleared funds to such account with
such bank in the principal financial centre of the country of such
currency as the Receivables Trustee shall have specified in
writing for this purpose at least five Business Days prior to such
amount becoming payable.
13.2 On each date upon which this Agreement requires an amount to be paid in
cash to the Transferor or any Additional Transferor hereunder by or on
behalf of the Receivables Trustee, the Receivables Trustee shall, save as
otherwise provided herein, make the same available to the Transferor or
such Additional Transferor:
13.2.1 where such amount is denominated in Sterling, by payment in
Sterling and in same day funds (or in such other funds as may for
the time being be customary in London for the settlement of
international banking transactions in Sterling) to the Transferor
or such Additional Transferor at such account and bank as the
Transferor or such Additional Transferor shall have specified in
writing for this purpose at least two Business Days prior to such
amount becoming payable; or
13.2.2 where such amount is denominated in a currency other than
Sterling, by payment in such currency and in immediately
available, freely transferable, cleared funds to such account with
such bank in the principal financial centre of the country of such
currency as the Transferor or such Additional Transferor shall
have specified in writing for this purpose at least five Business
Days prior to such amount becoming payable.
13.3 Notwithstanding any other provision of this Agreement the Transferor,
each Additional Transferor and the Receivables Trustee hereby agree and
acknowledge that:
13.3.1 the amount payable by the Receivables Trustee to the Transferor or
such Additional Transferor in cash pursuant to Clause 3.5 (in
respect of the payment for Existing Receivables) and Clause 5.1
(in respect of the payment for Future Receivables) shall be set-
off against the amount of any shortfall in the amount to be funded
by the Transferor or such Additional Transferor as a beneficiary
of the Receivables Trust in the circumstances contemplated by
Clause [5.02(f)(iii)] of the Declaration of Trust and Trust Cash
Management Agreement Provided, however, that the Transferor
Interest or, as the case may be, the Additional Transferor
Interest, in the Receivables Trust is increased accordingly; and
13.3.2 the obligation of the Transferor to the Receivables Trustee to pay
an amount in cash pursuant to Clause 10.4 (in respect of
reductions in Receivables) and Clause 11.1 (in respect of breach
of warranty) may be fulfilled (in whole or in part) by a reduction
in the amount of the Transferor Interest in the Receivables Trust
in the circumstances contemplated by Clauses [5.3(a)(ii) and
5.3(d)] of the Declaration of Trust and Cash Management Agreement
Provided, however, that such decrease shall not cause the
Transferor Interest or, as the case may be, Additional Transferor
Interest to be decreased to an amount of less than zero.
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14. THE COLLECTION AGENT AND THE COLLECTION AGENT ACCOUNTS
14.1 The Collection Agent has been appointed by the Transferor and, upon its
accession hereunder, each Additional Transferor as its agent to collect
and process Collections received from Obligors in respect of the
Accounts.
14.2 The Transferor has opened a bank account in the name of the Transferor at
the Collection Agent Bank for the purpose of receiving such Collections
(the "Transferor Collection Agent Account"). The Transferor hereby
confirms all such Collections representing cleared funds will be
transferred to the [*] Operating Account on the Business Day such
Collections become cleared funds.
14.3 On or prior to its accession hereunder, each Additional Transferor shall
have opened a bank account in the name of such Additional Transferor at
the Collection Agent Bank for the purpose of receiving such Collections
(such account an "Additional Transferor Collection Account"). Upon its
accession hereunder, each Additional Transferor confirms all such
Collections representing cleared funds will be transferred to the [*]
Additional Transferor Operating Account on the Business Day such
Collections become cleared funds.
14.4 Pending application of monies from the Transferor Collection Agent
Account or, as the case may be, the Additional Transferor Collection
Agent Account to the [*] Operating Account pursuant to Clause 14.2 or
Clause 14.3, the sums from time to time standing to the credit of the
Collection Agent Account and the Additional Transfer Collection Agent
Account shall be held respectively by the Transferor and the relevant
Additional Transferor on trust for and to the order of (1) the
Receivables Trustee to the extent such Collections are Principal
Collections, Finance Charge Collections or Ineligible Collections and (2)
the Transferor or, as the case may be, the Additional Transferor,
otherwise, and the Transferor hereby and each Additional Transferor upon
its accession further confirms that the bank at which the Transferor
Collection Agent Account or, as the case may be, the Additional
Transferor Collection Agent Account is maintained has been notified in
writing that such account is a trust account held on the above basis.
15. [*] OPERATING ACCOUNT AND [*] PROCEEDS ACCOUNT
15.1 The Transferor has opened an account in its name for the purpose of
receiving, inter alia, Collections (the "[*] Transferor Operating
Account"). On or prior to its accession hereunder, each Additional
Transferor shall have opened an account in its name for the purpose of
receiving, inter alia, Collections (the "[*] Additional Transferor
Collection Account").
