Exhibit 10.5
CLIFFORD CLIFFORD CHANCE LLP
CHANCE
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
as Issuing Entity
BARCLAYS BANK PLC
as Issuing Entity Account Bank
THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH
as Note Trustee
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ISSUING ENTITY
ACCOUNT BANK AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Interpretation............................................................1
2. The Account...............................................................2
3. Mandate...................................................................3
4. Acknowledgement By The Issuing Entity Account Bank........................3
5. Indemnity.................................................................4
6. Resignation And Termination...............................................5
7. Change Of Note Trustee Or Issuing Entity Account Bank.....................6
8. Costs.....................................................................7
9. Governing Law.............................................................7
SCHEDULE 1 MANDATE - SERIES ISSUING ENTITY DISTRIBUTION ACCOUNT...........8
THIS ISSUING ENTITY ACCOUNT BANK AGREEMENT is made on [ ]
BETWEEN:
(1) GRACECHURCH CARD PROGRAMME FUNDING LIMITED, a public limited liability
company incorporated in Jersey, Channel Islands with company number
98638, whose registered office is located at 26 New Street, St. Helier,
Jersey (the "ISSUING ENTITY");
(2) BARCLAYS BANK PLC, a public limited liability company incorporated in
England with company number 1026167, whose registered office is located
at 1 Churchill Place, London E14 5HP (the "ISSUING ENTITY ACCOUNT BANK");
and
(3) THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH, as note trustee
(the "NOTE TRUSTEE", which expression shall include such company and all
other Persons for the time being acting as trustee or trustees under the
Note Trust Deed).
THE PARTIES AGREE as follows:
1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this Issuing Entity Account Bank Agreement
or the context requires otherwise, words and expressions used in this
Issuing Entity Account Bank Agreement have the meanings and
constructions ascribed to them in the Schedule 1 (Master Definitions
Schedule) of the Issuing Entity Master Framework Agreement dated on or
about the date hereof, between, among others, the Issuing Entity and the
Note Trustee.
1.2 INCORPORATION OF COMMON TERMS
Except as provided below, the Common Terms apply to this Issuing Entity
Account Bank Agreement, where applicable, and shall be binding on the
parties to this Issuing Entity Account Bank Agreement as if set out in
full in this Issuing Entity Account Bank Agreement.
1.3 FURTHER ASSURANCE
Paragraph 1 (Further Assurance) of the Common Terms applies to this
Issuing Entity Account Bank Agreement as if set out in full herein, and
as if each of the Issuing Entity and the Issuing Entity Account Bank was
the Obligor (as defined therein) and the Note Trustee was the Obligee
(as defined therein).
1.4 LIMITED RECOURSE AND NON-PETITION
Paragraphs 8 (Non-Petition and Limited Recourse) and 10 (Obligations as
Corporate Obligations) of the Common Terms apply to this Issuing Entity
Account Bank Agreement and shall be deemed set out in full herein.
1.5 CONFLICT WITH COMMON TERMS
If there is any conflict between the provisions of the Common Terms and
the provisions of this Issuing Entity Account Bank Agreement, the
provisions of this Issuing Entity Account Bank Agreement shall prevail,
save for where any provision of this Issuing
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Entity Account Bank Agreement relates to VAT, in which case the
provisions of the Common Terms shall prevail.
1.6 REPRESENTATIONS AND WARRANTIES
The Issuing Entity gives certain representations and warranties to the
Note Trustee on the terms set out in the Issuing Entity Warranties.
1.7 COVENANTS
The Issuing Entity covenants with the Note Trustee on the terms of the
Issuing Entity Covenants.
1.8 REFERENCES TO THE NOTE TRUST DEED
The parties hereto acknowledge that references to the Note Trust Deed in
this Issuing Entity Account Bank Agreement are for definition purposes
only and that (other than as expressly provided herein) the Issuing
Entity Account Bank, in its capacity as the account operating bank under
this Issuing Entity Account Bank Agreement, shall not be deemed to have
notice of its terms.
2. THE ACCOUNT
2.1 DIRECTIONS TO THE ISSUING ENTITY ACCOUNT BANK
Prior to the occurrence of an Event of Default in respect of a Series
and subject to Clause 4.2 (Instructions of Note Trustee), the Issuing
Entity Account Bank shall comply with any direction of the Issuing
Entity or its Delegate with respect to the Series Issuing Entity
Distribution Account of such Series provided that such direction shall:
2.1.1 be in writing; and
2.1.2 comply with the relevant Mandate.
