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C H A N G E
CONFORMED COPY
TURQUOISE RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
HSBC BANK PLC
As Transferor Beneficiary, Servicer and Transferor
TURQUOISE FUNDING 1 LIMITED
as Investor Beneficiary
TURQUOISE FUNDING 2 LIMITED
as Dormant Investor Beneficiary
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RECEIVABLES TRUST DEED
AND SERVICING AGREEMENT
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CONTENTS
CLAUSE PAGE
PART 1..................................................................................... 4
1. Definitions........................................................................... 4
PART 2..................................................................................... 7
2. Receivables Trust Deed................................................................ 7
3. Rights Of Beneficiaries............................................................... 8
4. Trust Certificates, Additional Beneficiaries And Tender Of Trust Certificates......... 10
5. Distributions And Calculations In Respect Of Collections.............................. 18
6. Pay Out Events........................................................................ 32
PART 3..................................................................................... 35
7. The Receivables Trustee............................................................... 35
8. Termination Of The Receivables Trust And Perpetuity................................... 47
PART 4..................................................................................... 49
9. Servicer Functions.................................................................... 49
10. Other Matters Relating To The Servicer................................................ 60
11. Servicer Defaults..................................................................... 65
PART 5..................................................................................... 70
12. Miscellaneous Provisions.............................................................. 70
Schedule 1 FORM OF INVESTOR CERTIFICATE.............................................. 75
Schedule 2 FORM OF TRANSFEROR CERTIFICATE............................................ 78
Schedule 3 FORM OF SERVICER MONTHLY REPORT........................................... 80
Schedule 4 TRUST REGISTER............................................................ 85
Schedule 5 FORM OF SERVICER ANNUAL REPORT............................................ 87
Schedule 6 MASTER DEFINITIONS SCHEDULE............................................... 90
EXECUTION PAGE............................................................................. 91
THIS RECEIVABLES TRUST DEED AND SERVICING AGREEMENT is made 23 May 2006
BY AND BETWEEN:
(1) HSBC BANK PLC, a company registered in England and Wales (registered
number 14259) having its registered office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ (the "TRANSFEROR BENEFICIARY", the "SERVICER" and the
"TRANSFEROR").
(2) TURQUOISE RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey
with registration number 92324 and having its registered office at ▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Channel Islands (the
"RECEIVABLES TRUSTEE").
(3) TURQUOISE FUNDING 1 LIMITED, a company incorporated in Jersey with
registration number 92327 and having its registered office at ▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Channel Islands (the "LOAN NOTE
ISSUER" and an "INVESTOR BENEFICIARY").
(4) TURQUOISE FUNDING 2 LIMITED, a company incorporated in Jersey with
registration number 92329 and having its registered office at ▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Channel Islands (the "DORMANT
INVESTOR BENEFICIARY" and an "INVESTOR BENEFICIARY").
WHEREAS:
(A) The Transferor is the legal owner of the Receivables (which terms and
certain other capitalised terms used in these recitals bear the meaning
given to them in Part 1 below).
(B) From time to time an Investor Beneficiary may decide to make cash
contributions to the Receivables Trust in order to obtain an interest
(or increase its interest) in the Receivables Trust on the terms of and
in accordance with this Deed.
(C) Pursuant to the terms and subject to the conditions of the Receivables
Securitisation Deed the Transferor may from time to time offer to assign
(without notice to Obligors except following a Notification Event, which
assignment shall, pending the giving of such notice or such other action
as is necessary to perfect the assignment, take effect in equity only)
all Receivables arising on Designated Accounts (being Receivables in
existence on Accounts nominated to be Designated Accounts in an Offer on
the date each such Offer is accepted and Receivables arising on such
Designated Accounts thereafter) to the Receivables Trustee. It is
acknowledged that Defaulted Receivables may be assigned by the
Receivables Trustee to the Transferor pursuant to the Call Option
Agreement.
(D) Following assignment of the Receivables arising on Designated Accounts
to or for the benefit of the Receivables Trustee, the Transferor will
continue to have contractual relationships with the Obligors on the
terms set out in the Lending Agreements and accordingly will continue to
be a grantor of credit in respect of both Existing Receivables and
Future Receivables.
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(E) The Servicer has agreed at the request of the Receivables Trustee, upon
the terms and subject to the conditions hereof, to act as servicer for
the Receivables Trustee (acting as principal) in connection with the
Receivables which are comprised in the Trust Property of the Receivables
Trust.
NOW IT IS HEREBY AGREED as follows:
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PART 1
INTERPRETATION
1. DEFINITIONS
1.1 DEFINITIONS
Whenever used in this Deed, the words and phrases defined in the Master
Definitions Schedule set out in Schedule 6 shall, unless otherwise defined
herein or the context requires otherwise, bear the same meanings herein
(including the recitals hereto).
1.2 OTHER DEFINITIONAL PROVISIONS
(a) All terms defined in this Deed or any Supplement shall have the defined
meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not fully defined
in the manner provided for in Clause 1.1, shall have the respective
meanings given to them under generally accepted accounting principles in
the United Kingdom. To the extent that the definitions of accounting
terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles in the United Kingdom, the
definitions contained herein shall prevail.
(c) The agreements, representations and warranties of HSBC Bank plc in this
Deed and any Supplement in each of its capacities as Transferor,
Transferor Beneficiary and Servicer shall, where the capacity in which
the same are given is specified, be deemed to be the agreements,
representations and warranties of HSBC Bank plc solely in each such
capacity for so long as HSBC Bank plc acts in each such capacity under
this Deed.
(d) The words "hereof", "herein" and "hereunder" and words of similar import
when used in this Deed shall refer to this Deed and any Supplement as a
whole and not to any particular provision of this Deed or any
Supplement, always having regard to Clause 4.6(a)(iii); and Clause,
Schedule and Exhibit references contained in this Deed or any Supplement
are references to clauses, schedules and exhibits of this Deed or any
Supplement unless otherwise specified.
(e) A time of day (including opening or closing of business) shall be
construed as a reference to London time unless specified otherwise.
(f) VAT:
(i) all sums payable by the Receivables Trustee, the Loan Note
Issuer, or, as the case may be, any other Investor Beneficiary,
to any other party hereto are inclusive of any VAT which is
chargeable on the supply or supplies for which such sums (or any
part thereof) are the whole or part of the consideration for VAT
purposes and section 89 of the VATA shall not apply to affect
the amount of such sums; and
(ii) all sums payable by the Servicer (the "PAYER") to any other
party hereto (the "PAYEE") are exclusive of any VAT which is
chargeable on the supply or
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supplies for which such sums (or any part thereof) are the whole
or part of the consideration for VAT purposes. Where the Payee
makes a supply to the Payer for VAT purposes pursuant hereto and
VAT is or becomes chargeable on such supply (being VAT for which
the Payee is accountable to HM Revenue & Customs), the Payer
shall pay to the Payee (in addition to any other consideration
for such supply) a sum equal to the amount of such VAT, such
payment to be made no later than 2 Business Days before the last
day (as notified to the Payer in writing by the Payee) on which
the Payee can account to HM Revenue & Customs for such VAT
without incurring any interest or penalties.
(iii) Any reference herein to any fee, cost, disbursement, expense or
liability incurred by any party and in respect of which such
party is to be reimbursed (or indemnified) 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) where such party is the Receivables Trustee, the Loan
Note Issuer or, as the case may be, any other Investor
Beneficiary, a reference to such part of such fee, cost,
disbursement, expense or liability as represents VAT,
and any VAT for which such party is required to account
to HM Revenue & Customs under Section 8 of the VATA in
relation to such fee, cost, disbursement, expense or
liability; and
(B) where such party is the Servicer, a reference to such
part of such fee, cost, disbursement, expense or
liability as represents VAT save to the extent that such
party is entitled to obtain credit or repayment in
respect of such VAT from HM Revenue & Customs, and any
VAT for which such party is required to account to HM
Customs and Excise under Section 8 of the VATA in
relation to such fee, cost, disbursement, expense or
liability.
(iv) Any reference herein to a party shall (where appropriate) be
deemed, at any time when such party is treated as a member of a
group for the purposes of Sections 43 to 43D of the VATA and the
Value Added Tax (Groups: eligibility) Order 2004, to include a
reference to the representative member of such group.
(g) All references herein to any provision of any statute shall be construed
so as to include any statutory modification or re-enactment thereof or
any statutory instrument, order or regulation made thereunder or under
such modification or re-enactment.
(h) Save where the contrary is indicated, any reference in this Deed or any
Supplement to this Deed or any other agreement or document shall be
construed as a reference to this Deed or any Supplement 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 or supplemented.
References in this Deed to any party shall include references to that
party's permitted successors and assigns.
(i) In this Deed:
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(i) references, in relation to any person, to where it "belongs" for
VAT purposes are references to where it belongs for the purposes
of section 9 of the VATA in relation to (as the case may be)
services supplied or to be supplied by and services to be
supplied to such person in connection with the transactions
contemplated by the Transaction Documents; and
(ii) references in the context of VAT to "member states of the
European Union" and "the European Union" shall be construed as
references to "member States" and "the territory of the
Community" as such terms are used in the VATA and legislation
supplemental thereto.
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PART 2
RECEIVABLES TRUST DEED AND OPERATION OF TRUST
2. RECEIVABLES TRUST DEED
2.1 RECEIVABLES TRUST DEED
The Receivables Trustee hereby declares that (1) on the date of this Deed, the
Investor Beneficiary and the Dormant Investor Beneficiary have each transferred
the sum of (pound)2 and the Transferor has transferred the sum of (pound)2 to
the Receivables Trustee to be held on trust on an undivided basis for the
benefit of the Transferor Beneficiary, the Investor Beneficiary and the Dormant
Investor Beneficiary as the initial Beneficiaries, and (2) the Receivables
Trustee shall hold all Trust Property absolutely upon the trusts herein
contained and described in this Clause 2.1 (and for the purposes referred to in
this Clause 2.1) for the Investor Beneficiary, the Dormant Investor Beneficiary
and the Transferor Beneficiary as the initial Beneficiaries, and for each other
person that becomes a Beneficiary pursuant to Clause 4. The Receivables Trustee
hereby declares the following trusts held on the following basis for the
following Beneficiaries:
(a) THE UNDIVIDED BARE TRUST
All Trust Property from time to time paid, transferred, assigned or
purported to be assigned to the Receivables Trustee, other than
Ineligibles Bare Trust Property, Segregated Bare Trust Property,
Deferred Consideration Bare Trust Property or Other Trust Property,
shall be held on an undivided basis in the manner described in this Deed
and any Supplement for the benefit of each of the initial Beneficiaries
and each other person that becomes a Beneficiary in accordance with the
entitlements described in Clause 3.1(a) (the "UNDIVIDED BARE TRUST") and
all Trust Property held on the Undivided Bare Trust shall be hereinafter
referred to as "UNDIVIDED BARE TRUST PROPERTY".
(b) THE INELIGIBLES BARE TRUST OF THE TRANSFEROR BENEFICIARY
All Trust Property which constitutes Ineligible Receivables originated
by the Transferor or Ineligible Collections related to such Ineligible
Receivables from time to time, shall be held on a segregated separate
trust for the benefit of the Transferor Beneficiary in accordance with
the entitlements described in Clause 3.2(c) of this Deed (the
"INELIGIBLES BARE TRUST") and all Trust Property held on an Ineligibles
Bare Trust shall hereinafter be referred to as "INELIGIBLES BARE TRUST
PROPERTY".
(c) THE SEGREGATED BARE TRUSTS
All Trust Property which is expressly segregated by or on behalf of the
Receivables Trustee for the benefit of an Investor Beneficiary or the
Transferor Beneficiary (other than, in the case of the Transferor
Beneficiary, Ineligibles Bare Trust Property and Deferred Consideration
Bare Trust Property) pursuant to the terms of this Deed or any
Supplement shall be held as segregated nominee property on absolute bare
trust for the sole benefit of such Investor Beneficiary or the
Transferor Beneficiary, in accordance with the entitlements described in
Clause 3.1(c) (each such trust being a "SEGREGATED BARE TRUST") and all
Trust Property held on a Segregated Bare Trust shall hereinafter be
referred to as "SEGREGATED BARE TRUST PROPERTY".
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(d) THE DEFERRED CONSIDERATION BARE TRUST OF THE TRANSFEROR BENEFICIARY
All Trust Property which constitutes Additional Consideration (other
than Additional Consideration "Loss Make-up") received by the
Receivables Trustee pursuant to the terms of any Supplement shall be
held on a segregated bare trust for the purpose of paying Deferred
Consideration to the Transferor, in accordance with Clause 5.3 of the
Receivables Securitisation Deed and the entitlements described in Clause
3.1(d) of this Deed (the "DEFERRED CONSIDERATION BARE TRUST") and all
Trust Property held on the Deferred Consideration Bare Trust shall
hereinafter be referred to as "DEFERRED CONSIDERATION BARE TRUST
PROPERTY".
(e) OTHER TRUSTS
All Trust Property which is expressly segregated by the Receivables
Trustee for the benefit of any other Beneficiary according to the terms
of any other Supplement shall be held on such terms for such
Beneficiary, in accordance with the entitlements described in Clause
3.1(e) (each an "OTHER TRUST") and all Trust Property held on an Other
Trust shall hereinafter be referred to as "OTHER TRUST PROPERTY".
The Undivided Bare Trust, the Ineligibles Bare Trust, the Deferred Consideration
Bare Trust, the Segregated Bare Trusts, and any Other Trusts shall hereinafter
be collectively referred to as the "RECEIVABLES TRUST".
The Receivables Trustee shall hold the Trust Property for the purpose of
receiving amounts arising therefrom and transferring and distributing such
amounts in accordance with the provisions hereof for the benefit of the
Beneficiaries as such provisions may be amended, supplemented or varied from
time to time in the manner provided herein. The Beneficiaries acknowledge that
any other duties of the Receivables Trustee as set out herein and in any of the
Transaction Documents shall be incidental and ancillary to the foregoing and to
the granting of interests by the Receivables Trustee to the Beneficiaries in the
manner provided in Clause 4.
2.2 APPLICATION OF TRUST PROPERTY
The Receivables Trustee shall make all calculations as may be necessary or
desirable for the purposes of distributing Trust Property in the manner and
order of priority set out in Clause 5, as such Clause may be amended,
supplemented or varied from time to time in the manner provided herein.
3. RIGHTS OF BENEFICIARIES
3.1 BENEFICIAL ENTITLEMENT TO TRUST PROPERTY
(a) THE UNDIVIDED BARE TRUST
Each Investor Beneficiary and the Transferor Beneficiary shall be
absolutely beneficially entitled to an undivided interest in the
Undivided Bare Trust Property in the proportion set out herein.
(b) THE INELIGIBLES BARE TRUST
The Transferor Beneficiary shall be absolutely beneficially entitled to:
(1) the Ineligible Receivables, and (2) Ineligible Collections related
to such Ineligible Receivables.
(c) THE SEGREGATED BARE TRUSTS
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The Loan Note Issuer, the Dormant Investor Beneficiary or the Transferor
Beneficiary (as the case may be) will be absolutely beneficially
entitled to Trust Property specified in this Deed or any Supplement as
being Segregated Bare Trust Property of such Investor Beneficiary or the
Transferor Beneficiary (as the case may be).
(d) THE DEFERRED CONSIDERATION BARE TRUST
The Transferor Beneficiary shall be absolutely beneficially entitled to
all Deferred Consideration Bare Trust Property.
(e) OTHER TRUSTS
Each Beneficiary will be absolutely beneficially entitled to Trust
Property specified in any Supplement as being the Other Trust Property
of such Beneficiary.
3.2 RIGHTS OF BENEFICIARIES
Each Beneficiary of the Receivables Trust will belong to one of the categories
of Beneficiaries set out below for the purposes of this Deed. The beneficial
entitlement to Trust Property, and calculations for the purposes of allocation,
shall be specified herein and in any related Supplement (always having regard to
Clause 4.6(a)(iii)). The categories of Beneficiaries are as follows:
(a) INVESTOR BENEFICIARIES
The beneficial entitlement of an Investor Beneficiary to Trust Property
shall be specified in this Deed and in a Supplement related to such
Investor Beneficiary.
