X X X X X X X X LIMITED LIABILITY PARTNERSHIP
C H A N C E
CONFORMED COPY
TURQUOISE CARD BACKED SECURITIES PLC
as Issuer
TURQUOISE HOLDINGS LIMITED
as Holdings
HSBC BANK PLC
as Principal Paying Agent, Agent Bank, UK Transfer Agent, UK Registrar,
Bank Account Operator, Issuer Account Bank, LNI Account Bank and
Expenses Loan Lender
HSBC BANK USA, NATIONAL ASSOCIATION
as Paying Agent, Exchange Agent, US Transfer Agent and US Registrar
LAW DEBENTURE TRUST COMPANY OF NEW YORK
as Note Trustee
TURQUOISE OPTION CO LIMITED
as Option Co
TURQUOISE FUNDING 1 LIMITED
as Loan Note Issuer No.1 and Investor Beneficiary
TURQUOISE FUNDING 2 LIMITED
as Loan Note Issuer No.2 and Dormant Beneficiary
TURQUOISE RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
and
WILMINGTON TRUST SP SERVICES (LONDON) LIMITED
as WTSS
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ISSUER MASTER FRAMEWORK AGREEMENT
RELATING TO THE
TURQUOISE FUNDING MEDIUM TERM NOTE
PROGRAMME
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CONTENTS
CLAUSE PAGE
1. Interpretation..........................................................3
2. Common Terms............................................................3
3. Governing Law...........................................................3
4. Execution...............................................................3
Schedule 1 MASTER DEFINITIONS SCHEDULE.........................................4
1. Definitions.............................................................4
2. Principles Of Interpretation And Construction..........................28
Schedule 2 COMMON TERMS.......................................................34
Part 1 - General Legal Terms...........................................34
1. Further Assurance......................................................34
2. Entire Agreement.......................................................34
3. Application Of Common Terms............................................34
4. Note Trustee Party To Documents........................................35
5. Change Of Note Trustee.................................................35
6. Services Non-Exclusive.................................................35
7. Restriction On Enforcement Of Security And Non-Petition................35
8. Non-Petition...........................................................36
9. Provisions Relating To The Security Documents..........................37
10. Obligations As Corporate Obligations...................................38
11. Variation Of Documents.................................................38
12. Exercise Of Rights And Remedies........................................39
13. Partial Invalidity.....................................................39
14. No Partnership.........................................................39
15. Continuation Of Obligations............................................39
16. Assignment And Subcontracting..........................................39
17. Third Party Transaction Rights.........................................40
18. Confidentiality........................................................40
19. Notices................................................................42
20. Counterparts...........................................................42
Part 2 Payment Provisions..............................................43
21. Calculations And Payments..............................................43
22. Value Added Tax........................................................44
23. Withholding Taxes......................................................46
24. Economic And Monetary Union............................................46
25. Costs..................................................................46
Part 3 Governing Law Provisions........................................47
26. Governing Law..........................................................47
27. Jurisdiction...........................................................47
Schedule 3 NOTICES DETAILS....................................................48
Schedule 4 ISSUER'S REPRESENTATIONS AND WARRANTIES............................51
Part 1 Corporate Representations And Warranties Of The Issuer..........51
Part 2 Transaction Document Representations And Warranties Of
The Issuer............................................................51
Schedule 5 ISSUER COVENANTS...................................................53
THIS AGREEMENT is made on 23 May 2006
BETWEEN:
(1) TURQUOISE CARD BACKED SECURITIES PLC, a public limited liability company
incorporated in England and Wales (registered number 5506646) 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) TURQUOISE HOLDINGS LIMITED (registered number 5554872), whose principal
place of business is at c/o Wilmington Trust SP Services (London) Limited,
Tower 42 (Level 11), 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX ("HOLDINGS");
(3) HSBC BANK PLC, banking corporation acting through its office at 0 Xxxxxx
Xxxxxx, Xxxxxx, X00 0XX as principal paying agent, registrar, transfer
agent, agent bank, bank account operator, account bank and expenses loan
lender (in such respective capacities as the "PRINCIPAL PAYING AGENT", the
"UK REGISTRAR", the "UK TRANSFER AGENT", the "AGENT BANK", the "BANK
ACCOUNT OPERATOR", the "ISSUER ACCOUNT BANK", the "LNI ACCOUNT BANK" and
the "EXPENSES LOAN LENDER");
(4) HSBC BANK USA, NATIONAL ASSOCIATION acting through its office at 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000, Xxxxxx Xxxxxx as paying agent, registrar,
transfer agent and exchange agent (in such respective capacities as the
"PAYING AGENT", the "US REGISTRAR", the "US TRANSFER AGENT" and the
"EXCHANGE AGENT");
(5) 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 as note trustee (the "NOTE TRUSTEE"),
which expression shall include such company and all other persons for the
time being acting as the trustee or trustees under the Note Trust Deed;
(6) TURQUOISE OPTION CO LIMITED, a private limited liability company
incorporated in Jersey with registration number 92291 and having its
registered office at 00 Xxx Xxxxxx, Xx. Xxxxxx, Xxxxxx, XX0 0XX Channel
Islands, ("OPTION CO");
(7) TURQUOISE FUNDING 1 LIMITED, a private limited liability company
incorporated in Jersey with registration number 92327 and having its
registered office at 00 Xxx Xxxxxx, Xx. Xxxxxx, Xxxxxx, XX0 0XX Channel
Islands, in its capacities as the loan note issuer (the "LOAN NOTE ISSUER
NO.1") and as investor beneficiary (the "INVESTOR BENEFICIARY");
(8) 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, XX0
0XX Channel Islands (the "LOAN NOTE ISSUER NO.2" and "DORMANT INVESTOR
BENEFICIARY");
(9) TURQUOISE RECEIVABLES TRUSTEE LIMITED, a private limited company
incorporated under the laws of Jersey, Channel Islands with company number
92324 and having its registered office at 00 Xxx Xxxxxx, Xx. Xxxxxx,
Xxxxxx, XX0 0XX Channel Islands, (the "RECEIVABLES TRUSTEE"); and
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(10) WILMINGTON TRUST SP SERVICES (LONDON) LIMITED (registered number 2548079),
whose principal place of business is at Tower 42, (Level 11),
International Financial Centre, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
("WTSS").
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INTRODUCTION:
(A) The Loan Note Issuer No.1 has agreed to issue and the Issuer has agreed to
subscribe for Loan Notes.
(B) In order to finance its subscription of each Loan Note, the Issuer will
issue Notes of a particular Series and will use the net proceeds of the
issue to pay Loan Note Issuer No.1.
(C) The Transaction Parties have agreed to enter into the Documents pursuant
to which the Master Definitions Schedule, Common Terms, representations
and warranties, covenants and other provisions set out in the Agreement
may apply and be incorporated into all or some of the Documents, as set
out in each of such Documents.
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 Unless otherwise defined in this Agreement or the context requires
otherwise, words and expressions used in this Agreement shall have the
meanings and constructions ascribed to them in the Master Definitions
Schedule set out in Schedule 1 (Master Definitions Schedule) of this
Agreement.
2. COMMON TERMS
2.1 INCORPORATION OF COMMON TERMS
Except as provided below, the Common Terms apply to this Agreement, where
applicable, and shall be binding on the parties to this Agreement.
2.2 OBLIGOR/OBLIGEE
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
were the Obligor and the Note Trustee were the Obligee.
3. GOVERNING LAW
This Agreement is governed by and shall be construed in accordance with
English law.
4. EXECUTION
The parties have executed this Agreement on the date stated at the
beginning of this Agreement.
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SCHEDULE 1
MASTER DEFINITIONS SCHEDULE
1. DEFINITIONS
Except where the context otherwise requires, the following defined terms
used in the Documents have the meanings set out below (as the same may be
amended and supplemented from time to time):
"24 HOURS" means a period of 24 hours including all or part of a day upon
which banks are open for business in both the place where any Meeting is
to be held and in each of the places where the Paying Agents have their
Specified Offices (disregarding for this purpose the day upon which such
Meeting is to be held) and such period shall be extended by one period or,
to the extent necessary, more periods of 24 hours until there is included,
as stated above, all or part of a day upon which banks are open for
business as aforesaid; and
"48 HOURS" means 2 consecutive periods of 24 hours.
"ACCOUNT BANK" means HSBC or any other bank at which the Issuer
Distribution Account is to be maintained from time to time;
"ADDITIONAL INTEREST MARGIN" has the meaning given in the relevant
Prospectus Supplement/Final Terms (if applicable);
"ADDITIONAL INTEREST" means the interest which will accrue at the then
current rate of interest in respect of any Deferred Interest;
"AFFILIATES" means, with regard to any Person, any other Person
controlling, controlled by or under common control with such Person;
"AGENCY AGREEMENT" means the agreement so named dated on or about the date
hereof between, inter alios, the Issuer, the Agents and the Note Trustee;
"AGENT BANK" means HSBC Bank plc as agent bank under the Agency Agreement;
"AGENTS" means, in relation to any Series, the Principal Paying Agent, the
other Paying Agents, the Agent Bank, the Registrars, the Transfer Agents,
the Exchange Agent, or any of them;
"AGGREGATE PRINCIPAL AMOUNT OUTSTANDING" means:
(a) in relation to a Class or Sub-Class of Notes under a specific
Series, the aggregate of the Principal Amount Outstanding of each
Note in the Series of such Class or Sub-Class, PROVIDED THAT where
any Sub-Class of Notes is not denominated in US Dollars, the
Principal Amount Outstanding for such Notes in the relevant non-US
Dollar currency converted into US Dollars at the conversion rate
specified in the Prospectus Supplement/Final Terms relating to such
Sub-Class shall be the Principal Amount Outstanding in relation to
such Sub-Class;
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(b) in relation to a Series of Notes, the aggregate of the Principal
Amount Outstanding of each Class of Notes in such Series;
(c) in relation to all Notes, the Aggregate Principal Amount Outstanding
of all outstanding Series.
"AMORTISATION PERIODS" means the Regulated Amortisation Period and the
Rapid Amortisation Period or such other period specified as an
Amortisation Period in the relevant Prospectus Supplement/Final Terms and
the relevant Note Trust Deed Supplement in respect of a Series;
"ANCILLARY RIGHTS" means in relation to an Interest, all ancillary rights,
accretions and supplements to such Interest, including any guarantees or
indemnities in respect of such Interest;
"APPOINTEE" means any delegate, agent, attorney, manager or nominee
appointed by the Note Trustee pursuant to the provisions of the Security
Documents;
"AUDITORS" means in respect of the Issuer, KPMG Audit plc or such other
reputable firm of accountants qualified to practice in England and Wales,
as may be appointed by the Issuer from time to time;
"AUTHORISED DENOMINATION" means, with respect to the Class A Notes, the
Class B Notes and the Class C Notes of a Series, the amount set forth in
the relevant Note Trust Deed Supplement with respect to such Series;
"AUTHORISED SIGNATORY" means any director of the Issuer or any other
Person or Persons who are duly authorised and in respect of whom a
certificate has been provided signed by a director or another Authorised
Signatory setting out the name and signature of such Person and confirming
such Person's authority to act;
"BANK ACCOUNT OPERATING AGREEMENT" means the agreement so named dated on
or about 23 May 2006 between, inter alios, the Issuer, the Loan Note
Issuer No. 1 and the Account Bank;
"BASE PROSPECTUS" means the base prospectus/program offering circular
relating to the Notes prepared in connection with the Programme for
submission to the UKLA and as revised, supplemented, amended or updated
from time to time by the Issuer including, in relation to each Series, the
applicable Prospectus Supplement/Final Terms relating to such Series and
such other documents as are from time to time incorporated therein by
reference;
"BASIC TERMS MODIFICATION" means any change:
(a) to any date fixed for payment of principal or interest in respect of
the Notes of any Class or Sub-Class, to reduce the amount of
principal or interest payable on any date in respect of the Notes of
any Class or Sub-Class, to alter the method of calculating the
amount of any payment in respect of the Notes of any Class or
Sub-Class or the date for any such payment;
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(b) (except in accordance with the Conditions and the Note Trust Deed)
to effect the exchange, conversion or substitution of the Notes of
any Class or Sub-Class for, or the conversion of such Notes into,
shares, bonds or other obligations or securities of the Issuer or
any other person or body corporate formed or to be formed;
(c) to alter the priority of payment of interest or principal in respect
of the Notes;
(d) to change the currency of any payment under the Notes of any Class
or Sub-Class
(e) to change the quorum requirements relating to Meetings or the
majority required to pass an Extraordinary Resolution; or
(f) to amend the definition of a Basic Terms Modification;
"BENEFIT" in respect of any Interest held, assigned, conveyed,
transferred, charged, sold or disposed of by any Person shall be construed
so as to include:
(a) all right, title, interest and benefit, present and future, actual
and contingent (and interests arising in respect thereof) of such
Person in, to, under and in respect of such Interest and all
Ancillary Rights in respect of such Interest;
(b) all monies and proceeds payable or to become payable under, in
respect of, or pursuant to such Interest or its Ancillary Rights and
the right to receive payment of such monies and proceeds and all
payments made including, in respect of any bank account, all sums of
money which may at any time be credited to such bank account
together with all interest accruing from time to time on such money
and the debts represented by such bank account;
(c) the benefit of all covenants, undertakings, representations,
warranties and indemnities in favour of such Person contained in or
relating to such Interest or its Ancillary Rights;
(d) the benefit of all powers of and remedies for enforcing or
protecting such Person's right, title, interest and benefit in, to,
under and in respect of such Interest or its Ancillary Rights,
including the right to demand, xxx for, recover, receive and give
receipts for proceeds of and amounts due under or in respect of or
relating to such Interest or its Ancillary Rights; and
(e) all items expressed to be held on trust for such Person under or
comprised in any such Interest or its Ancillary Rights, all rights
to deliver notices and/or take such steps as are required to cause
payment to become due and payable in respect of such Interest and
its Ancillary Rights, all rights of action in respect of any breach
of or in connection with any such Interest and its Ancillary Rights
and all rights to receive damages or obtain other relief in respect
of such breach;
"BREACH OF DUTY" means in relation to any Person other than the Note
Trustee, a wilful default, fraud, illegal dealing, negligence or breach of
any agreement or trust by such
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Person, and in relation to the Note Trustee a breach of trust in
accordance with Clause 14.6 of the Note Trust Deed;
"BUSINESS DAY" means in relation to any sum payable in any currency, a
TARGET settlement day and a day on which commercial banks and foreign
exchange markets settle payments generally in London, England, Jersey,
Channel Islands, and New York, New York, the principal financial centre of
the relevant currency and in each (if any) additional business centre;
"BUSINESS DAY CONVENTION", in relation to any particular date has the
meaning given in the relevant Prospectus Supplement/Final Terms and, if so
specified in the relevant Prospectus Supplement/Final Terms, may have
different meanings in relation to different dates and, in this context,
the following expressions shall have the following meanings:
(i) "FOLLOWING BUSINESS DAY CONVENTION" means that the relevant date
shall be postponed to the first following day that is a Business
Day;
(ii) "MODIFIED FOLLOWING BUSINESS DAY CONVENTION" or "MODIFIED BUSINESS