Notwithstanding the provisions of this Clause 2.1 amounts shall only be
withdrawn from the relevant Series Issuing Entity Distribution Account
of a Series to the extent that such withdrawal does not cause the
relevant account to become overdrawn and furthermore credits shall only
be made to an account when the Issuing Entity Account Bank shall have
received cleared funds.
2.2 TIMING OF TRANSFERS
The Issuing Entity Account Bank agrees that if directed pursuant to
Clause 2.1 (Directions to the Issuing Entity Account Bank) to make any
payment, and provided such direction is given by the Issuing Entity, its
Delegate or the Note Trustee prior to 2.00 p.m., it will transfer such
amounts prior to close of business on the Business Day on which such
direction is received and for value that day. If any direction is
received by the Issuing Entity Account Bank later than 2.00 p.m. on any
Business Day the Issuing Entity Account Bank shall make such payment as
soon as practicable on the commencement of business on the following
Business Day for value that day.
2.3 NO RECOURSE TO SERIES ISSUING ENTITY DISTRIBUTION ACCOUNT
The charges of the Issuing Entity Account Bank (if any) for the
operation of the relevant Series Issuing Entity Distribution Account of
each Series shall not be debited from the relevant Issuing Entity
Distribution Account but shall be payable by the Issuing Entity
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within 30 days or less of receipt of a written invoice and charged by the
Issuing Entity Account Bank to the Issuing Entity on the same basis and
at the same rates as are generally applicable to its business customers
and the Issuing Entity Account Bank hereby acknowledges that it will
have no recourse by way of set-off or otherwise against any funds
standing to the credit of the relevant Series Issuing Entity
Distribution Account of each Series or against any party hereto other
than the Issuing Entity in respect of the said charges.
3. MANDATE
The Issuing Entity has agreed to deliver a Mandate with respect to the
Series Issuing Entity Distribution Account for each Series to the
Issuing Entity Account Bank (with a copy to the Note Trustee) and the
Issuing Entity Account Bank will confirm to the Issuing Entity and the
Note Trustee, with respect to each Mandate, receipt by it of the
relevant Mandate from the Issuing Entity and that the Mandate is
operative and supersedes any previous mandates or arrangements relating
to the relevant Series Issuing Entity Distribution Account of the
Series.
4. ACKNOWLEDGEMENT BY THE ISSUING ENTITY ACCOUNT BANK
4.1 ACKNOWLEDGEMENT OF INTENTION TO ASSIGN
Notwithstanding anything to the contrary in the relevant corresponding
Mandate, the Issuing Entity Account Bank hereby:
4.1.1 acknowledges that pursuant to the Note Trust Deed and each
relevant Note Trust Deed Supplement the Issuing Entity intends
to assign, with respect to each Series, its rights, title and
interest in the Issuing Entity Distribution Account of such
Series to the Note Trustee by way of security; and
4.1.2 subject to execution by the Issuing Entity of the Note Trust
Deed and each relevant Note Trust Deed Supplement (such
execution to be notified by the Issuing Entity to the Issuing
Entity Account Bank), waives any right it has or may hereafter
acquire to combine, consolidate or merge the relevant Series
Issuing Entity Distribution Account with any other account of
the Issuing Entity or any other person or any liabilities of
the Issuing Entity or any other person to the Issuing Entity
Account Bank and agrees that it may not set-off, transfer,
combine or withhold payment of any sum standing to the credit
of the relevant Series Issuing Entity Distribution Account in
or towards or conditionally upon satisfaction of any
liabilities to it of the Issuing Entity or any other person.
4.2 INSTRUCTIONS OF NOTE TRUSTEE
Notwithstanding anything to the contrary in the relevant Mandate or the
Issuing Entity Bank Account Operating Agreement, the Issuing Entity
Account Bank hereby agrees (with the consent of the Issuing Entity):
4.2.1 to comply with any direction of the Note Trustee expressed to
be given by the Note Trustee pursuant to the Note Trust Deed
and the relevant Note Trust Deed Supplement in respect of the
operation of the relevant Series Issuing Entity Distribution
Account with respect to each Series and the Issuing Entity
Account
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Bank shall be entitled to rely on any such direction
purporting to have been given on behalf of the Note Trustee
without enquiry; and
4.2.2 after the occurrence of an Event of Default in relation to a
particular Series that all right, authority and power of the
Issuing Entity and the Delegate in respect of the operation of
the relevant Series Issuing Entity Distribution Account of
such Series shall be deemed to be terminated and of no further
effect and the Issuing Entity Account Bank and the Issuing
Entity agree that the Issuing Entity Account Bank shall, upon
receipt of such notice (to be given in writing) from the Note
Trustee, comply with the directions of the Note Trustee or any
Receiver appointed under the Note Trust Deed in relation to
the operation of the relevant Series Issuing Entity
Distribution Account.