(b) ENHANCEMENT PROVIDER
If a Supplement specifies that an Enhancement Provider is to be a
Beneficiary of the Receivables Trust, the beneficial entitlement of such
Enhancement Provider to Trust Property shall be specified in that
Supplement.
(c) TRANSFEROR BENEFICIARY
The beneficial entitlement of the Transferor Beneficiary to Trust
Property at any time shall be as follows:-
(i) in relation to Undivided Bare Trust Property, excluding Finance
Charge Collections, Acquired Interchange, and income on
Permitted Investments, that proportion which the Transferor
Interest bears to the sum of (1) the Combined Adjusted Investor
Interests and (2) the Transferor Interest, EXCEPT that if at any
time each of the Combined Adjusted Investor Interests and the
Transferor Interest are zero, and the Undivided Bare Trust
Property at that time includes Principal Collections, such
Principal Collections shall be identified as "UNAVAILABLE
PRINCIPAL COLLECTIONS" and will be held for the Transferor
Beneficiary absolutely; and
(ii) in relation to Undivided Bare Trust Property which consists of
Finance Charge Collections, Acquired Interchange, and income on
Permitted Investments, the Floating Transferor Percentage for
the Monthly Period in which such Finance
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Charge Collections, Acquired Interchange, and income on
Permitted Investments arise;
(iii) in relation to Ineligibles Bare Trust Property, the Ineligible
Receivables subject as provided in Clause 3.1(b) above and all
Ineligible Collections related to such Ineligible Receivables;
and
(iv) in relation to Deferred Consideration Bare Trust Property, as
provided in Clause 3.1(d).
For the avoidance of doubt, the beneficial entitlement to Trust Property
referred to in (a) to (c) above of this Clause 3.2 shall apply in the
absence of any more specific provisions and it is hereby declared that
each Beneficiary shall also be absolutely beneficially entitled to all
Trust Property from time to time which is expressly held on bare trust
for the sole benefit of such Beneficiary.
4. TRUST CERTIFICATES, ADDITIONAL BENEFICIARIES AND TENDER OF TRUST
CERTIFICATES
4.1 THE TRUST CERTIFICATES
(a) The beneficial entitlement of the Investor Beneficiary in the
Receivables Trust shall be evidenced by an Investor Certificate
substantially in the form set out in Schedule 1.
(b) The Transferor Beneficiary may elect at any time, by written notice to
the Receivables Trustee, to have its beneficial entitlement in the
Receivables Trust be (i) in uncertificated form, or (ii) in certificated
form and evidenced by the Transferor Certificate (substantially in the
form set out in Schedule 2), which shall be promptly issued by the
Receivables Trustee following notice of such election from the
Transferor Beneficiary. If the Transferor Beneficiary elects to have its
beneficial entitlement in the Receivables Trust be in uncertificated
form, it shall deliver to the Receivables Trustee for cancellation any
Transferor Certificate previously issued.
4.2 THE TRUST REGISTER
(a) The Receivables Trustee shall (i) cause to be kept and maintained at the
registered office or other agency of the Receivables Trustee outside of
the United Kingdom a Trust Register (in the form attached as Schedule 4)
which shall record the identity of the Beneficiaries of the Receivables
Trust from time to time, their respective addresses in Jersey, Channel
Islands or elsewhere, and additionally in respect of the Investor
Beneficiaries their applicable Contribution Date(s) and their Aggregate
Investor Interest and each of the Investor Interests comprised therein,
and any other relevant information in respect thereof and (ii) register
annotations (in respect of additions and terminations of Investor
Interests) of the beneficial entitlements of such Investor Beneficiaries
under the Receivables Trust.
(b) The entries in the Trust Register shall be conclusive evidence, in the
absence of manifest error, of the identities of the Beneficiaries and
the Beneficiaries, the Receivables Trustee and the Servicer shall be
entitled to treat each person, whose identity is recorded in the Trust
Register as such, as the Investor Beneficiary and as the owner of the
related Aggregate Investor Interest and Investor Interests comprised
therein, notwithstanding notice to the contrary or anything to the
contrary contained herein, PROVIDED THAT where
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the Investor Beneficiary has granted a security assignment of or
security interest in its beneficial interest in the Receivables Trust to
a security trustee for the purpose of securing funding to create or
increase such Investor Beneficiary's interest in the Receivables Trust,
and such security assignment requires that the Investor Certificate be
registered in the name of the relevant security trustee or its nominee
until a notice of enforcement is served by the Security Trustee under
the relevant supplement to the Security Trust Deed, the Receivables
Trustee shall continue to consider as owner, and take all instructions
from, with respect to the Investor Certificate, the relevant Investor
Beneficiary.
(c) The Trust Register shall be available for inspection by the Transferor
Beneficiary or the Investor Beneficiary, or any third party acting on
their respective behalves, at any reasonable time upon reasonable prior
notice to the Receivables Trustee. No transfer or assignment of the
Investor Beneficiary's Aggregate Investor Interest or any Investor
Interest comprised therein otherwise permitted hereunder shall be
effective unless and until it has been duly recorded in the Trust
Register as provided in this Clause 4.2.
4.3 DISPOSALS OF BENEFICIAL ENTITLEMENT
(a) The beneficial entitlement of any Beneficiary in the Receivables Trust
shall not be transferred, assigned, exchanged, placed in any custodial
arrangement for security purposes or otherwise conveyed or disposed of
(a "DISPOSAL") or subjected to any Encumbrance except in accordance with
this Clause 4.3 (unless specified otherwise in any Supplement):
(i) the Transferor Beneficiary may make a Disposal of, or create or
grant any Encumbrance over, the whole or any part of the
Transferor Interest PROVIDED, HOWEVER that no such Disposal or
Encumbrance will be permitted unless each of the Rating Agencies
confirms in writing that such Disposal or Encumbrance will not
result in a downgrade or withdrawal of its then current rating
of any outstanding Associated Debt;
(ii) any other Beneficiary may make a Disposal of the whole or any
part of its beneficial entitlement (including, in the case of
the Investor Beneficiary, any Investor Interest comprised
therein) or create or grant any Encumbrance in respect of such
beneficial entitlement with the prior written consent of the
Transferor Beneficiary (which consent may be not be unreasonably
withheld) and each other Beneficiary PROVIDED, HOWEVER that
where such Disposal by the Investor Beneficiary is for the
purpose of any security assignment or security interest granted
to a security trustee under a supplement to the Security Trust
Deed, the relevant Investor Beneficiary shall continue to be
considered the relevant Beneficiary of the Receivables Trust,
regardless of such assignment, until a notice of enforcement is
served by the Security Trustee under the terms of the relevant
supplement to the Security Trust Deed, and PROVIDED FURTHER that
no such Disposal or Encumbrance, except as described in the
immediately preceding proviso, will be permitted unless the
Receivables Trustee shall have received prior written
confirmation from the person to which such Disposal is to be
made, or in whose favour an Encumbrance to be granted or
created, that such person complies with the matter referred to
in Clause 4.5(b)(vi).
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It is a condition of the Receivables Trust (to which, by the execution
of a Supplement by a Beneficiary, such Beneficiary consents and
confirms) that each Beneficiary of the Receivables Trust undertakes to
the Receivables Trustee for the benefit of itself and as trustee for
each other Beneficiary that it will not make any Disposal or create or
grant any Encumbrance in respect of its beneficial entitlement in the
Receivables Trust except in accordance with this Clause 4.3 (unless
otherwise specified in any Supplement) and acknowledges that any attempt
to do so shall be void.
4.4 CONTRIBUTIONS AND ADDITIONAL BENEFICIARIES
(a) Subject to the provisions of this Clause 4 and to the Receivables
Trustee receiving the prior written consent of all existing
Beneficiaries, a person may become an Additional Beneficiary, or an
existing Investor Beneficiary may increase its beneficial interest in
the Receivables Trust:
(i) by making a payment to the Receivables Trustee as a contribution
to Trust Property; or
(ii) by the Transferor Beneficiary selling some of its entitlement to
the Receivable Trust Property to new or existing Investor
Beneficiaries, upon their receiving a payment from a new Series;
or
(iii) by such other method as the existing Beneficiaries of the
Receivables Trust may agree between themselves and jointly
direct the Receivables Trustee to implement, PROVIDED THAT each
of the Rating Agencies confirms in writing that such method will
not result in a downgrade or withdrawal of its then current
rating of any outstanding Associated Debt,
(in each case a "CONTRIBUTION").
(b) In order for any Contribution to be effective, the Receivables Trustee
shall annotate the Trust Register to record such Contribution. The
Receivables Trustee shall further evidence such Contribution by issuing
an Investor Certificate (in the case of an initial Contribution) or
reissuing the relevant Investor Certificate (in the case of a
Contribution by an existing Investor Beneficiary) showing, in each case,
the principal amount of the beneficial entitlement to Trust Property of
the relevant Investor Beneficiary following such Contribution as set out
in the related Supplement.
(c) Such Investor Certificate shall be substantially in the form set out in
Schedule 1 and shall bear upon its face the name of the Investor
Beneficiary and, in the Schedule thereto, the names of all Series and/or
Related Debt in respect of which that Investor Beneficiary holds an
Investor Interest.
(d) Except as specified in this Deed and any Supplement, each Beneficiary
shall rank pari passu and be equally and rateably entitled as provided
herein to the benefits hereof (except that, unless specified in the
related Supplement, the Enhancement provided for any Series or issuance
of Related Debt shall not be available for any other Series or issuance
of Related Debt) without preference, priority or distinction on account
of time or times of authentication and delivery, all in accordance with
and subject to the terms of this Deed and any related Supplement.
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4.5 PROCEDURE FOR CONTRIBUTIONS
(a) A Contribution may only be permitted by the Receivables Trustee with the
prior written consent of each existing Beneficiary (such consent to be
set out in the related Supplement and to be evidenced by the execution
of the relevant Supplement by each such Beneficiary).
(b) On any date on which a Contribution occurs (each a "CONTRIBUTION DATE"),
the Contribution will only be effective upon the Receivables Trustee
signing and delivering (or reissuing, as applicable) the appropriate
Investor Certificate to the relevant Investor Beneficiary (or to the
Security Trustee if such certificate was immediately prior to such
Contribution utilised as security pursuant to the Security Trust Deed)
and the Receivables Trustee shall not sign and deliver (or annotate)
such Investor Certificate unless it has received the following:
(i) a Supplement satisfying the criteria set out in Clause 4.6
executed by each of the parties thereto (including the
Transferor Beneficiary, the Investor Beneficiary, and the
Receivables Trustee) and specifying the Principal Terms of the
beneficial entitlement of the relevant Investor Beneficiary to
Trust Property in respect of the Investor Interest being created
by the Contribution and the supplements, amendments and
variations to this Deed as a consequence thereof;
(ii) the applicable Enhancement, if any;
(iii) the agreement, if any, pursuant to which the Enhancement
Provider agrees to provide its Enhancement, if any;
(iv) a Solvency Certificate from the Transferor;
(v) written confirmation from each relevant Rating Agency that the
Contribution will not result in such Rating Agency reducing or
withdrawing its then current rating on any outstanding
Associated Debt;
(vi) written confirmation from the relevant Investor Beneficiary and
Enhancement Provider, if any, that:
(1) either (A) each of the Investor Beneficiary and
Enhancement Provider (if any) is resident outside the
United Kingdom for United Kingdom tax purposes, or (B)
such Investor Beneficiary and Enhancement Provider has
received a legal opinion from solicitors in the United
Kingdom that, under then current United Kingdom law,
payments in respect of the Investor Certificate will not
be subject to United Kingdom withholding tax; and
(2) such Investor Beneficiary and Enhancement Provider
belong outside the member states of the European Union
for VAT purposes;
PROVIDED THAT, in the case of any Disposal or Encumbrance
described in Clause 4.3(a)(iii) which has been made for the
purpose of any security assignment or security interest granted
by such Investor Beneficiary or Enhancement Provider (as
applicable) the person to whom such security has been granted
may be resident in the United Kingdom;
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(vii) the existing Transferor Certificate, if any, and if the Investor
Beneficiary making the Contribution has an existing Investor
Certificate, that Investor Certificate for reissue; and
(viii) an officer's certificate provided by the Transferor certifying
that:
(1) that:
(i) each Class of Related Debt issued as part of the
Acquisition and described in the related RTDSA
Supplement will be the subject of a legal
opinion prepared by US tax counsel with respect
to tax treatment of that debt in the United
States;
(ii) each Investor Beneficiary - other than any
Enhancement Provider - will have associated with
it, either directly or indirectly, one or more
Class of Related Debt; and
(iii) the Credit Enhancement for that Series will be
provided by any combination of subordination, a
letter of credit, a cash collateral loan, a
surety bond, an insurance policy, financial
guarantee or a spread or Reserve Account funded
from excess Finance Charge Collections
ultimately being paid to the Transferor by the
Receivables Trustee as additional consideration
to the extent not utilised as Credit
Enhancement, but through no other means; or
(2) that it has determined that, based on legal advice, the
Acquisition is in the best interests of the Transferor
Beneficiary.
(c) Upon satisfaction of the requirements of Clause 4.5(b), the Receivables
Trustee shall (1) issue or, as the case may be, reissue the relevant
Investor Certificate and provide to the relevant Investor Beneficiary
(or to the Security Trustee if such Investor Certificate was immediately
prior to such Contribution utilised as security pursuant to the Security
Trust Deed) a new or reissued Investor Certificate, and (2) annotate the
Trust Register to record the making of the relevant Contribution.
