XXXXXXXX LIMITED LIABILITY PARTNERSHIP
CHANCE
CONFORMED COPY
TURQUOISE RECEIVABLES TRUST LIMITED
as Receivables Trustee
and
XXXXXX TRUST COMPANY LIMITED
as Trust Accounts Operator
----------
TRUST ACCOUNTS OPERATING AGREEMENT
----------
CONTENTS
CLAUSE PAGE
------ ----
1. Interpretation..................................................... 2
2. Services Provided By The Trust Accounts Operator................... 2
3. Sub-Contracting.................................................... 3
4. Agency Provisions.................................................. 3
5. Retirement Of The Trust Accounts Operator.......................... 4
6. Representations Of The Receivables Trustee......................... 5
7. Undertakings Of The Trust Accounts Operator........................ 5
8. Trust Accounts Operator's Liability And Indemnity.................. 6
9. Records And Reports................................................ 7
10. Fees Of The Trust Accounts Operator................................ 7
11. No Liability And No Petition....................................... 7
12. Benefit Of Agreement............................................... 8
13. Remedies And Waivers............................................... 8
14. Partial Invalidity................................................. 9
15. Amendments......................................................... 9
16. No Conflict Of Interest............................................ 9
17. Notices............................................................ 9
18. Counterparts....................................................... 9
19. Law................................................................ 9
20. Jurisdiction....................................................... 9
21. Rights Of Third Parties............................................ 10
THIS AGREEMENT is made the 23 May 2006
BETWEEN:
(1) TURQUOISE RECEIVABLES TRUST LIMITED, a company incorporated in Jersey with
registration number 92324 and having its registered office at 00 Xxx
Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands (as trustee of the
trust constituted by the Receivables Trust Deed and Servicing Agreement,
the "RECEIVABLES TRUSTEE"); and
(2) XXXXXX TRUST COMPANY LIMITED, whose registered office is at 00 Xxx Xxxxxx,
Xx Xxxxxx, Xxxxxx XX0 0XX (the "TRUST ACCOUNTS OPERATOR").
WHEREAS
(A) Pursuant to the terms and subject to the conditions of the Receivables
Securitisation Deed and the Receivables Trust Deed and Servicing Agreement,
HSBC Bank plc as Transferor may from time to time offer to sell by way of
assignment certain of the Receivables to the Receivables Trustee and the
Receivables Trustee may from time to time accept any such offer in the
manner provided in the Receivables Securitisation Deed. In connection with
any such Receivables which may be assigned, the Receivables Trustee has
entered into a declaration of trust on the terms set out in the Receivables
Trust Deed and Servicing Agreement.
(B) The Receivables Securitisation Deed and the Receivables Trust Deed and
Servicing Agreement contemplate (and any related Supplement may also so
contemplate) that in various circumstances specified therein the
Receivables Trustee will exercise certain rights and powers in relation to
the Trust Accounts and other matters referred to herein.
(C) Pursuant to the terms and subject to the conditions of this Agreement, the
Receivables Trustee and the Trust Accounts Operator have agreed that the
Receivables Trustee will constitute the Trust Accounts Operator as the
Trust Accounts Operator of the Receivables Trust and the Receivables
Trustee will accordingly entrust the matters referred to in recital (B) to
the Trust Accounts Operator.
(D) The Receivables Trustee hereby acknowledges that it has also appointed the
Trust Accounts Operator as its Corporate Services Provider.
-1-
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
In this Agreement and the Recitals, terms defined in the master definitions
schedule attached as schedule 6 to the Receivables Trust Deed and Servicing
Agreement dated on or about 23 May 2006 (as amended) (the "MASTER
DEFINITIONS SCHEDULE") shall bear the same meaning herein, and all other
references shall be construed in accordance therewith, and the following
terms shall have the following meanings except to the extent that the
context otherwise requires:
"BUSINESS DAY" means a week-day (other than a Saturday or Sunday) when
clearing banks are open for business in London and Jersey.