DAY CONVENTION" means that the relevant date shall be postponed to
the first following day that is a Business Day unless that day falls
in the next calendar month in which case that date will be the first
preceding day that is a Business Day;
(iii) "PRECEDING BUSINESS DAY CONVENTION" means that the relevant date
shall be brought forward to the first preceding day that is a
Business Day; and
(iv) "NO ADJUSTMENT" means that the relevant date shall not be adjusted
in accordance with any Business Day Convention;
"CALCULATION PERIOD" means, for any Distribution Date, the period from and
including the previous Distribution Date or, in the case of the first
Distribution Date, from and including the Closing Date to, but excluding,
that Distribution Date;
"CALL OPTION DEED" means the agreement so named dated on or about the date
hereof between, the Transferor and the Receivables Trustee;
"CARDHOLDER" or "CARDHOLDERS" means with respect to any credit card
account held with the Transferor, the Person or Persons obliged directly
or indirectly to make payments in respect of Receivables generated on such
credit card account;
"CCA" means the Consumer Credit Xxx 0000;
"CEDE & CO." means Cede & Co. in its capacity as nominee for DTC;
"CHAIRMAN" means, in relation to any Meeting, the individual who takes the
chair in accordance with Paragraph 7 (Chairman) of the Provisions for
Meetings of Noteholders as set out in Schedule 4 of the Note Trust Deed;
"CHARGED ACCOUNTS" means the Issuer Distribution Account, as specifically
defined in any Note Trust Deed Supplement, and any bank or other account
in which the Issuer may
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at any time acquire a Benefit and which is charged to the Note Trustee
pursuant to the Note Trust Deed and any Note Trust Deed Supplement;
"CLASS" means each or any of the Class A Notes, the Class B Notes or the
Class C Notes classes of any particular Series, as the context requires;
"CLASS A GLOBAL NOTE CERTIFICATE" means each Global Note Certificate
representing Class A Notes in each relevant currency and issued pursuant
to the provisions of the relevant Note Trust Deed Supplement in, or
substantially in, the form set out in Schedule 2 of the Note Trust Deed;
"CLASS A INDIVIDUAL NOTE CERTIFICATE" means any Individual Note
Certificate representing a Class A Noteholder's entire holding of Class A
Notes, in or substantially in the form set out in Schedule 3 of the Note
Trust Deed;
"CLASS A NOTEHOLDERS" means the Persons who are for the time being the
holders of one or more of the Class A Notes (being, so long as such Notes
or any part thereof are represented by a Class A Global Note Certificate,
the Person in whose name the Class A Note is registered in the relevant
Register of Noteholders and so long as such Notes or any part thereof are
represented by Individual Class A Note Certificates, each Person who is
for the time being shown in the relevant Register as the holder of a
particular principal amount thereof) save that so long as such Notes or
any part thereof are represented by a Class A Global Note Certificate,
each Person who is for the time being shown in the records of DTC (other
than Euroclear or Clearstream, if Euroclear or Clearstream become
participants in DTC), Euroclear (other than DTC or Clearstream, if DTC or
Clearstream are accountholders of Euroclear) or Clearstream (other than
DTC or Euroclear, if DTC or Euroclear are accountholders of Clearstream)
as the holder of a particular principal amount of Class A Notes shall be
deemed to be and shall be treated as the holder thereof provided that such
deeming and treatment shall not affect the right to payments in respect of
the Class A Global Note Certificate which shall be vested solely in the
registered holder of the Class A Global Note Certificate in accordance
with and subject to its terms and the terms of the Note Trust Deed and the
relevant Note Trust Deed Supplement;
"CLASS A NOTES" means the notes in registered form in the currency and
denomination amount set forth in the relevant Prospectus Supplement/Final
Terms comprising the Class A Notes and any Sub-Class thereof of the Issuer
constituted by the relevant Note Trust Deed Supplement, to be represented
by an Individual Note Certificate or Individual Note Certificates, and for
the time being outstanding or, as the context may require, a specific
number of such notes and the Class A Global Note Certificate for as long
as it has not been exchanged in accordance with its terms;
"CLASS B GLOBAL NOTE CERTIFICATE" means each Global Note Certificate
representing Class B Notes in each relevant currency and issued pursuant
to the provisions of the relevant Note Trust Deed Supplement in, or
substantially in, the form set out in Schedule 2 of the Note Trust Deed;
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"CLASS B INDIVIDUAL NOTE CERTIFICATE" means any Individual Note
Certificate representing a Class B Noteholder's entire holding of Class B
Notes, in or substantially in the form set out in Schedule 3 of the Note
Trust Deed;
"CLASS B NOTEHOLDERS" means the Persons who are for the time being the
holders of one or more of the Class B Notes (being, so long as such Notes
or any part thereof are represented by a Class B Global Note Certificate,
the Person in whose name the Class B Note is registered in the relevant
Register of Noteholders and so long as such Notes or any part thereof are
represented by Individual Class B Note Certificates, each Person who is
for the time being shown in the relevant Register as the holder of a
particular principal amount thereof) save that so long as such Notes or
any part thereof are represented by a Class B Global Note Certificate,
each Person who is for the time being shown in the records of DTC (other
than Euroclear or Clearstream, if Euroclear or Clearstream become
participants in DTC), Euroclear (other than DTC or Clearstream, if DTC or
Clearstream are accountholders of Euroclear) or Clearstream (other than
DTC or Euroclear, if DTC or Euroclear are accountholders of Clearstream)
as the holder of a particular principal amount of Class B Notes shall be
deemed to be and shall be treated as the holder thereof provided that such
deeming and treatment shall not affect the right to payments in respect of
the Class B Global Note Certificate which shall be vested solely in the
registered holder of the Class B Global Note Certificate in accordance
with and subject to its terms and the terms of the Note Trust Deed and the
relevant Note Trust Deed Supplement;
"CLASS B NOTES" means the notes in registered form in the currency and
denomination amount set forth in the relevant Prospectus Supplement/Final
Terms comprising the Class B Notes and any Sub-Class thereof of the Issuer
constituted by the relevant Note Trust Deed Supplement, to be represented
by an Individual Note Certificate or Individual Note Certificates, and for
the time being outstanding or, as the context may require, a specific
number of such notes and the Class B Global Note Certificate for as long
as it has not been exchanged in accordance with its terms;
"CLASS C GLOBAL NOTE CERTIFICATE" means each Global Note Certificate
representing Class C Notes in each relevant currency and issued pursuant
to the provisions of the relevant Note Trust Deed Supplement in, or
substantially in, the form set out in Schedule 2 of the Note Trust Deed;
"CLASS C INDIVIDUAL NOTE CERTIFICATE" means any Individual Note
Certificate representing a Class C Noteholder's entire holding of Class C
Notes, in or substantially in the form set out in Schedule 3 of the Note
Trust Deed;
"CLASS C NOTEHOLDERS" means the Persons who are for the time being the
holders of one or more of the Class C Notes (being, so long as such Notes
or any part thereof are represented by a Class C Global Note Certificate,
the Person in whose name the Class C Note is registered in the relevant
Register of Noteholders and so long as such Notes or any part thereof are
represented by Individual Class C Note Certificates, each Person who is
for the time being shown in the relevant Register as the holder of a
particular principal amount thereof) save that so long as such Notes or
any part thereof are represented by a Class C Global Note Certificate,
each Person who is for the time being
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shown in the records of DTC (other than Euroclear or Clearstream, if
Euroclear or Clearstream become participants in DTC), Euroclear (other
than DTC or Clearstream, if DTC or Clearstream are accountholders of
Euroclear) or Clearstream (other than DTC or Euroclear, if DTC or
Euroclear are accountholders of Clearstream) as the holder of a particular
principal amount of Class C Notes shall be deemed to be and shall be
treated as the holder thereof provided that such deeming and treatment
shall not affect the right to payments in respect of the Class C Global
Note Certificate which shall be vested solely in the registered holder of
the Class C Global Note Certificate in accordance with and subject to its
terms and the terms of the Note Trust Deed and the relevant Note Trust
Deed Supplement;
"CLASS C NOTES" means the notes in registered form in the currency and
denomination amount set forth in the relevant Prospectus Supplement/Final
Terms comprising the Class C Notes and any Sub-Class thereof of the Issuer
constituted by the relevant Note Trust Deed Supplement, to be represented
by an Individual Note Certificate or Individual Note Certificates, and for
the time being outstanding or, as the context may require, a specific
number of such notes and the Class C Global Note Certificate for as long
as it has not been exchanged in accordance with its terms;
"CLEARSTREAM" means Clearstream Banking, societe anonyme, Luxembourg;
"CLOSING DATE" means in respect to a Series, the date specified in the
respective Prospectus Supplement/Final Terms;
"COMMON DEPOSITARY" means the common depositary nominated by Euroclear and
Clearstream in relation to a Series of Notes;
"COMMON TERMS" means the provisions set out in Schedule 2 (Common Terms)
and Schedule 3 (Notice Details) of this Turquoise Funding Master Framework
Agreement;
"COMPANIES ACT" means the Companies Acts 1948 to 1989;
"CONDITIONS" means in relation to the Notes of any Series, the terms and
conditions to be endorsed on, or incorporated by reference in, the Notes
of such Series, in the form set out in Schedule 1 of the Note Trust Deed
or in such other form, having regard to the terms of the Notes of the
relevant Series, as may be agreed between the Issuer, the Principal Paying
Agent, the Note Trustee and the Relevant Dealer(s) as modified and
supplemented by the relevant Prospectus Supplement/Final Terms in respect
of such Series, as any of the same may from time to time be modified in
accordance with the Note Trust Deed and the Note Trust Deed Supplement and
any reference to a particular Condition shall be construed in relation to
the Notes of such Series accordingly;
"CONTRACTUAL CURRENCY" means, in relation to any payment obligations of
any Notes, the currency in which that payment obligation is expressed and,
in relation to Clause 15.1 (Remuneration) of the Note Trust Deed, pounds
sterling or such other currency as may be agreed between the Issuer and
the Note Trustee from time to time.
"CORPORATE SERVICES AGREEMENT" means the corporate services agreement
dated on or about the date of this Agreement between Wilmington Trust SP
Services (London) Limited and the Issuer;
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"COVENANT TO PAY" means the covenants of the Issuer contained in Clause
3.1 (Covenant to pay) of the Note Trust Deed;
"CREDIT CARD GUIDELINES" means the Transferor's usual policies, procedures
and practices relating to the operation of its credit card business
including, without limitation, the usual policies, procedures and
practices for dealing with matters relating to the obligations and
liabilities of the Transferor with regards to the CCA, for determining the
creditworthiness of credit card customers, the extension of credit to
credit card customers, and relating to the maintenance of credit card
accounts and collection of credit card receivables, as such policies,
procedures and practices may be amended or varied from time to time;
"CREDITOR" means any Person to whom a payment is to be made under the
priority of payments as specified in each relevant Note Trust Deed
Supplement (prior to an Enforcement Notice) and in the Conditions (after
an Enforcement Notice);
"DAY COUNT FRACTION" means, in respect of the calculation of an amount for
any period of time for the specified currency (the "CALCULATION PERIOD"),
such day count fraction as may be specified in the Conditions or the
relevant Prospectus Supplement/Final Terms;
"DEALER AGREEMENT" means the agreement between, inter alios, the Issuer
and the Dealers named therein concerning the subscription of the Notes to
be issued pursuant to the Programme;
"DEALERS" means any Person appointed as a Dealer under the Dealer
Agreement and any other Person which the Issuer may appoint as a Dealer
and notice of whose appointment has been given to the Principal Paying
Agent and the Note Trustee by the Issuer in accordance with the provisions
of the Dealer Agreement but excluding any entity whose appointment has
been terminated in accordance with the terms of the Dealer Agreement and
notice of whose termination has been given to the Principal Paying Agent
and the Note Trustee by the Issuer in accordance with the provisions of
the Dealer Agreement and references to the "RELEVANT DEALER(S)" mean, in
relation to a Class or Sub-Class of Notes of any Series, the Dealer(s)
with whom the Issuer has agreed the issue and subscription of such Class
or Sub-Class of Notes;
"DEFERRED INTEREST" means the amount which is the interest shortfall which
occurs where the monies deposited in the relevant Distribution Ledger in
respect of a Series by Loan Note Issuer No.1 on an Interest Payment Date
in accordance with the relevant Loan Note are insufficient to pay the full
amount of interest on any Notes of that Series on such Interest Payment
Date;
"DIRECTOR" means any director of the Issuer from time to time;
"DISPUTE" means a dispute arising out of or in connection with any
Document (including a dispute regarding the existence, validity or
termination of any Document or the consequences of its nullity);
"DISTRIBUTION DATE" means the date or dates specified as such in, or
determined in accordance with the provisions of, the relevant Prospectus
Supplement/Final Terms, and
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where the relevant Distribution Date is not a Business Day, as the same
may be adjusted in accordance with the relevant Business Day Convention;
"DISTRIBUTION LEDGER" means a ledger or sub-ledger within the Issuer
Distribution Account for a Class or Sub-Class of Notes of a Series, as
applicable, more specifically defined in the relevant Note Trust Deed
Supplement;
"DOCUMENTS" means this Turquoise Funding Master Framework Agreement, the
Agency Agreement, the Issuer Distribution Account Bank Agreement, the Loan
Notes, the Security Trust Deed, each Loan Note Supplement, each relevant
Swap Agreement, the Bank Account Operating Agreement, the Expenses Loan
Agreement, Loan Note Issuer Account Documents, Corporate Services
Agreement and each Security Document;
"DTC" means The Depository Trust Company;
"DTC CUSTODIAN" means HSBC Bank USA, National Association in its capacity
as custodian for DTC;
"DUE DATE" means the due date for any payment in respect of the Notes of
any Series;
"EMU" means European Economic and Monetary Union;
"ENCUMBRANCE" means:
(a) a mortgage, charge, pledge, lien or other encumbrance securing any
obligation of any Person;
(b) any arrangement under which money or claims to money, or the benefit
of, a bank or other account may be applied, set off or made subject
to a combination of accounts so as to effect discharge of any sum
owed or payable to any Person; or
(c) any other type of preferential arrangement (including any title
transfer and retention arrangement) having a similar effect;
"ENFORCEMENT NOTICE" means a notice delivered by the Note Trustee to the
Issuer in accordance with the Conditions declaring that the Notes of a
particular Series are immediately due and payable;
"EURO COMMENCEMENT DATE" means the date on which the United Kingdom
becomes a Participating Member State;
"EUROCLEAR" means Euroclear Bank S.A./N.V. as operator of the Euroclear
system;
"EVENT OF DEFAULT" means any one of the events specified in Condition 11
(Events of Default);
"EXCHANGE ACT" means the U.S. Securities and Exchange Act of 1934, as
amended;
"EXCHANGE AGENT" means HSBC Bank plc in its capacity as exchange agent;
- 12 -
"EXPENSES LOAN" means the aggregate of each advance made available by the
Lender to the Issuer under the Expenses Loan Agreement in respect of each
Series;
"EXPENSES LOAN AGREEMENT" means the agreement dated on or around the date
hereof between the Lender, the Issuer and the Note Trustee whereby the
Lender advances the Expenses Loan to the Issuer;
"EXTRAORDINARY RESOLUTION" means a resolution passed at a Meeting duly
convened and held in accordance with the Provisions for Meetings of
Noteholders by a majority of not less than 75 per cent. of the votes cast;
"FINAL DISCHARGE DATE" means the date on which the Note Trustee is
satisfied that all the Secured Obligations and/or all other monies and
other liabilities due or owing by the Issuer have been paid or discharged
in full;
"FINAL REDEMPTION DATE" means in relation to the Notes of a Series, the
