X X X X X X X X LIMITED LIABILITY PARTNERSHIP
C H A N C E
CONFORMED COPY
HSBC BANK PLC
as Transferor Beneficiary
AND
TURQUOISE FUNDING 1 LIMITED
TURQUOISE FUNDING 2 LIMITED
as Investor Beneficiaries
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BENEFICIARIES DEED
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CONTENTS
CLAUSE PAGE
1. Interpretation.............................................................3
2. Agreement Of Beneficiaries.................................................4
3. Miscellaneous Provisions...................................................6
THIS BENEFICIARIES DEED is made in Jersey, Channel Islands on 23 May 2006 as a
Deed
BY AND BETWEEN:
(1) HSBC BANK PLC, a public limited liability company registered in England
and Wales (registered number 14259) having its registered office at 0
Xxxxxx Xxxxxx, Xxxxxx, X00 0XX (the "TRANSFEROR BENEFICIARY").
(2) TURQUOISE FUNDING 1 LIMITED, a private limited liability company
incorporated in Jersey, Channel Islands, with registration number 92327
and having its registered office at 00 Xxx Xxxxxx, Xx Xxxxxx, Xxxxxx
(the "LOAN NOTE ISSUER" and an "INVESTOR BENEFICIARY").
(3) TURQUOISE FUNDING 2 LIMITED, a private limited liability company
incorporated in Jersey, Channel Islands, with registration number 92329
and having its registered office at 00 Xxx Xxxxxx, Xx Xxxxxx, Xxxxxx
(the "DORMANT INVESTOR BENEFICIARY" and an "INVESTOR BENEFICIARY").
(and together the Transferor Beneficiary, the Loan Note Issuer and the Dormant
Investor Beneficiary being the "BENEFICIARIES" and each a "BENEFICIARY").
WHEREAS:
(A) The parties hereto are, inter alios, parties to a Receivables Trust Deed
and Servicing Agreement dated on or about 23 May 2006, as amended or
varied from time to time, (the "RTDSA") pursuant to which, inter alia,
the Receivables Trust was constituted and the Receivables Trustee holds
all Trust Property on trust for the beneficiaries described therein.
(B) This Deed sets out certain agreements between the parties regarding
matters in relation to which, pursuant to the terms and conditions of
the RTDSA, any authorisation, direction, consent, waiver or any other
act is needed to be given by an Investor Beneficiary (whether acting on
its own or acting together with any other Beneficiaries).
(C) The parties intend that this Deed shall be without prejudice to the
absolute beneficial entitlement of each of them (as against the
Receivables Trustee) to the Trust Property as set out in the RTDSA and
any applicable Supplement.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Whenever used in this Deed and in the recitals hereto, the words and
phrases defined in the Master Definitions Schedule set out in Schedule 6
of the Receivables Trust Deed and Servicing Agreement of even date
herewith, as amended, shall, unless otherwise defined herein or the
context requires otherwise, bear the same meaning herein.
1.2 Clause headings are for ease of reference only and do not form part of
this Deed.
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2. AGREEMENT OF BENEFICIARIES
2.1 DISPOSAL OF BENEFICIAL ENTITLEMENT UNDER THE RECEIVABLES TRUST BY OTHER
BENEFICIARIES
2.1.1 Each Investor Beneficiary hereby agrees that in respect of the
giving of its consent in the circumstances described in Clause
4.3(a)(ii) of the RTDSA, that it will give its consent in
accordance with the direction of the Investor Beneficiary
proposing such disposal.
2.1.2 The Transferor Beneficiary hereby agrees that in respect of the
giving of its consent in the circumstances described in Clause
4.3(a)(ii) of the RTDSA, that it will give its consent in
accordance with the direction of the Investor Beneficiary
proposing such disposal (such consent not be unreasonably
withheld) provided that following the occurrence of any of the
Trust Pay Out Events specified in Clause 6.1(a), 6.1(b) or
6.1(c), the consent of the Transferor Beneficiary shall be given
immediately upon request.
2.2 CONTRIBUTIONS AND ADDITIONAL BENEFICIARIES
Each existing Investor Beneficiary hereby agrees in respect of the
giving of its consent pursuant to Clause 4.5(a) of the RTDSA in the
circumstances described in Clause 4.4 (Contributions and Additional
Beneficiaries) of the RTDSA, that it will give its consent in accordance
with the direction of the Transferor Beneficiary.
2.3 APPOINTMENT OF CO-RECEIVABLES TRUSTEE OR SEPARATE RECEIVABLES TRUSTEE
Each existing Investor Beneficiary hereby agrees in respect of the
giving of its consent in the circumstances described in Clause 7.6(a) of
the RTDSA, that it will give its consent in accordance with the
direction of the Transferor Beneficiary PROVIDED THAT it will not be
obliged to give its consent if the proposed appointment is a result of a
Material Adverse Effect resulting from the nature or status of the
Receivables Trustee or the Receivables Trust.