4.6 SUPPLEMENTS
(a) A Supplement shall be executed in order to effect each Contribution
which shall:
(i) be executed by the Transferor Beneficiary, the Receivables
Trustee, all existing Investor Beneficiaries, and if the Person
making the Contribution is not an existing Investor Beneficiary,
that Investor Beneficiary;
(ii) set out the consent of each existing Beneficiary to such
Contribution;
(iii) constitute, after the issue or reissue of the relevant Investor
Certificate, a supplement by the Receivables Trustee to this
Deed which shall thereafter be read and construed as
supplemented, amended and varied by such Supplement;
(iv) specify the name and category of the Related Debt to be issued
by the relevant Investor Beneficiary and, if there is more than
one type or Class of Related Debt, the rights and priorities of
each such type or Class thereof vis-a-vis the
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other types or Classes of Related Debt issued by the relevant
Investor Beneficiary, whether or not constituting a new Series;
(v) set out the principal terms of the issuance of the Related Debt
(all such terms the "PRINCIPAL TERMS") which may include,
without limitation, the following:
(A) the Initial Investor Interest and, if applicable, the
Maximum Series Interest (or the method for calculating
such Initial Investor Interest and Maximum Series
Interest) to be held by the relevant Investor
Beneficiary in respect of such issuance of Related Debt
and/or Series in relation thereto;
(B) the initial face value and, if applicable, maximum face
value of the relevant Related Debt, and (if applicable)
each type or Class thereof, to be issued in respect of
issuance of Related Debt and/or Series;
(C) the method of determining any Adjusted Investor
Interest, if applicable;
(D) the nature and initial amount and, if applicable, the
maximum amount of any Associated Debt issued or to be
issued in connection with the issuance of Related Debt;
(E) the Closing Date;
(F) where applicable, each Rating Agency rating the
Associated Debt referred to in (D) above;
(G) the method of calculating the Investor Beneficiary's
proportionate beneficial entitlement to Finance Charge
Collections and Acquired Interchange the beneficial
interest in which is held for that Investor Beneficiary
in the Undivided Bare Trust in respect of such issuance
of Related Debt and/or Series, and the method of
determining the amount of Finance Charge Collections and
Acquired Interchange that will be distributed to the
Segregated Bare Trust held for the benefit of such
Investor Beneficiary in respect of such issuance of
Related Debt and/or Series on any day;
(H) the method of determining the Investor Beneficiary's
proportionate beneficial entitlement to Principal
Collections held, or the beneficial interest in which is
held, for that Investor Beneficiary in the Undivided
Bare Trust in respect of such Series and the date or
dates on which Principal Collections are expected to be
distributed to the Investor Beneficiary in respect of
such issuance of Related Debt and/or Series and, if
applicable, in respect of other Related Debt or Series
and the method by which the Investor Interests held by
the Investor Beneficiary in respect of such other
Related Debt or Series shall amortise, accumulate or
accrete, as applicable;
(I) the method of allocating Receivables in Defaulted
Accounts for such issuance of Related Debt and/or Series
and in respect of the Related Debt and each type or
Class thereof within any such Series;
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(J) the method of calculating Additional Consideration for
such issuance of Related Debt and/or Series;
(K) any rights the Investor Beneficiary in respect of such
issuance of Related Debt and/or Series may have to any
other Collections with respect to Receivables or other
amounts and the method by which such Collections or
amounts will be proportionally held and distributed to
the Investor Beneficiary in respect of the relevant
Investor Interest and allocated in respect of the
Related Debt and, if applicable, each type or Class
thereof;
(L) the names of any bank accounts to be used by the
Investor Beneficiary in respect of such issuance of
Related Debt and/or Series and the terms governing the
operation of any such bank accounts and use of moneys
therein;
(M) the Servicing Fee and the Servicing Fee Percentage in
respect of each issuance of Related Debt and/or Series;
(N) the percentage to be applied in calculating the Minimum
Transferor Interest and the Termination Date;
(O) the terms of any Enhancement with respect to such
issuance of Related Debt and/or Series, and the
Enhancement Provider, if applicable;
(P) the terms governing any deposit into any bank account
provided for such issuance of Related Debt and/or
Series;
(Q) whether Acquired Interchange or other fees will be
included in the funds available to be distributed with
respect to the relevant Investor Interest;
(R) the priority of any Series created in connection with
the Contribution with respect to any other Series;
(S) which Group, if any, any Series created in connection
with the Contribution will be part of;
(T) the Minimum Aggregate Principal Receivables;
(U) whether any Series created in connection with the
Contribution will or may be a Companion Series and the
Series with which it will be paired, if applicable
(subject to the Receivables Trustee having received any
legal opinions or other conditions precedent which it
may require in order to establish that the addition of
such Companion Series or terms thereof will not
prejudice the United Kingdom tax treatment of the
Receivables Trust or any of the Beneficiaries); and
(V) any other relevant terms of such issuance of Related
Debt and/or Series (including whether or not there will
be a grant of security over the beneficial entitlement
of the Investor Beneficiary in respect of such issuance
of Related Debt and/or Series as collateral for an
issuance of any other securities, including commercial
paper); and
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(vi) contain (1) undertakings from the Investor Beneficiary in
respect of such issuance of Related Debt and/or Series, in
accordance with Clause 4.8; (2) a confirmation from the Investor
Beneficiary in respect of such issuance of Related Debt and/or
Series, in accordance with Clause 4.5(b)(vi); (3) a confirmation
from all other Beneficiaries in respect of such issuance of
Related Debt and/or Series in accordance with Clause 4.6(b); and
(4) any other undertaking and confirmation as reasonably
requested by the Transferor Beneficiary.
(b) Subject to obtaining the consent of all existing Beneficiaries of the
Receivables Trust the Receivables Trustee shall arrange for a Supplement
to be executed in accordance with Clause 4.6(a).
(c) No supplement, amendment or variation to or of any trust comprised in
the Receivables Trust shall be effective unless and until the
Receivables Trustee has obtained the written consent of all persons
which are Beneficiaries of that trust at the time of such supplement,
amendment or variation.
4.7 AMOUNTS PAID PURSUANT TO AN CONTRIBUTION
The amount paid, as a contribution to the Trust Property, by the Investor
Beneficiary pursuant to a Contribution (and any related Enhancement) shall be
held as Investor Cash Available for Investment on the Undivided Bare Trust for
the Beneficiaries of the Undivided Bare Trust in the manner and in the amounts
as set out herein and in the relevant Supplement.
4.8 NON-PETITION UNDERTAKING OF BENEFICIARIES
It is a condition of the Receivables Trust (which by the execution of a
Supplement by a Beneficiary, such Beneficiary consents and confirms) that each
Beneficiary of the Receivables Trust undertakes to the Receivables Trustee for
the benefit of itself and as trustee for each other Beneficiary that:
(a) it will not take any corporate action or other steps or legal
proceedings for the winding up, dissolution or re-organisation or for
the appointment of a receiver, administrator, administrative receiver,
trustee, liquidator, sequestrator or similar officer of the Investor
Beneficiary (unless specified otherwise in relation to such Investor
Beneficiary in the relevant Supplement), the Receivables Trustee or any
successor trustee of the Receivables Trust nor, in relation to the
Investor Beneficiary, participate in any ex parte proceedings or seek to
enforce any judgment against any such person;
(b) the obligations of the Receivables Trustee under this Deed at any time
are limited to the lesser, at such time, of (a) the nominal amount
thereof (the "NOMINAL AMOUNT") and (b) an amount (the "AVAILABLE
AMOUNT") equivalent to, in the case of obligations owed to HSBC Bank plc
in any capacity, the value of the Transferor Interest at such time and,
in the case of obligations owed to the Investor Beneficiary, the value
of that Investor Beneficiary's Aggregate Investor Interest at such time.
No Beneficiary shall have a right to have recourse to, or make demand or
initiate proceedings against the Receivables Trustee at any time whilst
the nominal amount exceeds the available amount. The Receivables Trustee
shall incur no liability and be under no additional duty to any person
solely as a result of any inability on its part to make payments or to
perform other
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obligations under this Deed, which inability results from the operation
of the foregoing provisions of this Clause 4.8; and
(c) it shall have no recourse, in respect of any obligation, covenant or
agreement of the Receivables Trustee, against any shareholder, officer,
agent or director of the Receivables Trustee.
5. DISTRIBUTIONS AND CALCULATIONS IN RESPECT OF COLLECTIONS
5.1 ESTABLISHMENT OF TRUST ACCOUNTS
(a) TRUSTEE COLLECTION ACCOUNT
(i) A bank account has been opened in the name of the Receivables
Trustee at the Operating Bank, bearing a designation clearly
indicating that the funds deposited therein are held on trust
for the Beneficiaries of the Receivables Trust (the "TRUSTEE
COLLECTION ACCOUNT"). The Trustee Collection Account shall be
held and operated for the benefit of the Beneficiaries.
(ii) The Receivables Trustee, as trustee of the Receivables Trust,
shall possess all legal right, title and interest in all funds
on deposit from time to time in the Trustee Collection Account
and in all proceeds thereof.
(iii) Two ledgers shall be established in respect of the Trustee
Collection Account entitled (1) "PRINCIPAL COLLECTIONS LEDGER"
and (2) "FINANCE CHARGE COLLECTIONS LEDGER". The Receivables
Trustee shall hold all amounts allocated to the Principal
Collections Ledger and the Finance Charge Collections Ledger on
an undivided basis on trust for the benefit of the Undivided
Bare Trust beneficiaries. The Receivables Trustee shall, from
time to time, promptly upon their identification, allocate
amounts identified as representing Principal Collections to the
Principal Collections Ledger and amounts identified as
representing Finance Charge Collections and Acquired Interchange
to the Finance Charge Collections Ledger. Further ledgers shall
be established for each issuance of Related Debt and/or Series
as provided in the related Supplements.
(iv) The Receivables Trustee shall procure that at all times accurate
records are maintained reflecting each transaction in the
Trustee Collection Account and each debit or credit recorded in
each ledger relating thereto (including, without limitation, the
Finance Charge Collections Ledger and the Principal Collections
Ledger).
(b) TRUSTEE INVESTMENT ACCOUNT
(i) A bank account has been opened in the name of the Receivables
Trustee at the Operating Bank, bearing a designation clearly
indicating that the funds deposited therein are held on trust
for the Beneficiaries of the Receivables Trust (the "TRUSTEE
INVESTMENT ACCOUNT"). The Trustee Investment Account shall be
held and operated for the benefit of the Undivided Bare Trust
beneficiaries of the Receivables Trust.
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(ii) The Receivables Trustee, as trustee of the Receivables Trust,
shall possess all legal right, title and interest in all funds
on deposit from time to time in the Trustee Investment Account
and in all proceeds thereof.
(iii) The Receivables Trustee shall procure that at all times accurate
records are maintained reflecting each transaction in the
Trustee Investment Account and all debits and credits recorded
in any ledger relating thereto.
(c) RECEIVABLES TRUSTEE CONSIDERATION ACCOUNT
(i) A bank account has been opened in the name of the Receivables
Trustee at the Operating Bank, bearing a designation clearly
indicating that the funds deposited therein are held on trust
for the Transferor Beneficiary (the "RECEIVABLES TRUSTEE
CONSIDERATION ACCOUNT"). The Receivables Trustee Consideration
Account shall be held and operated for the benefit of the
Transferor Beneficiary for the purpose of:
(A) receiving amounts of Additional Consideration (other
than Additional Consideration "Loss Make-Up") which are
payable to the Receivables Trustee pursuant to any
Supplement;
(B) holding the Deferred Consideration Bare Trust Property
subject to the trust and on the terms referred to in
Clauses 2.1(d) and 3.1(d); and
(C) placing the Receivables Trustee in funds to make
payments of Deferred Consideration (other than Deferred
Consideration "Loss Make-Up") in accordance with Clause
5.3 of the Receivables Securitisation Deed.
The Receivables Trustee shall procure that the Receivables
Trustee Consideration Account bears a designation clearly
indicating that the funds credited therein are held as specified
in (B) and (C) above.
(ii) The Receivables Trustee, as trustee of the Receivables Trust,
shall possess all legal right, title and interest in all funds
credited, from time to time, to the Receivables Trustee
Consideration Account and in all proceeds thereof.
(iii) The Receivables Trustee at all times shall procure that accurate
records are maintained reflecting each transaction in the
Receivables Trustee Consideration Account and all debits and
credits recorded thereto.
(d) ADDITIONAL TRUST ACCOUNTS
(i) From time to time open Additional Trust Accounts may be opened
in the name of the Receivables Trustee which will be held and
operated for the benefit of the Beneficiaries (on an undivided
or a segregated basis) of the Receivables Trust at the Operating
Banks or at any other Qualified Institution as specified in any
Supplement which shall bear a designation clearly indicating
that the funds deposited therein are held on a separate trust
for the benefit of the Beneficiaries of the Receivables Trust or
any one or more of them on an undivided basis or segregated
separate trust as the case may be.
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(ii) The Receivables Trustee, as trustee of the Receivables Trust,
shall possess all legal right, title and interest in all funds
on deposit from time to time in such Additional Trust Accounts
and in all proceeds thereof.
(iii) The Receivables Trustee shall procure that at all times accurate
records are maintained reflecting each transaction in any
Additional Trust Account and all debits and credits recorded in
any ledger relating thereto.
(e) REPLACEMENT OF OPERATING BANKS
If at any time an existing Operating Bank ceases to be a Qualified
Institution the Servicer shall notify the Receivables Trustee and the
Receivables Trustee shall within 10 Business Days, or with the
appropriate confirmation of the Rating Agencies, within 30 Business
Days, of being notified establish (or direct the Servicer to establish)
new Trust Accounts meeting the conditions specified with respect to each
such Trust Account with a Qualified Institution (outside the United
Kingdom if such Trust Account was originally held at a Qualified
Institution outside the United Kingdom) which shall become the new
Operating Bank (in respect of the relevant account), and shall transfer
any cash or any investments to such new Trust Accounts. If the
Receivables Trustee shall fail to establish the new Trust Accounts as
required by this Clause 5.1(d) the Servicer shall be authorised to
establish the Trust Accounts itself.
(f) POWER OF INVESTMENT
(i) The Receivables Trustee shall deposit all monies received by it
in respect of Trust Property in the Trust Accounts in accordance
with the provisions of this Clause 5 and the Receivables Trustee
shall invest funds on deposit in such Trust Accounts allocable
to any issuance of Related Debt and/or Series in accordance with
Clause 5.1(g).
(ii) Subject to Clause 5.1(e)(i) and 5.1(f), the Receivables Trustee
shall have no power of investment and the Trustee Investments
Act 1961 shall not apply to the Receivables Trustee.
(iii) The Receivables Trustee acknowledges that subject to the
obligations of the Receivables Trustee to distribute funds in
accordance with this Deed and any Supplement, the Servicer
shall, consistent with the terms of this Deed and any
Supplement, undertake to advise the Receivables Trustee with
respect to the investments referred to in Clause 5.1(f)(i) in
accordance with the provisions of this Deed.
(g) ADMINISTRATION OF THE TRUST ACCOUNTS
Funds on deposit in the Trust Accounts which are not to be utilised on
any Business Day in providing consideration for new Receivables or
otherwise paid out shall be invested in accordance with the following
provisions of this Clause 5.1(f):
(i) Unless specified otherwise in any Supplement, the administration
and investment of such funds (1) held in Trust Accounts held at
a bank outside the United Kingdom for United Kingdom tax
purposes and not acting through a
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branch or agency in the United Kingdom, shall be undertaken by
or on behalf of the Receivables Trustee pursuant to advice
received from or on behalf of the Servicer and (2) held in Trust
Accounts held at a bank either resident in the United Kingdom
for United Kingdom tax purposes or acting through a branch or
agency in the United Kingdom, shall be undertaken by or on
behalf of the Receivables Trustee pursuant to advice received
from or on behalf of the Servicer, and shall, in each case, be
in the name of and for and on behalf of the Receivables Trustee
as trustee of the Receivables Trust. All normal costs incurred
by making and changing investments will be paid out of
investment interest and earnings. The funds will be invested in
Permitted Investments only.
(ii) Permitted Investments purchased or otherwise acquired for and on
behalf of the Receivables Trustee shall be denominated in the
same currency as the funds utilised and shall be on terms such
that they would be available on the next Business Day or,
otherwise, (A) they would be available on or prior to the
Transfer Date related to the Monthly Period in which such funds
were processed for collection or such other date as may be
specified in the related Supplement and that (B) the amounts
invested will be re-credited to the relevant Trust Account
together with any investment earnings thereon.
(iii) If any Permitted Investments are made for and on behalf of the
Receivables Trustee in accordance with the provisions of this
Deed or any Supplement, the deposit receipt, contract,
confirmation or equivalent document or evidence that the
transaction has occurred will be retained by or on behalf of the
Receivables Trustee.
Except as provided in any Supplement, with respect to Trust Accounts
specified in such Supplement, for the purposes of determining the
availability of funds or the balances in the Trust Accounts for any
reason, all investment earnings on such funds shall be deemed not to be
available or to be on deposit and the beneficial entitlement to such
investment earnings will:
(A) in the case of investment earnings on funds deposited in a Trust
Account held on the Undivided Bare Trust, be held on the
Undivided Bare Trust for the benefit of the Undivided Bare Trust
beneficiaries; and
(B) in the case of investment earnings on funds deposited in a Trust
Account held on a Segregated Bare Trust, Other Trust or the
Deferred Consideration Bare Trust, be held on that trust for the
benefit of the relevant beneficiary.