15.2 Pending application of monies from the [*] Transferor Operating Account
and the [*] Additional Transfer Collection Account to the Trustee
Collection Account either hereunder or in accordance with the Declaration
of Trust and Trust Cash Management Agreement, the sums from time to time
standing to the credit of the [*] Transferor Operating Account and the
[*] Additional Transferor Collection Account shall be held respectively
by the Transferor and the relevant Additional Transferor on trust for and
to the order of (1) the Receivables Trustee, to the extent such
Collections are Principal Collections, Finance Charge Collections or
Ineligible Collections and (2) the Transferor or, as the case may be, the
Additional Transferor, otherwise, and the Transferor and each Additional
Transferor upon its accession hereby confirms that the bank at which the
[*] Operating Account and the [*] Additional Transferor Collection
Account is maintained has been notified in writing that such account is a
trust account held on the above basis.
15.3 The Transferor has opened a bank account in its name for the purpose of
receiving cash payments due to the Transferor in respect of the Purchase
Price of Receivables (the "[*] Proceeds Account"). On or prior to its
accession hereunder, each Additional Transferor shall have opened an
account in its name for the purpose of receiving cash payments due to
such Additional Transferor in respect of the Purchase Price of the
Receivables (the "[*] Additional Transferor Proceeds Account").
16. THE TRUSTEE COLLECTION ACCOUNT
The Receivables Trustee has opened an account at a Qualified Institution
in the name of the Receivables Trustee (the "Trustee Collection
Account").
17. REPRESENTATIONS
17.1 The Transferor represents as of the date hereof and each Additional
Transferor represents as of the date of its accession hereunder that each
of the statements set out in Parts 1 and 2 of the Fifth Schedule is true
and the Transferor and such Additional Transferor shall be deemed to
repeat such representations by reference to the facts and circumstances
then existing on each Closing Date specified in respect of any
Supplement.
17.2 Each Offer shall constitute a representation by the Transferor or, as the
case may be, the relevant Additional Transferor, that, in relation to
that Offer, each of the statements set out in Part 3 of the Fifth
Schedule is true with regard to the Existing Receivables identified in
such Offer which are Principal Receivables other than such Existing
Receivables which are specified in that Offer as being Ineligible
Receivables.
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17.3 The Transferor or, as the case may be the relevant Additional Transferor
shall be deemed to represent in respect of each Future Receivable which
is a Principal Receivable on the Date of Processing relating thereto that
each of the statements set out in Part 3 of the Fifth Schedule is true
with regard to such Receivable unless such Receivable is specified by the
Transferor or, as the case may be, the relevant Additional Transferor as
being an Ineligible Receivable pursuant to Clause 5.1.
18. COVENANTS
18.1 The Transferor and each Additional Transferor shall:
18.1.1 pay to the Receivables Trustee by payment to the Trustee
Collection Account all payments received by the Transferor or, as
the case may be, such Additional Transferor in respect of
Receivables as soon as practicable after receipt thereof by the
Transferor;
18.1.2 notify the Receivables Trustee of the existence of any Encumbrance
on any Receivable and defend, at its own expense, the right, title
and interest of the Receivables Trustee in, to and under the
Receivables, whether now existing or created, against all claims
of third parties claiming through or under the Transferor or, as
the case may be, such Additional Transferor; and
18.1.3 comply with and perform its obligations under the Card Agreement
relating to the Accounts and the Card Guidelines and all
applicable rules and regulations of MasterCard International Inc.
and its subsidiaries, if any, and VISA International, Inc. and its
subsidiaries, if any, except insofar as any failure to comply or
perform would not cause a Material Adverse Effect.
18.2 Neither the Transferor nor any Additional Transferor shall :
18.2.1 sell, assign, convey, transfer, lease, pledge or otherwise dispose
(or purport to do so) of any Receivable (whether now existing or
hereafter created) under a Designated Account to any person other
than the Receivables Trustee; or
18.2.2 grant, create, incur, assume or suffer to exist any Encumbrance or
purport to do so over any Receivable (whether now existing or
hereafter created) under a Designated Account or any interest
therein; or
18.2.3 consolidate with or merge into any other corporation or convey or
transfer its properties and assets substantially as an entirety to
any Person unless :
(a) the corporation formed by such consolidation or into which
the Transferor or such Additional Transferor is merged or
the Person which acquires by conveyance or transfer the
properties and assets of the Transferor or such Additional
Transferor substantially as an entirety, shall expressly
assume, by an agreement supplemental hereto, executed and
delivered to the Receivables Trustee in form satisfactory
to the Receivables Trustee, the performance of the
obligations of the Transferor or such Additional Transferor
hereunder (to the extent that any right, covenant or
obligation of the Transferor or such Additional Transferor,
as applicable hereunder, is inapplicable to the successor
entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as
would apply, to the extent practicable, to such successor
entity) and the Transferor or such Additional Transferor
shall also execute such documents as are necessary for such
person to become a Transferor Beneficiary and an Excess
Interest Beneficiary as contemplated in the Declaration of
Trust and Trust Cash Management Agreement;
(b) the Transferor or such Additional Transferor shall have
delivered to the Receivables Trustee an Officer's
Certificate of the Transferor or such Additional Transferor
stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this
Clause 18.2.3 and that all conditions precedent herein
provided for relating to such transaction have been
complied with and an Opinion of Counsel that such
supplemental agreement is legal, valid, binding and
enforceable; and
(c) the Transferor or such Additional Transferor shall have
delivered notice to each Rating Agency of such
consolidation, merger, conveyance or transfer; or
18.2.4 disclose the name or address of any Obligor to any Person seeking
to enforce a claim against the Transferor or such Additional
Transferor or otherwise in breach of its obligations of
confidentiality to any Obligor, except pursuant to any Requirement
of Law.