"TRUST ACCOUNTS BANK" means HSBC Bank plc.
2. SERVICES PROVIDED BY THE TRUST ACCOUNTS OPERATOR
2.1
(a) The Receivables Trustee appoints the Trust Accounts Operator to act as
its account operator in order to implement, administer and carry out
those responsibilities and obligations of, or with respect to, the
Receivables Trustee which are set out in paragraph (b) below under and
in connection with the Receivables Securitisation Deed, the
Receivables Trust Deed and Servicing Agreement, any related Supplement
and any documents and/or any matter contemplated by any of the said
documents.
(b) The authority granted to and obligations accepted by the Trust
Accounts Operator pursuant to paragraph (a) shall comprise the
following:
(i) giving directions in relation to the movement of monies from the
Trust Accounts following advice from the Servicer;
(ii) subject to this Agreement, implementing any directions of the
Receivables Trustee in relation to the Trust Accounts;
(iii) dealing with third parties (including HSBC Bank plc in its
various capacities (including as Trust Accounts Bank), the
Beneficiaries, any Enhancement Provider, any substitute
servicer, and any other Person);
(iv) subject always to the Transaction Documents, taking or
refraining from taking any other action whatsoever in relation
to the Trust Accounts and the movement of monies thereon which
may be taken or not taken, pursuant to the Transaction
Documents, by the Receivables Trustee or the Trust Accounts
Operator; and
(v) any other activities by agreement between the Receivables
Trustee (or any Person acting on its behalf) and the Trust
Accounts Operator.
-2-
In each case for and on behalf of the Receivables Trustee as
contemplated in the Receivables Securitisation Deed, the Receivables
Trust Deed and Servicing Agreement and any related Supplement.
2.2 The Trust Accounts Operator hereby agrees:
(a) save as provided herein, not to enter into, on behalf of the
Receivables Trustee, any commitments, loans or obligations or
otherwise restrict or dispose of the Receivables Trustee's property or
assets and subject to law, regulation or order of any court generally
not to take any action which would be inconsistent with the business
of the Receivables Trustee or in breach of the Receivables Trustee's
constitutive documents or in breach of any of the Transaction
Documents to which the Receivables Trustee is or becomes a party; and
(b) to keep confidential all documents, materials and other information
relating to the business of the Receivables Trustee and not to
disclose any of the aforesaid to any person other than the Receivables
Trustee without the prior consent of the Receivables Trustee unless
required to do so by 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 Receivables Trustee (or the
Trust Accounts Operator) pursuant to the Transaction Documents, or the
exercise of their rights thereunder, is permitted.
PROVIDED THAT nothing in this Clause 2.2 shall obligate the Trust Accounts
Operator to carry out any duties in relation to the Transaction Documents
to which the Receivables Trustee is or becomes a party which have been
delegated by the Receivables Trustee specifically to other persons pursuant
to such Transaction Documents.
3. SUB-CONTRACTING
The Trust Accounts Operator may appoint any company in the same group of
companies as the Trust Accounts Operator as its sub-agent, sub-contractor
or representative to carry out or to assist the Trust Accounts Operator to
carry out all or any part of the services to be provided by it under this
Agreement. No such delegation shall relieve the Trust Accounts Operator of
its obligations under this Agreement.
4. AGENCY PROVISIONS
4.1 The Trust Accounts Operator may rely upon any communication or document
reasonably believed by it to be genuine.
4.2 The Trust Accounts Operator shall promptly inform the Receivables Trustee
of the contents of any notice or document received by it from any of the
parties to any of the Transaction Documents to which the Receivables
Trustee is or becomes a party which the Trust Accounts Operator considers
to be extraordinary in the context of the Receivables Trustee's day-to-day
operation.
4.3 Notwithstanding anything to the contrary expressed or implied herein, the
Trust Accounts Operator shall not:
-3-
(a) be bound to account to the Receivables Trustee for any sum or the
profit element of any sum received by it for its own account; or
(b) be bound to disclose to any other person any information relating to
the Receivables Trustee 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 The Trust Accounts Operator does not accept any responsibility for the
legality, validity, effectiveness, adequacy or enforceability of any of the
Transaction Documents.