date specified as such in, or determined in accordance with the provisions
of, the relevant Note Trust Deed Supplement and the relevant Prospectus
Supplement/Final Terms, and where the Final Redemption Date is not a
Business Day, as the same may be adjusted in accordance with the relevant
Business Day Convention;
"FINANCIAL STATEMENTS" means, in respect of any Person, audited financial
statements of such Person, for a specified period (including, a balance
sheet, profit and loss account (or other form of income statement), and
statement of cash-flow);
"FIRST INTEREST PAYMENT DATE" means the date specified as such in, or
determined in accordance with the provisions of, the relevant Prospectus
Supplement/Final Terms, and where the first Interest Payment Date is not a
Business Day, as the same may be adjusted in accordance with the relevant
business day convention;
"FITCH RATINGS" means Fitch Ratings Ltd;
"FIXED RATE NOTE" means a Note on which interest is calculated at a fixed
rate payable in arrears on a fixed date or dates in each year and on
redemption or on such other dates as may be agreed between the Issuer and
the Relevant Dealer(s) (as indicated in the Note Trust Deed Supplement in
respect of such Note);
"FLOATING CHARGE" means the floating charge created by Clause 4 (Creation
of Security) of the Note Trust Deed and/or (as appropriate) any floating
charge created pursuant to a Note Trust Deed Supplement;
"FLOATING RATE NOTE" means a Note on which interest is calculated at a
floating rate payable at intervals of one, two, three, six or twelve
months or at such other intervals as may be agreed between the Issuer and
the Relevant Dealer(s) (as indicated in the Note Trust Deed Supplement in
respect of such Note);
"FSMA" means the Financial Services and Markets Xxx 0000;
"GLOBAL NOTE CERTIFICATES" means the Regulation S Global Note
Certificates, the Rule 144A Global Note Certificates, the SEC-registered
Global Note Certificates or any of them, as the context may require;
- 13 -
"GOVERNMENTAL AUTHORITY" shall mean any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government;
"HOLDCO" means Turquoise Holdings Limited (registered number 5554872)
whose registered office is at c/o Wilmington Trust SP Services (London)
Limited, Tower 42 (Level 11), 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX;
"INDEPENDENT CERTIFICATES"" means the certificates required under section
314(c) and (d) of the TIA;
"INDIVIDUAL NOTE CERTIFICATES" means the Regulation S Individual Note
Certificates, the Rule 144A Individual Note Certificates, the
SEC-registered Individual Note Certificates or any of them, as the context
may require;
"INSOLVENCY ACT" means the Insolvency Xxx 0000;
"INSOLVENCY EVENT" in respect of a company means:
(a) such company is deemed unable to pay its debts; or
(b) such company becomes unable to pay its debts as they fall due; or
(c) the value of the assets of such company falls to less than the
amount of its liabilities; or
(d) such company otherwise becomes insolvent; or
(e) the initiation of or consent to Insolvency Proceedings by such
company or any other Person or the presentation of a petition for
the making of an administration order (other than in the case of the
Issuer) and, in the opinion of the Note Trustee, such proceedings
are not being disputed in good faith with a reasonable prospect of
success; or
(f) the making of an administration order in relation to such company;
or
(g) an encumbrancer (excluding, in relation to the Issuer, the Note
Trustee or any Receiver) taking possession of the whole or any
substantial part of the undertaking or assets of such company; or
(h) any distress, execution, attachment or other process being levied or
enforced or imposed upon or against the whole or (in the opinion of
the Note Trustee) any substantial part of the undertaking or assets
of such company (excluding, in relation to the Issuer, by the Note
Trustee or any Receiver) and such order, appointment, possession or
process (as the case may be) not being discharged or otherwise
ceasing to apply within 30 days; or
(i) the making of an arrangement, composition, reorganisation with or
conveyance to or assignment for the creditors of such company
generally or the making of an application to a court of competent
jurisdiction for protection from the creditors of such company
generally; or
- 14 -
(j) the passing by such company of an effective resolution or the making
of an order by a court of competent jurisdiction for the winding up
or dissolution of such company (except, in the case of the Issuer, a
winding up for the purpose of a merger, reorganisation or
amalgamation the terms of which have previously been approved either
in writing by the Note Trustee or by an Extraordinary Resolution);
or
(k) the appointment of an Insolvency Official in relation to such
company or in relation to the whole or in the opinion of the Note
Trustee any substantial part of the undertaking or assets of such
company (excluding, in relation to the Issuer, a Receiver);
"INSOLVENCY OFFICIAL" means, in connection with any Insolvency
Proceedings, in relation to a company a liquidator, provisional
liquidator, administrator, administrative receiver, receiver or manager,
nominee, supervisor, trustee, conservator, guardian or other similar
official in respect of such company or in respect of all (or substantially
all) of the company's assets or in respect of any arrangement or
composition with creditors;
"INSOLVENCY PROCEEDINGS" means, in respect of a company, the winding-up,
dissolution or administration of such company or any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company is incorporated or of any jurisdiction in which such company
carries on business including the seeking of liquidation, winding-up,
reorganisation, dissolution, administration, arrangement, adjustment,
protection or relief of debtors;
"INTEREST" means any asset, agreement, bank account, property or right;
"INTEREST AMOUNT" has the meaning ascribed to such term in the Conditions;
"INTEREST COMMENCEMENT DATE" means, in respect of a particular Class or
Sub-Class of Notes of a Series, the Issue Date of such Notes or such other
date as may be specified as the Interest Commencement Date in the relevant
Prospectus Supplement/Final Terms;
"INTEREST DETERMINATION DATE" has the meaning ascribed thereto in the
Conditions;
"INTEREST PAYMENT DATE" has the meaning ascribed thereto in the
Conditions;
"INTEREST PERIOD" has the meaning ascribed thereto in the Conditions;
"INTEREST RATE" has the meaning ascribed thereto in the Conditions;
"ISSUE DATE" means, in relation to the Notes of any Series, the date of
issue of such Notes pursuant to the relevant Prospectus Supplement/Final
Terms and the relevant Note Trust Deed Supplement;
"ISSUER" means Turquoise Card Backed Securities plc (registered no.
5506646), whose registered office is situated at c/o Wilmington Trust SP
Services (London) Limited, Tower 42 (Level 11), 00 Xxx Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX;
"ISSUER BANK ACCOUNTS" means the Issuer Distribution Account and any other
account which may be opened by the Issuer from time to time;
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"ISSUER COSTS AMOUNT" means the amounts required to pay all and any legal
fees, fees, costs, charges, expenses, indemnities, losses, damages, claims
and liabilities incurred by the Issuer accrued due and payable on or
before a payment date to a third party incurred in the course of the
Issuer's business, excluding any income taxes or other similar taxes
payable to any taxation authority, but including the legal fees, fees,
costs, charges, expenses, losses, damages, claims and liabilities of the
Note Trustee and any Receiver appointed by it, such amount to be paid in
priority to any other amount contemplated by this definition, and any
legal fees, fees, costs, charges, expenses, indemnities, losses, damages,
claims and liabilities remaining unpaid for previous Distribution Dates
together with any VAT payable on any of the above items;
"ISSUER COVENANTS" means the covenants of the Issuer set out in Schedule 5
(Issuer Covenants) of this Turquoise Funding Master Framework Agreement;
"ISSUER DISTRIBUTION ACCOUNT" means the account identified as such in the
Issuer Distribution Account Bank Agreement;
"ISSUER DISTRIBUTION ACCOUNT BANK AGREEMENT" means the agreement so named
and dated on or about the date hereof between the Issuer, the Note Trustee
and the Account Bank;
"ISSUER JERSEY SECURED PROPERTY" means such of the property of the Issuer
as are Jersey Assets and are subject to security interests created by the
Issuer in favour of the Note Trustee in accordance with the Jersey
Security Interests Law from time to time under any Note Trust Deed
Supplement;
"ISSUER JERSEY SECURITY INTEREST" means each security interest of the Note
Trustee in accordance with the Jersey Security Interests Law (and as
secured party for the purposes of the Jersey Security Interests Law) in
any Issuer Jersey Secured Property;
"ISSUER PROFIT AMOUNT" in respect of a particular series on each
Distribution Date, means (a) the number of days in the relevant
calculation period divided by 365, multiplied by (b) the aggregate
Principal Amount Outstanding of the Notes, multiplied by (c) 0.01 per
cent. per annum for the first (pound)250,000,000 equivalent of the
aggregate Principal Amount Outstanding of the Notes and 0.001 per cent.
per annum for the remaining aggregate Principal Amount Outstanding;
"ISSUER'S JURISDICTION" means England and Wales;
"ISSUER'S NEGATIVE COVENANTS" means the covenants set out in Condition 6;
"JERSEY ASSETS" means in relation to the Issuer all or any of its
undertaking, property, assets, rights and revenues whatsoever, present and
future, situated in Jersey (including, without limitation, the Issuer
Jersey Secured Property);
"JERSEY SECURITY INTERESTS LAW" means the Security Interests (Jersey) Law
1983;
"JERSEY TRANSACTION DOCUMENTS" means the Master Definitions Schedule, the
Receivables Securitisation Deed, Receivables Trust Deed and Servicing
Agreement, the Beneficiaries Deed, the Receivables Trust Accounts Bank
Agreement, the Call Option
- 16 -
Deed, the Receivables Trustee Corporate Services Agreement, the Trust
Section 75 Indemnity, Loan Note Issuer Account Bank Agreement, the
Security Trust Deed, the Loan Note Issuer Corporate Services Agreement,
the Loan Notes, this Turquoise Funding Master Framework Agreement, and
each Security Document, the Post Enforcement Call Option Agreement and any
other document contemplated by and executed in connection with any of the
preceding documents;
"LENDER" means HSBC Bank plc in its capacity as Lender under the Expenses
Loan Agreement;
"LIABILITIES" means, in respect of any Person, any losses, damages, costs,
charges, awards, claims, demands, expenses, judgements, actions,
proceedings or other liabilities whatsoever including reasonable legal
fees and penalties incurred by that Person, and the expression "LIABILITY"
shall be construed accordingly;
"LOAN NOTE CONDITIONS" means, in respect of any Loan Note, the terms and
conditions of such Loan Note as specified in the relevant Loan Note
Supplement for such Loan Note;
"LOAN NOTE ENFORCEMENT NOTICE" means the notice specified in Loan Note
Condition 10.3;
"LOAN NOTE EVENT OF DEFAULT" has the meaning specified in Loan Note
Condition 10.1;
"LOAN NOTE ISSUER NO.1" means Turquoise Funding 1 Limited (registered no.
92327), whose registered office is at 00 Xxx Xxxxxx, Xx. Xxxxxx, Xxxxxx,
XX0 0XX Channel Islands;
"LOAN NOTE ISSUER ACCOUNT BANK AGREEMENT" means the agreement so named
dated on or about the date hereof and made between the Loan Note Issuer
No. 1, the Account Bank and the Security Trustee;
"LOAN NOTE ISSUER COSTS AMOUNT" means the amounts required to pay all and
any legal fees, fees, costs, charges, expenses, indemnities, losses,
damages, claims and liabilities incurred by Loan Note Issuer No.1 accrued
due and payable on or before a distribution date to a third party incurred
in the course of Loan Note Issuer No.1's business, excluding income any
taxes or other similar taxes payable to any taxation authority, but
including legal fees, fees, costs, charges, expenses, indemnities, losses,
damages, claims and liabilities of the Security Trustee and any Receiver
appointed by it, such amount to be paid in priority to any other amount
contemplated by this definition, and any legal fees, fees, costs, charges,
expenses, losses, damages, claims and liabilities remaining unpaid for
previous Distribution Dates together with any VAT payable on any of the
above items, where relevant;
"LOAN NOTE ISSUER CORPORATE SERVICES AGREEMENT" means the agreement dated
on or about 23 May 2006 between Loan Note Issuer No.1 Xxxxxx Trust Company
Limited and HSBC Bank plc as the same shall be amended, supplemented or
novated from time to time;
- 17 -
"LOAN NOTE ISSUER JERSEY SECURITY INTEREST" means each security interest
created by Loan Note Issuer No.1 in accordance with the Jersey Security
Interests Law pursuant to the relevant Loan Note Supplement or in the
Security Trust Deed, as the case may be;
"LOAN NOTE ISSUER JERSEY SECURED PROPERTY" means, in respect of the Notes
of each Series, the property of Loan Note Issuer No.1 the subject of the
relevant Loan Note Issuer Jersey Security Interest and specified in the
relevant Loan Note Supplement or in the Security Trust Deed, as the case
may be;
"LOAN NOTE" means any loan note to be issued by Loan Note Issuer No.1
pursuant to the Security Trust Deed and any Loan Note Supplement;
"LOAN NOTE SUPPLEMENT" means the supplement to the Loan Note;
"LPA" means the Law of Property Xxx 0000;
"MANDATE" means the resolutions, instructions and signature authorities
relating to the Issuer Distribution Account in the form of the document
set out in the Schedule to the Issuer Distribution Account Bank Agreement
as it may be amended from time to time with the prior written consent of
the Note Trustee;
"MASTER DEFINITIONS SCHEDULE" means Schedule 1 of this Agreement;
"MEETING" means a meeting of Noteholders of any Class, Sub-Class or Series
of Notes (whether originally convened or resumed following an
adjournment);
"MINIMUM LONG-TERM RATING" means, in respect of any Person, such Person's
long term unsecured, unsubordinated, unguaranteed debt obligations being
rated, in the case of Moody's, "Aaa", in the case of S&P, "AAA", and Fitch
Ratings, "AAA";
"MINIMUM SHORT-TERM RATING" means, in respect of any Person, such Person's
short term unsecured, unsubordinated, unguaranteed debt obligations being
rated, in the case of Moody's, "P-1", in the case of S&P, "A-1+", and
Fitch Ratings, "F-1+";
"MOODY'S" means Xxxxx'x Investors Service Limited;
"MOST SENIOR CLASS" means, the Class A Notes whilst they remain
outstanding and thereafter the Class B Notes whilst they remain
outstanding and thereafter the Class C Notes. In the event that any
proposed action or inaction affects a particular Sub-Class of Notes, this
term shall mean the Sub-Class of Notes with the greatest principal amount
outstanding of the Most Senior Class of Notes;
"NOTE CERTIFICATE" means any Global Note Certificates or Individual Note
Certificates and includes any replacement Note Certificate issued pursuant
to Condition 14 (Replacement of Note Certificates);
"NOTE TRUST DEED" means the deed so named dated on or about the date
hereof between, inter alios, the Issuer, the Note Trustee and WTSS and,
where the context admits, includes the relevant Note Trust Deed
Supplement;
- 18 -
"NOTE TRUST DEED SUPPLEMENT" means, in relation to any Series, the
supplement to the Note Trust Deed constituting the Notes of such Series
dated on or about the relevant Issue Date between, inter alios, the Issuer
and the Note Trustee;
"NOTE TRUSTEE" means Law Debenture Trust Company of New York situated at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and any successor Note Trustee;
"NOTEHOLDERS" means the Class A Noteholders, the Class B Noteholders and
the Class C Noteholders;
"NOTES" means the Class A Notes, the Class B Notes and the Class C Notes;
"NOTICE OF ASSIGNMENT TO ACCOUNT BANK" means a notice in, or substantially
in, the form set out in the relevant Schedule of each relevant Note Trust
Deed Supplement;
"NOTICE OF ASSIGNMENT TO TRANSACTION PARTIES" means a notice in, or
substantially in, the form set out in the relevant Schedule of each
relevant Note Trust Deed Supplement;
"NOTICE" means any notice delivered under or in connection with any
Document;
"NOTICES CONDITION" means Condition 17 (Notices);
"OBLIGATIONS" means all the legal obligations of the Issuer created by or
arising under the Notes and the Documents;
"OBLIGEE" shall have the meaning set forth in the Common Terms;
"OBLIGOR" shall have the meaning set forth in the Common Terms;
"OFFICERS' CERTIFICATE" means, with respect to any person, a certificate
signed by any director or equivalent officer of such person. Each such
certificate shall include the statements provided for in Clause 17 of the
Note Trust Deed if and to the extent required by the provisions thereof;
"OFFICIAL LIST" means the official list, admission to which is regulated
by the listing rules made by the UKLA under Part VI of the Financial
Services and Markets Xxx 0000;
"OPINION OF COUNSEL" means an opinion in writing signed by legal counsel
who shall be acceptable to the Note Trustee and who may be counsel to the
Issuer or to an affiliate of the Issuer or to such other party as the Note
Trustee may from time to time agree. Each such opinion shall include the
statements provided for in Clause 17 of the Note Trust Deed if and to the
extent required by the provisions thereof.