18.3 Subject to Clause 18.4, each of the Transferor and any Additional
Transferor may from time to time amend the terms and conditions of the
Card Agreements (other than the terms and conditions which relate to the
matters referred to in paragraph (iv) of the First Schedule) or the Card
Guidelines in any respect (including, without limitation, reducing or
increasing the amount of any required minimum monthly payment or
16
amending the calculation of the amount or the timing of charge-offs and
the Periodic Finance Charges and other fees assessed thereon), Provided,
however, that no such amendment may be made unless:
18.3.1 in the reasonable belief of the Transferor or such Additional
Transferor, such amendment would not cause a Pay Out Event; and
18.3.2 such amendment is also applied to any comparable segment of
Accounts which are owned and serviced by the Transferor or such
Additional Transferor which have characteristics equivalent or
substantially similar to, the Designated Accounts (except as
otherwise restricted by an endorsement, sponsorship or other
agreement between the Transferor or such Additional Transferor and
an unrelated third party or by the terms of the relevant Card
Agreements).
18.4 The Transferor and each Additional Transferor upon its accession hereby
agrees that, except as otherwise required by any Requirement of Law or as
may be determined by the Transferor or such Additional Transferor to be
necessary in order to maintain its credit card and related card business
(such determination being based on a good-faith assessment by the
Transferor or such Additional Transferor, in its sole discretion, of the
nature of competition in the credit card business in the United Kingdom
as a whole, or, as the case may be, in respect of Accounts relating to an
Additional Jurisdiction, of the nature of competition in the credit card
business in such Additional Jurisdiction as a whole), it shall not at any
time reduce the Periodic Finance Charges assessed on Receivables existing
or arising under any Designated Account or other fees on any Designated
Account if, as a result of such reduction, the Transferor's or such
Additional Transferor's reasonable expectation of the Portfolio Yield (as
defined in each Series Supplement) as of such date would be less than the
then Expense Rate (as defined in each Series Supplement).
19. STAMP DUTY
Each and every Offer made pursuant to this Agreement shall be executed
and retained outside the United Kingdom and, if any such document is
introduced into the United Kingdom by any party hereto or any person
acting under the direction of or with the agreement of such a party, the
Receivables Trustee shall promptly arrange for the document so brought
into the United Kingdom to be stamped at the expense of the Receivables
Trustee Provided, however, that it is acknowledged that the obligations
of the Receivables Trustee to pay stamp duty shall be limited to the
extent that Trust Property is calculated as available for such purpose
pursuant to the Receivables Trust and not otherwise.
20. NON-PETITION
The Transferor and each Additional Transferor upon its accession
covenants with the Receivables Trustee that it shall not take any
corporate action or other steps or legal proceedings for the winding-up,
dissolution or re-organisation or for the appointment of a receiver,
administrator, administrative receiver, trustee, liquidator, sequestrator
or similar officer of the Receivables Trustee (either in its own capacity
or as trustee of the Receivables Trust or otherwise) or any Investor
Beneficiary or of any or all of the revenues and assets of any of them.
21. BENEFIT OF AGREEMENT
21.1 This Agreement shall be binding upon and enure to the benefit of each
party hereto and its successors and permitted assigns.
21.2 Except in the circumstances contemplated by the provisions of Clause
18.2.3 neither the Transferor nor any Additional Transferor in its
capacity as such shall not be entitled to assign or transfer all or any
of its rights, benefits and obligations hereunder. The Receivables
Trustee agrees that it shall, at the expense of the Transferor or, as the
case may be, such Additional Transferor, execute such documents as the
Transferor or, as the case may be, such Additional Transferor may
reasonably require to effect the matters permitted pursuant to Clause
18.2.3.
21.3 The Receivables Trustee shall not be entitled to assign or transfer all
or any of its rights, benefits and obligations hereunder except to the
extent permitted and in the manner provided by the Declaration of Trust
and Trust Cash Management Agreement.
22. DISCLOSURE OF INFORMATION
22.1 The Receivables Trustee hereby agrees not to disclose to any person any
Account Information except and only to the extent permitted by applicable
law:
22.1.1 if required in connection with the performance of its duties
hereunder or under the Declaration of Trust and Trust Cash
Management Agreement and any Supplement thereto;
17
22.1.2 in enforcing the rights of any Beneficiary of the Receivables
Trust or to a Successor Servicer appointed pursuant to Clause 4.3
of the Beneficiaries Servicing Agreement;
22.1.3 with the consent of the Transferor and each Additional Transferor,
in connection with any security interest any Investor Beneficiary
has created or is proposing to create over its beneficial interest
in the Receivables Trust in connection with an issue of Related
Debt; or
22.1.4 pursuant to any Requirement of Law.
22.2 The Receivables Trustee agrees to take such measures as shall be
reasonably requested by the Transferor or any Additional Transferor, to
protect and maintain the security and confidentiality of Account
Information and, in connection therewith, shall allow the Transferor and
each Additional Transferor to inspect the Receivables Trustee's security
and confidentiality arrangements from time to time during normal business
hours and upon reasonable notice being given.
