XXXXXXXX LIMITED LIABILITY PARTNERSHIP
CHANCE
CONFORMED COPY
TURQUOISE CARD BACKED SECURITIES PLC
as Issuer
and
HSBC BANK PLC
as Issuer Account Bank
and
LAW DEBENTURE TRUST COMPANY OF NEW YORK
as Note Trustee
----------
ISSUER DISTRIBUTION
ACCOUNT BANK AGREEMENT
----------
CONTENTS
CLAUSE PAGE
------ ----
1. Interpretation...................................................... 1
2. The Account......................................................... 2
3. Mandate............................................................. 3
4. Acknowledgement By HSBC Bank plc.................................... 3
5. Indemnity........................................................... 4
6. Termination And Resignation......................................... 5
7. Change Of Note Trustee Or Issuer Account Bank....................... 6
8. Costs............................................................... 7
SCHEDULE 1 BANK MANDATE (SERIES ISSUER DISTRIBUTION ACCOUNT)............. 8
THIS AGREEMENT is made on 23 May 2006
BETWEEN:
(1) TURQUOISE CARD BACKED SECURITIES PLC whose registered office is at c/o
Wilmington Trust SP Services (London) Limited, Tower 42 (Level 11), 00 Xxx
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (the "ISSUER");
(2) HSBC BANK PLC whose registered office is at 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX
(the "ISSUER ACCOUNT BANK"); and
(3) LAW DEBENTURE TRUST COMPANY OF NEW YORK, acting through its New York branch
whose principal place of business is at 000 Xxxxx Xxxxxx - 31st floor, New
York, New York 10017 (the "NOTE TRUSTEE", which expression shall include
its successors as Note Trustee pursuant to the Note Trust Deed).
IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this Agreement or the context requires
otherwise, words and expressions used in this Agreement have the meanings
and constructions ascribed to them in the Master Definitions Schedule set
out in Schedule 1 (Master Definitions Schedule) of the Issuer Master
Framework Agreement which is dated on or about the date of this Agreement
and signed for the purpose of identification by, amongst others, each of
the parties to this Agreement.
1.2 INCORPORATION OF COMMON TERMS
The Common Terms apply to this Agreement and shall be binding on the
parties to this Agreement as if set out in full in this Agreement.
1.3 CONFLICT WITH COMMON TERMS
If there is any conflict between the provisions of the Common Terms and the
provisions of this Agreement, the provisions of this Agreement shall
prevail.
1.4 ADDITIONAL DEFINITIONS
"ELECTRONIC MEANS" means in respect of transfers of sterling amounts, by
way of CHAPS or such other system(s) as may replace it and in respect of
transfers of dollar amounts, by way of SWIFT or such other system(s) as may
replace it, or any other electronic messaging or transfer system as may be
agreed in writing between the parties hereto;
"LEDGER" means in respect of each Series, any of the ledgers regarding
amounts debited from and credited to the relevant Series Issuer
Distribution Account of such Series and any sub-ledgers and further
sub-ledgers thereof relating to any Class or Sub-Class.
"SERIES ISSUER DISTRIBUTION ACCOUNT" means, with respect to each Series,
(together with any redesignation or sub-account thereof or any replacement
therefor with any bank which is a Qualifying Institution), each account
designated the "Turquoise Card Backed Securities plc - Series Issuer
Distribution Account" and designated with reference to the
-1-
number of such Series or any account which replaces such account and held
at any branch of the Issuer Account Bank;
1.5 OBLIGOR/OBLIGEE
1.5.1 Paragraph 1 (Further Assurance) of the Common Terms applies to this
Agreement as if set out in full in this Agreement and as if the
Issuer and the Issuer Account Bank were the Obligor and the Note
Trustee were the Obligee for the purposes of such Paragraph.
1.5.2 Limited recourse and non-petition
The provisions of Paragraph 8 (Non-Petition) of the Common Terms
apply to this Agreement as if set out in full in this Agreement.
1.6 GOVERNING LAW AND JURISDICTION
This Agreement and all matters arising from or connected with it shall be
governed by English law in accordance with Paragraph 26 (Governing Law) of
the Common Terms. Paragraph 27 (Jurisdiction) of the Common Terms applies
to this Agreement as if set out in full in this Agreement.
1.7 REPRESENTATIONS AND WARRANTIES
The Issuer gives certain representations and warranties to the Note Trustee
on the terms set out in Schedule 4 (Issuer's Representations and
Warranties) of the Issuer Master Framework Agreement.