(h) ACKNOWLEDGEMENT OF THE BENEFICIARIES
It is a condition of the Receivables Trust (to which, by the execution
of a Supplement by a Beneficiary, such Beneficiary consents and
confirms) that the Beneficiaries acknowledge that:
(i) it is not intended that the Receivables Trustee should have any
discretion with respect to the investment of funds as referred
to in Clause 5.1(e) and (f) or that
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the duties of the Receivables Trustee should include any form of
fund management;
(ii) accordingly the provisions of Clause 5.1(e) and (f) (and all
related provisions of the Transaction Documents) have been drawn
so as to specify to the maximum extent practicable the manner in
which the Servicer is to, from time to time, advise the
Receivables Trustee (or any Person acting on the Receivables
Trustee's behalf) to invest the funds referred to in Clause
5.1(e) and (f);
(iii) subject to and in accordance with Clause 5.1(f), the duties of
the Receivables Trustee with regard to the making of any such
investments will be fully discharged by the Servicer advising
the Receivables Trustee (or any Person acting on the Receivables
Trustee's behalf as aforesaid) in relation thereto and the
Receivables Trustee acting in accordance with such advice; and
(iv) the investment of any funds by the Receivables Trustee acting on
the advice of the Servicer in accordance with Clause 5.1(e) and
(f) shall be wholly incidental and ancillary to the functions of
the Receivables Trustee as described in Clause 2.1.
5.2 COLLECTIONS
(a) CARD OPERATING ACCOUNT
(i) The Receivables Trustee shall direct the Transferor that
Collections held by the Transferor on trust in the Card
Operating Account for the benefit of the Receivables Trustee
shall be transferred to the Trustee Collection Account as
promptly as possible after the Date of Processing of such
Collections but in no event later than the second London
Business Day following such Date of Processing. The date of any
such transfer shall be referred to hereafter as the "RELEVANT
DATE".
(ii) Notwithstanding Clause 5.2(a)(i), if the Transferor or any of
its subsidiaries or Affiliates is the Servicer, the Receivables
Trustee shall seek to ensure that such monies held on trust in
the Card Operating Account that are identified as representing
Collections in respect of Ineligible Receivables, shall not be
transferred to the Trustee Collection Account but shall be
distributed to the Transferor Beneficiary or as the Transferor
Beneficiary may direct whereupon such monies shall cease to be
Trust Property and shall be owned by the Transferor Beneficiary
absolutely.
(b) APPLICATION OF MONIES IN THE TRUSTEE COLLECTION ACCOUNT
On the Relevant Date the Receivables Trustee shall, based on the
Servicer Daily Report maintained by the Servicer pursuant to Clause
9.5(a) with respect to the related Date of Processing, promptly
following the transfer of monies from the Card Operating Account as
referred to in Clause 5.2(a) on such Relevant Date, (1) identify
amounts, if any, included in such transfer and (2) identify any other
amounts in the Trustee Collection
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Account which did not derive from such transfer on such Relevant Date,
in the case of (1) and (2) representing the following:
- Incorrect Payments;
- Principal Collections;
- Unavailable Principal Collections;
- Finance Charge Collections and Acquired Interchange;
- Ineligible Collections (not distributed to the Transferor
Beneficiary pursuant to Clause 5.2(a)(ii) above); and
- investment earnings accrued on the Trustee Collection Account,
and apply such amounts on the Relevant Date, or in respect of the
amounts set out in (vi) and (viii) below on the Transfer Date next
following such Relevant Date, in accordance with this Clause 5. In
particular, the Receivables Trustee shall instruct the Operating Bank to
make the following distributions (except for (vii) below) from the
Trustee Collection Account, in a manner consistent with the principles
set out in this Deed as modified by any Supplement:
(i) the amount of any Incorrect Payments notified to the Receivables
Trustee which have not previously been allocated as Collections
representing Trust Property, to the Card Operating Account,
whereupon such monies shall cease to be Trust Property and shall
be owned by the Transferor Beneficiary absolutely;
(ii) the amount of Ineligible Collections notified to the Receivables
Trustee which have not previously been allocated as Principal
Collections, to the Card Proceeds Account, whereupon such monies
shall cease to be Trust Property and shall be owned by the
Transferor Beneficiary absolutely;
(iii) the relevant amount of Principal Collections distributable to an
Investor Beneficiary in respect of any Related Debt and/or
Series shall be identified for such Related Debt and/or Series
and either credited to the relevant ledger(s) established in
respect of such Related Debt and/or Series or otherwise
distributed, in each case as provided in the related Supplement
for such Related Debt and/or Series;
(iv) subject to Clause 5.2(b)(ix) and subject to the provisions of
any Supplement which require any amounts to be retained in the
Principal Collections Ledger (whether on account of Required
Retained Principal Collections or otherwise), the amount of any
Principal Collections remaining after the application of the
amounts referred to in (i) to (iii) above (which shall
constitute "CASH AVAILABLE FOR INVESTMENT"), to the Trustee
Investment Account (and a corresponding adjustment shall be made
to the Principal Collections Ledger in the Trustee Collection
Account);
(v) subject to Clause 5.2(f), an amount equal to the product of (1)
the Floating Transferor Percentage for the Monthly Period in
which such Finance Charge
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Collections arise and (2) the aggregate amount of Finance Charge
Collections relating to the relevant Date of Processing (the
"TRANSFEROR FINANCE CHARGE AMOUNT") to the Card Proceeds Account
or as the Transferor Beneficiary may direct (and a corresponding
adjustment shall be made to the Finance Charge Collections
Ledger in the Trustee Collection Account) whereupon such monies
shall cease to be Trust Property and shall be owned by the
Transferor Beneficiary absolutely;
(vi) on each Transfer Date an amount equal to the product of (1) the
Floating Transferor Percentage for the Monthly Period preceding
such Transfer Date and (2) the aggregate amount of Acquired
Interchange deposited by the Transferor in the Trustee
Collection Account (the "TRANSFEROR ACQUIRED INTERCHANGE
AMOUNT") to the Card Proceeds Account or as the Transferor
Beneficiary may direct (and a corresponding adjustment shall be
made to the Finance Charge Collections Ledger in the Trustee
Collections Account) whereupon such monies shall cease to be
Trust Property and shall be owned by the Transferor Beneficiary
absolutely;
(vii) subject to Clause 5.2(f), in respect of an Investor Beneficiary,
amounts equal to the product of (1) the sum of the Floating
Investor Percentages in respect of all Outstanding Issuance for
the relevant Investor Beneficiary for the Monthly Period in
which such Finance Charge Collections arise and (2) the
aggregate amount of Finance Charge Collections relating to the
relevant Date of Processing, (each an "INVESTOR FINANCE CHARGE
AMOUNT") shall be retained in the Trustee Collection Account in
accordance with the related Supplement(s) for such Related Debt
and/or Series (and a corresponding adjustment shall be made to
the Finance Charge Collections Ledger in the Trustee Collection
Account) whereupon such monies shall cease to be Undivided Bare
Trust Property.
(viii) On each Transfer Date, in respect of an Investor Beneficiary, an
amount equal to the product of (1) the sum of the Floating
Investor Percentages in respect of all Outstanding Issuance for
the relevant Investor Beneficiary for the Monthly Period
preceding the Transfer Date and (2) the aggregate amount of
Acquired Interchange deposited by the Transferor in the Trustee
Collection Account in respect of the relevant Monthly Period
(the "INVESTOR ACQUIRED INTERCHANGE AMOUNT") from the Trustee
Collection Account in accordance with the related Supplement for
such Related Debt and/or Series (and a corresponding adjustment
shall be made to the Finance Charge Collections Ledger in the
Trustee Collection Account) whereupon such monies shall cease to
be Undivided Bare Trust Property.
(ix) if on any day, (A) the sum of the Combined Adjusted Investor
Interests and the Transferor Interest is zero, and (B) a
Principal Collection is received ("UNAVAILABLE PRINCIPAL
COLLECTIONS") such amount shall remain credited to the undivided
Principal Collections Ledger (held on the Undivided Bare Trust
for the benefit of the Transferor Beneficiary as Unavailable
Principal Collections) and Unavailable Principal Collections
shall be transferred to the
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Transferor Beneficiary on any Business Day when, and only to the
extent that, the Transferor Interest on such Business Day is
greater than zero and until such time shall represent
Unavailable Principal Collections held on the Undivided Bare
Trust for the benefit of the Transferor Beneficiary as
Unavailable Principal Collections.
For the avoidance of doubt, following any identification of
Principal Collections as Unavailable Principal Collections, such
Unavailable Principal Collections shall in no circumstances be
reallocated to any other Beneficiary.
Amounts remaining in the Trustee Collection Account after the
application of monies referred to above and in any Supplement shall
either (1) remain deposited in the Trustee Collection Account until such
time as they are utilised on succeeding Business Days in accordance with
this Deed and any Supplement or (2) be invested in Permitted Investments
in accordance with Clause 5.1(e).
(c) APPLICATION OF MONIES IN THE TRUSTEE INVESTMENT ACCOUNT AND RECEIVABLES
TRUSTEE CONSIDERATION ACCOUNT
On the Relevant Date the Receivables Trustee shall, promptly following
the transfers of monies from the Trustee Collection Account as referred
to in Clause 5.2(b), (1) identify such amounts, if any, included in such
transfer, and (2) identify any other amounts in the Trustee Investment
Account on such Relevant Date and apply such amounts identified in the
Trustee Investment Account in accordance with this Clause 5.
In particular the Receivables Trustee shall instruct the Operating Bank
to make the following transfers from the Trustee Investment Account and
the Receivables Trustee Consideration Account which will be made in a
manner consistent with this Deed as modified by any Supplement:
FROM THE TRUSTEE INVESTMENT ACCOUNT:
(i) for the purpose of accepting, if applicable, any Offer, the
amount of Acceptance Price required to fund acceptance of such
Offer (pursuant to the terms and subject to the conditions of
the Receivables Securitisation Deed) to the Acceptance Price
Account whereupon such monies shall cease to be Trust Property
and shall be owned by the Transferor absolutely;
(ii) if the Receivables Trustee has accepted an Offer, the amount of
Transferor Cash Available for Investment required to meet the
obligation of the Receivables Trustee to pay the Further Payment
stipulated in such Offer in accordance with Clause 5.2 of the
Receivables Securitisation Deed, to the Card Proceeds Account,
whereupon such monies shall cease to be Trust Property and shall
be owned by the Transferor absolutely, PROVIDED HOWEVER that the
Transferor Beneficiary shall be obliged to fund the Receivables
Trustee in respect of payments to be made to the Transferor on
any Business Day in excess of the Transferor Cash Available for
Investment. Accordingly, the Receivables Trustee acknowledges
(and the Transferor by its execution of this Deed also
acknowledges) that to the extent the Transferor Cash Available
for Investment
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is less than the aggregate amount of the payments to the
Transferor payable out of Transferor Cash Available for
Investment by the Transferor Beneficiary on any Relevant Date,
such shortfall shall be met by a reduction, by the amount of
such shortfall, in the aggregate amount payable to the
Transferor (as set out in Clause 13.3 of the Receivables
Securitisation Deed) and an increase in the Transferor Interest
(or in respect of any amount payable in respect of Ineligible
Receivables, the Transferor Ineligible Interest) by the amount
by which the amount payable to the Transferor has been so
reduced;
(iii) the amount of Investor Cash Available for Investment required to
meet the obligation of the Receivables Trustee to make payments
in respect of Future Receivables in accordance with Clause 5.1
of the Receivables Securitisation Deed (and pursuant to the
terms and subject to the conditions of the Receivables
Securitisation Deed) to the Card Proceeds Account whereupon such
monies shall cease to be Trust Property and shall be owned by
the Transferor absolutely PROVIDED HOWEVER that the Transferor
Beneficiary shall be obliged to fund the Receivables Trustee in
respect of payments to be made to the Transferor on any Business
Day in excess of the Investor Cash Available for Investment. The
Receivables Trustee acknowledges (and the Transferor by its
execution of this Deed also acknowledges) that to the extent the
Investor Cash Available for Investment is less than the
aggregate amount of the payments to the Transferor payable out
of Cash Available for Investment by the Beneficiaries on any
Business Day, such shortfall shall be met by a reduction, by the
amount of such shortfall, in the aggregate amount payable to the
Transferor (as set out in Clause 13.3 of the Receivables
Securitisation Deed) and an increase in the Transferor Interest
by the amount by which the amount payable to the Transferor has
been so reduced;
(iv) (A) the amount of Transferor Cash Available for Investment
required to be distributed to the Transferor Beneficiary
in order to decrease the amount of the Transferor
Beneficiary's interest in the Eligible Receivables Pool
and/or other Trust Property, to the Card Proceeds
Account whereupon such monies shall cease to be Trust
Property and shall be owned by the Transferor
Beneficiary absolutely;
(B) the amount of Investor Cash Available for Investment
required to be distributed pursuant to the relevant
Supplement to the Transferor Beneficiary in order to
decrease the amount of the interest of the Transferor
Beneficiary in the Eligible Receivables Pool and/or
other Trust Property to the Card Proceeds Account
whereupon such monies shall cease to be Trust Property
and shall be owned by the Transferor Beneficiary
absolutely; and
(v) the balance, if any, of amounts held in the Trustee Investment
Account on any day as representing Cash Available for Investment
which are not to be otherwise utilised on that day as part of
the Undivided Bare Trust Property in accordance with the terms
of the Undivided Bare Trust shall remain credited to the Trustee
Investment Account to be utilised in accordance with this Clause
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5.2(c) on the next and following Business Days, PROVIDED THAT,
if on any day (A) the Transferor Interest is zero, and (B) an
Unavailable Principal Collection is received, such amounts held
in the Trustee Investment Account shall remain credited to the
Trustee Investment Account (held on the Undivided Bare Trust for
the benefit of the Transferor Beneficiary in accordance with
Clause 3.2(c)) and thereafter only transferred to the Transferor
Beneficiary on any Business Day when, and only to the extent
that, the Transferor Interest on such Business Day is greater
than zero;
FROM THE RECEIVABLES TRUSTEE CONSIDERATION ACCOUNT:
(vi) the amount (if any) required to meet the obligation of the
Receivables Trustee to pay Deferred Consideration "Loss Make-up"
in accordance with Clause 5.3 of the Receivables Securitisation
Deed, to the Card Proceeds Account, whereupon such monies shall
cease to be Trust Property and shall be owned by the Transferor
absolutely; and
(vii) the amount (if any) required to meet the obligation of the
Receivables Trustee to pay any Deferred Consideration (other
than Deferred Consideration "Loss Make-up") payable on that
Business Day by the Receivables Trustee to the Transferor in
accordance with Clause 5.3 of the Receivables Securitisation
Deed, to the Card Proceeds Account, whereupon such monies shall
cease to be Trust Property and shall be owned by the Transferor
absolutely, PROVIDED THAT the balance to the credit of the
Receivables Trustee Consideration Account shall never be less
than zero.
(d) APPLICATION OF MONIES IN ADDITIONAL TRUST ACCOUNTS
Amounts deposited in Additional Trust Accounts shall be applied in
accordance with the provisions of any related Supplement and Clause
5.1(f).
(e) ANNUAL FEES
Notwithstanding any provision of the Receivables Securitisation Deed
which provides that Receivables representing Annual Fees assigned to the
Receivables Trustee ("ANNUAL FEE RECEIVABLES") constitute Finance Charge
Receivables or Principal Receivables for the purpose of calculating the
consideration payable for Receivables assigned to the Receivables
Trustee, the Receivables Trustee shall, if so directed by the Transferor
by prior notice in writing to the Servicer, the Receivables Trustee and
the Rating Agencies, treat such Annual Fee Receivables (and Collections
in respect thereof) for the purposes of this Deed and any Supplement in
such manner as specified in a certificate to the Receivables Trustee,
PROVIDED, HOWEVER, that (i) any such certificate shall have effect only
in relation to Receivables which are acquired by the Receivables Trustee
(whether as Existing Receivables or as Future Receivables) after the
time when such certificate is issued; and (ii) in the absence of any
such applicable provision in the Receivables Securitisation Deed and of
such certificate, such Annual Fee Receivables shall be treated as
Finance Charge Receivables and Collections in respect thereof shall be
treated as Finance Charge Collections, PROVIDED FURTHER, HOWEVER, that
any direction by the Transferor as to the treatment of Annual Fee
Receivables pursuant to this Clause 5.2(f)
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shall not be of any effect unless the Transferor certifies in such
certificate that it has received an Opinion of Counsel that the
treatment specified for Annual Fees and Collections in respect thereof
will not have any material adverse effect on the treatment of the
Receivables Trust and the Beneficiaries for Tax purposes in the United
Kingdom.
