Exhibit 10.6
CLIFFORD CLIFFORD CHANCE LLP
CHANCE
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
as Issuing Entity
BARCLAYS BANK PLC
as Issuing Entity Bank Account Operator and Issuing Entity Account Bank
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ISSUING ENTITY
BANK ACCOUNT OPERATING AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Interpretation...........................................................1
2. Services To Be Provided By The Issuing Entity Bank Account Operator......2
3. Sub-Contracting..........................................................4
4. Agency Provisions........................................................4
5. Changes To The Issuing Entity Bank Account Operator......................5
6. Undertakings Of The Issuing Entity Bank Account Operator.................6
7. Issuing Entity Bank Account Operator's Liability And Indemnity...........7
8. Records And Reports......................................................8
9. Fees Of The Issuing Entity Bank Account Operator.........................8
10. Assignment And Sub-Contracting...........................................9
11. No Conflict Of Interest..................................................9
12. Governing Law............................................................9
THIS ISSUING ENTITY BANK ACCOUNT OPERATING 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"); and
(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 as account bank (the "ISSUING
ENTITY ACCOUNT BANK") and bank account operator (the "ISSUING ENTITY
BANK ACCOUNT OPERATOR").
INTRODUCTION:
(A) In various circumstances, the Issuing Entity will exercise certain
rights and powers in relation to all its bank accounts and any other
account opened by it in connection with the Programme from time to time
(collectively the "ACCOUNTS") and certain other matters referred to
herein.
(B) Pursuant to the terms and conditions of this Issuing Entity Bank Account
Operating Agreement, the Issuing Entity and the Issuing Entity Bank
Account Operator have agreed that the Issuing Entity will appoint the
Issuing Entity Bank Account Operator as its agent to be bank account
operator of the Accounts and the Issuing Entity will entrust the matters
referred to in paragraph (A) above to the Issuing Entity Bank Account
Operator.
THE PARTIES AGREE as follows:
1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this Issuing Entity Bank Account Operating
Agreement or the context requires otherwise, words and expressions used
in this Issuing Entity Bank Account Operating 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
Bank Account Operating Agreement, where applicable, and shall be binding
on the parties to this Issuing Entity Bank Account Operating Agreement
as if set out in full in this Issuing Entity Bank Account Operating
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 the Issuing Entity was the Obligor (as defined therein) and the
Issuing Entity Bank Account Operator was the Obligee (as defined
therein).
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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
Bank Account Operating 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 Bank Account Operating Agreement,
the provisions of this Issuing Entity Bank Account Operating Agreement
shall prevail, save for where any provision of this Issuing Entity Bank
Account Operating Agreement relates to VAT, in which case the provisions
of the Common Terms shall prevail.
2. SERVICES TO BE PROVIDED BY THE ISSUING ENTITY BANK ACCOUNT OPERATOR
2.1 APPOINTMENT OF ISSUING ENTITY BANK ACCOUNT OPERATOR
The Issuing Entity appoints the Issuing Entity Bank Account Operator to:
2.1.1 act as its bank account operator in order to implement,
administer and carry out those responsibilities and
obligations of, or with respect to, the Issuing Entity which
are set out in Clause 2.2 (Extent of authority), under and in
connection with the Note Trust Deed, any Note Trust Deed
Supplement, the Notes, the Issuing Entity Account Bank
Agreement, the Paying Agency and Agent Bank Agreement and any
related Documents and/or any matter contemplated by any of the
Documents; and
2.1.2 provide, from time to time, copies to any Rating Agency of any
report prepared and/or provided by the Issuing Entity to the
Issuing Entity Bank Account Operator.