1.8 COVENANTS
The Issuer covenants with the Note Trustee on the terms set out in Schedule
5 (Issuer Covenants) of the Issuer Funding Master Framework Agreement.
1.9 The headings in this Agreement shall not affect its interpretation.
1.10 Words denoting the singular number only shall include the plural number
also and vice versa; words denoting one gender only shall include the other
genders and words denoting persons only shall include firms and
corporations and vice versa.
1.11 References to this or any other agreement or document include any amendment
or supplement thereto or variation thereof for the time being having
effect.
1.12 The parties hereto acknowledge that references to the Note Trust Deed in
this Agreement are for definition purposes only and that (other than as
expressly provided herein) the Issuer Account Bank, in its capacity as the
account operating bank under this Agreement, shall not be deemed to have
notice of its terms.
2. THE ACCOUNT
2.1 Prior to the occurrence of an Event of Default in respect of a Series and
subject to Clause 4.2, the Issuer Account Bank shall comply with any
direction of the Issuer or its Delegate with respect to the Series Issuer
Distribution Account of each Series provided that such direction shall:
(a) be in writing; and
-2-
(b) comply with the relevant Mandate.
Notwithstanding the provisions of this Clause 2.1 amounts shall only be
withdrawn from the relevant Series Issuer 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 Issuer Account Bank shall have received cleared funds.
2.2 The Issuer Account Bank agrees that if directed pursuant to Clause 2.1
above to make any payment, and provided such direction is given by the
Issuer, 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 provided that if
any direction is received by the Issuer Account Bank later than 2.00 p.m.
(London time) on any Business Day the Issuer 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 The charges of the Issuer Account Bank (if any) for the operation of the
relevant Series Issuer Distribution Account of each Series shall not be
debited from the relevant Issuer Distribution Account but shall be payable
by the Issuer within 30 days or less of receipt of a written invoice and
charged by the Issuer Account Bank to the Issuer on the same basis and at
the same rates as are generally applicable to its business customers and
the Issuer Account Bank hereby acknowledges that it will have no recourse
by way of set-off or otherwise against any funds standing to the credit the
relevant Series Issuer Distribution Account of each Series or against any
party hereto other than the Issuer in respect of the said charges.
3. MANDATE
The Issuer has agreed to deliver a Mandate with respect to each Series
Issuer Distribution Account for each Series to the Issuer Account Bank
(with a copy to the Note Trustee) and the Issuer Account Bank will confirm
to the Issuer and the Note Trustee with respect to each Mandate:
(a) receipt by it of the relevant Mandate from the Issuer; and
(b) that the Mandate is operative and supersedes any previous mandates or
arrangements relating to the relevant Series Issuer Distribution
Account of the Series.
4. ACKNOWLEDGEMENT BY HSBC BANK PLC
4.1 Notwithstanding anything to the contrary in the relevant corresponding
Mandate, the Issuer Account Bank hereby:
(a) acknowledges that pursuant to the Note Trust Deed and each relevant
Note Trust Deed Supplement the Issuer intends to assign, with respect
to each Series, its rights, title and interest in the Issuer
Distribution Account of such Series to the Note Trustee by way of
security; and
-3-
(b) subject to execution by the Issuer of the Note Trust Deed and each
relevant Note Trust Deed Supplement (such execution to be notified by
the Issuer to the Issuer Account Bank), waives any right it has or
may hereafter acquire to combine, consolidate or merge the relevant
Series Issuer Distribution Account with any other account of the
Issuer or any other person or any liabilities of the Issuer or any
other person to the Issuer 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 Issuer Distribution Account in or
towards or conditionally upon satisfaction of any liabilities to it
of the Issuer or any other person.
4.2 Notwithstanding anything to the contrary in the relevant Mandate or the
Bank Account Operating Agreement, the Issuer Account Bank hereby agrees
(with the consent of the Issuer):
(a) 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 Issuer Distribution Account with respect to each
Series and the Issuer Account Bank shall be entitled to rely on any
such direction purporting to have been given on behalf of the Note
Trustee without enquiry; and
(b) after the occurrence of an Event of Default in relation to a
particular Series that all right, authority and power of the Issuer
and the Delegate in respect of the operation of the relevant Series
Issuer Distribution Account of such Series shall be deemed to be
terminated and of no further effect and the Issuer Account Bank and
the Issuer agree that the Issuer 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 Issuer Distribution Account.