5. RETIREMENT OF THE TRUST ACCOUNTS OPERATOR
5.1 The Trust Accounts Operator may retire its appointment hereunder at any
time without assigning any reason therefor by giving written notice to that
effect to the Receivables Trustee provided that the retirement of the Trust
Accounts Operator shall not be effective until a replacement acceptable to
the Receivables Trustee (such acceptance not to be unreasonably withheld)
for the Trust Accounts Operator is appointed and has agreed to act as the
Trust Accounts Operator for the purposes hereof.
5.2 The Receivables Trustee:
(a) may require the Trust Accounts Operator to retire its appointment
hereunder at any time by giving written notice to that effect to the
Trust Accounts Operator (provided that the retirement shall not be
effective until a replacement acceptable to the Receivables Trustee
has been appointed); and
(b) shall require the Trust Accounts Operator to so retire (provided that
the retirement shall not be effective until a replacement acceptable
to the Receivables Trustee has been appointed) if:
(i) the Trust Accounts Operator defaults in the payment on the due
date of any payment to be made by it under this Agreement and
such default continues unremedied for a period of 2 Business
Days;
(ii) the Trust Accounts Operator defaults in any material respect in
the performance or observance of any of its other undertakings
and obligations under this Agreement and such default continues
unremedied for a period of 10 Business Days after the receipt by
the Trust Accounts Operator of written notice from the
Receivables Trustee requiring the same to be remedied;
(iii) the Trust Accounts 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 Trust Accounts
Operator, or the Trust Accounts Operator appoints or suffers the
-4-
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; or
(iv) the Trust Accounts Operator is subject to any material
litigation, arbitration or administrative proceeding or claim
which would, if adversely determined, be in the opinion of the
Receivables Trustee, acting reasonably, materially prejudicial
to the interests of the Beneficiaries.
5.3 If a successor to the Trust Accounts Operator is appointed pursuant to
Clauses 5.1 or 5.2 then, upon a replacement account operator agreeing to
act as such:
(a) the retiring Trust Accounts Operator shall be discharged from any
further obligation hereunder other than any liability or obligation
accrued at the date of its retirement; and
(b) 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. REPRESENTATIONS OF THE RECEIVABLES TRUSTEE
The Receivables Trustee represents and warrants to the Trust Accounts
Operator that:
(a) the execution, delivery and performance by the Receivables Trustee of
this Agreement (a) are within the Receivables Trustee's corporate
powers, (b) have been duly authorised by all necessary corporate
action and (c) do not contravene the Receivables Trustee's memorandum
and articles of association or any law or any contractual restriction
binding on or affecting the Receivables Trustee;
(b) no authorisation or approval or other action by and no notice to or
filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Receivables
Trustee of this Agreement; and
(c) this Agreement is the legal, valid and binding obligation of the
Receivables Trustee (except as may be limited by bankruptcy,
insolvency, moratorium and other similar laws affecting the rights of
creditors generally).
7. UNDERTAKINGS OF THE TRUST ACCOUNTS OPERATOR
The Trust Accounts Operator undertakes with the Receivables Trustee that,
without prejudice to any of its specific obligations under this Agreement:
(a) it will devote to the performance of its obligations under this
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 Receivables
Trustee;
-5-
(b) it will comply with any proper directions, orders and instructions
which the Receivables Trustee may from time to time give to it in
connection with the performance of its obligations under this
Agreement;
(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
Agreement and shall, so far as it can reasonably do so, perform its
obligations under this 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 Transaction Document to which it is a party to be performed by
it in its capacity as Trust Accounts Operator;
(e) it will promptly upon becoming aware thereof notify the Receivables
Trustee 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 Transaction Documents to
which the Receivables Trustee 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
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 Agreement;
(h) subject to timely receipt by the Trust Accounts Operator of sufficient
funds it will make or give directions for the making of all payments
on behalf of the Receivables Trustee required to be made by the Trust
Accounts Operator pursuant to the Transaction Documents to which the
Receivables Trustee 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
Agreement, of which it has notice.