2.2 EXTENT OF AUTHORITY
Subject to the security created over each Issuing Entity Distribution
Account pursuant to the Note Trust Deed and any Note Trust Deed
Supplement, the authority granted to and obligations accepted by the
Issuing Entity Bank Account Operator pursuant to Clause 2.1 (Appointment
of Issuing Entity Bank Account Operator) shall comprise the following:
2.2.1 giving directions on behalf of the Issuing Entity in relation
to the movement of monies from the Accounts in accordance with
the Issuing Entity's respective obligations under the
documents and arrangements referred to in Clause 2.1
(Appointment of Issuing Entity Bank Account Operator) taking
into account all information received from the Issuing Entity
and the Issuing Entity Account Bank and taking into account
any Issuing Entity Expenses Loan Agreement (if applicable) or
Swap Agreement entered into by the Issuing Entity;
2.2.2 calculating payments to be made by the Issuing Entity in
accordance with the Issuing Entity's obligations under the
documents and the arrangements referred to in Clause 2.1
(Appointment of Issuing Entity Bank Account Operator);
2.2.3 recording credit and debit entries (as applicable) to each
relevant Ledger of the Accounts and making the records of such
entries available to the Issuing Entity Account Bank at all
times;
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2.2.4 subject to this Issuing Entity Bank Account Operating
Agreement, implementing any directions of the Issuing Entity
in relation to the Accounts and the matters arising from this
Issuing Entity Bank Account Operating Agreement;
2.2.5 subject to this Issuing Entity Bank Account Operating
Agreement, providing copies of reports to third parties, in
accordance with the Issuing Entity's obligations under the
documents and arrangements referred to in Clause 2.1
(Appointment of Issuing Entity Bank Account Operator);
2.2.6 dealing with third parties (including any Expenses Lender (if
applicable), any Rating Agency, the Note Trustee, the Issuing
Entity Account Bank and any other Person) in relation to any
amount received or payable by or to the Issuing Entity;
2.2.7 subject always to the Relevant Documents, taking or refraining
from taking any other action whatsoever in relation to the
Accounts and the movement of monies thereon which may be taken
or not taken, pursuant to the Relevant Documents, by the
Issuing Entity or the Issuing Entity Bank Account Operator;
2.2.8 using all reasonable endeavours to ensure that each Mandate
relating to each Account will continue to be operative and
will not be changed without the prior written consent of the
Issuing Entity;
2.2.9 at the close of business of each Business Day, procuring that
the funds standing to the credit of any Account are invested
in Permitted Investments in accordance with the instructions
of the Issuing Entity subject, at all times, to the
obligations of the Issuing Entity under the documents and the
arrangements referred to in Clause 2.1 (Appointment of
Issuing Entity Bank Account Operator) and, without
limitation to the foregoing, PROVIDED THAT such Permitted
Investment matures on or before the next Interest Payment
Date for the Series to which such Permitted Investment
relates;
2.2.10 procuring that all amounts standing to the credit of any
Account from time to time which are not invested will carry
interest at such rate as may be agreed with the Issuing Entity
Account Bank pursuant to the relevant Issuing Entity Account
Bank Agreement and the relevant Mandate corresponding to such
Account; and
2.2.11 conducting, any other activities by agreement between the
Issuing Entity (or any Person acting on its behalf) and the
Issuing Entity Bank Account Operator,
in each case for and on behalf of the Issuing Entity as contemplated in
the Note Trust Deed, any Note Trust Deed Supplement and the Issuing
Entity Expenses Loan Agreement (as applicable).
2.3 AGREEMENT OF ISSUING ENTITY BANK ACCOUNT OPERATOR
The Issuing Entity Bank Account Operator hereby agrees:
2.3.1 save as provided herein, not to enter into, on behalf of the
Issuing Entity, any commitments, loans or obligations or
otherwise restrict or dispose of the Issuing Entity's property
or assets and subject to any applicable law, regulation or
order
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of any court generally not to take any action which
would be inconsistent with the business of the Issuing Entity
or in breach of the Issuing Entity's constitutive documents or
in breach of any of the Relevant Documents to which the
Issuing Entity is or becomes a party; and
2.3.2 to keep confidential all documents, materials and other
information (including any reports described in Clause 2.1
(Appointment of Issuing Entity Bank Account Operator))
relating to the business of the Issuing Entity and not to
disclose any of the aforesaid to any person other than the
Issuing Entity without the prior consent of the Issuing Entity
unless required to do so by any applicable law, regulation or
order of any court PROVIDED THAT disclosure to any person for
the purposes of the performance of their contractual
obligations towards the Issuing Entity (or the Issuing Entity
Bank Account Operator) pursuant to the Relevant Documents, or
the exercise of their rights thereunder, is permitted,
PROVIDED THAT nothing in this Clause 2.3 (Agreement of Issuing Entity
Bank Account Operator) shall obligate the Issuing Entity Bank Account
Operator to carry out any duties in relation to the Relevant Documents
to which the Issuing Entity is or becomes a party which have been
delegated by the Issuing Entity specifically to other persons pursuant
to such Relevant Documents.
