DATED: 23 MAY 2006
XXXXXX TRUST COMPANY LIMITED
AND
TURQUOISE FUNDING 1 LIMITED
AND
HSBC BANK PLC
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CORPORATE SERVICES AGREEMENT
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Xxxxxx Xxxxxxx
00 Xxx Xxxxxx
Xx. Xxxxxx
Xxxxxx
Xxxxxxx Xxxxxxx
SMH/ALC/SAT/094585/0024
1321431
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THIS AGREEMENT is made on twenty third May two thousand and six.
BETWEEN:
(1) XXXXXX TRUST COMPANY LIMITED a company incorporated in Jersey whose
registered office is situate at 00 Xxx Xxxxxx, Xx. Xxxxxx, Xxxxxx,
Xxxxxxx Xxxxxxx (the "Service Provider"); and
(2) TURQUOISE FUNDING 1 LIMITED a company incorporated in Jersey whose
registered office is situate at 00 Xxx Xxxxxx, Xx. Xxxxxx, Xxxxxx,
Xxxxxxx Xxxxxxx as aforesaid (the "Company"); and
(3) HSBC BANK PLC whose registered office is at Xxxxx 0, 0 Xxxxxx Xxxxxx,
Xxxxxx, X00 0XX (the "Originator").
RECITALS:-
(A) The Company was incorporated in Jersey on 27 January, 2006 for the
purpose of participating in a financing programme relating to certain
credit card receivables originated or to be originated by HSBC Bank plc.
(B) The Company requires corporate administration services to be provided to
it in Jersey and the Service Provider is willing to provide or arrange
the provision of such services as specified in the Schedule hereto on
the terms hereinafter set out.
NOW BY THIS AGREEMENT:
DEFINITIONS
1. (a) "Delegate" shall mean and include the Partnerships together with
any or all of the respective officers, employees, servants,
successors, assigns or duly appointed agents of each of the
Service Provider and the Partnerships.
(b) "Island" shall mean the Island of Jersey, Channel Islands.
(c) "MLO" shall mean the Money Laundering (Jersey) Order 1999 and
any other applicable regulations from time to time relating to
prevention of use of the financial system for the purpose of
money laundering and made pursuant to the Proceeds of Crime
(Jersey) Law 1999.
(d) "the Partnerships" shall mean the partners for the time being of
(i) Xxxxxx Xxxxxxx, Jersey Advocates and (ii) the Xxxxxx Group
Partnership ("Xxxxxx Group").
(e) "Services" shall mean the services to be provided by the Service
Provider pursuant to this Agreement as set out in the Schedule
hereto.
(f) "Transaction" means the securitisation programme for the
purposes of which the Company was established.
(g) "Transaction Documents" means such agreements or other documents
to which the Company shall be party from time to time in
connection with the Transaction.
Unless otherwise defined herein, terms and expressions defined
in the Transaction Documents shall bear the same meaning when
used in this Agreement.
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APPOINTMENT
2.1 The Company hereby appoints the Service Provider to provide or procure
the provision of the Services and the Service Provider agrees to provide
or procure the provision of the Services to the Company.
2.2 The Originator acknowledges and agrees to such appointment upon the
terms of this Agreement. The Originator shall not acquire any rights or
incur any liabilities hereunder except as expressly stated herein.
2.3 The obligations of the Service Provider under this Agreement are solely
the obligations of the Service Provider. No recourse shall be had in
respect of any obligation or claim arising out of or based upon this
Agreement or any relevant Transaction Document against any employee,
officer, director, nominee or Delegate of the Service Provider save
where the claim, demand, liability, cost or expense in connection
therewith arises from the fraud, bad faith, wilful misconduct or gross
negligence of such employee, officer, director, nominee or Delegate of
the Service Provider.
SCOPE OF AUTHORITY
3. The Service Provider agrees with the Company and the Originator that in
providing the Services it will comply with any proper instructions,
directions or orders communicated in writing or by facsimile which may
from time to time be given to the Service Provider by the Company or any
director of the Company PROVIDED ALWAYS THAT in cases approved in
advance by the Company the Service Provider may also act on oral
instructions given by any director of the Company. The Service Provider
shall be fully protected when acting upon proper instructions without
any duty to make enquiry as to the genuineness or authenticity of
instructions.