4.3 STATEMENTS
Until the Issuing Entity Account Bank shall have been notified in
writing by the Note Trustee that none of the Notes are outstanding, the
Issuing Entity Account Bank shall provide the Issuing Entity with a
monthly statement in respect of each Series Issuing Entity Distribution
Account or upon written request from time to time, and in the latter
case such statement shall be provided as soon as reasonably practicable
after receipt of a request for a statement.
5. INDEMNITY
5.1 NO LIABILITY FOR LOSS
Unless otherwise directed by the Note Trustee pursuant to Clause 4.2
(Instructions of Note Trustee) above, the Issuing Entity Account Bank in
making payment from each Series Issuing Entity Distribution Account, in
accordance with this Issuing Entity Account Bank Agreement, shall be
entitled to act as directed by the Issuing Entity or its Delegate
pursuant to Clause 2.1 (Directions to the Issuing Entity Account Bank)
above and to rely as to the amount of any such transfer or payment on
the instruction of the Issuing Entity in accordance with the relevant
Mandate and the Issuing Entity Account Bank shall have no liability for
any loss, injury or consequence suffered or incurred by the Issuing
Entity for any action taken as a consequence of relying on any such
instruction except in the case of the Issuing Entity Account Bank's
wilful default, negligence, fraud or unremedied breach of this Issuing
Entity Account Bank Agreement.
5.2 INDEMNITY
The Issuing Entity shall indemnify the Issuing Entity Account Bank
against any loss, cost, damage, charge or expense incurred by the
Issuing Entity Account Bank in complying with any direction of the
Issuing Entity or the Note Trustee as the case may be, delivered
pursuant to and in accordance with this Issuing Entity Account Bank
Agreement, save that this indemnity shall not extend to:
5.2.1 the charges of the Issuing Entity Account Bank (if any) for
the operation of each Series Issuing Entity Distribution
Account; and
5.2.2 any loss, cost, damage, charge or expense arising from any
breach by the Issuing Entity Account Bank of its obligations
under this Issuing Entity Account Bank Agreement.
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6. RESIGNATION AND TERMINATION
6.1 RESIGNATION
The Issuing Entity Account Bank may resign its appointment upon not less
than 4 weeks' notice to the Issuing Entity (with a copy to the Note
Trustee) PROVIDED THAT:
6.1.1 if such resignation would otherwise take effect less than 30
days before or after a Final Redemption Date or other date for
redemption of the Notes or any Interest Payment Date in
relation to the Notes, it shall not take effect until the
thirtieth day following such date; and
6.1.2 such resignation shall not take effect until a successor has
been duly appointed consistently with Clause 6.5 (Successor
Issuing Entity Account Bank) or Clause 6.6 (Issuing Entity
Account Bank may appoint Successors).
6.2 TERMINATION
The Issuing Entity may (with the prior written approval of the Note
Trustee) revoke its appointment of the Issuing Entity Account Bank by
not less than 30 days' notice to the Issuing Entity Account Bank (with a
copy, to the Note Trustee). Such revocation shall not take effect until
a successor, previously approved in writing by the Note Trustee, has
been duly appointed consistently with Clause 6.5 (Successor Issuing
Entity Account Bank) or Clause 6.6 (Issuing Entity Account Bank may
appoint Successors).
6.3 AUTOMATIC TERMINATION
The appointment of the Issuing Entity Account Bank shall terminate
forthwith if an Insolvency Event occurs in relation to the Issuing
Entity Account Bank. If the appointment of the Issuing Entity Account
Bank is terminated in accordance with this provision, the Issuing Entity
shall forthwith appoint a successor in accordance with Clause 6.5
(Successor Issuing Entity Account Bank).