3. SUB-CONTRACTING
The Issuing Entity Bank Account Operator may appoint any company in the
same group of companies as the Issuing Entity Bank Account Operator as
its sub-agent, sub-contractor or representative to carry out or to
assist the Issuing Entity Bank Account Operator to carry out all or any
part of the services to be provided by it under this Issuing Entity Bank
Account Operating Agreement PROVIDED THAT no such delegation shall
relieve the Issuing Entity Bank Account Operator of its obligations
under this Issuing Entity Bank Account Operating Agreement.
4. AGENCY PROVISIONS
4.1 RELIANCE ON COMMUNICATIONS
The Issuing Entity Bank Account Operator may rely upon any communication
or document reasonably believed by it to be genuine.
4.2 NOTICE OF EXTRAORDINARY COMMUNICATIONS
The Issuing Entity Bank Account Operator shall promptly inform the
Issuing Entity of the contents of any notice or document received by it
from any of the parties to any of the Relevant Documents to which the
Issuing Entity is or becomes a party which the Issuing Entity Bank
Account Operator considers to be extraordinary in the context of the
Issuing Entity's day-to-day operation.
4.3 NO LIABILITY
Notwithstanding anything to the contrary expressed or implied herein,
the Issuing Entity Bank Account Operator shall not:
4.3.1 be bound to account to the Issuing Entity for any sum or the
profit element of any sum received by it for its own account;
or
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4.3.2 be bound to disclose to any other person any information
relating to the Issuing Entity if such disclosure would or
might in its opinion constitute a breach of the law or
regulation or be otherwise actionable at the suit of any
person.
4.4 NO RESPONSIBILITY FOR RELEVANT DOCUMENTS
The Issuing Entity Bank Account Operator does not accept any
responsibility for the legality, validity, effectiveness, adequacy or
enforceability of any of the Relevant Documents save as regards matters
relevant to its own capacity to enter into and perform its obligations
thereunder.
5. CHANGES TO THE ISSUING ENTITY BANK ACCOUNT OPERATOR
5.1 RETIREMENT OF THE ISSUING ENTITY BANK ACCOUNT OPERATOR
The Issuing Entity Bank Account Operator may retire its appointment
hereunder at any time without assigning any reason therefor by giving
written notice to that effect to the Issuing Entity PROVIDED THAT the
retirement of the Issuing Entity Bank Account Operator shall not be
effective until a replacement acceptable to the Issuing Entity (such
acceptance not to be unreasonably withheld) for the Issuing Entity Bank
Account Operator is appointed and such replacement has agreed to act as
the Issuing Entity Bank Account Operator for the purposes hereof.
5.2 REMOVAL OF THE ISSUING ENTITY BANK ACCOUNT OPERATOR
The Issuing Entity:
5.2.1 may require the Issuing Entity Bank Account Operator to retire
its appointment hereunder at any time by giving written notice
to that effect to the Issuing Entity Bank Account Operator
PROVIDED THAT the retirement shall not be effective until a
replacement acceptable to the Issuing Entity has been
appointed; and
5.2.2 shall require the Issuing Entity Bank Account Operator to so
retire PROVIDED THAT the retirement shall not be effective
until a replacement acceptable to the Issuing Entity has been
appointed if:
(a) the Issuing Entity Bank Account Operator defaults in the
payment on the due date of any payment to be made by it
under this Issuing Entity Bank Account Operating
Agreement and such default continues unremedied for a
period of two Business Days;
(b) the Issuing Entity Bank Account Operator defaults in any
material respect in the performance or observance of any
of its other undertakings and obligations under this
Issuing Entity Bank Account Operating Agreement and such
default continues unremedied for a period of ten
Business Days after the receipt by the Issuing Entity
Bank Account Operator of written notice from the Issuing
Entity requiring the same to be remedied; or
(c) the Issuing Entity Bank Account Operator is subject to
any material litigation, arbitration or administrative
proceeding or claim which would if adversely determined
be, in the opinion of the Issuing Entity acting
reasonably, materially prejudicial to the interests of
the Issuing Entity Bank Account Operator.