22.3 If the Receivables Trustee is required by any Requirement of Law to
disclose any Account Information, the Receivables Trustee shall provide
the Transferor and each Additional Transferor with prompt written notice,
unless such notice is prohibited by law, of any such request or
requirement. The Receivables Trustee shall make reasonable efforts to
provide the Transferor and each Additional Transferor with written notice
no later than five days prior to any such disclosure unless compliance
with this requirement would or might breach any law.
23. REMEDIES AND WAIVERS
23.1 No failure to exercise, nor any delay in exercising, on the part of any
party hereto, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any
other right or remedy.
23.2 The rights and remedies herein provided are cumulative and not exclusive
of any rights or remedies provided by law.
24. PARTIAL INVALIDITY
Without prejudice to any other provision hereof, if one or more
provisions hereof is or becomes invalid, illegal or unenforceable in any
respect in any jurisdiction or with respect to any party such invalidity,
illegality or unenforceability in such jurisdiction or with respect to
such party or parties shall not, to the fullest extent permitted by
applicable law, render invalid, illegal or unenforceable such provision
or provisions in any other jurisdiction or with respect to any other
party or parties hereto.
25. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same Agreement.
26. NOTICES
26.1 Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in writing and may be made by telex, telefax or
letter.
26.2 Any communication, notice or document to be made or delivered by any one
person to another pursuant to this Agreement shall (unless that other
person has by fifteen days' written notice to the other parties hereto
specified another address) be made or delivered to that other person at
the address identified below and shall be deemed to have been made or
delivered when despatched and confirmation of transmission received by
the sending machine (in the case of any communication made by telefax) or
(in the case of any communication made by telex) when dispatched and the
appropriate answerback or identification symbol received by the sender or
(in the case of any communication made by letter) when left at that
address or (as the case may be) ten days after being deposited in the
post postage prepaid in an envelope addressed to it at that address
Provided, however, that each telefax or telex communication made by one
party hereto to another shall be made to that other person at the telefax
or telex number notified to such party by that other person from time to
time:
(i) in the case of the Transferor to Barclaycard, 1234 Xxxxxxxxx
Xxxxx, Xxxxxxxxxxx XX0 0XX, Attention: [*], facsimile number: [*]
[with a copy to Attention: [*], facsimile number: [*]];
(ii) in the case of any Additional Transferor, to the address and fax
number set out in the Accession Notice of such Additional
Transferor; and
18
(iii) in the case of the Receivables Trustee at [an address for service
in London at c/o Clifford Chance Secretaries Limited, 000
Xxxxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX].
27. TERMINATION OF TRUST AND SERVICING AGREEMENT
Notwithstanding any other provision of this Agreement, the parties hereto
acknowledge that if following the occurrence of any Insolvency Event the
Receivables Trust is dissolved in accordance with the provisions of
Clause 6.3 of the Declaration of Trust and Trust Cash Management
Agreement, then the provisions of this Agreement shall also terminate
without further action by the parties hereto, Provided, however, that
such termination shall be without prejudice to any rights existing on or
prior to the date of such Insolvency Event (including rights relating to
the giving of notice to Obligors as set out in Clause 6 hereof).
28. LAW
This Agreement shall be governed by, and construed in accordance with,
English law.
29. JURISDICTION
29.1 Each of the parties hereto irrevocably agrees for the benefit of each
other party that the courts of England shall have exclusive jurisdiction
to hear and determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this Agreement
and, for such purposes, irrevocably submits to the exclusive jurisdiction
of such courts.
29.2 Each party hereto irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 29.1 being nominated
as the forum to hear and determine any suit, action or proceeding, and to
settle any disputes, which may arise out of or in connection with this
Agreement and agrees not to claim that any such court is not a convenient
or appropriate forum.
29.3 The Receivables Trustee irrevocably appoints the person specified against
its name below to accept service of any process on its behalf and further
undertakes to the other parties hereto that it will at all times during
the continuance of this Agreement maintain the appointment of some person
in England as its agent for the service of process and irrevocably agrees
that service of any writ, notice or other document for the purposes of
any suit, action or proceeding in the courts of England shall be duly
served upon it if delivered or sent by registered post to the address of
such appointee (or to such other address in England as that party may
notify to the other parties hereto).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorised representatives as a deed on
the day and year first before written.