DELEGATION
4. In the performance of the Services the Service Provider may engage at
its own expense any Delegate to carry out any or all of its duties
hereunder as it thinks fit without requiring any prior authorisation.
The Service Provider shall not be responsible for any misconduct or
negligence on the part of any person appointed by it with due care to
provide any of the Services.
LIMITATION OF DUTIES
5.1 Notwithstanding the Services agreed to be provided by the Service
Provider hereunder, nothing in this Agreement shall require the Service
Provider or any Delegate to act in any manner which they consider or any
one of them considers may:-
(a) conflict with any of the provisions of the Company's Memorandum
and Articles of Association;
(b) conflict with any laws or regulations in force in the Island or
the terms of any permits consents, licences or applicable Codes
of Practice issued thereunder by any competent authority in the
Island and binding on or having effect in relation to the
Company or the Service Provider; and/or
(c) expose the Service Provider or any Delegate to any risk of civil
or criminal liability or prosecution in any jurisdiction.
5.2 The Company agrees and acknowledges:
(a) that it will be responsible for compliance with MLO in the
conduct of its business where applicable; and
(b) that, for the purposes of MLO:
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(i) the Service Provider will retain any client
identification verification records provided to it by
the Company from time to time with the corporate records
of the Company;
(ii) the employee or agent of the Xxxxxx Group for the time
being discharging the functions of the money laundering
reporting officer for the Service Provider will be the
person to whom any relevant report should be made by any
Delegate handling relevant financial services business
for the Company and the procedures adopted in that
connection shall be those from time to time prescribed
by the Xxxxxx Group or Service Provider; and
(iii) MLO employee training procedures in respect of Delegates
shall be those procedures adopted in that connection
from time to time by the Xxxxxx Group or Service
Provider.
(c) that, during the continuance of this Agreement, the Company
and/or the Originator shall:
(i) provide the Service Provider with all such information,
documentation and records as the Service Provider may
reasonably require to enable it to perform its duties
hereunder;
(ii) keep the Service Provider fully informed as to any
change in the business, affairs, financial position and
prospects of the Company which is or is likely to be
material to the Service Provider; and
(iii) neither cause nor permit anything to be done which will
or may be calculated to impose any civil or criminal
liability or penalty on the Service Provider or any
Delegate.
EXPERTISE
6. The Service Provider is not an expert in, nor does it hold itself or the
Partnerships out as being experts in or having any knowledge of, the law
of any jurisdiction other than the laws of the Island and each of the
Company and the Originator hereby acknowledges that the Company has not
received nor will it receive any advice from the Service Provider or the
Partnerships on any matter affecting the Company, other than in respect
of laws or regulations in force in the Island.
REMUNERATION
7. The Company hereby acknowledges and agrees that the Service Provider (or
either of the Partnerships on behalf of the Service Provider) will
charge the Company fees, and authorises the Service Provider (or either
of the Partnerships on its behalf) to obtain reimbursement from the
Company of all disbursements reasonably incurred in connection with the
provision of the Services, in each case as set out in a letter agreement
of even date herewith between inter alios, the Service Provider, the
Company and the Originator. The amount of such fees may be adjusted from
time to time in accordance with any revised scale of charges generally
applicable to the provision of services similar to the Services as the
Service Provider may from time to time notify to the Company and the
Originator at least one calendar month prior to such increased charges
taking effect. For the avoidance of doubt it is hereby agreed that the
Service Provider shall not be bound to make disbursement of expenses on
behalf of the Company and may require to be put in funds to meet any
such expenses as it may determine. Such fees shall be paid and expenses
reimbursed by the Originator within thirty days of receipt of the
Service Provider's invoice unless previously paid and reimbursed by the
Company.
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NON-PAYMENT OF FEES
8. The Company acknowledges that if any fees and disbursements payable
hereunder shall remain outstanding for more than thirty days after
notification of the amount of such fees and disbursements has been sent
to the Company (or its agent responsible for processing payment thereof)
neither the Service Provider nor any Delegate shall be required to
perform any further Services for the Company including, for the
avoidance of any doubt, filing the annual return of shareholders or
filing the Jersey Exempt Company Tax Return for the Company until all
such fees and disbursements have been paid in full. Without prejudice to
the generality of the foregoing, the Service Provider shall not be
required to expend or risk its own funds or otherwise incur financial
liability in the performance of any of the Services or in the exercise
of any of its rights or powers hereunder if there are grounds for
believing that the reimbursement of such expenditure or indemnity
satisfactory to it against such risk or liability is not assured to it.