2.4 COVENANTS BY THE RECEIVABLES TRUSTEE
Each existing Investor Beneficiary hereby agrees that in respect of the
giving of its consent in the circumstances described in Clause 7.13(a)
of the RTDSA other than in respect of Permitted Activities, that it will
give its consent in accordance with the direction of the Transferor
Beneficiary PROVIDED THAT it will not be obliged to give its consent if
the proposed circumstance is a result of a Material Adverse Effect
resulting from the nature or status of the Receivables Trustee or the
Receivables Trust.
2.5 WAIVER OF PAST DEFAULTS
Each existing Investor Beneficiary and the Transferor Beneficiary hereby
agree that where an Investor Beneficiary is adversely affected by a
default of the Servicer or the Transferor in the circumstances described
in Clause 11.5 of the RTDSA, such Investor Beneficiary must represent
not less than 66 per cent. of the Investor Interest of each Outstanding
Issuance in order to instruct the Receivables Trustee to waive in
writing any default by the Servicer or the Transferor.
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2.6 AMENDMENT
(a) Subject to Clause 2.6(b) below, each existing Investor
Beneficiary hereby agrees that in respect of the giving of its
consent in the circumstances described in Clause 12.2(a) of the
RTDSA, that it will give its consent in accordance with the
direction of the Transferor Beneficiary.
(b) Each Investor Beneficiary and the Transferor Beneficiary agrees
that in respect of the giving of consent in the circumstances
described in Clause 12.2(a) of the RTDSA in the case of a
material amendment to the Permitted Activities of the
Receivables Trustee, the prior written consent of the Investor
Beneficiaries representing in aggregate not less than 50% of the
aggregate of the Investor Interests of all Outstanding Issuance
materially affected by such amendment shall be required.
2.7 ASSIGNMENT
Each existing Investor Beneficiary and the Transferor Beneficiary hereby
agree that where the Investor Beneficiaries seek to require the
Receivables Trustee to consent in the circumstances described in Clause
12.7 (Assignment) of the RTDSA, such Investor Beneficiaries must
represent in aggregate not less than 66 2/3% of the Combined Aggregate
Investor Interest.
2.8 EXERCISE OF RIGHTS BY TRANSFEROR BENEFICIARY
The Transferor Beneficiary hereby agrees with each existing Investor
Beneficiary that it shall not exercise any beneficial rights or
entitlements it may have to Ineligibles Bare Trust Property pursuant to
the RTDSA or any Supplement thereto in such a way as to prejudice the
beneficial rights or entitlements of any Beneficiary to Undivided Bare
Trust Property in the Undivided Bare Trust of the Receivables Trust.
2.9 OPTIONAL AMORTISATION
Each existing Investor Beneficiary and the Transferor Beneficiary hereby
agree that upon the request of the Transferor Beneficiary to issue an
optional amortisation notice pursuant to the provisions of any
Supplement, the following shall occur:
(a) each Investor Beneficiary to the extent the proceeds of any
increase in the Investor Interest of an existing Series or the
creation of an Investor Interest in respect of a new Series
would not be used to reduce the Investor Interest of any Series
will agree to an optional amortisation of the Investor Interest
and to the issue of such notice and will promptly sign such
notice upon the request of the Transferor Beneficiary; and
(b) each Investor Beneficiary, to the extent the proceeds of any
increase in the Investor Interest of an existing Series or the
creation of an Investor Interest in respect of a new Series
would be used to reduce the Investor Interest of any Series,
will only agree to a optional amortisation of the Investor
Interest of
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such Series if it obtains the consent of the holders of the
Associated Debt in respect of such Series (such consent not to
be unreasonably withheld).
2.10 PARTIAL AMORTISATION
Each existing Investor Beneficiary and the Transferor Beneficiary hereby
agree that upon request of the Transferor Beneficiary to issue a partial
amortisation notice to the Receivables Trustee in the form provided by
the Transferor Beneficiary pursuant to the provisions of any Supplement,
it will agree to a partial amortisation of the Investor Interest and to
the issue of a partial amortisation notice to the Receivables Trustee in
the form provided by the Transferor Beneficiary and will promptly sign
such notice upon the request of the Transferor Beneficiary.
2.11 ACCELERATED AMORTISATION PERIOD
Each existing Investor Beneficiary and the Transferor Beneficiary hereby
agree that upon request of the Transferor Beneficiary to issue an
accelerated amortisation period notice to the Receivables Trustee in the
form provided by the Transferor Beneficiary pursuant to the provisions
of any Supplement, it will agree to a commencement of an accelerated
amortisation period of the Investor Interest and to the issue of an
accelerated amortisation period notice to the Receivables Trustee in the
form provided by the Transferor Beneficiary and will promptly sign such
notice upon the request of the Transferor Beneficiary.