(f) EARNINGS ON PERMITTED INVESTMENTS
The Receivables Trustee, on each Transfer Date, shall transfer monies
credited to Trust Accounts which represent investment earnings accrued
on Permitted Investments made using monies deposited in such Trust
Accounts:
(i) to which the Transferor Beneficiary is beneficially entitled
pursuant to Clause 3.2(c)(ii), to the Card Proceeds Account for
the Transferor Beneficiary absolutely; and
(ii) to which the Investor Beneficiaries are beneficially entitled
pursuant to Clause 3.2(a), to the relevant Investor Beneficiary
in accordance with the relevant Supplement,
in each case less any amount deducted to meet costs incurred in making
and changing investments as provided in Clause 5.1(f)(i).
5.3 ADJUSTMENTS
(a) RECEIVABLES IN DEFAULTED ACCOUNTS, CREDIT ADJUSTMENTS AND REDUCTIONS IN
RECEIVABLES
If at any time prior to the dissolution of the Receivables Trust for any
reason whatsoever, any Principal Receivable assigned to the Receivables
Trustee becomes a Receivable in a Defaulted Account during any Monthly
Period or a Reduction or a Credit Adjustment is required in relation to
any Principal Receivable, the Outstanding Face Amount of such Principal
Receivable in a Defaulted Account or the amount of such Credit
Adjustment or Reduction shall be applied against the Transferor Interest
and each Investor Interest (in respect of the relevant Investor
Beneficiary) as follows:
(i) in the case of a Receivable in a Defaulted Account (which, for
the avoidance of doubt, was an Eligible Receivable prior to the
time such Account became a Defaulted Account), by allocating
such amount between the Transferor Beneficiary and the relevant
Investor Beneficiary in respect of the relevant Related Debt
and/or Series in accordance with, respectively, the Floating
Transferor Percentage and Floating Investor Percentage for the
Monthly Period in which such Account became a Defaulted Account
(as determined in a manner consistent with this Deed as amended
by any Supplement), reducing the Transferor Interest accordingly
and treating the resulting Investor Default Amount for the
relevant Related Debt and/or Series as provided in the related
Supplement;
(ii) in the case of a Credit Adjustment or a Reduction by allocating
such amount to the Transferor Beneficiary and reducing the
Transferor Interest accordingly until such time as the
Transferor Interest shall be zero, PROVIDED, HOWEVER, that if
the amount of such Credit Adjustment or Reduction is greater
than the
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amount of the Transferor Interest on such date of determination
then the Transferor Interest shall be reduced to zero and the
Receivables Trustee shall seek to enforce its remedy against the
Transferor under Clause 10.3 of the Receivables Securitisation
Deed which provides that the Transferor shall make a payment to
the Receivables Trustee in accordance with Clause 10.4 of the
Receivables Securitisation Deed PROVIDED, FURTHER, HOWEVER that
any amount of such Credit Adjustment or Reduction in excess of
the Transferor Interest shall be treated for the relevant
Related Debt and/or Series as provided in the related
Supplement; and
(iii) in the case of a Receivable in a Defaulted Account which was an
Ineligible Receivable prior to such time as such Account became
a Defaulted Account, by reducing the Transferor Ineligible
Interest by the Outstanding Face Amount of such Receivable in a
Defaulted Account until such time as the Ineligible Receivables
Pool reaches zero;
and the entitlement of the Beneficiaries to Trust Property shall be
determined accordingly. The Receivables Trustee shall maintain at all
times accurate records reflecting Receivables in Defaulted Accounts,
Credit Adjustments or Reductions and the allocation thereof amongst the
Beneficiaries.
(b) INCORRECT PAYMENTS
If from time to time payments of monies are incorrectly deemed to be
Trust Property and paid into the Trustee Collection Account ("INCORRECT
PAYMENTS"), such monies may be deemed to be Collections representing
Trust Property and allocated in a manner consistent with this Deed (as
amended by any Supplement) unless prior to such allocation the
Receivables Trustee is notified by the Servicer that such monies are
Incorrect Payments. Notwithstanding the above, promptly following the
notification to the Receivables Trustee by the Servicer that such
payments were incorrectly deemed to be Trust Property and, if
applicable, have been incorrectly allocated, the Receivables Trustee
shall:
(i) apply Trust Property (deemed or otherwise) in a manner
consistent with this Deed (as amended by any Supplement) to
repay such Incorrect Payments; and
(ii) amend its books of account to record that (A) the pool of
Undivided Bare Trust Property has been increased by the amount
of Principal Receivables, if any, equal to the amount of
Incorrect Payments incorrectly allocated as Principal
Collections (and such amount of Incorrect Payments shall be
treated as having been repaid), (B) the Transferor Interest has
been increased by the same amount of Principal Receivables, if
any, which were incorrectly deducted from the pool of Undivided
Bare Trust Property and (C) following any reduction of an amount
of Incorrect Payments incorrectly allocated as Finance Charge
Collections from Finance Charge Collections, such amount of
Incorrect Payments incorrectly allocated as Finance Charge
Collections, if any, shall be treated as having been repaid,
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and the recording of the entitlement of the Beneficiaries to Trust
Property shall be affected accordingly.
(c) ALLOCATED INELIGIBLE COLLECTIONS
If from time to time payments of monies into the Trustee Collection
Account representing Ineligible Collections are incorrectly deemed to be
Principal Collections in respect of Eligible Receivables such monies may
be allocated as such in accordance with this Deed (as amended by any
Supplement) ("ALLOCATED INELIGIBLE COLLECTIONS") unless prior to such
allocation the Receivables Trustee is notified by the Servicer that such
monies are Ineligible Collections. Notwithstanding the above, promptly
following the notification to the Receivables Trustee by the Servicer
that Allocated Ineligible Collections have been so allocated as
Principal Collections in respect of Eligible Receivables, the
Receivables Trustee shall:
(i) apply Trust Property in a manner consistent with the principles
set out in this Deed (as amended by any Supplement) to re-apply
such Allocated Ineligible Collections correctly; and
(ii) amend its books of account to record that (A) the Ineligible
Receivables Pool has been decreased by the amount of Allocated
Ineligible Collections previously incorrectly allocated as
Principal Collections and the Eligible Receivables Pool has been
increased by the same amount and (B) the Transferor Ineligible
Interest has been decreased by the same amount so subtracted
from the Ineligible Receivables Pool and the Transferor Interest
has been increased by the amount so added to the Eligible
Receivables Pool,
and the recording of the entitlement of the Beneficiaries to Trust
Property shall be affected accordingly.
(d) INELIGIBLE RECEIVABLES
If from time to time Ineligible Receivables are assigned to the
Receivables Trustee as a result of a breach of representation by the
Transferor pursuant to Clause 16.2 or 16.3 of the Receivables
Securitisation Deed and payments to the Transferor in respect thereof
were incorrectly funded by the Beneficiaries on the basis that such
Receivables were Principal Receivables which are Eligible Receivables,
notwithstanding the remedies available to the Receivables Trustee
pursuant to the Receivables Securitisation Deed, in such circumstances
the Receivables Trustee shall ensure that such error is corrected by:
(i) reducing the Transferor Interest by the amount of such
Ineligible Receivables until such time as it reaches zero
PROVIDED, HOWEVER, that if the Outstanding Face Amount of such
Ineligible Receivables exceeds the amount of the Transferor
Interest on such date of determination then the Receivables
Trustee shall also require the Transferor to make a payment of
cash to the Receivables Trustee equal to the amount of such
excess in order to comply with the provisions of Clause 11.1 of
the Receivables Securitisation Deed; and
(ii) amending its books of account to record that (A) the Eligible
Receivables Pool has been decreased by the amount of Ineligible
Receivables previously
- 30 -
incorrectly added to the Eligible Receivables Pool and, subject
to Clause 11.3 of the Receivables Securitisation Deed and the
Ineligible Receivables Pool has been increased by the same
amount, and (B) the Transferor Ineligible Interest has been
increased by the same amount so added to the Ineligible
Receivables Pool;
and the recording of the entitlement of the Beneficiaries to Trust
Property shall be affected accordingly.
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6. PAY OUT EVENTS
6.1 TRUST PAY OUT EVENTS
If any one of the following events (a "TRUST PAY OUT EVENT") shall occur:
(a) the Transferor shall consent or take any corporate action in relation to
the appointment of a receiver, administrator, administrative receiver,
liquidator, trustee or similar officer of it or relating to all or
substantially all of its revenues and assets;
(b) proceedings shall be initiated against the Transferor under any
applicable liquidation, insolvency, composition, re-organisation or
similar laws for its winding up, dissolution, administration or
re-organisation (except for a solvent re-organisation) and such
proceedings are not discharged within 60 days or a receiver,
administrator, administrative receiver, liquidator, trustee or similar
officer of it or relating to all or substantially all of its revenues
and assets is legally and validly appointed and such appointment is not
discharged within 14 days;
(c) a duly authorised officer of the Transferor shall admit in writing that
the Transferor is unable to pay its debts as they fall due within the
meaning of Section 123(1) of the Insolvency ▇▇▇ ▇▇▇▇ or the Transferor
makes a general assignment for the benefit of or a composition with its
creditors or voluntarily suspends payment of its obligations with a view
to the general readjustment or rescheduling of its indebtedness;
(d) the Transferor shall become unable for any reason to transfer
Receivables arising on Designated Accounts to the Receivables Trust in
the manner contemplated in the Receivables Securitisation Deed for a
continuous period of 30 days;
(e) the Transferor ceases to be resident for tax purposes in the United
Kingdom or otherwise ceases to be within the charge to United Kingdom
corporation tax; or
(f) a change in law or its interpretation or administration results in the
Receivables Trustee becoming liable to make any material payment on
account of Tax (including VAT) other than payment of the annual Exempt
Company fee (currently (pound)600 per annum);
then:
(1) in the case of any Trust Pay Out Event an Investor Pay Out Event
will occur in respect of the relevant Related Debt and/or
Series,
(2) in addition, in the case of a Trust Pay Out Event under
paragraph (a), (b) or (c) above (any such event an "INSOLVENCY
EVENT") the provisions of Clause 6.3 will become applicable,
in each case without any notice or other action on the part of the Receivables
Trustee or any Beneficiary immediately upon the occurrence of such event.
6.2 INVESTOR PAY OUT EVENTS
Subject to Clause 6.1, Investor Pay Out Events with respect to any Related Debt
and/or Series will be specified in any related Supplement.
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The Transferor shall immediately give notice to the Receivables Trustee of the
occurrence of any Trust Pay Out Event or Investor Pay Out Event, specifying
where applicable that such event is also an Insolvency Event.
6.3 TERMINATION OF OFFERS FOLLOWING THE OCCURRENCE OF INSOLVENCY EVENT
(a) If an Insolvency Event occurs in respect of the Transferor, on such day
(the "APPOINTMENT DAY") the following shall occur:
(i) Finance Charge Receivables, whenever created, accrued in respect
of Principal Receivables which have been assigned to the
Receivables Trustee shall continue to form part of the Trust
Property of the Receivables Trust and Collections with respect
thereto shall continue to be allocated and applied in accordance
with Clause 5; and
(ii) the Receivables Trustee shall not be entitled to accept any
further Offers by the Transferor to assign Receivables to the
Receivables Trustee; and
(iii) subject to completion of the liquidation, winding-up and
dissolution procedures described below the Receivables Trust
will be dissolved.
(b) Within 15 days of the Appointment Day, the Receivables Trustee shall:
(i) cause to be published a notice in an Authorised Newspaper that
an Insolvency Event has occurred, that the Receivables Trustee
intends to sell, dispose of or otherwise liquidate the
Receivables which constitute Trust Property and that subject to
completion of such sale, disposal or other liquidation, the
Receivables Trust will be dissolved; and
(ii) send written notice to the Beneficiaries describing the
provisions of this Clause 6.3 and requesting instructions from
such Beneficiaries. Unless within 60 days from the day notice
pursuant to sub-paragraph (i) above is first published, the
Receivables Trustee shall have received written instructions
from Beneficiaries representing more than 50 per cent. of the
Investor Interest of every Class of every Series and any other
person specified as so entitled in any Supplement to the effect
that such Beneficiaries and persons, if any, disapprove of the
liquidation of the Receivables which constitute Trust Property
and any other assets and wish to continue with the Receivables
Trustee accepting Offers and purchasing Receivables pursuant to
the terms and subject to the conditions of the Receivables
Securitisation Deed as before such Insolvency Event, the
Receivables Trustee shall use its best efforts to sell, dispose
of or otherwise liquidate the Receivables and other assets,
which shall include the solicitation of competitive bids and on
terms that are equivalent to the best purchase offer (as
determined by the Receivables Trustee). The provisions of Clause
6.1 and Clause 6.3 shall not be deemed to be mutually exclusive.
(c) The proceeds from the sale, disposition or liquidation of the
Receivables and other assets of the Receivables Trust pursuant to
paragraph (b) above ("INSOLVENCY PROCEEDS") shall be treated as
Collections in respect of the Receivables and other assets of the
Receivables Trust and shall be allocated and applied in accordance with
the provisions of Clause 3
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and Clause 5. Insolvency Proceeds arising from the Undivided Bare Trust
Property, the Ineligibles Bare Trust Property, the Segregated Bare Trust
Property, the Deferred Consideration Bare Trust and the Other Trust
Property respectively shall be allocated to Finance Charge Receivables
and Principal Receivables in the same proportion such Receivables
comprised in each of the aforesaid categories of Trust Property bore to
one another on the immediately preceding Determination Date.
(d) Unless the Receivables Trustee receives written instructions from
Beneficiaries and other persons as provided in Clause 6.3(b)(ii), on the
day following the last Transfer Date following the Monthly Period during
which the Insolvency Proceeds are distributed to the Beneficiaries, and
subject to the conditions that (A) the Combined Aggregate Investor
Interest shall have been reduced to zero as a result of such
distributions, (B) there are no Finance Charge Collections or other
Trust Property allocated to any Beneficiaries other than the Transferor
Beneficiary, and (C) there is no commitment on the part of any
Beneficiary to make contributions to meet payments in respect of the
assignment of Receivables to or for the Receivables Trustee, then, the
Receivables Trustee shall take any and all necessary additional steps to
ensure that the Receivables Trust is dissolved. To this intent if any
Trust Property exists following the distribution of the Insolvency
Proceeds referred to in the previous sentence, the Receivables Trustee
shall execute and deliver such instruments of transfer and assignment,
in each case without recourse to the Receivables Trustee, as shall be
necessary to vest in the Transferor Beneficiary or, as it may direct,
all right, title and interest of the Receivables Trustee in such Trust
Property and the Receivables Trustee shall follow any reasonable
direction of the Transferor Beneficiary in that regard. The Receivables
Trustee shall be entitled to be indemnified from the proceeds referred
to above and Trust Property allocated to the Transferor Beneficiary for
any expenses incurred in connection with the performance by the
Receivables Trustee of its obligations under this paragraph (d).
(e) The Receivables Trustee, may appoint a sub-agent or agents and such
other professional advisers as it deems necessary or prudent to assist
the Receivables Trustee with its responsibilities pursuant to this
Clause 6 with respect to competitive bids.
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PART 3
THE RECEIVABLES TRUSTEE AND THE RECEIVABLES TRUST
7. THE RECEIVABLES TRUSTEE
7.1 DUTIES OF THE RECEIVABLES TRUSTEE
(a) The Receivables Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Deed to the extent required
or permitted under and in compliance with applicable law and
regulations. All of the following provisions of this Clause 7.1 are
subject and without prejudice to Clause 2.1 and shall be construed
having regard to Clause 2.1.