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5.3 AUTOMATIC REMOVAL OF THE ISSUING ENTITY BANK ACCOUNT OPERATOR
The appointment of the Issuing Entity Bank Account Operator shall
terminate automatically, and without the need for written notice, if the
Issuing Entity Bank Account Operator becomes insolvent or bankrupt or
unable to pay, or generally is not paying, its debts as such debts
become due, or takes any action for the purposes of entering into any
winding-up, dissolution, bankruptcy, reorganisation, receivership or
similar proceedings analogous in purpose or effect, or any order is made
by any competent court or any resolution is passed for the appointment
of a liquidator, trustee in bankruptcy or similar officer of the Issuing
Entity Bank Account Operator, or the Issuing Entity Bank Account
Operator appoints or suffers the appointment of any receiver, trustee or
similar officer of the whole or a substantial part of its assets or
business or enters into any composition, restructuring or renegotiation
of debt with its general creditors. If the appointment of the Issuing
Entity Bank Account Operator is terminated in accordance with this
Clause 5.3, the Issuing Entity shall forthwith appoint a replacement
Issuing Entity Bank Account Operator.
5.4 CONSEQUENCES OF APPOINTMENT OF SUCCESSOR ISSUING ENTITY BANK ACCOUNT
OPERATOR
If a successor to the Issuing Entity Bank Account Operator is appointed
pursuant to Clauses 5.1 (Retirement of the Issuing Entity Bank Account
Operator), 5.2 (Removal of the Issuing Entity Bank Account Operator) or
5.3 (Automatic removal of the Issuing Entity Bank Account Operator)
then, upon a replacement Issuing Entity Bank Account Operator agreeing
to act as such:
5.4.1 the retiring Issuing Entity Bank Account Operator shall (i)
promptly deliver to (or to the order of the Issuing Entity)
the Relevant Files (as defined in Clause 8 (Records and
Reports) and (ii) be discharged from any further obligation
hereunder other than any liability or obligation accrued at
the date of its retirement; and
5.4.2 its successor and each of the other parties hereto shall have
the same rights and obligations amongst themselves as they
would have had if such successor had been an original party
hereto.
6. UNDERTAKINGS OF THE ISSUING ENTITY BANK ACCOUNT OPERATOR
The Issuing Entity Bank Account Operator undertakes with the Issuing
Entity that, without prejudice to any of its specific obligations under
this Issuing Entity Bank Account Operating Agreement:
(a) it will devote to the performance of its obligations under
this Issuing Entity Bank Account Operating Agreement at least
the same amount of time and attention, and exercise at least
the same level of skill, care and diligence, in the
performance of those obligations as it would if it were
administering its own rights and obligations as opposed to
those of the Issuing Entity;
(b) it will comply with any proper directions, orders and
instructions which the Issuing Entity may from time to time
give to it in connection with the performance of its
obligations under this Issuing Entity Bank Account Operating
Agreement;
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(c) it will use its reasonable endeavours to keep in force all
licences, approvals, authorisations and consents which may be
necessary in connection with the performance of its
obligations under this Issuing Entity Bank Account Operating
Agreement and shall, so far as it can reasonably do so,
perform its obligations under this Issuing Entity Bank Account
Operating Agreement in such a way as not to prejudice the
continuation of any such approval, authorisation, consent or
licence;
(d) it will observe and perform all the duties and obligations as
required by any Relevant Document to which it is a party to be
performed by it in its capacity as Issuing Entity Bank Account
Operator;
(e) it will promptly upon becoming aware thereof notify the
Issuing Entity in writing of any condition, event, act, matter
or thing which is a breach of any of the representations,
warranties, covenants and undertakings of any of the parties
to the Relevant Documents to which the Issuing Entity is or
becomes a party contained therein;
(f) it will make available office facilities, equipment and staff
sufficient to enable it to fulfil its obligations under this
Issuing Entity Bank Account Operating Agreement;
(g) it will not fail in any material respect to comply with any
legal, administrative and regulatory requirements in the
performance of its obligations under this Issuing Entity Bank
Account Operating Agreement;
(h) subject to timely receipt by the Issuing Entity Bank Account
Operator of sufficient funds it will make or give directions
for the making of all payments on behalf of each of the
Issuing Entity required to be made by the Issuing Entity Bank
Account Operator pursuant to the Relevant Documents to which
the Issuing Entity is or becomes a party on their due date and
at or before the time required thereby without set-off or
counterclaim and (unless required by law to deduct or
withhold) without deduction or withholding for any taxes; and
(i) it will execute and do all such further documents, acts and
things as may be necessary at any time or times to give effect
to this Issuing Entity Bank Account Operating Agreement, of
which it has notice.