4.3 Until the Issuer Account Bank shall have been notified in writing by the
Note Trustee that none of the Notes are outstanding, the Issuer Account
Bank shall provide the Issuer with a monthly statement in respect of each
Series Issuer 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 Unless otherwise directed by the Note Trustee pursuant to Clause 4.2 above,
the Issuer Account Bank in making payment from each Series Issuer
Distribution Account, in accordance with this Agreement, shall be entitled
to act as directed by the Issuer pursuant to Clause 2.1 above and to rely
as to the amount of any such transfer or payment on the instruction of the
Issuer in accordance with the relevant Mandate and the Issuer Account Bank
shall have no liability for any loss, injury or consequence suffered or
incurred by the Issuer for any action taken as a consequence of relying on
any such instruction except in the case of the Issuer Account Bank's wilful
default, negligence, fraud or unremedied breach of this Agreement.
-4-
5.2 The Issuer shall indemnify the Issuer Account Bank against any loss, cost,
damage, charge or expense incurred by the Issuer Account Bank in complying
with any direction of the Issuer or the Note Trustee as the case may be,
delivered pursuant to and in accordance with this Agreement, save that this
indemnity shall not extend to:
(a) the charges of the Issuer Account Bank (if any) for the operation of
each Series Issuer Distribution Account; and
(b) any loss, cost, damage, charge or expense arising from any breach by
the Issuer Account Bank of its obligations under this Agreement.
6. TERMINATION AND RESIGNATION
6.1 RESIGNATION
The Issuer Account Bank may resign its appointment upon not less than 4
weeks' notice to the Issuer (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 Issuer Account
Bank) or Clause 6.6 (Issuer Account Bank may appoint Successors).
6.2 TERMINATION
The Issuer may (with the prior written approval of the Note Trustee) revoke
its appointment of the Issuer Account Bank by not less than 30 days' notice
to the Issuer 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 Issuer Account Bank) or Clause 6.6 (Issuer Account
Bank may appoint Successors).
6.3 AUTOMATIC TERMINATION
The appointment of the Issuer Account Bank shall terminate forthwith if an
Insolvency Event occurs in relation to the Issuer Account Bank. If the
appointment of the Issuer Account Bank is terminated in accordance with
this provision, the Issuer shall forthwith appoint a successor in
accordance with Clause 6.5 (Successor Issuer Account Bank).
6.4 QUALIFIED INSTITUTION
In the event that the Issuer Account Bank ceases to be a Qualified
Institution, the Issuer Account Bank shall immediately give notice of that
fact to the Note Trustee and the Issuer. As soon as practicable thereafter
and in any event within 30 days of such notice, the Issuer Account Bank
shall transfer the closing credit balance of each Series Issuer
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 Qualified Institution, approved by the Note Trustee.
-5-
6.5 SUCCESSOR ISSUER ACCOUNT BANK
The Issuer may (with the prior written approval of the Note Trustee)
appoint a successor Issuer Account Bank and shall forthwith give notice of
any such appointment to the Note Trustee, whereupon the Issuer and the Note
Trustee and the successor Issuer 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 Agreement. Any successor Issuer Account Bank appointed by the Issuer
shall be a Qualified Institution.
6.6 ISSUER ACCOUNT BANK MAY APPOINT SUCCESSORS
If the Issuer 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 Issuer Account Bank), the Issuer Account Bank may
itself, following such consultation with the Issuer as is practicable in
the circumstances and with the prior written approval of the Note Trustee,
appoint as its successor any Qualified Institution. The Issuer Account Bank
shall give notice of such appointment to the Issuer and the Note Trustee
whereupon the Issuer 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 Agreement.
6.7 MERGER
6.7.1 Successor through merger: Any legal entity into which the Issuer
Account Bank is merged or converted or any legal entity resulting
from any merger or conversion to which such the Issuer Account Bank
is a party shall, to the extent permitted by applicable law, be the
successor to the Issuer Account Bank without any further formality.
6.7.2 Rights and obligations upon merger: In the event of such a merger or
conversion the Issuer 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 Agreement.
6.7.3 Notice of merger: Notice of any such merger or conversion shall
forthwith be given by such successor to the Issuer and the Note
Trustee.