19
SCHEDULE 1
ELIGIBLE ACCOUNT CRITERIA
An Account will be an "Eligible Account" if (1) in respect of an Account which
is nominated in an Offer and which is in existence at the relevant Offer Date,
at that Offer Date; or (2) in respect of an Account which is nominated in an
Offer and which comes into existence on a subsequent Account Creation Date, at
that Account Creation Date, it is an Account:
(i) the Obligor of which is not a company or partnership for the purposes of
s.349(2) of the Income and Corporation Taxes Xxx 0000;
(ii) which is payable in Sterling or, in respect of an Account relating to any
Additional Jurisdiction, the lawful currency of such Additional
Jurisdiction;
(iii) [which (a) is governed by a Card Agreement without waiver or amendment in
any material respect of the following matters: governing law, assignment
and disclosure of information to persons who may assume rights under the
Card Agreement, or else, if acquired by the Transferor or an Additional
Transferor, it is governed by contractual terms not materially different
from such Card Agreement in relation to those matters listed previously
and (b) was created and complies with all applicable laws, and in
particular with the Consumer Credit Xxx 0000 and the Data Protection Act
1984;]
(iv) the Obligor of which has provided as its most recent billing address an
address which is located in England, Wales, Scotland or Northern Ireland
or, if applicable, in any Additional Jurisdiction;
(v) any card in respect of which the Transferor has not classified on its
electronic records as counterfeit, cancelled, fraudulent, stolen or lost;
(vi) which has been originated or purchased by the Transferor;
(vii) which has been operated, in all material respects, in accordance with the
Transferor's Card Guidelines; and
(viii) the Receivables in respect of which the Transferor or, as the case may
be, the Additional Transferor Interest has not charged-off in its
customary and usual manner for charging-off Receivables on such Accounts
as at the date on which such Account is specified a Designated Account.
Provided, however, that notwithstanding (i) to (viii) above an Account will be
an Eligible Account if the Transferor or, as the case may be, the Additional
Transferor Interest and the Receivables Trustee have been notified that such
Account (or each Account with such characteristics) has been approved by each
Rating Agency as an Eligible Account.
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SCHEDULE 2
ELIGIBLE RECEIVABLES
A Receivable will be an "Eligible Receivable" if all of the following
statements are correct in relation to such Receivables at the time when :
(a) in the case of Existing Receivables, the Receivables Trustee accepts the
relevant Offer; and
(b) in the case of Future Receivables, the Receivable in question arises:
(i) it has arisen under an Eligible Account;
(ii) it has been created in compliance with all applicable laws and all
consents, licenses, approvals, authorisations, registrations or
declarations required to be obtained, effected or given by the
Transferor, the Additional Transferor or the Servicer in
connection with the creation and assignment of Receivables have
been obtained, effected or given, and are in full force and effect
as of the date of creation;
(iii) [it (a) was originated in accordance with and is governed by a
Card Agreement without waiver or amendment in any material respect
of the following matters: governing law, assignment and disclosure
of information to persons who may assume rights under the Card
Agreement, or else, it was originated in all material respects in
accordance with and is governed by contractual terms not
materially different from such Card Agreement in relation to those
matters listed previously; (b) was created and complies with all
applicable laws and in particular with the Consumer Credit Xxx
0000 and the Data Protection Xxx 0000; and (c) was originated in
accordance with the Card Guidelines;]
(iv) it is free and clear of any Encumbrances exercisable against the
Transferor, the Additional Transferor or the Receivables Trustee
arising under or through the Transferor or the Additional
Transferor (or any of its respective Affiliates) and to which, at
the time of creation of such Receivable (or at the time of
acquisition of such Receivable by the Transferor or the Additional
Transferor if such Receivable was originated by any person other
than the Transferor or such Additional Transferor) and at all
times thereafter, the Transferor, the Additional Transferor or the
Receivables Trustee had good and marketable title; and
(v) [it constitutes legal, valid and binding obligations of the
relevant Obligor enforceable against such Obligor in accordance
with the terms of the relevant Card Agreement subject only to (a)
applicable bankruptcy, insolvency, reorganisation, moratorium or
other similar laws affecting the enforcement of the rights of
creditors generally and (b) the effect of general principles of
equity, and is not currently subject to any defence, dispute, set-
off or counterclaim or enforcement order.]
21
SCHEDULE 3
FORM OF OFFER
To: The Receivables Trustee
From: Transferor/Additional Transferor
Dated: [ ]
Dear Sirs
OFFER
1. We refer to the receivables securitisation agreement (as from time to
time amended, supplemented or novated, the "RSA") dated [ ], 1999 and
made between ourselves and yourselves.
2. Terms defined in (or incorporated by reference into) the RSA shall bear
the same meaning herein.
3. We have identified in the Pool Index File the following Specified Product
Lines (the "[date -- eg: "September 1999"] Specified Product Lines"):
[List Specified Product Lines]
4. Each [date] Specified Product Line contains Eligible Accounts which are
to be Designated Accounts (the "New Designated Accounts"). We hereby
offer you an assignment on [date] of:
(i) the Existing Receivables under each New Designated Account;
(ii) all Future Receivables under each such New Designated Account
which are not Finance Charge Receivables in respect of Principal
Receivables until the earliest of:
(a) in respect of each New Designated Account, such time (if
any) as such Account becomes a Redesignated Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event;
(iii) all Future Receivables under each Account specified in connection
with such Offer which are Finance Charge Receivables in respect of
Receivables which are assigned (or purported to be assigned) to
the Receivables Trustee pursuant to paragraphs (i) and (ii) above;
(iv) (to the extent such are capable of assignment) the benefit of any
guarantee or insurance policy obtained by ourselves in respect of
the obligations of an Obligor to make payments on such New
Designated Accounts; and
(v) [in respect of the Offer made on the Initial Offer Date only] the
benefit of all amounts representing Acquired Interchange in
respect of each Monthly Period.