"PARTICIPATING MEMBER STATE" means at any time any member state of the
European Union that has adopted the euro as its lawful currency in
accordance with the Treaty;
"PAY OUT EVENT" means in respect of a particular Series, a Trust Payout
Event as that term is defined in Clause 6.1 of the Receivables Trust Deed
and Servicing Agreement, as modified in respect of such Series by the
relevant Series Supplement;
- 19 -
"PAYING AGENTS" means the Principal Paying Agent and the paying agents
named in the Agency Agreement together with any Successor or additional
paying agents appointed from time to time in connection with the Notes
under the Agency Agreement;
"PAYING TRANSACTION PARTY" means any Transaction Party which is under an
obligation created by a Document to make a payment to a Receiving
Transaction Party;
"PERMITTED ACTIVITIES" means the primary activities of the Issuer to be
carried out in England and Wales for the purposes of UK GAAP, which are:
(a) issuing Notes from time to time, in accordance with the Base
Prospectus, the Prospectus Supplement/Final Terms, the Note Trust
Deed and pursuant to the relevant Note Trust Deed Supplement;
(b) purchasing Loan Notes, in each case, in accordance with the Base
Prospectus, the Prospectus Supplement/Final Terms, the Security
Trust Deed and pursuant to the relevant Loan Note Supplement;
(c) granting each Issuer Jersey Security Interest and, from time to
time, further security interests in respect of a Series pursuant to
the relevant Note Trust Deed Supplement, in each case in accordance
with the Jersey Security Interests Law;
(d) granting, from time to time, in accordance with the Note Trust Deed
and pursuant to the relevant Note Trust Deed Supplement, the
Security or additional security in favour of the relevant Secured
Creditors;
(e) in relation to a Class or Sub-Class of Notes of a Series, if
specified in the relevant Note Trust Deed Supplement, entering into
one or more Swap Agreements or other related agreements with a Swap
Counterparty, under which the Issuer will make payments to such Swap
Counterparty and the Swap Counterparty will make payments to the
Issuer as specified in such Swap Agreement or other related
agreement; and
(f) engaging in other activities pursuant to the terms of the Note Trust
Deed and any relevant Note Trust Deed Supplement that are necessary
or incidental to accomplish these purposes, which activities cannot
be contrary to the status of the Issuer as a qualified special
purpose entity under UK GAAP as stated in existing accounting
literature in respect thereof;
- 20 -
"PERMITTED INVESTMENTS" shall mean any one or more of the following:
(a) demand or time deposits, certificates of deposit and other
short-term unsecured debt obligations at or of any institution
outside the United Kingdom PROVIDED THAT, in each case, at the time
the deposit is made or the certificate or obligation is acquired the
then current rating of the unsecured and unguaranteed debt
obligations of that institution (or, where the investment in
question is guaranteed, of the guaranteeing institution) is A-1+,
F-1+ and P-1 or (if different) the then highest rating conferred in
respect of such obligations by S&P, Fitch Ratings (if the
institution is publicly rated by Fitch Ratings) and Moody's
(respectively); or
(b) short-term unsecured debt obligations (including commercial paper)
issued by a body corporate outside the United Kingdom provided that
the then current rating of the unsecured and unguaranteed debt
obligations of that body corporate (or where the debt obligations in
question are guaranteed, of the guaranteeing institution) is A-1+,
F-1+ and P-1, or (if different) the then highest rating conferred in
respect of such obligations by S&P, Fitch Ratings (if the
institution is publicly rated by Fitch Ratings) and Moody's
(respectively),
"PERSON" shall be construed as a reference to any Person, individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organisation,
governmental entity or other entity of similar nature (whether or not
having separate legal personality);
"POST ENFORCEMENT CALL OPTION AGREEMENT" means the agreement named the
Series 2006-1 Post Enforcement Call Option Agreement between, inter alia,
the Issuer and Option Co. or any such agreement between in relation to any
Series.
"POTENTIAL EVENT OF DEFAULT" means any event which may become (with the
passage of time, the giving of notice, the making of any determination or
any combination thereof) an Event of Default;
"PRINCIPAL AMOUNT OUTSTANDING" means, in relation to a Note on any date,
the aggregate amount outstanding of that Note on the issue date less the
aggregate amount of all principal payments in respect of that note that
have become due and payable by the Issuer to the Noteholder concerned by
virtue of the Issuer having received funds in respect thereof from Loan
Note Issuer No.1 as described in Condition 9 (Payments) prior to such date
in accordance with the conditions of the Loan Notes;
"PRINCIPAL PAYING AGENT" means HSBC Bank plc as principal paying agent;
"PRINCIPAL TERMS" shall have the meaning defined in the Note Trust Deed;
"PROCEEDINGS" means any legal proceedings relating to a Dispute;
"PROGRAMME LIMIT" means Notes up to a maximum nominal amount of
US$10,000,000,000 which may be issued pursuant to the Programme;
- 21 -
"PROGRAMME" means the Turquoise Card Backed Securities medium term note
programme established by the Issuer pursuant to which the Issuer may issue
from time to time Notes of a Series in accordance with the terms of the
Note Trust Deed as supplemented by the relevant Note Trust Deed
Supplement;
"PROSPECTUS SUPPLEMENT/FINAL TERMS" means, in relation to each Series, a
set of final terms containing, inter alia, the pricing information in
relation to such Series and to be submitted to the UKLA;
"PROVISIONS FOR MEETINGS OF NOTEHOLDERS" means the provisions contained in
Schedule 4 (Provisions for the Meetings of Noteholders) of the Note Trust
Deed;
"QUALIFIED INSTITUTION" means a bank which is rated at least the Minimum
Long-Term Rating or the Minimum Short-Term Rating;
"RAPID AMORTISATION PERIOD" means, for any Series the period commencing on
the day on which a rapid amortisation trigger event is deemed to occur for
the related Loan Note pursuant to the provisions of the relevant Series
Supplement, and ending on the earlier of (i) the day on which the
outstanding principal amount of the related Loan Note is reduced to zero
and (ii) the Final Redemption Date of the Notes;
"RATING AGENCIES" means Xxxxx'x, S&P and Fitch Ratings;
"RATING" means the rating of each class of Notes given by each of the
Rating Agencies, and "RATINGS" means all of such Ratings;
"RECEIVABLES" means all amounts owing by a Cardholder to the Transferor
under a credit card account from time to time;
"RECEIVABLES SECURITISATION DEED" or "RSD" means the Receivables
Securitisation Deed dated on or about 23 May 2006 between the Transferor
and the Receivables Trustee;
"RECEIVABLES TRUST" shall mean the trusts constituted pursuant to the
Receivables Trust Deed as set out in the Receivables Trust Deed and
Servicing Agreement between, inter alios, the Transferor and the
Receivables Trustee;
"RECEIVABLES TRUST ACCOUNTS BANK AGREEMENT" means the agreement so named
dated on or about the date hereof and made, between the Receivables
Trustee, the Account Bank;
"RECEIVABLES TRUST DEED AND SERVICING AGREEMENT" or "RTDSA" means the
receivables trust deed and servicing agreement dated on or about 23 May
2006 between, inter alios, the Receivables Trustee and Investor
Beneficiary and all amendments thereof and supplements thereto, including
any Series Supplement;
"RECEIVABLES TRUSTEE" means Turquoise Receivables Trustee Limited, a
private limited company incorporated in Jersey, Channel Islands whose
registered office is at 00 Xxx Xxxxxx, Xx Xxxxxx, Xxxxxx as trustee
pursuant to the Receivables Trust Deed and Servicing Agreement and its
permitted successors;
- 22 -
"RECEIVER" means any receiver, manager or administrative receiver
appointed in respect of the Issuer by the Note Trustee in accordance with
Clause 7 (Provisions Relating to Receiver) of the Note Trust Deed;
"RECEIVING TRANSACTION PARTY" means, where one Transaction Party is
required by a Document to make payment to another Transaction Party, the
Transaction Party which is to receive such payment;
"RECORD DATE" means, except where otherwise specified, the record date
specified in paragraph 4 of the Provisions for Meetings of Noteholders;
"REDENOMINATION DATE" means an Interest Payment Date on or after the Euro
Commencement Date on which the Issuer intends to redenominate the currency
of the Notes into the euro;
"REGISTER" means any register maintained by a Registrar in accordance with
Clause 4.1 of the Agency Agreement;
"REGISTRAR" means the UK Registrar, the US Registrar and any other
registrar appointed in accordance with the terms of the Agency Agreement;
"REGULATED AMORTISATION PERIOD" means, for any Series, the period
commencing on the day on which a regulated amortisation trigger event is
deemed to occur for the related Loan Note pursuant to the provisions of
the relevant Series Supplement, and ending on the earliest of (i) the day
on which the outstanding principal amount of the related Loan Note is
reduced to zero (ii) the commencement of a Rapid Amortisation Period for
the related Loan Note and (iii) the Final Redemption Date of the Notes;
"REGULATION S" means Regulation S under the Securities Act;
"REGULATION S GLOBAL NOTE CERTIFICATE" means any certificate in global
form in substantially the form of Schedule 2 Part B of the Note Trust Deed
to be issued pursuant to Clause 8.1 of the Note Trust Deed and any
relevant Note Trust Deed Supplement;
"REGULATION S INDIVIDUAL NOTE CERTIFICATE" means any certificate in
substantially the form of Schedule 3 Part B of the Note Trust Deed
representing a Note of any Class or Sub-Class of a Series to be issued
pursuant to Clause 8.2 of the Note Trust Deed and any relevant Note Trust
Deed Supplement and in reliance on Regulation S;
"REGULATORY DIRECTION" means, in relation to any Person, a direction or
requirement of any Governmental Authority with whose directions or
requirements such Person is accustomed to comply;
"RELEVANT DOCUMENTS" means, in relation to the Documents and in respect of
any Transaction Party, the Documents to which such Transaction Party is a
party together with the Documents that contain provisions that otherwise
bind or confer rights upon such Transaction Party;
"REPAY" includes "REDEEM" and vice versa and "REPAID", "REPAYABLE",
"REPAYMENT", "REDEEMED", "REDEEMABLE" and "REDEMPTION" shall be construed
accordingly;
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"REQUIREMENT OF LAW" in respect of any Person shall mean:
(a) any law, treaty, rule, requirement or regulation;
(b) a notice by or an order of any court having jurisdiction;
(c) a mandatory requirement of any regulatory authority having
jurisdiction; or
(d) a determination of an arbitrator or Governmental Authority,
in each case applicable to or binding upon that Person or to which that
Person is subject;
"RULE 144A" means Rule 144A under the Securities Act;
"RULE 144A GLOBAL NOTE CERTIFICATE" means any certificate in global form
in substantially the form of Schedule 2 Part A of the Note Trust Deed to
be issued pursuant to Clause 8.1 of the Note Trust Deed and any relevant
Note Trust Deed Supplement;
"RULE 144A INDIVIDUAL NOTE CERTIFICATE" means any certificate in
substantially the form of Schedule 3 Part A of the Note Trust Deed
representing a Note of any Class or Sub-Class of a Series to be issued
pursuant to Clause 8.2 of the Note Trust Deed and any relevant Note Trust
Deed Supplement and in reliance on Rule 144A;
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw Hill
Companies, Inc.;
"SCHEDULED REDEMPTION DATE" has the meaning given in the relevant
Prospectus Supplement/Final Terms and the relevant Note Trust Deed
Supplement in respect of the Notes of a Series;
"SEC" means the U.S. Securities and Exchange Commission;
"SEC-REGISTERED GLOBAL NOTE CERTIFICATE" means any certificate in global
form in substantially the form of Schedule 2 Part C of the Note Trust Deed
to be issued pursuant to Clause 8.1 of the Note Trust Deed and any
relevant Note Trust Deed Supplement;
"SEC-REGISTERED INDIVIDUAL NOTE CERTIFICATE" means any certificate in
substantially the form of Schedule 3 Part C of the Note Trust Deed
representing a Note of any Class or Sub-Class of a Series to be issued
pursuant to Clause 8.2 of the Note Trust Deed and any relevant Note Trust
Deed Supplement;
"SECURED CREDITORS" means, with respect to the Notes of each Series, the
Note Trustee in its own capacity and as Note Trustee on behalf of those
persons listed as entitled to payment in Condition 5 (Status, Security and
Priority of Payments) of the Notes of such Series (as amended or
supplemented if applicable by the Note Trust Deed Supplement relating to
such Notes);
"SECURED OBLIGATIONS" has the meaning set forth in the Note Trust Deed;
"SECURED PROPERTY" means in respect of the Notes of a Series, all the
property of the Issuer which is subject to the Security in relation to the
Notes of such Series as more particularly described in the relevant Note
Trust Deed Supplement;
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"SECURITIES ACT" means the United States Securities Act of 1933, as
amended;
"SECURITY" means, in relation to any Series, the security created or
intended to be created, or which may at any time be intended to be
created, in favour of the Note Trustee by or pursuant to the Security
Documents;
"SECURITY DOCUMENTS" means, in relation to any Series, the Note Trust Deed
(including the Conditions) and any deed or other document executed in
accordance with the provisions of the Note Trust Deed and expressed to be
supplemental to the Note Trust Deed including, without limitation, the
relevant Note Trust Deed Supplement (including the Conditions);
"SECURITY TRUST DEED" means the security trust deed dated on or about 23
May 2006 between, inter alios, the Security Trustee and Loan Note Issuer
No.1 pursuant to which the Security Trustee acts as trustee for the
benefit of the secured creditors of Loan Note Issuer No.1;
"SECURITY TRUST DEED JERSEY ASSIGNED PROPERTY" shall mean to the extent
they constitute Jersey Assets all Loan Note Issuer No.1's rights, title
and interest in and to, and the entire benefit of the Loan Note Issuer
Corporate Services Agreement including without limitation all rights to
receive payment of any amount which may become payable to Loan Note Issuer
No.1 thereunder or payments received by Loan Note Issuer No.1 thereunder
or rights to serve notice and/or to take such steps as are required to
cause payments to become due and payable thereunder and all rights of
action in respect of any breach thereof and all rights to receive damages
or obtain other relief in respect thereof;
"SECURITY TRUSTEE" means Law Debenture Trust Company of New York in its
capacity as trustee pursuant to the Security Trust Deed;
"SERIES" means each issue of Notes which forms a single series and with
the same terms and conditions issued in accordance with a particular
Prospectus Supplement/Final Terms;
"SERIES CLASS A NOTE" means a Class A Note of a particular Series;
"SERIES CLASS B NOTE " means a Class B Note of a particular Series;
"SERIES CLASS C NOTE " means a Class C Note of a particular Series;
"SERIES EXPENSES LOAN LEDGER" means, with respect to a Series, the monies,
if any, standing to the credit of the relevant Distribution Ledger in the
Issuer Distribution Account in respect of the relevant Expenses Loan;
"SERIES PAY OUT EVENT" means with respect to any Series the meaning
specified in the relevant Series Supplement;
"SERIES SUPPLEMENT" means each supplement to the Receivables Trust Deed
and Servicing Agreement entered into from time to time by, inter alios,
the Receivables Trustee, the Transferor Beneficiary, and Loan Note Issuer
No.1;
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"SERVICER" means HSBC Bank plc;
"SPECIAL CONDITIONS" means, in relation to any Series, the Conditions
applicable thereto which are not in the form set out in Schedule 1 of the
Note Trust Deed;
"SPECIFIED OFFICE" means, in relation to any Agent:
(a) the office specified against the name of the relevant Agent in
Schedule 1 to the Agency Agreement or
(b) such other office in the same city as such office as such Agent may
specify by notice to the Issuer, the Note Trustee and (in the case
of a Paying Agent other than the Principal Paying Agent) the
Principal Paying Agent ;
"SPV CRITERIA" means the criteria established from time to time by the
Rating Agencies for a single purpose company in the Issuer's Jurisdiction;
"STOCK EXCHANGE" means the London Stock Exchange Plc;
"SUB-CLASS" means a sub-class of any Class of Notes.