(b) The duties of the Receivables Trustee shall be to operate the Trust
Accounts and, where it acquires any Receivables, to do so in accordance
with the provisions of this Deed and any Transaction Document in a
manner consistent with this Deed. The Receivables Trustee shall take
those reasonable steps available to it to ensure that any movements of
monies into and out of the Trust Accounts on any Business Day shall be
for value on the same day.
(c) The Receivables Trustee shall, if it has actual knowledge of the same,
act promptly to exercise its rights under any bank mandate relating to a
bank account in respect of which it is a beneficiary of a trust declared
over such account to prevent monies representing Trust Property being
paid from such bank account to a bank account which is not a Trust
Account and which was overdrawn at the close of business on the
preceding London Business Day (unless the Receivables Trustee shall have
received evidence satisfactory to it that such overdraft has been
satisfied). The Receivables Trustee shall cease to exercise such rights
at such time as the relevant bank account ceases to be overdrawn.
(d) The Receivables Trustee shall maintain (or procure that there are
maintained), in Jersey, proper books of account and records (including
all reports (whether under Clause 9.5 or otherwise), certificates and
other documents provided to it) in respect of its duties as trustee of
the Receivables Trust and shall maintain (or procure that there are
maintained), in Jersey, records of all assets held by it and all
payments made by it in such capacity. For the avoidance of doubt, the
duties of the Receivables Trustee under this Clause 7.1(d) shall not be
deemed to be discharged by virtue of the Receivables Trustee appointing
the Servicer to carry out any similar function pursuant to Clause 9.1.
(e) The Receivables Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Receivables Trustee which are specifically required to
be furnished pursuant to any provision of this Deed or any Transaction
Document, shall cause them to be examined to determine whether they
substantially conform to the requirements of this Deed or such
Transaction Document.
(f) Without prejudice to Clause 7.17(b), the appointment of the Servicer
pursuant to Clause 9.1(a) and the implementation of advice received from
the Servicer shall (unless and until terminated) be deemed to constitute
performance by the Receivables Trustee of its fiduciary obligations
hereunder or pursuant to any fiduciary duties on trustees implied by law
in respect of such matters, PROVIDED THAT in order to comply with its
obligations
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under Clauses 5.1(a)(iv), 5.1(b)(iii), 5.1(c)(iii), 5.1(d)(iii) and
5.1(f)(iii), the Receivables Trustee shall keep Servicer Monthly Reports
in Jersey. Without prejudice to the foregoing or to Clause 7.17(a), it
is expressly agreed and acknowledged that no delegation by the
Receivables Trustee will absolve or release the Receivables Trustee from
its liabilities or obligations hereunder in the event that the Servicer
shall default in the performance of its obligations as Servicer.
(g) The Receivables Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Investor Beneficiary or Enhancement Provider
relating to the time, method and place of conducting any proceeding for
any remedy available to the Receivables Trustee, or exercising any
trust, discretion or power conferred upon the Receivables Trustee in
relation to such Investor Beneficiary or Enhancement Provider, under
this Deed or any Transaction Document.
(h) The Receivables Trustee shall not be charged with knowledge of any
failure by the Servicer referred to in Clause 11.1 unless the
Receivables Trustee receives written notice of such failure from the
Servicer or the Investor Beneficiary or Enhancement Provider adversely
affected thereby.
(i) The Receivables Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or
powers, if it believes that the repayment of such funds or adequate
indemnity against such risk or liability is not assured to its
reasonable satisfaction, and none of the provisions contained in this
Deed or any Transaction Document shall in any event require the
Receivables Trustee to perform or procure the performance of, or be
responsible for the manner of the performance of, any of the obligations
of the Servicer under this Deed.
(j) Except for actions expressly authorised herein or in any Supplement, the
Receivables Trustee shall take no action to impair the interests of the
Beneficiaries of the Receivables Trust in any Receivable now existing or
hereafter created or to impair the value of any Receivable now existing
or hereafter created.
(k) Other than as expressly contemplated in this Deed or any Transaction
Document, the Receivables Trustee shall have no power to deal with Trust
Property or supplement, amend or vary the Receivables Trust.
(l) If at any time the Receivables Trustee shall have reasonable grounds to
believe that advice received from the Servicer is incorrect, it shall
promptly notify the Servicer of such matter Provided, HOWEVER, that if
the Servicer disagrees that such advice is incorrect the Receivables
Trustee shall promptly act in accordance with the advice given by the
Servicer and shall be entitled so to do.
(m) Where:
(i) any Ineligible Receivable has been assigned by the Transferor to
the Receivables Trustee without there being any breach of
warranty in respect of
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such Receivable under Clause 16.2 or 16.3 of the Receivables
Securitisation Deed; and
(ii) at the time when any assignment of such Ineligible Receivable
falls to be made pursuant to this Clause 7.1(m), there are no
Eligible Receivables in existence on the same Account as such
Ineligible Receivable,
the Receivables Trustee shall assign all of its right, title and
interest in such Ineligible Receivable to the Transferor by no later
than the third Transfer Date falling after the Monthly Period in which
such Receivable was identified as an Ineligible Receivable for a nominal
consideration of (pound)1 per batch of Ineligible Receivables assigned
by the Receivables Trustee on the same date and shall execute such
documentation as is required to effect such assignment, PROVIDED THAT
if, prior to the Ineligible Receivable in question being so assigned,
the Transferor shall state that it will not accept an assignment of such
Ineligible Receivable, then the Receivables Trustee, acting on the
advice of the Servicer, shall cause the relevant Ineligible Receivable
(together with any other Ineligible Receivables which at the relevant
time fall within the application of this proviso) to be sold to a third
party at an arm's length, commercial price subject always to any
requirements of law applicable in respect of any such sale to a third
party and shall hold any proceeds of such sale on trust for the
Transferor Beneficiary absolutely upon the terms of the trust in respect
of Ineligible Receivables forming part of the Ineligible Receivables
Pool in accordance with Clause 3.2(c)(iii) of this Deed (so far as
applicable).
7.2 CERTAIN MATTERS AFFECTING THE RECEIVABLES TRUSTEE
Except as otherwise provided in Section 7.1:
(a) the Receivables Trustee may rely on and shall be protected in acting, or
in refraining from acting in accordance with the Servicer Daily Report,
the Servicer Monthly Report, the Servicer Annual Report the monthly
payment instructions and notification to the Receivables Trustee, the
monthly Investor Beneficiaries statement, any resolution, Officer's
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented to it pursuant to this Deed or any
Transaction Document by the proper party or parties;
(b) the Receivables Trustee may rely on any Opinion of Counsel addressed to
it, and any such Opinion of Counsel shall be full and complete
authorisation and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel;
(c) the Receivables Trustee shall be entitled to assume, for the purposes of
exercising any power, trust, authority, duty or discretion under or in
relation to any Transaction Document that such exercise will not
adversely affect the interest of the Investor Beneficiaries where each
Rating Agency has given written confirmation that such Rating Agency
would not, as a result of the Receivables Trustee exercising any power,
trust, authority, duty or discretion under or in relation to any
Transaction Document, reduce or withdraw its then current rating of any
outstanding Associated Debt, the Receivables Trustee in considering
whether such exercise will adversely affect the interest of the Investor
Beneficiaries, shall be entitled to take into account such written
confirmation
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from each Rating Agency, provided that the Receivables Trustee shall
continue to be responsible for taking into account all other matters
which would be relevant to such consideration.;
(d) the Receivables Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Deed or the Receivables
Securitisation Deed or any agreement relating to any Enhancement, or to
institute, conduct or defend any litigation hereunder or in relation
hereto, at the request, order or direction of the Investor Beneficiary,
pursuant to the provisions of this Deed, unless such Investor
Beneficiary shall have offered to the reasonable satisfaction of the
Receivables Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Receivables Trustee
of the obligations, upon the occurrence of any Servicer Default (which
has not been cured), to exercise such of the rights and powers vested in
it by this Deed or the Receivables Securitisation Deed and any agreement
relating to any Enhancement, and to use the same degree of care and
skill in its exercise as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs;
(e) the Receivables Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorised or within the discretion or rights or powers conferred upon
it by this Deed or any Transaction Document;
(f) the Receivables Trustee shall not be bound to make any investigation
into any facts or matters stated (and as such may rely on the same in
respect of such facts or matters) in any Offer, the Servicer Daily
Report, the Servicer Monthly Report, the Servicer Annual Report, the
monthly payment instructions and notification to the Receivables
Trustee, any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing so to do by the Investor
Beneficiary which could be adversely affected if the Receivables Trustee
does not perform such acts;
(g) the Receivables Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian, and the Receivables Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent, attorney or custodian appointed with all due care by it
hereunder; and
(h) the Receivables Trustee shall not be required to make any initial or
periodic examination of any documents or records related to the
Receivables or the Designated Accounts for the purpose of establishing
the presence or absence of defects, the compliance by the Transferor and
the Servicer with its representations and warranties or for any other
purpose.
7.3 RECEIVABLES TRUSTEE NOT LIABLE FOR VALIDITY OR SUFFICIENCY
Except as set forth in Clause 7.12, the Receivables Trustee makes no
representations as to the validity or sufficiency of this Deed or any
Transaction Document or of the beneficial entitlement of the Beneficiaries to
Trust Property (other than the certificate of authentication on the Trust
Certificates) or of any Receivable or related document. The Receivables Trustee
shall not be accountable for the use or application by the Transferor
Beneficiary of any of its
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beneficial entitlement to Trust Property or of the proceeds of any transfer of
its beneficial entitlement, or for the use or application of any funds paid to
the Transferor in respect of the Receivables or deposited in or withdrawn from
any Trust Account by the Servicer.
7.4 RESIGNATION OR REMOVAL OF THE RECEIVABLES TRUSTEE
(a) The Receivables Trustee may at any time resign and be discharged from
the Receivables Trust hereby created by giving written notice thereof to
each of the Beneficiaries. Upon receiving such notice of resignation,
the Beneficiaries shall be vested jointly with the power to appoint a
successor trustee and shall promptly appoint such successor trustee as
detailed in Clause 7.5 by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Receivables Trustee
and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted within 30 days after the giving
of such notice of resignation, the resigning Receivables Trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time the Receivables Trustee shall be legally unable to act,
or shall be adjudged insolvent, or a receiver of the Receivables Trustee
or of its property shall be appointed, or any public officer shall take
charge or control of the Receivables Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then the Beneficiaries may collectively, but shall not be required to,
remove the Receivables Trustee and promptly appoint a successor trustee
by written instrument, in duplicate, one copy of which instrument shall
be delivered to the Receivables Trustee so removed and one copy to the
successor trustee.
(c) The Beneficiaries may at any time by unanimous vote resolve to remove
the Receivables Trustee as trustee of the Receivables Trust and shall do
so by giving written notice thereof to the Receivables Trustee. Upon
such notice of removal being given the Beneficiaries shall be vested
jointly with the power to appoint a successor trustee and shall promptly
appoint such successor trustee as detailed in Clause 7.5 by written
instrument, in duplicate, one copy of which instrument shall be
delivered to the Receivables Trustee being removed and one copy to the
successor trustee.
(d) Any resignation or removal of the Receivables Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Clause 7.4
shall not become effective until:
(i) acceptance of appointment by the successor trustee as provided
in Clause 7.5 hereof and any liability of the Receivables
Trustee arising hereunder shall survive such appointment of a
successor trustee; and
(ii) confirmation has been received from each Rating Agency that the
appointment of the successor trustee will not result in such
Rating Agency reducing or withdrawing its then current rating on
any outstanding Associated Debt.
7.5 SUCCESSOR RECEIVABLES TRUSTEE
(a) Any successor trustee appointed as provided in Clause 7.4 hereof shall,
unless the Transferor Beneficiary requires otherwise, be a person
belonging outside the member states of the European Union for VAT
purposes and shall execute, acknowledge and
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deliver to the Transferor Beneficiary and to its predecessor Receivables
Trustee an instrument accepting such appointment hereunder and
transferring the Trust Property to such successor trustee, and thereupon
the resignation or removal of the predecessor Receivables Trustee shall
become effective and such successor trustee, without any further act,
deed or conveyance, shall become fully vested with the Trust Property
and all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as Receivables
Trustee herein. The predecessor Receivables Trustee shall deliver to the
successor trustee all documents and statements held by it hereunder, and
the Transferor Beneficiary and the predecessor Receivables Trustee shall
execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in
the successor trustee all Trust Property and such rights, powers, duties
and obligations.
(b) Upon acceptance of appointment by a successor trustee as provided in
this Clause 7.5, such successor trustee shall mail notice of such
succession hereunder to all Beneficiaries.
7.6 APPOINTMENT OF CO-RECEIVABLES TRUSTEE OR SEPARATE RECEIVABLES TRUSTEE
(a) Notwithstanding any other provisions of this Deed, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Property may at the time be located, the
Receivables Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons, being a Person resident
outside the European Union and belonging outside the European Union for
VAT purposes, to act as a co-trustee or co-trustees, or separate trustee
or separate trustees, of all or any part of the Receivables Trust, and
to vest in such person or persons, in such capacity and for the benefit
of the Beneficiaries, such title to the Receivables Trust or any Trust
Property or any part thereof, and, subject to the other provisions of
this Clause 7.6, such powers, duties, obligations, rights and trusts
(being in each case all or part of such title, power or other matters as
are held by the Receivables Trustee itself) as the Receivables Trustee
may consider necessary or desirable. No notice to Beneficiaries of the
appointment of any co-trustee or separate trustee shall be required
under Clause 7.5 hereof. The Receivables Trustee shall be required to
obtain the prior written consent of the Beneficiaries before making any
appointment pursuant to this Clause 7.6(a) and no such appointment shall
be valid unless such consent has been obtained, PROVIDED HOWEVER that
any Beneficiary shall be entitled to withhold its consent only if it is
not established to its reasonable satisfaction that (so far as is
consistent with the legal requirements referred to in this Clause
7.6(a)) the relevant co-trustee or co-trustees or separate trustee or
separate trustees will belong outside the member states of the European
Union for VAT purposes or (if the foregoing is not consistent with the
said legal requirements) within the member states of the European Union
but outside the United Kingdom for the purposes of the VATA.
(b) Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Receivables Trustee shall be conferred or imposed upon
and exercised or performed by the Receivables Trustee and such
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not
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authorised to act separately without the Receivables Trustee
joining in such act), except to the extent that under any laws
of any jurisdiction in which any particular act or acts are to
be performed (whether as Receivables Trustee hereunder or as
successor to the Servicer hereunder), the Receivables Trustee
shall be incompetent or unqualified to perform such act or acts,
in which events such rights, powers, duties and obligations
(including the holding of title to the Receivables Trust or any
Trust Property or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Receivables
Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Receivables Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Receivables Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Deed and the conditions of this Clause 7.6. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Receivables Trustee or separately,
as may be provided therein, subject to all the provisions of this Deed,
specifically including every provision of this Deed relating to the
conduct of, affecting the liability of, or affording protection to, the
Receivables Trustee. Every such instrument shall be filed with the
Receivables Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time constitute the
Receivables Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act
under or in respect to this Deed or any Transaction Document on its
behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised
by the Receivables Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
7.7 TAX RETURNS
In the event that the Receivables Trustee shall be required to file tax returns
in respect of the Receivables Trust, the Receivables Trustee, as soon as
practicable after it is made aware of such requirement, shall prepare or cause
to be prepared any tax returns required to be filed by the Receivables Trust
and, to the extent possible, shall file such returns at least five days before
such returns are due to be filed. The Receivables Trustee is hereby authorised
to sign any such return on behalf of the Receivables Trust. The Receivables
Trustee will instruct the Servicer to prepare or cause to be prepared all tax
information required by law to be delivered to Beneficiaries and to deliver such
information to the Receivables Trustee at least five Business Days prior to the
date it is required by law to be delivered to Beneficiaries. The Receivables
Trustee will instruct the Servicer, upon request, to furnish the Receivables
Trustee with all such information known to the Servicer as may be reasonably
required in connection with the
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preparation of all tax returns of the Receivables Trust. In no event shall the
Receivables Trustee or the Servicer be contractually liable in respect of any
liabilities, costs or expenses of the Receivables Trust, the Investor
Beneficiaries or any other person arising under any Tax law (or any interest or
penalty with respect thereto or arising from a failure to comply therewith).