5. In relation to each Eligible Account on a [date] Specified Product Line
which Eligible Account comes into existence after the relevant Offer Date
(the "Future Designated Accounts") we hereby offer you an assignment on
[date] of :
(i) all Future Receivables under each such Future Designated Account
which are not Finance Charge Receivables in respect of Principal
Receivables until the earliest of:
(a) in respect of each Future Designated Account, such time (if
any) as such Account becomes a Redesignated Account;
(b) the termination of the Receivables Trust; or
(c) the occurrence of an Insolvency Event,
(ii) all Future Receivables under each such Future Designated Account
which are Finance Charge Receivables in respect of Receivables
which are assigned (or purported to be assigned) to the
Receivables Trustee pursuant to paragraph (i) above; and
(iii) (to the extent such are capable of assignment) the benefit of any
guarantee or insurance policy obtained by ourselves in respect of
the obligations of an Obligor to make payments on such Future
Designated Accounts.
22
6. In respect of the Existing Receivables identified by reference to the New
Designated Accounts we have identified the Eligible Receivables and
Ineligible Receivables comprised therein.
7. In respect of the Eligible Receivables so identified, we certify that:
(a) the aggregate amount of the Eligible Receivables comprised in the
Existing Receivables is [ ];
(b) the total Outstanding Face Amount of the Principal Receivables
comprised in the Existing Receivables is L[ ]; and
(c) the total outstanding balance of the Finance Charge Receivables
comprised in the Existing Receivables is L[ ].
8. In respect of the Ineligible Receivables so identified, we certify that
the aggregate amount of the Ineligible Receivables comprised in the
Existing Receivables is L[ ].
9. Save in respect of an Existing Receivable which is identified as an
Ineligible Receivable, we warrant that each of the representations
referred to in Clause 17.2 of the RSA is true on and as of the Offer
Date, as the case may be, in respect of each Existing Receivable which is
a Principal Receivable which is offered to you hereby.
10. We acknowledge that if you accept the Offer contained herein we will be
deemed to represent in respect of each Future Receivable which is a
Principal Receivable arising on the New Designated Accounts on the Date
of Processing relating thereto and each Principal Receivable arising on a
Future Designated Account on the Date of Processing relating thereto,
that each of the representations referred to in Clause 17.3 of the RSA is
true on and as of such Date of Processing save in respect of a Principal
Receivable which is identified as an Ineligible Receivable.
11. In respect of the [date] Specified Product Lines we certify and represent
that:
(a) no selection procedures adverse to the Investor Beneficiaries of
any Applicable Series have been employed by us in selecting the
[date] Specified Product Lines from amongst the Product Lines in
the Bank Portfolio; and
(b) [in relation to all Offers except the Initial Offer] [the Offer
satisfies the Maximum Addition Amount criteria]1 or the Offer does
not satisfy the Maximum Addition Amount criteria but we have
received written confirmation from each Rating Agency that the
inclusion of such New Designated Accounts as Designated Accounts
pursuant to Clause 2.2 of the RSA will not result in the reduction
or withdrawal of its then current rating of any outstanding
Related Debt]1
Yours faithfully
for and on behalf of
[Name of Transferor/Additional Transferor]
-------------------------------------------------------------------------------
1 Delete as appropriate.
23
SCHEDULE 4
[CONDITIONS PRECEDENT TO SUBSEQUENT OFFERS
The Transferor and each Additional Transferor shall provide the following
documents to the Receivables Trustee (which shall be in form and substance
satisfactory to the Receivables Trustee):
1. a Solvency Certificate from the Transferor and such Additional Transferor
substantially in the form set out in the Seventh Schedule;
2. a statement from the Transferor and such Additional Transferor in the
relevant Offer substantially in the form set out in paragraph 10(c) of
the Third Schedule confirming either:
(i) the Offer satisfies the Maximum Addition Amount criteria; or
(ii) the Offer does not satisfy the Maximum Addition Amount criteria
but the Transferor has received written notice from each Rating
Agency that the inclusion of such Accounts as Designated Accounts
pursuant to Clause 2.2 will not result in the reduction or
withdrawal of its then current rating of any outstanding Related
Debt; and
3. a legal opinion addressed to the Receivables Trustee in respect of
Receivables arising in a new Additional Jurisdiction from reputable legal
advisers qualified to practise in such new Additional Jurisdiction.
24
SCHEDULE 5
Part 1
Representations as to Matters of Law
1. Organisation: It is a corporation duly organised under the laws of
England with full corporate power, authority and legal right to own its
assets and conduct its business as such assets are presently owned and
its business is presently conducted and with power to enter into this
Agreement and other Relevant Documents and each assignment to be entered
into by it in respect of any Receivables assigned or scheduled to be
assigned and to exercise its rights and perform its obligations
thereunder and all corporate and other action required to authorise its
execution of each Relevant Document and each such assignment and its
performance of its obligations thereunder has been duly taken or will be
taken prior to the execution of such Relevant Document or assignment (as
the case may be).