6.4 QUALIFYING INSTITUTION
In the event that the Issuing Entity Account Bank ceases to be a
Qualifying Institution, the Issuing Entity Account Bank shall
immediately give notice of that fact to the Note Trustee and the Issuing
Entity. As soon as practicable thereafter and in any event within 30
days of such notice, the Issuing Entity Account Bank shall transfer the
closing credit balance of each Series Issuing Entity Distribution
Account, together with all interest accrued on such balance up to but
not including the date of transfer, to an appropriate successor account
with a Qualifying Institution, approved by the Note Trustee.
6.5 SUCCESSOR ISSUING ENTITY ACCOUNT BANK
The Issuing Entity may (with the prior written approval of the Note
Trustee) appoint a successor Issuing Entity Account Bank and shall
forthwith give notice of any such appointment to the Note Trustee,
whereupon the Issuing Entity and the Note Trustee and the successor
Issuing Entity Account Bank shall acquire and become subject to the same
rights and obligations between themselves as if they had entered into an
agreement in the form of (and on the same terms as) this Issuing Entity
Account Bank Agreement. Any successor Issuing Entity Account Bank
appointed by the Issuing Entity shall be a Qualifying Institution.
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6.6 ISSUING ENTITY ACCOUNT BANK MAY APPOINT SUCCESSORS
If the Issuing Entity Account Bank gives notice of its resignation in
accordance with Clause 6.1 (Resignation) and by the tenth day before the
expiry of such notice a successor has not been duly appointed in
accordance with Clause 6.5 (Successor Issuing Entity Account Bank), the
Issuing Entity Account Bank may itself, following such consultation with
the Issuing Entity as is practicable in the circumstances and with the
prior written approval of the Note Trustee, appoint as its successor any
Qualifying Institution. The Issuing Entity Account Bank shall give
notice of such appointment to the Issuing Entity and the Note Trustee
whereupon the Issuing Entity and the Note Trustee and such successor
shall acquire and become subject to the same rights and obligations
between themselves as if they had entered into an agreement in the form
of (and on the same terms as) this Issuing Entity Account Bank
Agreement.
6.7 MERGER
Any legal entity into which the Issuing Entity Account Bank is merged or
converted or any legal entity resulting from any merger or conversion to
which such the Issuing Entity Account Bank is a party shall, to the
extent permitted by applicable law, be the successor to the Issuing
Entity Account Bank without any further formality. In the event of such
a merger or conversion the Issuing Entity and the Note Trustee and such
successor shall acquire and become subject to the same rights and
obligations between themselves as if they had entered into an agreement
in the form of (and on the same terms as) this Issuing Entity Account
Bank Agreement. Notice of any such merger or conversion shall forthwith
be given by such successor to the Issuing Entity and the Note Trustee.
7. CHANGE OF NOTE TRUSTEE OR ISSUING ENTITY ACCOUNT BANK
7.1 FURTHER ASSURANCE
If there is any change in the identity of the Note Trustee in accordance
with the terms of the Note Trust Deed, or a change in the identity of
the Issuing Entity Account Bank other than in terms of Clause 6.7
(Merger), the parties hereto or any of them as appropriate shall execute
such documents and take such actions as the new Note Trustee or Issuing
Entity Account Bank and the outgoing Note Trustee or Issuing Entity
Account Bank may require for the purpose of vesting in the new Note
Trustee or Issuing Entity Account Bank the rights and obligations of the
outgoing Note Trustee or Issuing Entity Account Bank, and releasing the
outgoing Note Trustee or Issuing Entity Account Bank from its future
obligations under this Issuing Entity Account Bank Agreement.
7.2 ASSISTANCE
In the event of any termination under Clause 6 (Resignation and
Termination) the Issuing Entity Account Bank shall take reasonable steps
(for a period of no longer than 3 months after such termination) to
assist the other parties hereto to effect an orderly transition of the
Issuing Entity's banking arrangements.
8. COSTS
The Issuing Entity agrees to pay the proper costs (including proper
legal costs and expenses) of the Issuing Entity Account Bank and of the
Note Trustee in connection with the negotiation of this Issuing Entity
Account Bank Agreement and the establishment of each Series Issuing
Entity Distribution Account and the negotiation and execution of any
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further documents and the taking of any further action to be executed or
taken pursuant to Paragraph 18 (Confidentiality) of Schedule 2 (Common
Terms) to the Issuing Entity Master Framework Agreement.
9. GOVERNING LAW
This Issuing Entity Account Bank Agreement and all matters arising from
or connected with it shall be governed by English law in accordance with
paragraph 25 (Governing law) of the Common Terms. Paragraph 26
(Jurisdiction) of the Common Terms applies to this Issuing Entity
Account Bank Agreement as if set out in full in this Issuing Entity
Account Bank Agreement.