NON-PETITION UNDERTAKING
9. The Service Provider hereby agrees that it shall not prior to the date
which is two years and one day after the discharge in full of all
obligations of the Company under the Transaction Documents take any
corporate action or other legal steps or legal proceedings for the
bankruptcy, winding up, dissolution, re-organisation, appointment of a
receiver, administrator, administrative receiver, liquidator,
sequestrator or similar officer of the Company or of any or all of the
revenues and assets of the Company nor participate in any proceedings
nor seek to enforce any judgment against the Company except in
accordance with the provisions of the Transaction Documents.
CONFIDENTIALITY
10. (1) If at any time during the term of this Agreement the Service
Provider or any Delegate may have or be deemed to have
information about any transaction or matter affecting the
Company neither the Service Provider nor any such Delegate shall
be under any duty to disclose any such information to the
Company if the Service Provider or such Delegate shall have
obtained such information in the course of acting for any other
clients or in any way other than in the provision of the
Services under this Agreement.
(2) The Service Provider shall keep confidential and shall procure
that its Delegates shall keep confidential all information
concerning the Company and all transactions or matters dealt
with by the Transaction Documents unless; (a) the Service
Provider or any Delegate is required to disclose the same under
the Transaction Documents or under the laws of the Island or
pursuant to the order of any Jersey court or other court or
regulatory authority having jurisdiction in any such transaction
or matter; or (b) the Service Provider requires to disclose the
same to its professional advisers who receive the same under a
duty of confidentiality, or (c) the relevant information is
already in the public domain otherwise than as a result of a
breach of this provision.
CONFLICTS OF INTEREST
11. (1) The services of the Service Provider to the Company hereunder
are not to be deemed exclusive and the Service Provider 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.
(2) The Company hereby acknowledges that the Service Provider is
ultimately owned by the Xxxxxx Group (which has some partners in
common with Xxxxxx Xxxxxxx) and agrees that the Service Provider
provides the Services in the full knowledge that either of the
Partnerships may have acted (or may hereafter act) for the
Company or an arranger of the Transaction contemplated by the
Transaction Documents.
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TERMINATION
12. (1) This Agreement and the Services to be performed hereunder may be
terminated:-
(a) on one month's notice in writing given by the Service
Provider to the Company; or
(b) on one month's notice in writing given by the Company to
the Service Provider.
(2) This Agreement shall be terminated immediately on written notice
from the Service Provider to the Company if the Service Provider
shall consider any of the following events to have occurred:-
(a) the Company becomes insolvent or is declared en desastre
(bankrupt) or is subject to a creditors' (insolvent)
winding-up in Jersey or is subject to any analogous
procedure in any other jurisdiction;
(b) the Company and/or the Originator commits any breach of
the terms of this Agreement which is incapable of remedy
or commits any other breach which is capable of remedy
but fails to remedy such breach after the Service
Provider has given at least thirty days' notice in
writing to the Company and the Originator requiring such
breach to be remedied; and/or
(c) any changes are made to the terms of any of the
Transaction Documents which affect the duties and
obligations of the Company thereunder and which changes
are expected to have a material adverse affect on the
Service Provider or the Partnerships unless any such
change has been previously approved by the Service
Provider.
(3) Upon the termination of this Agreement howsoever occurring, the
Service Provider shall be entitled to resign, or procure the
resignation of any Delegate, from each office and position held
in relation to the Company including without prejudice to the
generality of the foregoing the resignation of the secretary and
the directors provided by the Service Provider and the Company
shall forthwith notify the Service Provider of:-
(a) an address to be the new registered office of the
Company in Jersey in substitution for the Service
Provider's address;
(b) an address to which all the books and records of the
Company may be transferred provided always that the
Service Provider on behalf of the Partnerships shall
have a lien on all such books, records and documents of
the Company until all fees and disbursements up to the
date of termination of the Agreement have been paid; and
(c) the names of at least two persons into whose names the
shares in the Company shall be transferred.