2. Due Authorisation: All acts, conditions and things required to be done,
fulfilled and performed in order (a) to enable it lawfully to enter into,
exercise its rights under and perform and comply with the obligations
expressed to be assumed by it in each Relevant Document or in any such
assignment, (b) to ensure that the obligations expressed to be assumed by
it in each Relevant Document or in any such assignment are legal, valid
and binding on it and (c) to make each Relevant Document and each such
assignment admissible in evidence in England have been done, fulfilled
and performed or will be done, fulfilled or performed prior to the
execution of such Relevant Document or assignment (as the case may be)
save for the payment of stamp duty in respect of any such assignment
under Requirement of Law.
3. No Violation: The execution of each Relevant Document by it and each
assignment to be entered into by it in respect of any Receivables
assigned or scheduled to be assigned in the manner contemplated and the
exercise of its rights and the performance of its obligations in any such
assignment will not conflict with or violate any applicable law.
4. Documentary Requirements: Under the laws of England in force as at the
date of making this representation, it is not necessary that each
Relevant Document or any such assignment be filed, recorded or enrolled
with any court or other authority in England or that any stamp,
registration or similar tax be paid on or in relation to each Relevant
Document or any such assignment, save for the payment of stamp duty on
any such assignment under any applicable law.
5. Binding Obligations: The obligations expressed to be assumed by it in
each Relevant Document and in each such assignment are legal and valid
obligations binding on it and enforceable against it in accordance with
its terms (or will be so upon execution of each such Relevant Document or
each such assignment), except (a) as such enforceability may be limited
by applicable bankruptcy, insolvency, moratorium, re-organisation or
other similar laws affecting the enforcement of the rights of creditors
generally and (b) as such enforceability may be limited by the effect of
general principles of equity.
6. All Consents Required: All approvals, authorisations, consents, orders or
other actions of any person or of any governmental or regulatory body or
official required in connection with the execution and delivery of each
Relevant Document and/or the assignment of Receivables in the manner
contemplated herein or therein, the performance of the transactions
contemplated by each Relevant Document and the fulfilment of the terms
thereof have been obtained.
Part 2
Representations as to Matters of Fact
1. No Proceedings: There are no proceedings or investigations pending or, to
the best of its knowledge, threatened against the Transferor or any
Additional Transferor before any Court, regulatory body, arbitral
tribunal or public or administrative body or agency (i) asserting the
invalidity of any Relevant Document or of any assignment made in the
manner therein contemplated; (ii) seeking to prevent the entering into of
any such assignment or of any of the transactions contemplated by any
Relevant Document; (iii) seeking any determination or ruling that, in the
Transferor's or such Additional Transferor's reasonable opinion, would
materially and adversely affect the performance by it of its obligations
under any Relevant Document; or (iv) seeking any determination or ruling
that would materially and adversely affect the validity or enforceability
of any Relevant Document or any assignment of Receivables to be made in
the manner therein contemplated.
2. No Conflict: The execution of any Relevant Document or the assignment of
any Receivables in the manner therein contemplated and the exercise by
the Transferor or any Additional Transferor of its rights and the
performance of its obligations thereunder with regard to such Receivables
will not conflict with, result in any breach of the material terms and
provisions of, or constitute a material default under, any agreement,
indenture, contract, mortgage, deed of charge or other instrument to
which it is a party or by which it or any of its assets is otherwise
bound.
25
3. Due Qualification: All licences, approvals, authorisations and consents
which may be reasonably considered to be necessary in connection with the
performance of its credit card business and in particular any applicable
licences under the Consumer Credit Xxx 0000 and the Data Protection Act
1984 have been obtained and remain in force in all material respects.
4. Tax Residence: Each of the Transferor and each Additional Transferor is
resident for tax purposes in the United Kingdom and, in the case of the
Transferor, is a bank as defined for the purpose of Section 349(3) of the
Income and Corporation Taxes Xxx 0000.
Part 3
Representations relating to Receivables
1. Eligibility: Unless identified as an Ineligible Receivable, each Existing
Receivable which is a Principal Receivable offered to the Receivables
Trustee thereunder is, at the Offer Date relating thereto, an Eligible
Receivable and has arisen from an Eligible Account in the amount
specified in the Offer and, unless specified in any daily activity report
provided to the Receivables Trustee by the Transferor pursuant to Clause
5.2, each Future Receivable which is a Principal Receivable and each
Principal Receivable arising on a Future Designated Account (as defined
in the Offer relating thereto) is on the date that it comes into
existence an Eligible Receivable and has arisen from an Eligible Account
in the amount specified in such Daily Activity Report.
2. Assignment Effective: The assignment of each Receivable the subject of an
Offer will be effective to pass to the Receivables Trustee good and
marketable title thereto and the benefit thereof (including in such
context, any Collections and other rights in connection therewith such as
related guarantees and Insurance Proceeds) free of any Encumbrances in
favour of any person claiming through or under the Transferor or any of
its Affiliates to the Receivables Trustee and no further act, condition
or thing will be required to be done in connection therewith to enable
the Receivables Trustee to require payment of any such Receivable or to
enforce any such right in the courts of England and Wales, Scotland or
Northern Ireland or any Additional Jurisdiction without the participation
of the Transferor other than:
(1) the payment of any applicable United Kingdom stamp duty; and
(2) the giving of a Notice of Assignment.
3. Compliance: The assignment of each Receivable the subject of an Offer is
in compliance with Requirements of Law applicable to the Transferor or,
as the case may be, the Additional Transferor on the date of such
assignment.