7. CHANGE OF NOTE TRUSTEE OR ISSUER ACCOUNT BANK
7.1 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
Issuer 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 Issuer Account Bank and the
outgoing Note Trustee or Issuer Account Bank may require for the purpose of
vesting in the new Note Trustee or Issuer Account Bank the rights and
obligations of the outgoing Note Trustee or Issuer Account Bank, and
releasing the outgoing Note Trustee or Issuer Account Bank from its future
obligations under this Agreement.
-6-
7.2 In the event of any termination under Clause 6 (Termination and
Resignation) the Issuer 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 Issuer's
banking arrangements.
8. COSTS
The Issuer agrees to pay the proper costs (including proper legal costs and
expenses) of the Issuer Account Bank and of the Note Trustee in connection
with the negotiation of this Agreement and the establishment of the Account
and the negotiation and execution of any further documents and the taking
of any further action to be executed or taken pursuant to Paragraph 18
(Confidentiality) of Schedule 2 (Common Terms) of the Master Framework
Agreement.
IN WITNESS WHEREOF the parties hereto have signed and executed this Agreement on
the day and year first above written.
-7-
SCHEDULE 1
BANK MANDATE
(SERIES ISSUER DISTRIBUTION ACCOUNT)
At a duly constituted meeting of the Board of Directors of Turquoise Card Backed
Securities plc (the "COMPANY") held at the registered office of the Company on
22 May 2006.
IT WAS RESOLVED that:
1. The Company ratify the opening of the account number 00000000 sort code
40-05-15 in the name of the Company designated the "Turquoise Card Backed
Securities plc- Series 2006-1 Issuer Distribution Account" (the "SERIES
ISSUER DISTRIBUTION ACCOUNT") held with HSBC Bank plc (the "ISSUER ACCOUNT
BANK" for the purpose of this mandate) at 0 Xxxxxx Xxxxxx, Xxxxxx, X00 0XX
and that the Series Issuer Distribution Account be used as an account for
the benefit of the Company.
2. Terms defined in the Issuer Distribution Account Bank Agreement entered
into on or about 23 May 2006 between the Company, Law Debenture Trust
Company of New York (the "NOTE TRUSTEE") and the Issuer Account Bank (the
"ISSUER DISTRIBUTION ACCOUNT BANK AGREEMENT") have the same meanings
herein, unless otherwise defined herein or as the context otherwise
requires.
3. In relation to the Series Issuer Distribution Account, the Issuer Account
Bank is hereby authorised to honour and comply with all cheques, drafts,
bills, payments by way of the Clearing House Automated Payment System,
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 Issuer Distribution Account opened pursuant to the
Series Issuer Distribution Issuer 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 schedule attached to
these Resolutions OR THAT any directions or orders are received by the
Issuer Account Bank by means of secure facsimile transmission that includes
the signal number authentication code supplied to the Issuer.
4. Notwithstanding Resolution 3 above, the Issuer 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
Issuer Distribution Account unless notified otherwise in writing by the
Company.
5. The mandates given to the Issuer Account Bank by virtue of these
resolutions shall, subject as provided in Resolution 6 below, remain in
force, unless and until the Issuer Account Bank has received from the Note
Trustee notice to the contrary (the "NOTE TRUSTEE'S NOTICE").
6. If the Issuer 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 Issuer 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 persons specified by the Note
-8-
Trustee in the Note Trustee's Notice or as otherwise agreed or directed by
the Note Trustee hereafter.
7. The Issuer Account Bank be supplied with the list of names of Directors,
the Secretary and other officers of the Company and the Issuer 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 Issuer 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 Issuer Account Bank.
I hereby certify the above to be a true extract from the Minutes of the said
Meeting.
---------------------------
Director
-9-
SCHEDULE
LIST OF SIGNATORIES
NAMES SPECIMEN SIGNATURE
[o]
-10-
EXECUTION PAGE
THE ISSUER
EXECUTED by
TURQUOISE CARD BACKED SECURITIES PLC
By: XXXX XXXXXX
Director
ISSUER ACCOUNT BANK
EXECUTED by
HSBC BANK PLC
By: XXXX XXXXX
-----------------------------------
Authorised Signatory
THE NOTE TRUSTEE
LAW DEBENTURE TRUST
COMPANY OF NEW YORK AS NOTE TRUSTEE
By XXXXXXX X. XXXXX
-----------------------------------
Name XXXXXXX X. XXXXX
Title VICE PRESIDENT
-11-