8. TRUST ACCOUNTS OPERATOR'S LIABILITY AND INDEMNITY
8.1 The Trust Accounts Operator hereby indemnifies and undertakes to keep the
Receivables Trustee 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 Trust Accounts Operator to comply
with any of its obligations hereunder where such failure arises from the
gross negligence, wilful default, dishonesty or fraud of the Trust Accounts
Operator. This indemnity is, for
-6-
the avoidance of doubt, in addition to and without prejudice to any
indemnity allowed under any applicable law.
8.2 The Receivables Trustee shall, from time to time on demand of the Trust
Accounts Operator, indemnify and hold harmless the Trust Accounts 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
Agreement or as a result of the performance of the functions and the
services provided for hereunder except as a result of the gross negligence,
wilful default, dishonesty or fraud of the Trust Accounts 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 Trust
Accounts Operator hereunder.
8.3 The termination of this Agreement shall not affect the rights and
obligations of the parties arising hereunder prior to such termination.
9. RECORDS AND REPORTS
9.1 The Trust Accounts Operator shall keep, for and on behalf of the
Receivables Trustee, any computer and/or physical records relating to the
Receivables Trustee and/or the Trust Accounts or delivered to the Trust
Accounts Operator on behalf of the Receivables Trustee (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 Trust Accounts Operator. The Trust Accounts Operator
shall ensure that the Relevant Files held by the Trust Accounts Operator
(or to its order) shall at all reasonable hours be made available for
inspection by the Receivables Trustee or any person acting on its behalf
and shall procure that the Receivables Trustee 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 Trust Accounts Operator shall be held by it to the order of the
Receivables Trustee. The Trust Accounts Operator hereby waives any lien to
which it would otherwise be entitled in relation thereto. The Trust
Accounts Operator shall, on demand by the Receivables Trustee or any person
on its behalf, provide copies (and where copies are not available, the
originals) of the Relevant Files to the Receivables Trustee.
10. FEES OF THE TRUST ACCOUNTS OPERATOR
10.1 Any fees payable by the Receivables Trustee to the Trust Accounts Operator
shall be set out in a letter sent by the Trust Accounts Operator to the
Receivables Trustee (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.
11. NO LIABILITY AND NO PETITION
11.1 No recourse under any obligation, covenant, or agreement of any party
contained in this Agreement shall be had against any shareholder, officer
or director of the relevant party as such, by the enforcement of any
assessment or by any proceeding, by virtue of any
-7-
statute or otherwise; it being expressly agreed and understood that this
Agreement is a corporate obligation of the relevant party and no personal
liability shall attach to or be incurred by the shareholders, officers,
agents or directors of the relevant party as such, or any of them, under or
by reason of any of the obligations, covenants or agreements of such party
contained in this Agreement, or implied therefrom, and that any and all
personal liability for breaches by such party of any such obligations,
covenants or agreements, either at law or by statute or constitution, of
every such shareholder, officer, agent or director is hereby expressly
waived by the other party as a condition of and consideration for the
execution of this Agreement.
11.2 The Trust Accounts Operator hereby undertakes to the Receivables Trustee
for itself and as trustee for each Beneficiary that it will not take any
corporate action or other steps or legal proceedings for the winding up,
dissolution or re-organisation or for the appointment of a receiver,
administrative receiver, trustee, liquidator, sequestrator or similar
officer of any Beneficiary (unless such Beneficiary agrees otherwise in any
related Supplement), the Receivables Trustee or any successor trustee or
the Receivables Trust or any or all of the revenues and assets of any of
them nor participate in any ex parte proceedings nor seek to enforce any
judgement against such Persons.