"SUBSCRIPTION AGREEMENT" means a subscription agreement in respect of a
Class or Sub-Class of Notes of a Series substantially in the form of
Schedule 3 to the Dealer Agreement;
"SUBSTITUTED ISSUER" has the meaning set forth in the Note Trust Deed;
"SUCCESSOR" means, in relation to the Paying Agents or the Calculation
Agent, such other or further Person as may from time to time be appointed
pursuant to the Agency Agreement as a Paying Agent or Calculation Agent;
"SWAP AGREEMENTS" means the relevant currency swap agreement or interest
rate swap agreement in respect of a Class or Sub-Class of Notes (if any);
"SWAP COUNTERPARTY" means in respect of a Class or Sub-Class of Notes the
swap counterparty or counterparties named in the relevant Swap Agreement
(if any);
"TAX AUTHORITY" means any government, state, municipal, local, federal or
other fiscal, revenue, customs or excise authority, body or official
anywhere in the world including H.M. Revenue and Customs;
"TAX CREDIT" means any credit against, relief or remission for, or
repayment of, any Tax;
"TAX DEDUCTION" means any deduction or withholding on account of Tax;
"TAX PAYMENT" means any payment for or on account of Tax;
"TAX" shall be construed so as to include any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature
whatsoever (including any penalty or interest payable in connection with
any failure to pay or any delay in paying any of the same) imposed or
levied by or on behalf of any Tax Authority in the Issuer's Jurisdiction
and/or the jurisdiction in which the Issuer, any Paying Agent or the
Principal Paying
- 26 -
Agent is incorporated or any jurisdiction in which such agent makes
payments under the Notes. "TAXES", "TAXATION", "TAXABLE" and comparable
expressions shall be construed accordingly;
"TIA" means the United States Trust Indenture Act of 1939, as amended;
"TRANSACTION PARTY" means any Person who is a party to a Document;
"TRANSFER AGENT" means the UK Transfer Agent, the US Transfer Agent and
any transfer agent appointed in relation to the Individual Note
Certificates.
"TRANSFEROR BENEFICIARY" means HSBC in its capacity as a beneficiary of
the Receivables Trust pursuant to the Receivables Trust Deed and Servicing
Agreement;
"TRANSFEROR INTEREST" means the aggregate principal amount of the interest
of the Transferor Beneficiary under the Receivables Trust.
"TRANSFEROR" means HSBC as the transferor of the receivables under the
Receivables Securitisation Deed;
"TREATY" means the Treaty establishing the European Communities, as
amended by the Treaty on European Union;
"TRUST CORPORATION" means a corporation entitled by the rules made under
the Public Trustee Xxx 0000 to act as a trustee or entitled pursuant to
any other legislation applicable to a trustee in any jurisdiction other
than England and Wales to act as Note Trustee and carry on trust business
under the laws of the country of its incorporation;
"TRUST DEFINITIONS SCHEDULE" means the master definitions schedule located
in Schedule 6 to the Receivables Trust Deed and Servicing Agreement;
"TRUST PROCEEDS" means all monies received or recovered by the Note
Trustee after an Enforcement Notice has been served by the Note Trustee
other than monies received pursuant to and in accordance with the priority
of application of amounts prior to and following enforcement as provided
in Clause 12.1 of the Note Trust Deed and the relevant Note Trust Deed
Supplement;
"TRUST PROPERTY" means the Covenant to Pay, the Issuer Covenants, the
Security and all proceeds of the Security;
"TRUSTEE ACTS" means both the Trustee Xxx 0000 and the Trustee Xxx 0000 of
England and Wales;
"UK GAAP" means the generally accepted accounting principals from time to
time of England and Wales;
"UK REGISTRAR" means HSBC Bank plc, in its capacity as a registrar
pursuant to its appointment under Clause 2 of the Agency Agreement;
"UK TRANSFER AGENT" means HSBC Bank plc, in its capacity as a transfer
agent pursuant to its appointment under Clause 2 of the Agency Agreement;
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"UKLA" means the UK Listing Authority in its capacity as competent
authority for the purposes of Part VI of the Financial Services and
Markets Xxx 0000;
"US REGISTRAR" means HSBC Bank USA, National Association, in its capacity
as a registrar pursuant to its appointment under Clause 2 of the Agency
Agreement;
"US TRANSFER AGENT" means HSBC Bank USA, National Association, in its
capacity as a transfer agent pursuant to its appointment under Clause 2 of
the Agency Agreement;
"UNDERLYING ASSETS" means, in relation to any Series, the assets
(including all rights, title and interest relating thereto) mortgaged,
charged or pledged by the Issuer in favour of the Note Trustee by or
pursuant to the Note Trust Deed Supplement constituting such Series and,
in general, all property for the time being mortgaged, charged or pledged
in favour of the Note Trustee by or pursuant to the Security Documents;
"VAT" means, and shall be construed as a reference to, value added tax as
imposed by VATA and related legislation including any tax of a similar
fiscal nature, whether imposed in the United Kingdom (instead of or in
addition to VAT) or elsewhere from time to time;
"VATA" means the Value Added Tax Xxx 0000;
"WRITTEN RESOLUTION" means, in relation to any Class or Sub-Class of
Notes, a resolution in writing signed by or on behalf of all holders of
such Class or Sub-Class Notes who for the time being are entitled to
receive notice of a Meeting in accordance with the provisions of the Note
Trust Deed and the Note Trust Deed Supplement whether contained in one
document or several documents in like form, each signed by or on behalf of
one or more such Noteholders;
2. PRINCIPLES OF INTERPRETATION AND CONSTRUCTION
2.1 KNOWLEDGE
2.1.1 References in any Document to the expressions "so far as the
Issuer is aware" or "to the best of the knowledge, information and
belief of the Issuer" or any similar expression in respect of any
matter shall be deemed to mean the actual knowledge of senior
officers of the Issuer located at its principal place of business,
together with the knowledge which such persons could have had, had
the Issuer actually carried out the procedures regularly used by
it in the day to day operation of its business.
2.1.2 References in any Document to the expressions "so far as the Note
Trustee is aware" or "to the best of the knowledge, information
and belief of the Note Trustee" or any similar expression in
respect of any matter shall be deemed to refer to the actual
knowledge of members of the relevant department with
responsibility for administering the transactions contemplated in
the Documents of the Note Trustee.
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2.2 INTERPRETATION
Any reference in the Documents to:
a document being in an "AGREED FORM" means that the form of the document
in question has been agreed between the proposed parties thereto and that
a copy thereof has been signed for the purposes of identification by
Xxxxxxxx Chance Limited Liability Partnership;
"CONTINUING", in respect of an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in accordance
with the terms of the Conditions or, as the case may be, the relevant
Document and, in respect of a Potential Event of Default, one which has
not been remedied within the relevant grace period or waived in accordance
with the terms of the Conditions or, as the case may be, the relevant
Document;
"EUROCLEAR", "CLEARSTREAM" and/or "DTC" shall, wherever the context so
admits, be deemed to include reference to any additional or alternative
clearing system approved by the Issuer and the Note Trustee in relation to
the Notes;
"HOLDER" means the registered owner of a Note and the words "HOLDERS" and
related expressions shall (where appropriate) be construed accordingly;
"INCLUDING" shall be construed as a reference to "INCLUDING WITHOUT
LIMITATION", so that any list of items or matters appearing after the word
"including" shall be deemed not to be an exhaustive list, but shall be
deemed rather to be a representative list, of those items or matters
forming a part of the category described prior to the word "including";
"INDEBTEDNESS" shall be construed so as to mean any indebtedness for money
borrowed or raised including (without limitation) any indebtedness for or
in respect of:
(a) amounts raised by acceptance under any acceptance credit facility;
(b) amounts raised under any note purchase facility;
(c) the amount of any liability in respect of leases or hire purchase
contracts which would in accordance with applicable law and the
relevant generally accepted accounting principles, be treated as
finance or capital leases;
(d) the amount of any liability in respect of any purchase price for
assets or services the payment of which is deferred for a period
in excess of 60 days; and
(e) amounts raised under any other transaction (including, without
limitation, any forward sale or purchase agreement) having the
commercial effect of a borrowing;
a "LAW" shall be construed as any law (including common or customary law),
statute, constitution, decree, judgement, treaty, regulation, directive,
bye-law, order or any other legislative measure of any government,
supranational, local government, statutory or regulatory body or court;
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a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month except that:
(a) if any such numerically corresponding day is not a Business Day,
such period shall end on the immediately succeeding Business Day
to occur in that next succeeding calendar month or, if none, it
shall end on the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month,
and references to "MONTHS" shall be construed accordingly;
"OUTSTANDING" means, in relation to the Notes, all the Notes other than:
(a) those which have been redeemed in full in accordance with the
Conditions;
(b) those in respect of which the date for redemption, in accordance
with the provisions of the Conditions, has occurred and for which
the redemption monies (including all interest accrued thereon to
such date for redemption) have been duly paid to the Note Trustee
or the Principal Paying Agent in the manner provided for in the
Agency Agreement (and, where appropriate, notice to that effect
has been given to the Noteholders in accordance with the Notices
Condition) and remain available for payment in accordance with the
Conditions;
(c) those which have been redeemed and surrendered for cancellation as
provided in Condition 8 (Redemption and Purchase) and notice of
the cancellation of which has been given to the Note Trustee;
(d) those which have become void under the Conditions;
(e) those mutilated or defaced Notes which have been surrendered or
cancelled and in respect of which replacement Note Certificates
have been issued pursuant to Condition 14 (Replacement of Note
Certificates); and
(f) those Notes which are alleged to have been lost, stolen or
destroyed and in respect of which replacement Note Certificates
have been issued pursuant to Condition 14 (Replacement of Note
Certificates);
provided that for each of the following purposes, namely:
(i) the right to attend and vote at any Meeting of Noteholders;
(ii) the determination of how many and which Notes are for the time
being outstanding for the purposes of Clause 10.1 (Waiver), Clause
10.2 (Modifications), Clause 11.3 (Legal Proceedings), Clause 15.2
(Exchange Rate Indemnity) and Clause 16.2 (Appointment of Note
Trustees) of the Note Trust Deed and Condition 11 (Events of
Default) Condition 15 (Meetings of Noteholders; Modification and
Waiver) and Condition 16 (Enforcement) and the Provisions for
Meetings of Noteholders; and
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(iii) any discretion, power or authority, whether contained in the Note
Trust Deed or provided by law, which the Note Trustee is required
to exercise in or by reference to the interests of the Noteholders
or any of them,
those Notes (if any) which are for the time being held beneficially by or
for the account of the Issuer or any of its respective subsidiaries,
Affiliates or holding companies or other subsidiaries or Affiliates of
such holding companies shall (unless and until ceasing to be so held or,
in the case of the Issuer, cancelled) be deemed not to remain outstanding;
a "PERSON" shall be construed as a reference to any Person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal Personality) of two or
more of the foregoing;
"PRINCIPAL" shall, where applicable, include premium;
"REPAY", "REDEEM" and "PAY" shall each include both of the others and
"REPAID", "REPAYABLE" and "REPAYMENT", "REDEEMED", "REDEEMABLE" and
"REDEMPTION" and "PAID", "PAYABLE" and "PAYMENT" shall be construed
accordingly;
all references in this Agreement or in any Document placing an obligation
upon the Note Trustee of "REASONABLENESS" or to be "REASONABLE" shall
where such obligation is held by the Note Trustee be construed so that
such obligation shall be determined solely by reference to the interests
of the holders of the Most Senior Class of Notes outstanding as a Class;
a reference to any "TRANSACTION PARTY" in this Agreement or in any
Document or in the Conditions shall be construed so as to include its and
any subsequent successors and transferees in accordance with their
respective interests;
a "SUBSIDIARY" or "HOLDING COMPANY" is to be construed in accordance with
section 736 of the Companies Act and a "SUBSIDIARY UNDERTAKING" or "PARENT
UNDERTAKING" is to be construed in accordance with section 258 of the
Companies Act;
a "SUCCESSOR" of any party shall be construed so as to include an assignee
or successor in title of such party and any Person who under the laws of
the jurisdiction of incorporation or domicile of such party has assumed
the rights and obligations of such party under the relevant Document or to
which, under such laws, such rights and obligations have been transferred;
and
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be construed
as a reference to any company or corporation which has no other members
except that other company or corporation and that other company's or
corporation's wholly-owned subsidiaries or Persons acting on behalf of
that other company or corporation or its wholly-owned subsidiaries.
2.3 CURRENCY SYMBOLS
"(POUND)", "POUNDS STERLING" and "STERLING" denote the lawful currency of
the United Kingdom and "(EURO)", "EUR" or "EURO" are the single currency
introduced at the start of the
- 31 -
third stage of EMU pursuant to the Treaty, "US$", "US DOLLARS" and
"DOLLARS" denote the lawful currency of the United States of America.
2.4 DOCUMENTS AND OTHER AGREEMENTS
Any reference to the Turquoise Funding Master Framework Agreement, any
Document or any other agreement or document shall be construed as a
reference to this Turquoise Funding Master Framework Agreement, such
Document or, as the case may be, such other agreement or document as the
same may have been, or may from time to time be, amended, varied, novated,
supplemented or replaced.
2.5 STATUTES AND TREATIES
Any reference to a statute or treaty shall be construed as a reference to
such statute or treaty as the same may have been, or may from time to time
be, amended or, in the case of a statute, re-enacted.
2.6 HEADINGS
Section, Part, Schedule, Paragraph and Clause headings are for ease of
reference only.
2.7 TIME
Any reference in any Document to a time of day shall, unless a contrary
indication appears, be a reference to London time.
2.8 SCHEDULES
Any Schedule of, or Appendix to a Document forms part of such Document and
shall have the same force and effect as if the provisions of such Schedule
or Appendix were set out in the body of such Document. Any reference to a
Document shall include any such Schedule or Appendix.
2.9 SECTIONS
Except as otherwise specified in a Document, reference in a Document to:
2.9.1 "Section" shall be construed as a reference to a Section of such
Document;
2.9.2 "Part" shall be construed as a reference to a Part of such
Document;
2.9.3 "Schedule" shall be construed as a reference to a Schedule of such
Document; and
2.9.4 "Clause" shall be construed as a reference to a Clause of a Part
of such Document; and
2.9.5 "Paragraph" shall be construed as a reference to a Paragraph of a
Schedule of such Document.
2.10 NUMBER
In any Document, save where the context otherwise requires, words
importing the singular number include the plural and vice versa.
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2.11 TIME OF THE ESSENCE
Any date or period specified in any Document may be postponed or extended
by mutual agreement between the parties, but as regards any date or period
originally fixed or so postponed or extended, time shall be of the
essence.
2.12 ADDITIONAL AMOUNTS
Principal and/or interest in respect of the Notes of any Series shall be
deemed also to include references to any redemption amounts which may be
payable under Condition 9 (Payments) and any premium;
2.13 RELEVANT CURRENCY
"RELEVANT CURRENCY" shall be construed as a reference to the currency in
which payments in respect of the Notes of the relevant Series are to be
made as indicated in the applicable Prospectus Supplement/Final Terms;
2.14 ENFORCEMENT OF RIGHTS
An action, remedy or method of judicial proceedings for the enforcement of
rights of creditors shall include, in respect of any jurisdiction other
than England, references to such action, remedy or method of judicial
proceedings for the enforcement of rights of creditors available or
appropriate in such jurisdictions as shall most nearly approximate
thereto;
2.15 TRUST CORPORATION
A trust corporation denotes a corporation entitled by rules made under the
Public Trustee Act 1906 to act as a custodian trustee or entitled pursuant
to any other legislation applicable to a trustee in any jurisdiction other
than England to act as trustee and carry on trust business under the laws
of the country of its incorporation; and
2.16 THE CONDITIONS
In the Note Trust Deed, unless the context requires or the same are
otherwise defined, words and expressions defined in the Conditions and not
otherwise defined therein shall have the same meaning in the Note Trust
Deed.
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SCHEDULE 2
COMMON TERMS
PART 1 - GENERAL LEGAL TERMS
1. FURTHER ASSURANCE
Each Transaction Party referred to as an "OBLIGOR" in any Document for the
purposes of this Paragraph shall (at such Transaction Party's cost) do and
execute, or arrange for the doing and executing of, each necessary act,
document and thing reasonably within its power and as may be reasonably
requested of it by the Transaction Party referred to as an "OBLIGEE" in
such Document for the purposes of this paragraph in order to implement
and/or give effect to such Document and the Transactions.