3. MISCELLANEOUS PROVISIONS
3.1 AMENDMENTS
This Deed may not be amended other than with the agreement in writing of
all parties hereto.
3.2 GOVERNING LAW AND JURISDICTION
3.2.1 This Deed shall be governed by, and construed in accordance with
the laws of England and Wales and the obligations, rights and
remedies of the parties hereunder shall be determined in
accordance with such laws.
3.2.2 JURISDICTION
(a) Each existing Investor Beneficiary and the Transferor
Beneficiary irrevocably agree for the benefit of each
other that the courts of England and Wales shall have
non-exclusive jurisdiction to hear and determine any suit,
action or proceeding, and to settle any disputes, which
may arise out of or in connection with this Deed, and for
such purpose, irrevocably submit to the jurisdiction of
such courts.
(b) Each existing Investor Beneficiary and the Transferor
Beneficiary irrevocably waive any objection which they
might now or hereafter have to the courts of England and
Wales referred to above being nominated as the forum to
hear and determine any suit, action or proceeding, and to
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settle any disputes, which may arise out of or in
connection with this Deed and agree not to claim that any
such court is not a convenient or appropriate forum.
(c) The submission to the jurisdiction of the courts of
England and Wales referred to above shall not (and shall
not be construed so as to) limit the right of any person
to take proceedings against each existing Investor
Beneficiary or the Transferor Beneficiary in any other
court of competent jurisdiction nor shall the taking of
proceedings in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction, whether
concurrently or not if and to the extent permitted by
applicable law.
(d) Each party hereto (if it is not incorporated in England
and Wales) irrevocably appoints the persons specified
against its name on the execution pages hereto to accept
service of any process on its behalf and further
undertakes to the other parties hereto that it will at all
times during the continuance of this Deed maintain the
appointment of some person in England and Wales as its
agent for the service of process and irrevocably agrees
that service of any writ, notice or other document for the
purpose of any suit, action or proceeding in the English
courts shall be duly served upon it if delivered or sent
by registered post to the address of such appointee (or to
such other address in England and Wales as that party may
notify to the other parties hereto).
3.3 COUNTERPARTS
This Deed may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same instrument.
3.4 ENTIRE AGREEMENT
Except as specifically stated otherwise herein, this Deed sets forth the
entire understanding of the parties relating to the subject matter
hereof, and all prior understandings between the parties, written or
oral, are superseded by this Deed. This Deed may not be modified,
amended, waived or supplemented except as provided herein.
3.5 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Deed and no such person shall have any right or remedy pursuant to or by
virtue of any provisions of this Deed.
3.6 NO AGENCY, TRUST, FIDUCIARY OR JOINT VENTURE RELATIONSHIP
Nothing in this Deed shall result in the creation of any agency, trust,
fiduciary or joint venture relationship between the existing Investor
Beneficiaries and the Transferor
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Beneficiary nor shall any covenants, duties, responsibilities,
obligations or liabilities which are not expressly set out herein be
implied in this Deed or otherwise exist against the existing Investor
Beneficiaries or the Transferor Beneficiary.
IN WITNESS WHEREOF, HSBC Bank plc (in its capacity as Transferor Beneficiary),
the Loan Note Issuer and the Dormant Investor Beneficiary have caused this Deed
to be duly executed and delivered by their duly authorised representatives on
the day and year first above written.
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EXECUTION PAGE
TRANSFEROR BENEFICIARY
EXECUTED AS A DEED )
By XXXXXXX XXXXXXXX ) XXXXXXX XXXXXXXX
acting as attorney )
for and on behalf of )
HSBC BANK PLC )
in the presence of: )
Signature of witness: XXXXXX XXXXXXXXXX
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Name of witness: XXXXXX XXXXXXXXXX
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Address: 8 CANADA SQ, LONDON
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Occupation: LEGAL ADVISER
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LOAN NOTE ISSUER
Executed as a deed by )
TURQUOISE FUNDING 1 LIMITED ) S.M. HOLLYWOOD
) DIRECTOR
PROCESS AGENT
Xxxxxxxx Chance Secretaries Limited
00 Xxxxx Xxxx Xxxxxx
Xxxxxx X00 0XX
DORMANT INVESTOR BENEFICIARY
Executed as a deed by )
TURQUOISE FUNDING 2 LIMITED )
) S.M. HOLLYWOOD
DIRECTOR
PROCESS AGENT
Xxxxxxxx Chance Secretaries Limited
00 Xxxxx Xxxx Xxxxxx
Xxxxxx X00 0XX
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