7.8 RECEIVABLES TRUSTEE MAY ENFORCE CLAIMS WITHOUT BENEFICIARIES
To the extent permitted by law, all rights of action and claims under this Deed
or any Transaction Document or with respect to any Beneficiary (including any
Enhancement Provider) and any related Supplement may be prosecuted and enforced
by the Receivables Trustee without the joining of any Beneficiary (including any
Enhancement Provider) in any proceeding relating thereto, and any such
proceeding instituted by the Receivables Trustee shall be brought in its own
name as trustee. Any recovery of a judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Receivables Trustee, its agents and legal advisers, constitute Trust
Property and be for the rateable benefit of any Beneficiaries in respect of
which such judgment has been obtained.
7.9 SUITS FOR ENFORCEMENT
If a Servicer Default shall occur and be continuing, the Receivables Trustee
shall, if it is so directed by Investor Beneficiaries representing in aggregate
more than 50% of the Combined Aggregate Investor Interest, subject to the
provisions of Clause 7.1, proceed to protect and enforce its rights and the
rights of any Investor Beneficiaries under this Deed or any Transaction Document
by a suit, action or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement contained in this Deed or
any Transaction Document or in aid of the execution of any power granted in this
Deed or for the enforcement of any other legal, equitable or other remedy as the
Receivables Trustee, being advised by counsel, shall deem most effective to
protect and enforce any of the rights of the Receivables Trustee or the Investor
Beneficiary.
7.10 CONSIDERATION OF THE INTERESTS OF THE BENEFICIARIES
(a) The Receivables Trustee shall, as regards all the powers, trusts,
authorities, duties and discretions vested in it under this Deed or
other Transaction Documents, except where expressly provided otherwise,
have regard to the interests of the Investor Beneficiaries, the
Transferor Beneficiary and the Enhancement Providers.
(b) Where an Opinion of Counsel is obtained by the Receivables Trustee to
the effect that there is a conflict between the interests of certain
Beneficiaries and the interests of any of the other Beneficiaries, the
Receivables Trustee shall, notwithstanding anything to the contrary
contained in this Deed or other Transaction Documents, have regard first
to the interests of the Investor Beneficiaries, then to the Transferor
Beneficiary and then to the interests of the Enhancement Providers and,
subject to any other claims it may otherwise have against the
Receivables Trustee including, without limitation, pursuant to Clauses
7.12 and 7.13, neither the Transferor Beneficiary nor any Enhancement
Provider shall have a claim against the Receivables Trustee for so
doing.
(c) Notwithstanding (a) and (b) above, where the Receivables Trustee is
required under this Deed or other Transaction Documents to have regard
to the interests of the Investor Beneficiaries in respect of any
relevant Related Debt or Series (whether or not the Related Debt or
Series in question relates to a single Investor Beneficiary or whether
two
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or more issuances of Related Debt or Series relate to different Investor
Beneficiaries) and where an Opinion of Counsel is obtained by the
Receivables Trustee to the effect that there is a conflict between the
interests of such Investor Beneficiaries in respect of such Related Debt
or Series, the Receivables Trustee shall be entitled to act in
accordance with directions received from such Investor Beneficiaries
pursuant to Clause 7.11 and no Investor Beneficiaries shall have any
claim against the Receivables Trustee for so doing.
7.11 RIGHTS OF INVESTOR BENEFICIARIES TO DIRECT THE RECEIVABLES TRUSTEE
Investor Beneficiaries representing in aggregate more than 50% of the Combined
Aggregate Investor Interest (or, with respect to any remedy, trust or power that
does not affect all Investor Beneficiaries, 50% or more of the Investor
Interests securing the affected Related Debt and/or Series (or Classes comprised
therein if applicable) to which such remedy, trust or power relates) shall have
the right to direct (provided however that such right to direct shall not apply
in any case to a decision of the Receivables Trustee as to whether to accept an
Offer) the Receivables Trustee in the exercise of any discretion conferred on
the Receivables Trustee and also the time, method and place of conducting any
proceeding for any remedy available to the Receivables Trustee, PROVIDED,
HOWEVER, that subject to Clause 7.1, the Receivables Trustee shall have the
right to decline to follow any such direction if the Receivables Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Receivables Trustee in good faith shall determine that the
proceedings so directed would be illegal or involve it in personal liability or
be unduly prejudicial to the rights of Investor Beneficiaries in respect of
Related Debt and/or Series not parties to such direction; and PROVIDED FURTHER
that nothing in this Deed shall impair the right of the Receivables Trustee to
take any action deemed proper by the Receivables Trustee and which is not
inconsistent with such direction of the holder(s) of such Related Debt and/or
Series.
7.12 REPRESENTATIONS AND WARRANTIES OF THE RECEIVABLES TRUSTEE
The Receivables Trustee represents and warrants on the date hereof and on each
Contribution Date that:
(a) the Receivables Trustee has full power, authority and right to execute,
deliver and perform this Deed and each Transaction Document to which it
is a party, and has taken all necessary action to authorise the
execution, delivery and performance by it of this Deed and each such
Transaction Document; and
(b) each of this Deed and each Transaction Document to which it is a party
has been duly executed and delivered by the Receivables Trustee.
7.13 COVENANTS BY THE RECEIVABLES TRUSTEE
(a) Save as provided for or as contemplated in this Deed and the Receivables
Trust constituted hereby, the Receivables Trustee hereby covenants in
favour of the Beneficiaries in its capacity as Receivables Trustee, and
also in its capacity as assignee of the Receivables pursuant to any
agreement formed upon acceptance of an Offer made under the Receivables
Securitisation Deed, that it shall not, without the prior written
consent of each of the Beneficiaries:
(i) carry on any business other than as trustee of the Receivables
Trust and in respect of that business shall not engage in any
activity or do anything whatsoever except:
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(A) hold, and exercise its rights in respect of, the Trust
Property and perform its obligations in respect of the
Trust Property;
(B) preserve and/or exercise and/or enforce any of its
rights and perform and observe its obligations under the
Transaction Documents to which it is party;
(C) pay dividends or make other distributions to the extent
required by applicable law;
(D) use, invest or dispose of any of its property or assets
in the manner provided in or contemplated by the
Transaction Documents to which it is party; and
(E) perform any and all acts incidental to or otherwise
necessary in connection with (A), (B), (C) or (D) above;
(ii) incur any indebtedness whatsoever (other than as expressly
contemplated herein or in any Supplement) or give any guarantee
or indemnity in respect of any indebtedness;
(iii) create any Encumbrance whatsoever over any of its assets, or
use, invest, sell or otherwise dispose of any part of its assets
(including any uncalled capital) or undertaking, present or
future, other than as expressly contemplated by this Deed and
any Transaction Document to which it is party;
(iv) consolidate or merge with any other person or convey or transfer
its properties or assets to any person, PROVIDED THAT the
Receivables Trustee shall in no event (regardless of whether the
Beneficiaries have consented to the same) consolidate or merge
with any other person unless SFAS 140 or any successor standard
thereto for US GAAP specifically permits a qualified special
purpose entity (as defined in SFAS 140 or any successor standard
thereto) to consolidate or merge with another entity;
(v) permit the validity or effectiveness of the Receivables Trust to
be supplemented, amended, varied, terminated, postponed or
discharged (other than as expressly contemplated herein or in
any Supplement);
(vi) have an interest in any bank account other than a Trust Account
and the bank accounts in Jersey referred to in Clause
7.13(b)(ii);
(vii) maintain a branch registration in the United Kingdom;
(viii) maintain or carry on any business through any office,
establishment, branch or agency in the United Kingdom for United
Kingdom tax purposes; or
(ix) except with the prior written consent of the Beneficiaries, have
any employees or premises or have any subsidiary.
(b) The Receivables Trustee hereby covenants in favour of the Beneficiaries
that it shall:
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(i)
(A) maintain all necessary licences, authorisations and
covenants and do all other such things necessary to
ensure its continued corporate existence and carry out
its obligations under the Transaction Documents to which
it is party;
(B) take all necessary steps to maintain its status as an
"exempt company" within the meaning of the Income Tax
(Jersey) Law 1961, as amended from time to time; and
(C) for the purposes of US GAAP, not engage in any
activities other than Permitted Activities.
(ii) unless agreed otherwise by the Transferor Beneficiary in
writing, open and maintain a bank account in Jersey in its own
name for the purpose of receiving and making payments to be made
otherwise than in its capacity as Receivables Trustee (including
making payments of Servicing Fee to the Servicer);
(iii) ensure that all instructions given by or on behalf of the
Receivables Trustee for:
(A) the transfer of monies into;
(B) the allocation (for the purposes of making transfers and
distributions referred to in (C) and (D) below) of
monies held in;
(C) the transfer of monies between; or (as the case may be)
(D) the distribution of monies out of,
the Trust Accounts are initiated in Jersey and that no such
transfers, allocations or distributions are made without such
instructions first having been initiated in Jersey by or on
behalf of the Receivables Trustee with respect to the transfer,
allocation or distribution in question;
(iv) procure that any agent who executes any contract on behalf of
the Receivables Trustee shall be resident outside the United
Kingdom for United Kingdom tax purposes and will not act through
a United Kingdom branch or agency; and
(v) take all such action as is necessary to facilitate any sales of
Defaulted Receivables (always subject to and in accordance with
the Call Option Agreement and the terms of this Deed, as
modified by any Supplement) to the Transferor.
(c) Save as otherwise provided or as otherwise contemplated in this Deed
(including the proviso to Clause 7.11) the Receivables Trustee hereby
covenants in favour of the Beneficiaries that it will not exercise any
discretion (whether to consent or request or otherwise) vested in it
pursuant to the terms of this Deed or the Receivables Securitisation
Deed unless it is so directed in accordance with Clause 7.11.
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7.14 SUPPLEMENT TO TRUSTEE ACTS
The rights, powers, duties and obligations conferred or imposed upon the
Receivables Trustee by this Deed shall, unless otherwise specified herein or in
any Supplement, be supplemental to any rights, powers, duties and obligations
conferred or imposed upon the Receivables Trustee under the law generally and in
particular the Trustee ▇▇▇ ▇▇▇▇ and the Trustee ▇▇▇ ▇▇▇▇.
7.15 FEES, COSTS AND EXPENSES OF THE RECEIVABLES TRUSTEE
(a) As full compensation for any fees, costs and expenses incurred by it in
connection with its duties and activities as Receivables Trustee (as
provided in Clause 2.1) (including, without limitation, amounts in
respect of stamp duty (if applicable) but excluding amounts in respect
of Servicing Fee and any tax on profits) the Receivables Trustee shall
be entitled to be reimbursed by the Beneficiaries for such fees, costs
and expenses with respect to each Monthly Period, as provided in this
Deed and any Supplement, on the related Transfer Date (each such fee and
reimbursement of costs and expenses, a "TRUSTEE PAYMENT AMOUNT" and the
aggregate of such fees and reimbursement of such costs and expenses
payable on a Transfer Date, together with the amount of any Trustee Fee
payable on such date in accordance with Clause 7.16, shall be the
"AGGREGATE TRUSTEE PAYMENT AMOUNT").
(b) The share of the Aggregate Trustee Payment Amount allocable to and borne
by the Investor Beneficiary in respect of a particular issuance of
Related Debt or Series with respect to any Monthly Period (the "INVESTOR
TRUSTEE PAYMENT AMOUNT") will be determined in accordance with the
relevant Supplement and paid to the Receivables Trustee by way of
additional consideration for the grant to such Investor Beneficiary of
its interest in the Receivables Trust.
7.16 TRUSTEE FEE
In further consideration of the undertaking and performance by the Receivables
Trustee of its fiduciary duties pursuant to Clause 2.1 the Beneficiaries shall
pay to the Receivables Trustee an annual fee as calculated in accordance with
each Supplement (the "TRUSTEE FEE"). The said fee shall be payable in 12 equal
instalments on each Transfer Date commencing with the first Transfer Date after
the initial Closing Date and, for the purposes of the Transaction Documents, the
amount so payable on any Transfer Date shall be included in the Aggregate
Trustee Payment Amount for the Transfer Date in question.
7.17 DISCLOSURE OF INFORMATION
(a) The Receivables Trustee and, by its execution of this Deed and any
Supplement, the Investor Beneficiary, agrees not to disclose to any
person any information which it receives pursuant to or in connection
with any Transaction Document ("RELEVANT INFORMATION") except and only
to the extent permitted by applicable law:
(i) if required in connection with the performance of its duties
under such Transaction Document;
(ii) if required in order to exercise or enforce the rights of any
Beneficiary;
(iii) with the consent of the Transferor, in connection with any
security interest the Investor Beneficiary has created or is
proposing to create over its beneficial
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interest in the Receivables Trust in connection with an issue of
Associated Debt; or
(iv) pursuant to any Requirement of Law.
(b) The Receivables Trustee and, by its execution of a Supplement, the
Investor Beneficiary agrees to take such measures as shall be reasonably
requested by the Transferor to protect and maintain the security and
confidentiality of all Relevant Information and, in connection
therewith, shall allow the Transferor to inspect its security and
confidentiality arrangements from time to time during normal business
hours and upon reasonable notice being given.
(c) If the Receivables Trustee or the Investor Beneficiary is required by
any Requirement of Law to disclose any Relevant Information, the
Receivables Trustee or such Investor Beneficiary shall provide the
Transferor with prompt written notice, unless such notice is prohibited
by law, of any such request or requirement. The Receivables Trustee or
relevant Investor Beneficiary shall make reasonable efforts to provide
the Transferor with written notice no later than five days prior to any
such disclosure unless compliance with this requirement would or might
breach any law.
7.18 LIMITATION
It is acknowledged that the Servicer agrees to perform its functions hereunder
solely in order to enable the Receivables Trustee to perform its functions
pursuant to Clause 2 and, for so long as the Receivables Trust continues, the
Servicer shall not be obliged or entitled to act on behalf of or on the
instructions of the Beneficiaries.
8. TERMINATION OF THE RECEIVABLES TRUST AND PERPETUITY
8.1 TERMINATION OF THE RECEIVABLES TRUST
If the Receivables Trust has not otherwise been dissolved pursuant to Clause 6.3
hereof, and subject to obtaining the written consent of each existing
Beneficiary of the Receivables Trust, on any Business Day on which (i) the
Aggregate Investor Interest in respect of the Investor Beneficiary is reduced to
zero, (ii) there are no Finance Charge Collections or other Trust Property
allocated to any Beneficiaries other than the Transferor Beneficiary and (iii)
there is no commitment on the part of any Beneficiary to make contributions to
meet payments in respect of the assignment of Receivables to the Receivables
Trustee, then the Transferor Beneficiary may by written notice to the
Receivables Trustee direct that the Receivables Trust be dissolved.
8.2 TERMINATION RIGHTS OF BENEFICIARIES
(a) Following the delivery of a notice of dissolution in the circumstances
contemplated in Clause 8.1 and the surrender of all outstanding Trust
Certificates, the Receivables Trustee shall distribute the Trust
Property to each Beneficiary according to its beneficial entitlements at
that time.
(b) Following the conveyance of the Trust Property to each Beneficiary or as
such Beneficiary may direct pursuant to this Clause 8.2, the Receivables
Trust shall be dissolved.
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8.3 PERPETUITY PERIOD
The perpetuity period for the purposes of this Deed (which for the
avoidance of doubt shall include for this purpose any Supplement) is the
period of 80 years from the date hereof.
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PART 4
APPOINTMENT AND DUTIES OF SERVICER
9. SERVICER FUNCTIONS
9.1 ACKNOWLEDGEMENT, ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS RELATING TO
THE SERVICER
(a) The Receivables Trustee hereby appoints HSBC Bank plc, and HSBC Bank plc
agrees to act, as the Servicer for the Receivables Trustee under this
Deed. Each Beneficiary consents to HSBC Bank plc acting as Servicer. For
the avoidance of doubt, it is understood and acknowledged that
obligations of the Servicer herein described are obligations undertaken
only in favour of the Receivables Trustee.