2. ENTIRE AGREEMENT
2.1 ENTIRE AGREEMENT
The Documents and any document referred to in the Documents constitute the
entire agreement and understanding between the Transaction Parties
relating to the Transactions.
2.2 NO RELIANCE
Each Transaction Party agrees that:
2.2.1 it has not entered into any of the Documents in reliance upon any
representation, warranty or undertaking of any other Transaction
Party which is not expressly set out or referred to in one of the
Documents;
2.2.2 except in respect of an express representation or warranty under
any of the Documents, it shall not have any claim or remedy
(whether in equity, contract or tort, under the Xxxxxxxxxxxxxxxxx
Xxx 0000 or in any other way) in respect of any misrepresentation
or breach of warranty by any other Transaction Party or in respect
of any untrue statement by any other Transaction Party, regardless
of whether such misrepresentation, breach or untrue statement was
made, occurred or was given prior to the execution of any of the
Documents.
2.3 BREACH OF DUTY
Nothing in this Paragraph shall have the effect of limiting or restricting
any liability of a Transaction Party arising as a result of any Breach of
Duty.
3. APPLICATION OF COMMON TERMS
3.1 SEPARATE PARTIES
Where any Transaction Party acts in more than one capacity, the provisions
of the Common Terms shall apply to such Person as though it were a
separate party in each such capacity.
3.2 INCONSISTENCY
If a term or provision of any Document (not including a term or provision
relating to VAT) is inconsistent with any provision of the Common Terms or
any term defined in
- 34 -
the Master Definitions Schedule, the term or provision of such Document
shall prevail. If a term or provision of any Document relating to VAT is
inconsistent with a provision of the Common Terms, the provision of the
Common Terms shall prevail.
4. NOTE TRUSTEE PARTY TO DOCUMENTS
4.1 BETTER PRESERVATION AND ENFORCEMENT OF RIGHTS
Except where any Document provides otherwise, the Note Trustee has agreed
to become a party to the Documents to which it is a party for the better
preservation and enforcement of its rights under such Documents and the
Security Documents and shall not assume any liabilities or obligations
under any Document unless such obligation or liability is expressly
assumed by the Note Trustee in such Document.
4.2 NOTE TRUSTEE HAS NO RESPONSIBILITY
The Note Trustee shall not have any responsibility for any of the
obligations of the other Transaction Parties and the other Transaction
Parties acknowledge that the Note Trustee has no such responsibility.
5. CHANGE OF NOTE TRUSTEE
If there is any change in the identity of the Note Trustee in accordance
with the terms of the Note Trust Deed, each of the Transaction Parties
shall execute such documents and take such action as the new Note Trustee
and the outgoing Note Trustee may reasonably require for the purposes of
vesting in the new Note Trustee the benefit of the Documents and the
rights, powers and obligations of the Note Trustee under the Documents,
and releasing the outgoing Note Trustee from its future obligations under
the Documents.
6. SERVICES NON-EXCLUSIVE
6.1 NON-EXCLUSIVITY
Subject to the provisions of the Documents, nothing in the Documents shall
prevent any Transaction Party from rendering services similar to those
provided for in the Documents to other Persons, firms or companies or from
carrying on any business similar to or in competition with the business of
any of the Transaction Parties.
6.2 EXISTING BUSINESSES
Nothing in the Documents shall prevent any Transaction Party from carrying
on its own business in the manner which it thinks fit, unless, by so
doing, it would render itself unable to perform its obligations under the
Documents in the manner contemplated in the Documents.
7. RESTRICTION ON ENFORCEMENT OF SECURITY AND NON-PETITION
7.1 NO PROCEEDINGS AGAINST THE ISSUER
Each Transaction Party (other than the Issuer) agrees with the Issuer that
except as required by the TIA in respect of the Noteholders:
7.1.1 no Transaction Party (other than the Note Trustee) nor any Person
acting on behalf of such Transaction Party shall have any right to
enforce the Security or to take any proceedings against the Issuer
to enforce the Security or to direct the Note Trustee to do so
other than as permitted by the Relevant Documents;
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7.1.2 no Transaction Party (other than the Note Trustee) shall have the
right to take or join any Person in taking any steps against the
Issuer for the purpose of obtaining payment of any amount due from
the Issuer to such Transaction Party;
7.1.3 until the date falling one year and one day after the date on
which the Issuer has discharged all of its obligations in relation
to the Notes, neither it nor any party on its behalf (other than
the Note Trustee) shall initiate or join any Person in initiating
an Insolvency Event in relation to the Issuer; and
7.1.4 it shall not be entitled to take any steps or proceedings which
would result in the priority of payments as specified in each
relevant Note Trust Deed Supplement (prior to any Enforcement
Notice) and in the Conditions (after any Enforcement Notice) not
being observed.
7.2 PERMITTED STEPS
This Paragraph shall not prevent any Secured Creditor from taking any
steps against the Issuer pursuant to the Documents (other than the
Security Documents) so long as such steps do not amount to the initiation
or the threat of initiation of an Insolvency Event in respect of the
Issuer or the initiation or threat of initiation of legal proceedings for
the purpose of obtaining payment of any amount due to such Transaction
Party from the Issuer.
8. NON-PETITION
8.1 The Note Trustee, any Noteholders and the Secured Creditors of any Series
shall have recourse to the Secured Property in respect of such Series and,
once such Secured Property has been realised, where the proceeds of
enforcement of the Security, after meeting the expenses of the Note
Trustee and any Receiver, are insufficient to pay amounts due in respect
of the Notes of that Series, the assets of the Issuer not already secured
under a fixed charge or other security interest of any other Series will
be available for remaining outstanding claims. In particular, no
Noteholders nor any Secured Creditor in respect of any Series may (at any
time, whether prior to or after the realisation of the Secured Property):
8.1.1 institute against, or join any person in instituting against the
Issuer any bankruptcy, winding up, re-organisation, arrangement,
administration, insolvency, liquidation proceeding or other
proceeding under any similar law (but, for the avoidance of doubt,
without prejudice to its ability to appoint a Receiver pursuant to
the terms of the Note Trust Deed as supplemented by the relevant
Note Trust Deed Supplement in relation to such Series) nor shall
any of them have any claim in priority in respect of any such sums
over or in respect of any assets of the Issuer which comprise
Secured Property secured only for any other Series; or
8.1.2 have any recourse, in respect of any obligation, covenant or
agreement of the Issuer, against any shareholder, officer, agent,
or director of the Issuer.
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9. PROVISIONS RELATING TO THE SECURITY DOCUMENTS
9.1 ACKNOWLEDGEMENTS BY SECURED CREDITORS
Each Secured Creditor:
9.1.1 acknowledges the Security created by the Security Documents;
9.1.2 undertakes to the Note Trustee not to do anything inconsistent
with the Security or the terms of the Security Documents;
9.1.3 agrees to observe the provisions of the Security Documents;
9.1.4 acknowledges that the Security is held by the Note Trustee for the
benefit of all the Secured Creditors and that any Receiver shall
be appointed by the Note Trustee for the benefit of all the
Secured Creditors; and
9.1.5 acknowledges the existence of the rights conferred on the
Noteholders by Condition 11 (relating to the delivery of an
Enforcement Notice) and Condition 16 (relating to Proceedings).
9.2 SECURED CREDITORS AND DOCUMENTS
Each Secured Creditor shall be bound by, and deemed to have notice of, all
of the provisions of the Documents as if they were parties to each
Document.
9.3 RESTRICTIONS ON EXERCISE OF SECURITY RIGHTS
If the Note Trustee, having become bound to do so, fails:
9.3.1 to deliver an Enforcement Notice; and/or
9.3.2 to take any steps or proceedings to enforce the Security in
accordance with Clause 11 (Enforcement) of the Note Trust Deed,
within a reasonable time and such failure is continuing, any Noteholder
shall be entitled to take any such steps and proceedings as it shall deem
necessary or desirable and not involving any breach of Clause 7.1 (No
proceedings against the Issuer) including steps for the appointment of a
successor Note Trustee.
9.4 RECEIPT
The Note Trustee is hereby authorised to execute on behalf of the Secured
Creditors a receipt in respect of all or part only of the Secured
Obligations, as may be appropriate from time to time.
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9.5 RECOVERIES AFTER ENFORCEMENT
Except for moneys paid out by the Note Trustee pursuant to and in
accordance with Clause 12.1 of the Note Trust Deed and Condition 5
(Application of Proceeds Upon Enforcement), all monies received or
recovered by the Secured Creditors and Noteholders in respect of the
Secured Obligations after delivery of an Enforcement Notice (whether by
way of set-off, retention, compensation, balancing of accounts or
otherwise) shall forthwith be paid to (and pending such payment held on
trust for) the Note Trustee.
10. OBLIGATIONS AS CORPORATE OBLIGATIONS
10.1 NO RECOURSE AGAINST SHAREHOLDERS AND OTHERS
No Transaction Party shall have any recourse against any director,
shareholder, officer, agent, employee or director of a Transaction Party
in his capacity as such, by any Proceedings or otherwise, in respect of
any obligation, covenant, or agreement of a Transaction Party (acting in
any capacity whatsoever) contained in any of the Documents.
10.2 CORPORATE OBLIGATIONS
It is expressly agreed and understood that each Document is a corporate
obligation of each Transaction Party.
10.3 NO PERSONAL LIABILITY
No personal liability shall attach to or be incurred by any shareholder,
officer, agent, employee or director of a Transaction Party in his
capacity as such, under or by reason of any of the obligations, covenants
or agreements of such Transaction Party contained in the Documents or
implied from the Documents except where such liability arises by reason of
the fraud or wilful misconduct by such shareholder, officer, agent
employee or director and any and all such personal liability of every such
shareholder, officer, agent, employee or director for breaches by such
Transaction Party of any such obligations, covenants or agreements, either
at law or by statute or constitution, is hereby expressly waived by the
other Transaction Parties as a condition of and consideration for the
execution of the Documents.
10.4 NO LIABILITY FOR OBLIGATIONS OF THE ISSUER
The Transaction Parties, other than the Issuer, shall not have any
liability for the Obligations of the Issuer and nothing in the Documents
shall constitute the giving of a guarantee, an indemnity or the assumption
of a similar obligation by any of such other Transaction Parties in
respect of the performance by the Issuer of the Obligations.
11. VARIATION OF DOCUMENTS
11.1 GENERAL
Subject to Clause 11.2 (Permitted Exceptions) and Clause 11.3 (Variation
of Documents to Comply with Securities Act), the variation of any Document
is valid only if it is in writing and signed by or on behalf of each
Transaction Party which is a party to such Document and notification is
made to the Rating Agencies of such variation.
11.2 PERMITTED EXCEPTIONS
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Clause 11.1 (General) is expressly subject to the application of Clause
10.2 (Modifications) of the Note Trust Deed and Condition 15 (Meetings of
Noteholders; Modification and Waiver).
11.3 VARIATION OF DOCUMENTS TO COMPLY WITH SECURITIES ACT
Notwithstanding Clause 11.1 (General), the parties to any Document shall
be entitled to make any modification or amendment to such Document upon
receipt of an opinion of counsel that such modification or amendment is
necessary in order to register any Series of Notes under the Securities
Act.
12. EXERCISE OF RIGHTS AND REMEDIES
12.1 NO WAIVER
A failure to exercise or delay in exercising a right or remedy provided by
any Document or by law does not constitute a waiver of the right or remedy
or a waiver of other rights or remedies. No single or partial exercise of
a right or remedy provided by any Document or by law prevents further
exercise of the right or remedy or the exercise of another right or
remedy.
12.2 RIGHTS AND REMEDIES CUMULATIVE
Except where any Document specifically provides otherwise, the rights and
remedies contained in a Document are cumulative and not exclusive of
rights or remedies provided by law.
13. PARTIAL INVALIDITY
The invalidity, illegality or unenforceability of a provision of a
Document does not affect or impair the continuation in force of the
remainder of such Document.
14. NO PARTNERSHIP
Except where any Document specifically provides otherwise, no provision of
any Document creates a partnership between any of the Transaction Parties
or makes a Transaction Party the agent of another Transaction Party for
any purpose. Except where any Document provides otherwise, a Transaction
Party has no authority or power to bind, to contract in the name of, or to
create a liability for another Transaction Party in any way or for any
purpose.
15. CONTINUATION OF OBLIGATIONS
Except to the extent that they have been performed and except where any
Document specifically provides otherwise, the warranties, representations,
indemnities, and obligations contained in any Document remain in force
after the date on which they were expressed to take effect until the Final
Discharge Date.
16. ASSIGNMENT AND SUBCONTRACTING
16.1 SUCCESSORS
Each Document shall be binding upon and enure to the benefit of each
Transaction Party which is a party to such Document or is otherwise bound
by its terms and its or any subsequent successors and assigns.
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16.2 ASSIGNMENT
Except where any Document provides otherwise or with the prior written
consent of the Note Trustee, a Transaction Party may not assign or
transfer or purport to assign or transfer a right or obligation under any
Document to which it is a party.
16.3 BENEFIT
Each Transaction Party (other than the Note Trustee) is entering into each
Document to which it is a party for its benefit and not for the benefit of
another Person.
16.4 DELEGATION
Except where any Document specifically provides otherwise, a Transaction
Party may not subcontract or delegate the performance of any of its
obligations under a Document.
17. THIRD PARTY TRANSACTION RIGHTS
Without prejudice to the rights of the Persons mentioned in Clauses 8.1.2,
10.1 (No Recourse Against Shareholders and Others), 10.3 (No Personal
Liability) and 22 (Value Added Tax) herein and clauses 2.3.3 and 2.6
(Related Agreements) of the Note Trust Deed, a Person who is not a party
to any Document has no right under the Contract (Rights of Third Parties)
Xxx 0000 to enforce any term of any Document but this does not affect any
right or remedy of a third party which exists or is available apart from
that Act.
18. CONFIDENTIALITY
18.1 CONFIDENTIALITY OF INFORMATION
Each Transaction Party agrees that prior to the Final Discharge Date and
thereafter it shall keep confidential and it shall not disclose to any
Person whatsoever, any information relating to the business, finances or
other matters of a confidential nature of the Transferor, Loan Note Issuer
No.1 or the Issuer (as the case may be) which it may have obtained as a
result of the execution of any Document or of which it may otherwise have
become possessed including any information concerning the identity of any
Cardholder.
18.2 DISAPPLICATION OF CONFIDENTIALITY PROVISIONS
The Transaction Parties shall use all reasonable endeavours to prevent any
disclosure referred to in Clause 18.1 (Confidentiality of Information)
provided however that the provisions of Clause 18.1 (Confidentiality of
Information) shall not apply:
18.2.1 to the disclosure of any information to any Person who is a
Transaction Party insofar as such disclosure is expressly
permitted by the relevant Document;
18.2.2 to the disclosure of any information already known to the
recipient otherwise than as a result of entering into any of the
Documents;
18.2.3 to the disclosure of any information with the consent of the
relevant Transaction Parties;
18.2.4 to the disclosure of any information which is or becomes public
knowledge otherwise than as a result of the conduct of the
recipient;
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18.2.5 to the disclosure of any information:
(a) in order to obtain the admission of the Notes to the
Official List; or
(b) in connection with the admission of the Notes to trading on
the Stock Exchange; or
(c) in relation to the registration of the program and the Notes
under the Securities Act or the discharge of reporting
obligations under the Exchange Act;
(d) which is necessary or desirable to provide to prospective
investors in the Notes;
18.2.6 to the disclosure of any information with respect to the tax
treatment or tax structure of the transactions contemplated
herein, provided that any disclosure shall encompass solely
matters relevant to:
(a) United States federal income taxation to the extent
applicable; or
(b) the tax laws of any state or local jurisdiction within the
United States to the extent applicable;
18.2.7 to the extent that the recipient is required to disclose the same
pursuant to any Requirement of Law or any Regulatory Direction;
18.2.8 to the extent that the recipient needs to disclose the same for
the exercise, protection or enforcement of any of its rights under
any of the Documents or, in the case of the Note Trustee, for the
purpose of discharging, in such manner as it thinks fit, its
duties or obligations under or in connection with the Documents in
each case to such Persons as require to be informed of such
information for such purposes;
18.2.9 to the extent that the recipient needs to disclose the same to any
of its employees provided that before any such disclosure each
Transaction Party shall make the relevant employees aware of its
obligations of confidentiality under the relevant Document and
shall at all times procure compliance with such obligations by
such employees;
18.2.10 to the disclosure of any information to professional advisers
including auditors who receive the same under a duty of
confidentiality;
18.2.11 to the disclosure of any information which any Rating Agency may
require to be disclosed to it or its professional advisers; or
18.2.12 to the disclosure of any information which HSBC Bank plc in its
capacity as lead manager of the transactions and each other Dealer
in the relevant transactions may require to be disclosed to it or
its professional advisers.