26
SCHEDULE 6
NOTIFICATION EVENTS
1. A duly authorised officer of the Transferor or any Additional Transferor
shall admit in writing that the Transferor or such Additional Transferor
is unable to pay its debts as they fall due within the meaning of Section
123(1) of the Insolvency Xxx 0000 [and in the case of paragraph (a) of
that Section such written demand (not being frivolous or vexatious in
nature) is not paid out or discharged within [ ] days of the date such
written demand is made or is not otherwise subject to a bona fide dispute
as to payment] or the Transferor or any Additional Transferor makes a
general assignment for the benefit of or a composition with its creditors
or voluntarily suspends payments of its obligations with a view to the
general readjustment or rescheduling of its indebtedness.
2. The Transferor or any Additional Transferor shall consent to or take any
corporate action relating to the appointment of a receiver,
administrator, administrative receiver, trustee, liquidator or similar
officer of it or relating to all or substantially all of its revenues and
assets or an order of the court is made for its winding-up, dissolution,
administration or reorganisation (except for a solvent reorganisation)
and such order shall have remained in force undischarged or unstayed for
a period of 60 days or a receiver, administrator, administrative
receiver, liquidator, trustee or similar officer of it or relating to all
or substantially all of its revenues and assets is legally and validly
appointed and such appointment is not discharged within 14 days.
3. An encumbrancer legally and validly enforces its security with respect to
all or substantially all of the assets and revenues of the Transferor or
any Additional Transferor and such action by the encumbrancer is not
discharged within 14 days.
4. The Transferor or any Additional Transferor (or the Servicer on behalf of
the Transferor or any Additional Transferor) fails to pay any sum due
from it to the Receivables Trustee hereunder in respect of the Designated
Accounts within five Business Days of the due date thereof or the date of
demand, if payable on demand, in the currency and in the manner specified
herein, and such failure is not remedied within ten Business Days after
the Receivables Trustee has given notice thereof to the Transferor or
such Additional Transferor.
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SCHEDULE 7
FORM OF SOLVENCY CERTIFICATE
[on letterhead of the Transferor]
To: The Receivables Trustee
[[P.O. Box 75]
Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxx
Xx. Xxxxxx
Xxxxxx XX0 4UF]
dated ____________________
IN RELATION TO THE SALE OF
CREDIT CARD RECEIVABLES BY
[BARCLAYS BANK PLC/NAME OF ADDITIONAL TRANSFEROR]
(the "Company")
I [ ], having duly considered the provisions of Sections 123 and 238 to 241
of the Insolvency Xxx 0000 have determined that as at the date hereof:
(1) the Company is able to pay its debts within the meaning of the said
Section 123 and to the best of my knowledge and belief would not become
unable to do so in consequence of the sale by way of assignment of credit
card receivables pursuant to the [[Offer of even date herewith] or
[effect of the proposed Discount Percentage nomination]] made pursuant to
the terms of [[Clause 2.1] or [Clause 2.2] or [Clause 8.3]] of the
receivables securitisation agreement (the "RSA") dated , 1999 and
entered into between the Company and the Receivables Trustee;
(2) no order has been made or resolution passed for the winding-up of the
Company and, to the best of my knowledge and belief:
(i) no petition had been presented for the winding-up of the Company
or the making of an administration order; and
(ii) no receiver, administrative receiver, administrator or receiver
and manager has been appointed in relation to the Company
(disregarding proceedings which are not being pursued or are discharged
or are being contested in good faith on proper grounds where less than
sixty days have expired since their commencement);
(3) in my opinion the value of the consideration which would be received by
the Company for the sale of Receivables if calculated in accordance with
this Agreement will not be considerably less than the value, in money or
money's worth, of the consideration provided by the Company;
(4) the sale of the Receivables to the Receivables Trustee and all matters
concerning the Company in connection with such matters will, to the
extent to which these were to be carried out by the Company, be effected
by the Company in good faith and for the purpose of carrying on its
business, and in my opinion there are reasonable grounds for believing
that the sale of the Receivables and all related matters will benefit the
Company;
(5) in submitting Offers to the Receivables Trustee the Company has not been
influenced by a desire to prefer the Receivables Trustee as a creditor
over any other creditors of the Company;
[(6) in respect of a Discount Percentage only] in the reasonable opinion of
the Company the performance of the portfolio of Designated Accounts is
such that the yield of Finance Charge Collections is not generating
adequate cashflows for the Beneficiaries of the Receivables Trust and the
size of the Discount Percentage is not intended by the Company solely to
accelerate distributions to the Excess Interest Beneficiary.]
Words and expressions defined in the RSA shall, unless the context otherwise
requires, bear the same meanings when used herein.
This certificate is given by me on behalf of the Company.
.......................
Director or other duly authorised officer
.......................
28
EXECUTION
The Transferor
Executed as a deed by )
BARCLAYS BANK PLC )
acting by its duly authorised )
attorney in the presence of: )
The Receivables Trustee
The Common Seal of )
[*] )
was duly affixed hereto pursuant to a )
resolution of the Board in )
the presence of: )
[Address for Service
Xxxxxxxx Chance Secretaries Limited
000 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX]
29