(4) Upon the termination of this Agreement howsoever occurring, the
Service Provider and the Xxxxxx Group shall use their best
endeavours to assist in the orderly transfer of the
administration of the Company and shall be entitled to charge
and be paid fees to the date of termination and at their
respective normal rates in force at that time for any work done
in transferring the administration of the Company. The
termination of this Agreement shall be without prejudice to any
antecedent liability of the parties hereto.
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LIABILITY AND INDEMNITY
13. (1) The Service Provider and any Delegate shall use their respective
best endeavours and exercise due care in performing the Services
but neither the Service Provider nor any Delegate shall, in the
absence of any fraud, bad faith, wilful misconduct or gross
negligence on the part of the Service Provider or any Delegate,
be liable to the Company or any other person for any loss or
damage suffered arising out of the performance or non
performance by the Service Provider or any Delegate of the
Services.
(2) The Company and the Originator jointly and severally undertake
(in the case of the Company to the extent permitted under its
constitution) to indemnify and hold harmless the Service
Provider and all Delegates (and officers of the Company, if not
Delegates) against all actions, proceedings, accounts, claims or
demands and any costs and expenses reasonably incurred in
connection therewith which may be brought or made or threatened
to be brought or made against the Service Provider or any
Delegate (or officer of the Company, if not a Delegate) in
connection with the affairs of the Company including without
prejudice to the generality of the foregoing in connection with
the Services provided by the Service Provider or any Delegate
(or officer of the Company, if not a Delegate) hereunder
provided that no person seeking indemnity hereunder in respect
of such a liability shall be so entitled to the extent that any
such liability shall have arisen solely from his or its fraud,
bad faith, wilful misconduct or gross negligence. Expenses
incurred in defending any action, suit or proceeding by a person
who may be entitled to indemnity under the above provisions
shall be paid by the Company in advance of the final disposition
of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the person to whom payment is to
be made that he will repay the amounts advanced if it shall
ultimately be determined that he is not entitled to be
indemnified by the Company in accordance with the above
provisions. This indemnity shall continue in force
notwithstanding the termination of this Agreement and shall
continue as to a person who has ceased to be a director,
officer, agent or other Delegate and shall inure to the benefit
of the heirs, executors and administrators of such a person. To
the extent necessary to give effect to the intention of the
parties, the parties agree that the Service Provider shall hold
the benefit of these indemnities in trust for such Delegates or
other such persons not party to this Agreement.
(3) Without prejudice to the generality of the foregoing the
Originator hereby waives any future claims (whether in contract,
tort or otherwise) which may otherwise arise against any
Delegate arising out of or as a result of such Delegate holding
office as a director of the Company save to the extent that such
claim shall have arisen solely from the fraud, bad faith, wilful
misconduct or gross negligence on the part of the Delegate who
is sought to be made liable.
DOCUMENT RETENTION
14. After termination of this Agreement, the Service Provider is entitled to
retain all papers and documents which have come into existence in the
course of it providing the Services until all fees and disbursements due
to it have been settled in full. Subject to payment in full of all fees
and disbursements, the Service Provider will where a successor
administrator has been appointed liaise with that administrator to
provide all such original or copy documents as may be reasonably
required by the successor administrator and will retain copies of
documents at its discretion. The Service Provider reserves the right to
require payment for its reasonable copying charges in advance of
providing such documents. Thereafter, the Service Provider will keep all
documents, correspondence, memoranda and notes which have been created
in the course of provision of the Services, for ten years. During this
period the Service Provider reserves the right, but has no obligation,
to make electronic copies of any such documents, correspondence,
memoranda and notes and, save for original signed documents, reserves
the right to destroy hard copies and store the remainder of the filing
electronically. After ten years continued retention (whether in
electronic form or otherwise) files of papers and documents (other than
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originals) are subject to the Service Provider's right to destroy all
such files at such time as it considers appropriate and unless it has
been instructed to the contrary at or prior to the termination of
provision of the Services. When the Service Provider is instructed to
retain files beyond the ten year period, it reserves the right to charge
for doing so. If after the termination of provision of the Services the
Service Provider receives from any person entitled to do so a specific
request for information concerning a matter in relation to the provision
of the Services and/or a request to retrieve specific documents and
other papers, the Service Provider reserves the right to charge for such
services.