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19. NOTICES
19.1 COMMUNICATIONS IN WRITING
Except as specified in any Document, any Notice:
19.1.1 shall be in writing; and
19.1.2 shall be delivered personally or sent by first class pre-paid
recorded delivery (and first class air mail if overseas) or by fax
(provided that such Notice shall forthwith be confirmed by post)
to the party due to receive the Notice at its address or fax
number and marked for the attention of the Person or Persons set
out in Schedule 3 (Notices Details) or to another address or fax
number or marked for the attention of another Person or Persons
specified by the receiving party by not less than seven days'
written notice to the other Transaction Parties received before
the Notice was despatched.
19.2 TIME OF RECEIPT
Unless there is evidence that it was received earlier, a Notice marked for
the attention of the Person specified in accordance with Clause 19.1
(Communications in Writing) is deemed given:
19.2.1 if delivered personally, when left at the relevant address
referred to in Schedule 3 (Notices Details);
19.2.2 if sent by post, except air mail, three days after posting it;
19.2.3 if sent by air mail, seven days after posting it; and
19.2.4 if sent by fax, 24 hours after completion of its transmission/when
confirmation of its transmission has been recorded by the sender's
fax machine.
20. COUNTERPARTS
Each Document may be executed in any number of counterparts each of which
shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
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PART 2
PAYMENT PROVISIONS
21. CALCULATIONS AND PAYMENTS
21.1 BASIS OF ACCRUAL
Except as otherwise provided in any Document, any interest, commitment
commission or fees due from one Transaction Party to another under any
Document shall accrue from day to day and shall be calculated on the basis
of a year of the number of days equal to the Day Count Fraction (or, in
any case where market practice differs, in accordance with market
practice).
21.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from a Paying Transaction Party to a Receiving
Transaction Party under any Document or any order, judgement, award or
decision given or made in relation thereto has to be converted from the
currency (the "FIRST CURRENCY") in which such Sum is payable into another
currency (the "SECOND CURRENCY") for the purpose of:
21.3.1 making or filing a claim or proof against the Paying Transaction
Party; or
21.3.2 obtaining or enforcing an order, judgement, award or decision in
any court or other tribunal,
the Paying Transaction Party shall indemnify the Receiving Transaction
Party from and against any loss suffered or incurred as a result of any
discrepancy between (a) the rate of exchange used for such purpose to
convert such Sum from the First Currency into the Second Currency and (b)
the rate or rates of exchange available to such Person at the time of
receipt of such Sum.
21.3 CURRENCY OF ACCOUNT AND PAYMENT
Except where specified otherwise, Sterling is the currency of account and
payment for each and every sum at any time due from one Transaction Party
to another under the Documents, except that each payment in respect of
costs and expenses in respect of a Document shall be made in the currency
in which the same were incurred.
21.4 PAYMENTS TO THE ISSUER
On each date on which any Document requires an amount to be paid by a
Transaction Party to the Issuer, such Transaction Party shall make the
relevant amount available to the Issuer by payment to the Issuer
Distribution Account for value on the due date no later than the time
specified in the relevant Document or, if no time is specified in the
relevant Document, by close of banking hours in the place of payment on
the due date.
21.5 PAYMENTS TO OTHER TRANSACTION PARTIES
On each date on which any Document requires an amount to be paid by one
Transaction Party to another Transaction Party (other than to the
Transferor or to the Issuer), the Paying Transaction Party shall make the
relevant amount available to the Receiving Transaction Party by payment to
the account specified in the relevant Document for value on the due date
no later than the time specified in the relevant Document or, if no
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time is specified in the relevant Document, by close of banking hours in
the place of payment on the due date.
21.6 NO SET-OFF
All payments required to be made by any Transaction Party under any
Documents except any Swap Agreement shall be calculated without reference
to any set-off or counterclaim and shall be made free and clear of and
without any deduction for or on account of any set-off or counterclaim.
21.7 PARTIAL PAYMENTS
If and whenever a payment is made by any Transaction Party to another
under any Document, the Receiving Transaction Party shall, except as
otherwise provided in any Document, apply the amount received towards the
obligations of the Paying Transaction Party under the relevant Document in
the following order:
21.7.1 first, in or towards payment of any Liabilities which the
Receiving Transaction Party is entitled to be paid under the terms
of the relevant Document;
21.7.2 secondly, in or towards payment pro rata of any accrued interest
due but unpaid;
21.7.3 thirdly, in or towards payment pro rata of any principal due but
unpaid; and
21.7.4 fourthly, in or towards payment pro rata of any other sum due but
unpaid.
21.8 VARIATION OF PARTIAL PAYMENTS
The order of payments set out in Clause 21.7 (Partial Payments) shall
override any appropriation made by any Obligor but the order set out in
the last three sub-clauses of Clause 21.7 (Partial Payments) may be varied
if the relevant Transaction Parties so agree.
21.9 BUSINESS DAYS
Except as otherwise provided in any Document any payment which is due to
be made on a day that is not a Business Day shall be made on the next
Business Day in the same calendar month (if there is one) or on the
preceding Business Day (if there is not).
21.10 RECTIFICATION
If any amount paid pursuant to a Document (other than by or to the Note
Trustee) shall be determined (after consultation in good faith between the
Transaction Parties which are parties to the relevant Document) to have
been incorrect, the Transaction Parties shall consult in good faith in
order to agree upon an appropriate method for rectifying such error so
that the amounts subsequently received and retained by all relevant
Transaction Parties are those which they would have received and retained
if no such error had been made.
22. VALUE ADDED TAX
22.1 Except as otherwise provided in the relevant Document, any sum payable
under a Document by one Transaction Party (other than the Issuer, Loan
Note Issuer No.1 or Loan Note Issuer No.2) to another is deemed to be
exclusive of any VAT chargeable on
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any supply by the other Transaction Party for which that sum is the
consideration (in whole or in part) for VAT purposes.
22.2 Except as otherwise provided in the relevant Document, any sum payable or
other consideration provided under a Document by the Issuer, Loan Note
Issuer No.1 or Loan Note Issuer No.2 is inclusive of any VAT chargeable at
any rate on any supply for which that sum is the consideration (in whole
or in part) for VAT purposes and section 89 of VATA shall not apply to
affect the amount of such sum or other consideration.
22.3 Where:
22.3.1 any Transaction Party (such Person a "SUPPLIER" for the purposes
of this Clause 22) makes a supply to another Transaction Party
(such Person the "RECIPIENT" in relation to that supply for the
purposes of this Clause 22) for VAT purposes pursuant to a
Document;
22.3.2 the sum which is the consideration (in whole or in part) for that
supply is deemed to be exclusive of VAT (or would be so deemed if
the consideration were in cash); and
22.3.3 VAT is or becomes chargeable on such supply for which the Supplier
is required to account to HM Revenue and Customs,
the Recipient shall pay to the Supplier an amount equal to that VAT (in
addition to any other consideration for such supply), such payment to be
made no later than two Business Days before the last day (as notified to
the Recipient in writing by the Supplier) on which the Supplier can
account to HM Revenue and Customs or the relevant Tax Authority (as the
case may be) for such VAT without incurring interest or penalties.
22.4 If, in relation to any supply made pursuant to a Document for VAT purposes
which gives rise to a charge imposed by section 8 of the VATA (or
equivalent provisions of any other VAT legislation), the Recipient of the
supply is the Issuer and:
22.4.1 the consideration for such supply consists wholly of money, such
consideration shall be reduced to such amount as, with the
addition thereto of the VAT chargeable in respect of such supply,
equals the original amount payable by the Recipient; or
22.4.2 the consideration for such supply does not consist of, or wholly
of, money, the Supplier shall pay to the Recipient an amount equal
to the VAT chargeable in respect of such supply, such payment to
be made no later than two Business Days before the last day (as
notified to the Supplier in writing by the Recipient) on which the
Recipient can account to HM Revenue and Customs for such VAT
without incurring interest or penalties.
22.5 Any reference in a Document to any fee, cost, disbursement, expense or
liability incurred by any Transaction Party and in respect of which such
party is to be reimbursed or indemnified (or which is to be paid or
discharged) by any other Person or the amount of which is to be taken into
account in any calculation or computation shall, save where the context
otherwise requires, include a reference to VAT incurred (including,
without
- 45 -
limitation, any VAT incurred under section 8 of VATA (or equivalent
provisions of any other VAT legislation)) by such Transaction Party in
respect of such fee, cost, disbursement, expense or liability, save where
the Transaction Party concerned is not the Issuer, Loan Note Issuer No.1,
Loan Note Issuer No.2 or the Note Trustee, in which case the reference to
VAT is only to the extent that such Transaction Party is not entitled to
obtain credit or repayment in respect of such VAT from HM Revenue and
Customs or any other Tax Authority.
22.6 Any reference herein to a Transaction Party shall (where appropriate) be
deemed, with respect to any time when such party is treated as a member of
a group for the purposes of sections 43 to 43D of VATA and the Value Added
Tax (Groups: eligibility) Order 2004, to include a reference to the
representative member of such group.
23. WITHHOLDING TAXES
23.1 TAX DEDUCTION
Except as otherwise provided in any Document, each payment made by a
Paying Transaction Party to a Receiving Transaction Party under any
Document shall be made without any Tax Deduction, unless a Tax Deduction
is required by any Requirement of Law.
23.2 NOTIFICATION
If a Paying Transaction Party becomes aware that it must make a Tax
Deduction in respect of any payment under any Document (or that there is
any change in the rate or the basis of a Tax Deduction) it shall notify
the Receiving Transaction Party accordingly.
24. ECONOMIC AND MONETARY UNION
24.1 If the Notes are redenominated pursuant to Condition 20 (Redenomination,
Renominalisation and Reconventioning), then following redenomination and
subject always to the terms of Condition 20 (Redenomination,
Renominalisation and Reconventioning):
24.1.1 Denominations: if Individual Note Certificates are required to be
issued, they shall be issued in euro in such denominations as the
Principal Paying Agent shall determine and notify to the
Noteholders;
24.1.2 Calculation of Interest: the amount of interest due in respect of
the Notes represented by the Global Note Certificates will be
calculated by reference to the aggregate principal amount of such
Global Note Certificates and the amount of such payment shall be
rounded down to the nearest euro 0.01.
25. COSTS
Except as otherwise provided in a Document, each Transaction Party (other
than the Note Trustee and Security Trustee) shall pay its own costs
relating to the negotiation, preparation, execution and implementation by
it of each Document and of each document referred to in it.
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PART 3
GOVERNING LAW PROVISIONS
26. GOVERNING LAW
This Agreement and all matters arising from or connected with it shall be
governed by English law save that those parts of the Note Trust Deed
concerned with the creation, subsistence or enforcement of any Issuer
Jersey Security Interest shall be governed by and construed in accordance
with Jersey law.
27. JURISDICTION
27.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any Dispute.
27.2 CONVENIENT FORUM
The parties other than the Note Trustee agree that the courts of England
are the most appropriate and convenient courts to settle Disputes between
them and, accordingly, that they will not argue to the contrary.
27.3 JURISDICTION
Paragraph 27.1 (English Courts) is for the benefit of the Note Trustee for
the purpose of this Paragraph 27 in any Transaction Document. As a result
each party acknowledges that Paragraph 27.1 (English Courts), does not
prevent the Note Trustee from taking any Proceedings in any other courts
with jurisdiction. To the extent allowed by law, the Note Trustee may take
concurrent Proceedings in any number of jurisdictions.
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SCHEDULE 3
NOTICES DETAILS
The address referred to in Paragraph 19 (Notices) of the Common Terms is:
1. IN THE CASE OF HSBC BANK PLC, AS TRANSFEROR:
Address: 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX
Tel: + 00 00 0000 0000
Fax: + 00 00 0000 0000
Attention: HSBC Card Services
2. IN THE CASE OF HSBC BANK PLC AS ARRANGER:
Address: 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX
Tel: + 00 00 0000 0000
Fax: x00 (0)00 0000 0000
Attention: Transaction Development
3. IN THE CASE OF THE ISSUER:
Address: c/o Wilmington Trust SP Services (London) Limited, Tower
42 (Level 11), 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
Tel: x00 (0) 00 0000 0000
Fax: x00 (0) 00 0000 0000
Attention: The Directors
with a copy to the Transferor.
4. IN THE CASE OF HOLDINGS:
Address: c/o Wilmington Trust SP Services (London) Limited, Tower
42 (Level 11), 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
Tel: x00 (0) 00 0000 0000
Fax: x00 (0) 00 0000 0000
Attention: The Directors
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with a copy to the Transferor.
5. IN THE CASE OF THE NOTE TRUSTEE:
Address: 000 Xxxxx Xxxxxx - 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Tel: x0 000 000 0000
Fax: x0 000 000 0000
Attention: Xxxxxxx Xxxxx
6. IN THE CASE OF THE PRINCIPAL PAYING AGENT, AGENT BANK, ISSUER ACCOUNT
BANK, UK REGISTRAR AND UK TRANSFER AGENT AT ITS SPECIFIED OFFICE BEING:
Address: 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX
Fax: x00 00 0000 0000
Attention: The Manager - Operations, Corporate Trust and Loan Agency
7. IN THE CASE OF THE US PAYING AGENT, US REGISTRAR AND EXCHANGE AGENT AT ITS
SPECIFIED OFFICE BEING:
Address: 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Xxxxxx Xxxxxx
Fax: x0 000 000 0000
Attention: The Manager - Operations, Corporate Trust and Loan Agency
8. IN THE CASE OF THE BANK ACCOUNT OPERATOR AND LNI ACCOUNT BANK:
Address: 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX
Fax: x00 (0) 00 0000 0000
Attention: Product Control
9. IN THE CASE OF THE EXPENSES LOAN LENDER:
Address: 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX
Fax: x00 00 0000 0000
Attention: Turquoise Expenses Loan Lender
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10. IN THE CASE OF LOAN NOTE ISSUER NO.1 AND INVESTOR BENEFICIARY:
Address: XX Xxx 00, 00 Xxx Xxxxxx, Xx Xxxxxx, Xxxxxx
Fax: x00 (0) 0000 000000
Attention: The Directors
11. IN THE CASE OF WTSS:
Address: Xxxxx 00 (Xxxxx 00), International Financial Centre,
00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
Fax: x00 (0) 00 0000 0000
Attention: The Directors
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SCHEDULE 4
ISSUER'S REPRESENTATIONS AND WARRANTIES
PART 1
CORPORATE REPRESENTATIONS AND WARRANTIES OF THE ISSUER
1. MANAGEMENT AND ADMINISTRATION
The Issuer represents and warrants that its management, the places of
residence of the majority of its directors, the place at which its
meetings of the board of directors are held and the place from which its
interests are administered are all situated in England.
2. NO SUBSIDIARIES, EMPLOYEES OR PREMISES
The Issuer represents and warrants that it has no branch office in any
jurisdiction, no subsidiaries and no employees.