7. ISSUING ENTITY BANK ACCOUNT OPERATOR'S LIABILITY AND INDEMNITY
7.1 INDEMNITY FROM ISSUING ENTITY BANK ACCOUNT OPERATOR
The Issuing Entity Bank Account Operator hereby indemnifies and
undertakes to keep the Issuing Entity and its directors, officers,
employees and agents indemnified against all actions, proceedings,
claims, costs and demands (including costs and reasonable expenses
arising therefrom or incidental thereto) which may be brought against,
suffered or incurred by it or any of them as a result of any failure by
the Issuing Entity Bank Account Operator to comply with any of its
obligations hereunder where such failure arises from the negligence,
wilful default, dishonesty or fraud of the Issuing Entity Bank Account
Operator. This indemnity is, for the avoidance of doubt, in addition to
and without prejudice to any indemnity allowed under any applicable law.
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7.2 INDEMNITY FROM ISSUING ENTITY
The Issuing Entity shall, from time to time on demand of the Issuing
Entity Bank Account Operator, indemnify and hold harmless the Issuing
Entity Bank Account Operator, its directors, officers, employees and
agents and any person providing services relating to its role hereunder
at the time of such demand, against any liabilities, actions,
proceedings, claims or demands which it or any of them may incur or be
subject to arising out of or in consequence of this Issuing Entity Bank
Account Operating Agreement or as a result of the performance of the
functions and the services provided for hereunder except as a result of
the negligence, wilful default, dishonesty or fraud of the Issuing
Entity Bank Account Operator of any of its directors, officers,
employees or agents and any person providing services relating to its
role hereunder as the case may be. This indemnity shall expressly inure
to the benefit of any director, officer, employee or agent existing or
future and to the benefit of any successor of the Issuing Entity Bank
Account Operator hereunder.
7.3 CONTINUANCE OF RIGHTS
The termination of this Issuing Entity Bank Account Operating Agreement
shall not affect the rights and obligations of the parties arising
hereunder prior to such termination.
8. RECORDS AND REPORTS
The Issuing Entity Bank Account Operator shall keep, for and on behalf
of the Issuing Entity, any computer and/or physical records relating to
the Issuing Entity and/or the Accounts or delivered to the Issuing
Entity Bank Account Operator on behalf of the Issuing Entity (the
"RELEVANT FILES") and maintain them in an adequate form and in such a
way that they can clearly be distinguished from the records relating to
other companies maintained by the Issuing Entity Bank Account Operator.
The Issuing Entity Bank Account Operator shall ensure that the Relevant
Files held by the Issuing Entity Bank Account Operator (or to its order)
shall at all reasonable hours be made available for inspection by the
Issuing Entity or any person acting on its behalf and shall procure that
the Issuing Entity or any person acting on its behalf shall be provided
with such assistance as either of them may reasonably require to
properly perform their duties. All Relevant Files held by the Issuing
Entity Bank Account Operator shall be held by it to the order of the
Issuing Entity. The Issuing Entity Bank Account Operator hereby waives
any lien to which it would otherwise be entitled in relation thereto.
The Issuing Entity Bank Account Operator shall, on demand by the Issuing
Entity or any person on its behalf, provide copies (and where copies are
not available, the originals) of the Relevant Files to the Issuing
Entity.
9. FEES OF THE ISSUING ENTITY BANK ACCOUNT OPERATOR
Any fees payable by the Issuing Entity to the Issuing Entity Bank
Account Operator shall be set out in a letter sent by the Issuing Entity
Bank Account Operator to the Issuing Entity (as the same may be varied,
amended or replaced from time to time), in the amounts and at the times
set out in such letter.
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10. ASSIGNMENT AND SUB-CONTRACTING
The Issuing Entity Bank Account Operator shall not be entitled to
assign, transfer or (save as provided in Clause 3 (Sub-Contracting)
above) delegate or sub-contract all or any of its rights, benefits and
obligations hereunder without the prior written consent of the Issuing
Entity.
11. NO CONFLICT OF INTEREST
The services of the Issuing Entity Bank Account Operator to the Issuing
Entity hereunder are not to be deemed exclusive and the Issuing Entity
Bank Account Operator shall be free to render similar services to any
other person for so long as its services hereunder are not impaired
thereby and shall not be liable to account for any profits arising
therefrom.
12. GOVERNING LAW
This Issuing Entity Bank Account Operating 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 Bank Account Operating Agreement as if set out in full in this
Issuing Entity Bank Account Operating Agreement.
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EXECUTED by the parties
Issuing Entity
GRACECHURCH CARD PROGRAMME FUNDING LIMITED
By:
Issuing Entity Bank Account Operator and Issuing Entity Account Bank
BARCLAYS BANK PLC
By:
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