11.3 The Trust Accounts Operator acknowledges that the obligations of the
Receivables Trustee under this Agreement at any time are limited to the
lesser, at such time, of (a) the nominal amount thereof (the "NOMINAL
AMOUNT") and (b) an amount (the "AVAILABLE AMOUNT") equivalent to the value
of the Trust Property at such time. The Trust Accounts Operator shall not
have a right to have recourse to, or make demand or initiate proceedings
against the Receivables Trustee at any time whilst the nominal amount
exceeds the available amount. The Receivables Trustee shall incur no
liability and be under no additional duty to any person solely as a result
of any inability on its part to make payments or to perform other
obligations under this Agreement, which inability results from the
operation of the foregoing provisions of this Clause 11.3.
11.4 The Trust Accounts Operator agrees that it shall have no recourse, in
respect of any obligation, covenant or agreement of the Receivables
Trustee, against any shareholder, officer, agent or director of the
Receivables Trustee.
12. BENEFIT OF AGREEMENT
12.1 This Agreement shall be binding upon and enure to the benefit of each of
the parties hereto and their respective successors, transferees and
assigns.
12.2 The Trust Accounts Operator shall not be entitled to assign or transfer all
or any of its rights, benefits and obligations hereunder without the prior
written consent of the Receivables Trustee.
13. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Trust Accounts Operator any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies provided herein are
cumulative and not exclusive of any rights or remedies provided by law.
-8-
14. PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions hereof nor
the legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired thereby.
15. AMENDMENTS
The provisions of this Agreement may be waived or amended by the parties
hereto at any time provided that such waiver or amendment (including this
Clause 15) shall not be effective unless it is in writing and signed by (or
by some person duly authorised by) each of the parties.
16. NO CONFLICT OF INTEREST
The services of the Trust Accounts Operator to the Receivables Trustee
hereunder are not to be deemed exclusive and the Trust Accounts 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.
17. NOTICES
17.1 Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by facsimile or letter.
17.2 Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has by
15 Business Days' written notice to the other specified another address) be
made or delivered to that other person at the address identified with its
signature below and shall be deemed to have been made or delivered when
despatched (in case of any communication made by facsimile in respect of
which telephone confirmation form the intended recipient as to legible
receipt has been received) or (in the case of any communication made by
letter) when left at that address.
17.3 Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language.
18. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which
will be deemed to be an original and all of which shall when taken together
constitute one and the same document.
19. LAW
This Agreement shall be governed by, and construed in accordance with,
English law.
20. JURISDICTION
20.1 The parties hereto irrevocably agree for the benefit of each of them that
the courts of Jersey, Channel Islands shall have jurisdiction to hear and
determine any suit, action or
-9-
proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and, for such purposes, irrevocably submit
to the jurisdiction of such courts.
20.2 The parties hereto irrevocably waive any objection which they might now or
hereafter have to the courts referred to in Clause 19.1 being nominated as
the forum to hear and determine any suit, action or proceeding, and to
settle any disputes, which may arise out of or in connection with this
Agreement and agree not to claim that any such court is not a convenient or
appropriate forum.
21. RIGHTS OF THIRD PARTIES
Without prejudice to the rights of any such shareholders, officers, agents
or directors as referred to at clauses 8, 11.1 and 11.4 to enforce clauses
8, 11.1 and 11.4, a person who is not a party to this Agreement has no
right under the Contract (Rights of Third Parties) Xxx 0000 to enforce any
term of this Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
-10-
THE RECEIVABLES TRUSTEE
TURQUOISE RECEIVABLES TRUST LIMITED
By: S.M. HOLLYWOOD
Director
Address: 00 Xxx Xxxxxx
Xx Xxxxxx
Xxxxxx XX0 0XX
Channel Islands
Facsimile: (01534) 814 815
Attention: The Directors
THE TRUST ACCOUNTS OPERATOR
XXXXXX TRUST COMPANY LIMITED
By: S.M. HOLLYWOOD
Director
Address: 00 Xxx Xxxxxx
Xx. Xxxxxx
Xxxxxx XX0 0XX
Facsimile: (01534) 814815
Attention: Trust Officer
-11-