PART 2
TRANSACTION DOCUMENT REPRESENTATIONS AND WARRANTIES OF THE ISSUER
1. CORPORATE POWER
The Issuer has the requisite power and authority to:
1.1 enter into each Relevant Document; and
1.2 create and issue the Notes and the Security, and to undertake and perform
the obligations expressed to be assumed by it therein.
2. AUTHORISATION
All acts, conditions and things required to be done, fulfilled and
performed in order:
2.1 to enable the Issuer lawfully to issue, distribute and perform the terms
of the Notes and distribute the Base Prospectus and Prospectus
Supplement/Final Terms in accordance with the selling restrictions set out
in Schedule 1 of the Dealer Agreement;
2.2 to enable the Issuer lawfully to enter into each Relevant Document;
2.3 to enable the Issuer lawfully to exercise its rights under and perform and
comply with the obligations expressed to be assumed by it in the Relevant
Documents;
2.4 to ensure that the obligations expressed to be assumed by it in the Notes
and the Relevant Documents are legal, valid, binding and enforceable
against it; and
2.5 to make the Notes and the Relevant Documents admissible in evidence in the
Issuer Jurisdiction,
have been done, fulfilled and performed and are in full force and effect
or, as the case may be, have been effected, and no steps have been taken
to challenge, revoke or cancel any such authorisation obtained or
effected.
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3. EXECUTION
The Relevant Documents have been duly executed by the Issuer.
4. NO BREACH OF LAW OR CONTRACT
The entry by the Issuer into and the execution (and, where appropriate,
delivery) of the Relevant Documents and the performance by the Issuer of
its obligations under the Relevant Documents do not and will not conflict
with or constitute a breach or infringement by the Issuer of:
4.1 the Issuer's Memorandum and Articles of Association;
4.2 any Requirement of Law or any Regulatory Direction in force as at the date
of this Agreement; or
4.3 any agreement, indenture, contract, mortgage, deed or other instrument to
which the Issuer is a party or which is binding on it or any of its
assets.
5. VALID AND BINDING OBLIGATIONS
The obligations expressed to be assumed by the Issuer under the Relevant
Documents (other than the Notes) are legal and valid obligations, binding
on it and enforceable against it in accordance with their terms, except:
5.1 as such enforcement may be limited by applicable bankruptcy, insolvency,
moratorium, reorganisation or other similar laws affecting the enforcement
of the rights of creditors generally;
5.2 as such enforceability may be limited by the effect of general principles
of equity; and
5.3 obligations relating to stamp duties may be void by virtue of Section 117
of the Stamp Xxx 0000.
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SCHEDULE 5
ISSUER COVENANTS
The Issuer, in respect of each Series, hereby covenants with the Note
Trustee that, until (i) no further sums are outstanding in respect of any
Secured Obligation of the Issuer; (ii) the Issuer has fulfilled and
discharged all of the Secured Obligations in respect of each Series; and
(iii) this Turquoise Funding Master Framework Agreement is terminated as
between the Issuer and all the other parties, it shall in relation to its
respective obligations under any Series:
(a) CONDUCT: at all times carry on and conduct its affairs in a proper
and efficient manner and for the purposes of UK GAAP, not engage in
any activities other than Permitted Activities;
(b) INFORMATION: so far as permitted by law, at all times give to the
Note Trustee and procure that there is given to it such
certificates, information and evidence as it shall reasonably
require and in such form as it shall reasonably require in relation
to the performance of its functions under the Documents;
(c) AUDITORS' REPORTS: cause to be prepared and certified by the
Auditors in respect of each financial year, accounts in such form as
will comply with accounting principles generally accepted in the
United Kingdom and with the requirements of the UKLA;
(d) GUARANTEE: not, without the prior written consent of the Note
Trustee, give any guarantee or indemnity (other than as contemplated
by the Series Documents and the Articles of Association of Issuer);
(e) NO BRANCH OR EMPLOYEES: not at any time maintain any permanent
establishment, branch, office or agency anywhere other than in the
United Kingdom and have any employees;
(f) CENTRE OF MAIN INTERESTS: maintain its "centre of main interests",
as that term is used in Article 3(i) of the EU Regulation on
Insolvency Proceedings No.1346/2000, in England;
(g) BOOKS OF ACCOUNTS: at all times keep proper books of account and
allow the Note Trustee and any Person appointed by it, to whom the
Issuer has no reasonable objection, access to the books of account
of the Issuer at all reasonable times during normal business hours
and to discuss the same with a nominated officer of the Issuer and
in the event that audited financial accounts of the Issuer are
produced, to provide a copy thereof to the Note Trustee in relation
to each Series;
(h) NOTIFICATION OF EVENT OF DEFAULT: give notice in writing to the Note
Trustee and the Noteholders in respect of such Series forthwith upon
becoming aware of the occurrence of an Event of Default or Potential
Event of Default in relation to such Series and without waiting for
the Note Trustee to take any action;
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(i) FURTHER ACTS: at all times execute and do all such further
documents, acts and things as may be necessary at any time or times
in the opinion of the Note Trustee to give effect to the Conditions
and to these presents and each of the other Documents;
(j) TAX JURISDICTION: maintain its residence in the United Kingdom for
the purposes of United Kingdom taxation;
(k) TAX: at all times use its best efforts to minimise taxes and any
other costs arising in connection with its activities;
(l) LISTING AND ADMISSION TO TRADING: use all reasonable endeavours to
obtain and maintain the listing of the Notes of each Series on the
Official List and to obtain and maintain the admission to trading on
the Gilt Edged and Fixed Interest Market of the London Stock
Exchange (including compliance with the continuing obligations
applicable to the Issuer by virtue of the admission of the Notes to
the Official List or the admission to trading on the Gilt Edged and
Fixed Interest Market of the London Stock Exchange) or, if it is
unable to do so having used all reasonable endeavours, use all
reasonable endeavours to obtain and maintain a quotation or listing
of the Notes on such other stock exchange or exchanges or securities
market or markets which is a recognised stock exchange for the
purposes of section 349 of the Income and Corporation Taxes Act 1988
as the Issuer may (with the prior written approval of the Note
Trustee) decide, and shall also use all reasonable endeavours to
procure that there will at all times be furnished to the London
Stock Exchange or to any other such stock exchange or securities
market such information as the London Stock Exchange, UKLA or, as
the case may be, any other such stock exchange or securities market
may require to be furnished in accordance with its requirements and
shall also upon obtaining a quotation or listing of the Notes on
such other stock exchange or exchanges or securities market or
markets enter into a deed supplemental to the Note Trust Deed to
effect such consequential amendments to the Note Trust Deed as the
Note Trustee may require or as shall be requisite to comply with the
requirements of any such stock exchange or securities market;
(m) NOTICE TO NOTEHOLDERS: obtain the prior written approval of the Note
Trustee to, and promptly give to the Note Trustee, or ensure that
the Note Trustee receives, four copies of, the form of every notice
given to the Noteholders in accordance with the Notices Condition,
such approval, unless so expressed, shall not constitute approval
for any other purposes (including approval of such notice for the
purpose of Section 21 of the Financial Services and Markets Act
2000);
(n) ASCERTAINMENT OF OUTSTANDING AMOUNTS OF THE NOTES: in order to
enable the Note Trustee to ascertain the number and amount of Notes
for the time being outstanding for any of the purposes referred to
in the proviso to the definition of "OUTSTANDING" contained in the
Master Definitions Schedule, deliver to the Note Trustee forthwith
upon being so requested in writing by the Note Trustee a
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certificate in writing signed by a Director of the Issuer setting
out the total number and the principal amount of the Notes which:
(a) up to and including the date of such certificate have been
redeemed by the Issuer and cancelled; and
(b) are at the date of such certificate beneficially held by or
for the account of the Issuer;
(o) COMPLIANCE: at all times comply with and perform all its obligations
under these presents, the Conditions and under the Documents and use
all reasonable endeavours to procure that the other parties thereto,
other than the Note Trustee (or any Person which is the Note Trustee
acting in another capacity), comply with and perform all their
respective obligations thereunder and not make any amendment or
modification thereto or agree to waive or authorise any breach
thereof without the prior written approval of the Note Trustee;
(p) APPLICABLE LAWS: ensure that each Series and all other transactions
to be effected hereunder shall at the time when they are entered
into comply with all applicable laws and regulations of any
governmental or other regulatory authority of the United Kingdom for
the purposes of any relevant Series Documents and that all necessary
consents and approvals of, and registrations and filings with, any
such authority in connection therewith are obtained and maintained
in full force and effect and copies thereof are supplied promptly to
the Note Trustee;
(q) MODIFICATIONS TO DOCUMENTS: unless specified otherwise in the
relevant Note Trust Deed Supplement, not make or consent to any
material amendment, variation or termination to any Document in
respect of any Series or any Secured Property in respect of such
Series (including for the avoidance of doubt each programme
agreement) without the prior written consent of the Note Trustee (in
its capacity as trustee);
(r) LOAN NOTES: to provide such information to the Note Trustee as it
shall require regarding the Loan Notes;
(s) NOTICE OF SECURITY: promptly after the date hereof join with the
Note Trustee in giving notice to each relevant Person of the
Security granted to the Note Trustee and procure that each such
Person acknowledges the same. In addition to the foregoing, Issuer
shall from time to time deliver, and assist the Note Trustee in
delivering, any other notices in relation to any Security as the
Note Trustee may reasonably request;
(t) PERFECTION: forthwith upon execution of any further instruments or
documents pursuant to any Note Trust Deed Supplement creating or
purporting to create or to perfect or to protect any security
interest by Issuer, register in any jurisdiction where such
registration may be required, details of such instrument or
document;
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(u) AUTHORISED SIGNATORIES: upon the execution of this Agreement and
thereafter forthwith upon any change of the same, deliver to the
Note Trustee a list of the Authorised Signatories of the Issuer,
together with certified specimen signatures of the same;
(v) BANK ACCOUNTS: to maintain all relevant bank accounts in the United
Kingdom;
(w) STAMP DUTY: pay any stamp, issue, documentary or other similar taxes
and duties (if any), including interest and penalties, payable in
the United Kingdom in respect of the creation, issue and offering of
the Notes and the execution or delivery of the Note Trust Deed. The
Issuer will also indemnify the Note Trustee, the Noteholders from
and against all stamp, issue, documentary or other similar taxes
(excluding, for the avoidance of doubt, VAT) paid by any of them in
any such jurisdiction in connection with any action taken by or on
behalf of the Note Trustee or, as the case may be, the Noteholders
to enforce the Issuer's obligations under the Note Trust Deed and
the Notes;
(x) BOARD MEETINGS, MANAGEMENT AND ADMINISTRATION: shall (i) hold all
meetings of the board of directors of the Issuer in the United
Kingdom, (ii) not hold any such meeting outside the United Kingdom,
(iii) procure that its central management and control, the places of
residence of the majority of its directors and the place where its
interests are administered on a regular basis will, at all times,
remain situated in the United Kingdom and (iv) only hold board
meetings when the United Kingdom resident directors present at the
board meeting in the United Kingdom are in the majority at such
board meeting;
(y) SWAP COUNTERPARTY: in executing the relevant Note Trust Deed
Supplement, procure that the Swap Counterparty will covenant with
the Note Trustee that:
(a) it will comply with and be bound by the terms of the relevant
Swap Agreement; it will not amend the relevant Swap Agreement
without the consent of the Note Trustee; its recourse in
respect of its claim under the relevant Swap Agreement is
limited to the proceeds of the Secured Property as provided in
the Note Trust Deed and Clause 7 (Restriction on Enforcement
of Security and Non-Petition) hereof and no debt shall be owed
by the Issuer in respect of any shortfall; and it may take no
action against the Issuer as provided in the Note Trust Deed
(including instituting or joining with any other Person in
bringing, instituting or joining, insolvency proceedings
(whether court based or otherwise) in relation to the Issuer)
to enforce its rights (except as permitted by the relevant
Swap Agreement); and
(b) all provisions of the Note Trust Deed as regards the
entitlement of the Note Trustee to appoint agents and
delegates, to rely upon experts' opinions and otherwise
defining the rights and responsibilities of the Trustee with
regard to the Secured Property in relation to such Series
shall also apply as between the Note Trustee and the Swap
Counterparty.
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(z) INFORMATION REGARDING NOTEHOLDERS: shall furnish or cause to be
furnished to the Note Trustee at such times as the Note Trustee may
request in writing, all information in the possession or control of
the Issuer, or of its Registrars, as to the names and addresses of
the Noteholders, and requiring the Note Trustee to preserve, in as
current a form as is reasonably practicable, all such information so
furnished to it or received by it in such capacity;
(aa) OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE
CONTAINED THEREIN: so long as any of the Notes are outstanding and
to the extent that any such Notes have been registered under the
Securities Act, upon any application, demand or request by the
Issuer to the Note Trustee to take any action under any of the
provisions of the Note Trust Deed (other than the issuance of Notes)
or upon request of the Note Trustee, the Issuer shall furnish to the
Note Trustee an Officers' Certificate and Opinion of Counsel
complying with the provisions of Section 314(e) of the TIA. Each
certificate or opinion provided for in the Note Trust Deed and
delivered to the Note Trustee with respect to compliance with a
condition or covenant provided for in the Note Trust Deed shall
include the items required by Section 314(e) of the TIA; and
(bb) SEC REPORTS: so long as any of the Notes are outstanding and to the
extent that it is required to do so under Section 13 or 15(d) of the
Exchange Act, file with the Note Trustee copies of the annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which the Issuer is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act within 15 days after it files them with the SEC. The Issuer also
shall comply with the other provisions of Section 314(a) of the TIA.
- 57 -
EXECUTION PAGE
ISSUER
TURQUOISE CARD BACKED SECURITIES PLC )
By: )
XXXX XXXXX Director
----------------------------------
HOLDINGS
TURQUOISE HOLDINGS LIMITED )
By: )
XXXX XXXXX Director
----------------------------------
PRINCIPAL PAYING AGENT, AGENT BANK, UK TRANSFER AGENT AND UK REGISTRAR AND
ISSUER ACCOUNT BANK
Executed for and on behalf of )
HSBC BANK PLC )
By: )
XXXX XXXXX Authorised Signatory
----------------------------------
BANK ACCOUNT OPERATOR, TRUST ACCOUNTS BANK, LNI ACCOUNT BANK AND EXPENSES LOAN
LENDER
Executed for and on behalf of )
HSBC BANK PLC )
By: )
XXXXXXX XXXXXXXX Authorised Signatory
----------------------------------
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PAYING AGENT, US REGISTRAR, US TRANSFER AGENT AND EXCHANGE AGENT
Executed for and on behalf of )
HSBC BANK USA )
NATIONAL ASSOCIATION )
By: XXXXXXX XXXXXXX
VICE PRESIDENT
__________________________________ Authorised Signatory
NOTE TRUSTEE
LAW DEBENTURE TRUST COMPANY OF NEW YORK AS
NOTE TRUSTEE
By XXXXXXX X. XXXXX
Name XXXXXXX X. XXXXX
Title VICE PRESIDENT
OPTION CO
Executed for and on behalf of )
TURQUOISE OPTION CO LIMITED )
By: S.M. HOLLYWOOD )
__________________________________ Director
LOAN NOTE ISSUER NO.1 AND INVESTOR BENEFICIARY
Executed for and on behalf of )
TURQUOISE FUNDING 1 LIMITED )
)
By: S.M. HOLLYWOOD )
__________________________________ Director
- 59 -
LOAN NOTE ISSUER NO.2 AND DORMANT BENEFICIARY
Executed for and on behalf of )
TURQUOISE FUNDING 2 LIMITED )
)
By: )
S.M. HOLLYWOOD Director
----------------------------------
RECEIVABLES TRUSTEE
Executed for and on behalf of )
TURQUOISE RECEIVABLES )
TRUSTEE LIMITED )
By: )
SM HOLLYWOOD Authorised Signatory
----------------------------------
WTSS
Executed for and on behalf of )
WILMINGTON TRUST SP )
SERVICES (LONDON) LIMITED
By: )
XXXXX XXXXX Director/Authorised Signatory
----------------------------------
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