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SCHEDULE 1
MANDATE - SERIES ISSUING ENTITY DISTRIBUTION ACCOUNT
At a duly constituted meeting of the Board of Directors of Gracechurch Card
Programme Funding Limited (the "COMPANY") held at [ ] on [ ].
IT WAS RESOLVED that:
1. The Company ratify the opening of the account number [ ] sort code [ ]
in the name of the Company designated the "Gracechurch Card Programme
Funding Limited - Series [ ] Issuing Entity Distribution Account" (the
"SERIES [ ] ISSUING ENTITY DISTRIBUTION ACCOUNT") held with Barclays
Bank PLC (the "ISSUING ENTITY ACCOUNT BANK") at 1 Churchill Place,
London E14 5HP and that the Series [ ] Issuing Entity Distribution
Account be used as an account for the benefit of the Company.
2. Terms defined (or incorporated by reference) in the Issuing Entity
Account Bank Agreement entered into on or about [ ] between the Company,
The Bank of New York, London Branch (the "NOTE TRUSTEE") and the Issuing
Entity Account Bank (the "ISSUING ENTITY ACCOUNT BANK AGREEMENT") have
the same meanings herein, unless otherwise defined herein or as the
context otherwise requires.
3. In relation to the Series [ ] Issuing Entity Distribution Account, the
Issuing Entity Account Bank is hereby authorised to honour and comply
with all cheques, drafts, bills, payments by way of CHAPS, promissory
notes, acceptances, negotiable instruments and orders expressed to be
drawn, accepted made or given and all directions in writing in respect of
the Series [ ] Issuing Entity Distribution Account opened pursuant to the
Issuing Entity Account Bank Agreement PROVIDED THAT any such cheques,
bills, promissory notes, acceptances, negotiable instruments, directions,
orders and/or endorsements are signed by any of the persons whose names
and specimen signatures are set out in the Appendix attached to these
resolutions or that any directions or orders are received by the Issuing
Entity Account Bank by means of secure facsimile transmission that
includes the signal number authentication code supplied to the Issuing
Entity.
4. Notwithstanding resolution 3 above, the Issuing Entity Account Bank be
and is hereby instructed to act on any advice contained in a secure
facsimile transmission that includes the signal number authentication
code with respect to the debiting and crediting of monies from and to the
Series [ ] Issuing Entity Distribution Account unless notified otherwise
in writing by the Company.
5. The mandates given to the Issuing Entity Account Bank by virtue of these
resolutions shall, subject as provided in resolution 6 below, remain in
force, unless and until the Issuing Entity Account Bank has received from
the Note Trustee notice to the contrary (the "NOTE TRUSTEE'S NOTICE").
6. If the Issuing Entity Account Bank has received the Note Trustee's
Notice, any instruction or other direction referred to in resolution 3 as
it relates to amounts in the Series [ ] Issuing Entity Distribution
Account in respect of the Series shall be signed by or on behalf of the
Note Trustee or any substitute administrator or by the person or
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persons specified by the Note Trustee in the Note Trustee's Notice or as
otherwise agreed or directed by the Note Trustee hereafter.
7. The Issuing Entity Account Bank be supplied with the list of names of
Directors, the Secretary and other officers of the Company and the
Issuing Entity Account Bank be and is hereby authorised to act on any
information given by a Director or the Secretary of the Company (as the
case may be) as to any changes therein.
8. These resolutions be communicated to the Issuing Entity Account Bank and
remain in force until an amending resolution shall be passed by the Board
of Directors of the Company with the prior written consent of the Note
Trustee and a copy thereof and of such consent, certified by any one of
the Directors or the Secretary, shall be received by the Issuing Entity
Account Bank.
I hereby certify the above resolutions to have been duly adopted as resolutions
of the board of Directors of the Company at the said Meeting.
.......................................
Director
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EXECUTED by the parties
Issuing Entity
Executed for an on behalf of )
GRACECHURCH CARD )
PROGRAMME FUNDING LIMITED )
acting by a duly authorised signatory )
Issuing Entity Account Bank
Executed for an on behalf of )
BARCLAYS BANK PLC )
acting by a duly authorised signatory )
Note Trustee
Executed for and on behalf of )
THE BANK OF NEW YORK )
by )
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Authorised Signatory
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