NOTICES
15. Any notice to be given by any party to this Agreement to any other
should be sent by post or by fax (at the sender's option) to the
recipient at its address or fax number set out under its signature below
(or at such other address or fax number as shall have been notified in
writing for such purpose by the recipient). Any such notice shall be
deemed to have been served (if posted) three business days after posting
or (if sent by fax) on production by the sender's fax machine of a
confirmation of transmission in full.
VARIATION
16. Any amendment, variation or waiver of the terms of this Agreement shall
be made in writing and shall be signed by or on behalf of each of the
parties hereto.
COUNTERPARTS
17. This Agreement may be executed in any number of counterparts, and by the
different parties hereto on the same or separate counterparts, each of
which shall be deemed to be an original and all of which when taken
together shall constitute one and the same agreement.
ASSIGNMENT
18. The Service Provider shall not be entitled to assign all or any of its
rights or benefits or to transfer any of its obligations hereunder
provided that the Service Provider shall be entitled to delegate the
performance of the Services pursuant to Clause 4.
GOVERNING LAW
19. This Agreement shall be governed by and construed in accordance with the
laws of Jersey and the parties submit to the non exclusive jurisdiction
of the courts of Jersey in all matters arising out of or in connection
with this Agreement.
IN WITNESS WHEREOF the parties hereto have entered into this Agreement on the
date first above written.
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THE SCHEDULE
Services to be provided by the Service Provider are as follows:-
(1) perform all general company secretarial, registrar and company
administration services for the Company (other than such services as
shall be rendered to the Company pursuant to the Transaction Documents),
including the provision of at least two directors and a secretary of the
Company;
(2) as and when requested by any director or the auditors, provide the
directors or the auditors (as the case may be) with such information in
connection with the Company as may be in the possession of the Service
Provider or as may be reasonably obtained by it;
(3) keep duplicate copy accounts of the Company provided by the directors
(provided always that except where the Service Provider provides all the
directors of the Company, the Service Provider shall have no
responsibility for verifying the accuracy thereof and shall rely upon
the information provided by the directors) and such books and records as
are required by any applicable law or otherwise for the proper conduct
of the affairs of the Company and, upon instructions from the directors,
prepare for forwarding to members of the Company all statements and
notices which the board is required to issue, send or serve in
accordance with the Articles of Association of the Company;
(4) give any necessary directions and information as instructed by the
directors to any agents appointed by the directors pursuant to the
Articles of Association of the Company;
(5) provide an adequate staff and other facilities in the Island (including
the provision of the Company's registered office, telephone and
facsimile transmission facilities) for efficiently performing its
functions as Service Provider and carrying on its duties hereunder
(provided that neither the Company nor its directors shall be entitled
to the exclusive use of such accommodation);
(6) keep the common seal of the Company and the register of shareholders,
issue share certificates, effect transfers and file timeously (insofar
as the directors have duly approved, signed and delivered the same and
monies in respect of applicable fees are made available by or on behalf
of the Company) the Annual Return of shareholders, annual applications
for exempt company status and any other applicable statutory returns and
exempt company tax filings in the Island;
(7) arrange for the convening of shareholders' and directors' meetings of
the Company as and when required, provide facilities for holding such
meetings in the Island and prepare and keep minutes of such meetings;
(8) accept service of process and any other documents or notices to be
served on the Company in the Island; and
(9) provide such other corporate administration services as may be required
by the Company from time to time and agreed by the Service Provider.
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SIGNED by )
for and on behalf of XXXXXX )
TRUST COMPANY LIMITED )
Address for Notices: 00 Xxx Xxxxxx,
Xx. Xxxxxx,
Xxxxxx XX0 0XX
Fax: 44 1534 814815
SIGNED by )
for and on behalf of TURQUOISE )
FUNDING 1 LIMITED )
Address for Notices: 00 Xxx Xxxxxx,
Xx. Xxxxxx,
Xxxxxx XX0 0XX
Fax: 44 1534 814815
SIGNED by )
for and on behalf of HSBC BANK PLC )
Address for Notices: Xxxxx 0,
0 Xxxxxx Xxxxxx,
Xxxxxx,
X00 0XX
Attention: HSBC Card Services
Fax: 44 20 7991 4663
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