(b) The Servicer shall service and administer the Receivables comprised in
the Receivables Trust and shall collect payments due in respect of such
Receivables in accordance with its customary and usual servicing
procedures for servicing credit card receivables comparable to such
Receivables and in accordance with the Lending Guidelines and shall have
full power and authority, acting alone or through any party properly
designated by it hereunder, to do any and all things in connection with
such servicing and administration which it may deem necessary or
desirable. The Servicer shall follow such instructions in regard to the
exercise of its power and authority as the Receivables Trustee may from
time to time direct, PROVIDED THAT, nothing herein shall be taken to
constitute the Servicer as an agent of the Receivables Trustee.
(c) Without limiting the generality of the foregoing, and subject to Clause
11.1, the Servicer is hereby obliged, authorised and empowered:
(i) to create, credit and debit cardholders accounts as appropriate;
(ii) ensure that payments made to the Transferor by or on behalf of
cardholders are received into the Card Operating Accounts;
(iii) to make withdrawals from the Card Operating Account;
(iv) (unless such power and authority is revoked by the Receivables
Trustee on account of the occurrence of a Servicer Default
pursuant to Clause 11.1)to advise the Receivables Trustee to
make withdrawals and payments, from the Trust Accounts, in
accordance with such advice, as set forth in this Deed and any
Supplement;
(v) (unless such power and authority is revoked by the Receivables
Trustee on account of the occurrence of a Servicer Default
pursuant to Clause 11.1) advise the Receivables Trustee in
relation to calculations, allocations, distributions and
transfers in relation to the Receivables Trust and all functions
necessary to enable the Receivables Trustee to exercise its
rights and perform its obligations under in relation its
position as trustee of the Receivables Trust;
(vi) (unless such power and authority is revoked by the Receivables
Trustee on account of the occurrence of a Servicer Default
pursuant to Clause 11.1), to advise the Receivables Trustee in
writing, as set forth in this Deed;
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(vii) to execute and deliver, where appropriate, any and all
instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instruments,
with respect to the Receivables and to the extent permitted
under and in compliance with applicable law and regulations, to
commence enforcement proceedings with respect to delinquent
Receivables;
(viii) to make any filing, reports, notices, applications,
registrations with, and to seek any consents or authorisations
from any relevant securities or other authority as may be
necessary or advisable to comply with any securities or
reporting requirements (whether in relation to the Beneficiaries
or the Receivables Trust) and
(ix) to assign Defaulted Receivables on behalf of the Receivables
Trustee to the Transferor upon any exercise of the option
pursuant to Clause 18 of the Receivables Securitisation Deed.
The Receivables Trustee agrees that it shall promptly follow the advice
of the Servicer to withdraw funds from any Trust Account and to take any
action required under any Enhancement at such time as required under
this Deed and any Supplement. The Receivables Trustee shall execute at
the Servicer's written request such documents prepared by the Transferor
and acceptable to the Receivables Trustee as may be reasonably necessary
or appropriate to enable the Servicer to carry out its servicing duties
hereunder.
(d) Without prejudice to the provisions of Clause 6.1(d), in the event that
the Transferor is unable for any reason duly to assign Receivables
arising on Designated Accounts to the Receivables Trustee in accordance
with the provisions of the Receivables Securitisation Deed then, in any
such event:
(i) the Servicer shall advise the Receivables Trustee to apply,
after the date of the purported assignment, all Principal
Collections in respect of Receivables and all amounts which
would have constituted Principal Collections which would have
been assigned to the Receivables Trustee but for the
Transferor's inability duly to assign such Receivables, in
accordance with the provisions of the Transaction Documents as
though such amounts are Principal Collections;
(ii) the Servicer shall advise the Receivables Trustee to apply such
amounts as Principal Collections on Receivables assigned to the
Receivables Trustee in accordance with Clause 5; and
(iii) for only so long as all Principal Collections and all amounts
which would have constituted Principal Collections are applied
in accordance with paragraphs (i) and (ii) above, Principal
Collections and all amounts which would have constituted
Principal Collections but for the Transferor's inability duly to
assign Receivables to the Receivables Trustee that are
charged-off in accordance with this Deed and the Lending
Guidelines, shall continue to be applied in accordance with
Clause 5 and all Principal Receivables which would have been
assigned to the Receivables Trustee but for the Transferor's
inability duly to assign Receivables to the Receivables Trustee
shall be deemed to be Principal
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Receivables for the purpose of calculating the applicable
Investor Percentage thereunder.
If the Receivables Trustee is unable pursuant to any Requirement of Law
to apply payments on the Designated Accounts as described above in
accordance with the advice of the Servicer, the Servicer shall, if such
Requirement of Law thereafter ceases to prevent such allocation, advise
the Receivables Trustee to allocate payments on each Designated Account
with respect to the principal balance of such Designated Account first
to the oldest principal balance of such Designated Account and to apply
such payments as Collections in accordance with Clause 5.
The parties hereto agree that Finance Charge Receivables (whenever
created) accrued in respect of Principal Receivables which have been
conveyed to the Receivables Trustee as trustee of the Receivables Trust,
or which would have been conveyed to the Receivables Trustee as trustee
of the Receivables Trust but for the above described inability duly to
assign such Receivables, shall continue to be a part of the Trust
Property notwithstanding any cessation (as a result of such inability)
of the assignment of additional Principal Receivables to the Receivables
Trustee and Collections with respect thereto shall continue to be
allocated and paid in accordance with Clause 5.
(e) The Servicer shall not be obliged to use separate servicing procedures,
processing systems, offices, employees or accounts for servicing the
Receivables from the procedures, offices, employees and accounts used by
the Servicer in connection with servicing other credit card receivables.
(f) The Servicer shall maintain insurance coverage against losses through
wrongdoing of its directors, officers and employees who are involved in
the servicing of credit card receivables covering such actions and in
such amounts as the Servicer believes to be reasonable from time to
time.
(g) The Servicer shall, so far as it is reasonably practicable, carry out
its obligations and duties as Servicer in the United Kingdom.
9.2 SERVICING COMPENSATION
(a) As full compensation for its servicing duties and activities as provided
for in Clause 9.1 and as reimbursement for any expense incurred by it in
connection therewith, the Servicer shall be entitled to receive from the
Receivables Trustee (solely to the extent of payments received from the
Beneficiaries and utilising Trust Property allocated with respect
thereto as provided in this Deed and in any Supplement) a Servicing fee
(the "SERVICING FEE") with respect to each Monthly Period, payable
monthly on the related Transfer Date, in an amount equal to one-twelfth
of the product of:
(i) the weighted average of the Servicing Fee Percentages specified
in each Supplement in respect of an Outstanding Issuance, in
each case weighted by the proportion that the Investor Interest
of the relevant Series or issuance of Related Debt bears to the
Combined Aggregate Investor Interest as of the last day of the
relevant Monthly Period (or, if HSBC Bank plc is Servicer, such
other percentage as shall be agreed by the Servicer and the
Receivables Trustee (with the prior written consent of each of
the Beneficiaries) PROVIDED THAT (a) each
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Rating Agency has confirmed in writing that such proposed
percentage will not result in a downgrade or withdrawal of its
then current rating of any outstanding Associated Debt and (b)
the Beneficiaries have obtained an Opinion of Counsel that such
proposed agreement to alter the percentage will not prejudice
the Tax treatment of the Receivables Trust or the
Beneficiaries); and
(ii) the average daily aggregate Outstanding Face Amount of Principal
Receivables comprised in the Trust Property during such Monthly
Period.
(b) The portion of the Servicing Fee payable by the Receivables Trustee to
the Servicer, with respect to each Monthly Period, in respect of which
the Receivables Trustee is to be reimbursed from payments made by the
Investor Beneficiaries in respect of a particular Series or issuance of
Related Debt (the "INVESTOR SERVICING FEE AMOUNT" with respect to such
Series or issuance of Related Debt) will be determined in accordance
with the relevant Supplement. The relevant Investor Beneficiaries will
pay the Investor Servicing Fee Amount to the Receivables Trustee, in
respect of such Series or issuance of Related Debt, as part of the
consideration for the grant of the relevant Investor Interest.
(c) The portion of the Servicing Fee with respect to any Monthly Period in
respect of which the Receivables Trustee is not to be reimbursed from
payments made by the relevant Investor Beneficiaries in respect of each
Series or issuance of Related Debt pursuant to the related Supplements
(the "TRANSFEROR SERVICING FEE AMOUNT") shall be paid to the Receivables
Trustee by the Transferor Beneficiary from the Transferor Finance Charge
Amount and Transferor Acquired Interchange Amount or other Trust
Property allocable to the Transferor Beneficiary on the related Transfer
Date. In no event shall the Receivables Trust, the Receivables Trustee,
any Enhancement Provider or the Investor Beneficiaries in respect of any
Series or issuance of Related Debt be liable to the Servicer for the
share of the Servicing Fee with respect to any Monthly Period in respect
of which the Receivables Trustee is to be reimbursed from payments to be
made by the Transferor Beneficiary from Trust Property allocated to the
Transferor Beneficiary Provided, HOWEVER, that the amount of Transferor
Servicing Fee Amount in respect of which the Receivables Trustee is to
be reimbursed by the Transferor Beneficiary pursuant to this paragraph
(c) in any Monthly Period shall not exceed the aggregate amount of the
Transferor Finance Charge Amount and Transferor Acquired Interchange
Amount or such other Trust Property for such Monthly Period. The
Transferor Beneficiary will pay the Transferor Servicing Fee Amount to
the Receivables Trustee as part of the consideration for the grant of
the Transferor Interest.
(d) It is a condition of the Receivables Trust (which by the execution of a
Supplement by a Beneficiary, such Beneficiary consents and confirms)
that each Beneficiary of the Receivables Trust undertakes to the
Receivables Trustee for the benefit of itself and as trustee for each
other Beneficiary that it will reimburse the Receivables Trustee for the
share of the Servicing Fee payable by the Receivables Trustee to the
Servicer pursuant to Clause 9.2(a) and (b) which is to be met by the
Receivables Trustee from payments to be made by such Beneficiary to the
Receivables Trustee as distributed and specified in such Supplement.
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9.3 REPRESENTATIONS AND WARRANTIES OF THE SERVICER
HSBC Bank plc as initial Servicer hereby makes and any Successor Servicer by its
appointment hereunder shall make (with appropriate modifications to Clause
9.3(a) to reflect the Successor Servicer's organisation), the following
representations and warranties on which the Receivables Trustee has relied in
appointing HSBC Bank plc as the initial Servicer and, whenever appropriate, any
Successor Servicer, PROVIDED THAT, in the case of any Successor Servicer, all
such representations and warranties shall be construed as being given as at the
time of its appointment as such Successor Servicer and thereafter at the times
specified in this Deed.
(a) ORGANISATION: It is a limited liability company duly incorporated under
the laws of England and Wales with full corporate power, authority and
legal right to own its assets and conduct its business as such assets
are presently owned and its business as presently conducted and with
power to enter into this Deed and the other Transaction Documents to
which it is party and to exercise its rights and perform its obligations
thereunder and all corporate and other action required to authorise its
execution and delivery of each such Transaction Document and its
performance of its obligations thereunder has been duly taken or will be
taken prior to the execution of such Transaction Document.
(b) DUE AUTHORISATION: All acts, conditions and things required to be done,
fulfilled and performed in order (i) to enable it lawfully to enter
into, exercise its rights under and perform and comply with the
obligations expressed to be assumed by it in each Transaction Document
to which it is party, (ii) to ensure that the obligations expressed to
be assumed by it in each such Transaction Document are legal, valid and
binding on it and (iii) to make each such Transaction Document
admissible in evidence in England have been done, fulfilled and
performed or will be done fulfilled and performed prior to the execution
of such Transaction Document other than, where applicable, the payment
of any stamp duty in the United Kingdom.
(c) NO VIOLATION: The execution by it of each Transaction Document to which
it is party and the exercise of its rights and the performance of its
obligations thereunder will not conflict with or violate any Requirement
of Law.
(d) BINDING OBLIGATION: The obligations expressly to be assumed by it in
each Transaction Document to which it is party are legal and valid
obligations binding on it and enforceable against it in accordance with
its terms (or will be so upon execution of each such Transaction
Document), except (a) as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, re-organisation or other
similar laws affecting the enforcement of the rights of creditors
generally or by regulatory duties and obligations under the Banking ▇▇▇
▇▇▇▇ or any successor or replacement legislation, and (b) as such
enforceability may be limited by the effect of general equitable
principles and other limitations on enforcement in the jurisdiction of
the Servicer.
(e) NO PROCEEDINGS: There are no proceedings or investigations commenced or,
to the best of its knowledge pending or threatened against it before any
court, regulatory body, arbitral tribunal or public or administrative
body or agency (i) asserting the invalidity of any Transaction Document
to which it is party; (ii) seeking to prevent the entering into of any
of the transactions contemplated by any such Transaction Document; (iii)
seeking any determination or ruling that, in the reasonable opinion of
the Servicer, would
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materially and adversely affect the performance by it of its obligations
under any such Transaction Document; or (iv) seeking any determination
or ruling that would materially and adversely affect the validity or
enforceability of any such Transaction Document.
(f) NO CONFLICT: The execution and delivery of each Transaction Document to
which it is party and the exercise by the Servicer of its rights and the
performance of its obligations thereunder will not conflict with, result
in any breach of the material terms and provisions of, or constitute a
material default under, any agreement, indenture, contract, mortgage,
deed of charge or other instrument to which it is a party or by which it
or any of its assets is otherwise bound.
9.4 COVENANTS OF THE SERVICER
The Servicer covenants with the Receivables Trustee that:
(a) COMPLIANCE WITH REQUIREMENTS OF LAW
The Servicer shall duly satisfy all obligations on its part to be
fulfilled under this Deed or (as the case may be) in connection with
each Receivable and each Designated Account, will maintain in effect all
qualifications required under Requirements of Law in order to service
properly each Receivable and each Designated Account and will comply in
all material respects with this Deed and all other Requirements of Law
in connection with servicing each Receivable and each Designated
Account, where the failure to comply would have a Material Adverse
Effect.
(b) ANNUAL SERVICING REVIEW
Unless otherwise required by Rules 13a-18 and 15d-18 of the Exchange Act
and Item 1122 of Regulation AB (the "Regulation AB Assessment Rules"),
on or before 30 April of each calendar year (beginning with 30 April
2007) the Servicer shall cause a firm of internationally recognised
independent auditors (which may also render other services to the
Servicer or the Transferor) to furnish an SAS No.70 Report, covering the
immediately preceding calendar year, to the Receivables Trustee and the
Servicer (copied to each Beneficiary and each Rating Agency rating any
Outstanding Issuance).
If required to do so by the Regulation AB Assessment Rules the Servicer
shall service and administer the Receivables in accordance with all
applicable requirements of Item 1122(d) of the Securities and Exchange
Commission's Regulation AB (the "REGULATION AB SERVICING CRITERIA"). The
Servicer shall deliver to the Receivables Trustee, each Beneficiary and
each Rating Agency on or before the 90th day following the end of each
fiscal year, beginning with the fiscal year ending December 31, 2006, a
report (an "REGULATION AB ASSESSMENT OF COMPLIANCE") reasonably
satisfactory to the Transferor Beneficiary and Investor Beneficiaries
regarding the Servicer's assessment of compliance with the applicable
Regulation AB Servicing Criteria during the preceding calendar year as
required. As of the date hereof, the Regulation AB Assessment Rules
require a report by an authorized officer of the Servicer that contains
the following:
(a) A statement by such officer of its responsibility for
assessing compliance with the Regulation AB Servicing Criteria
applicable to the Servicer;
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(b) A statement by such officer that such officer used the
Regulation AB Servicing Criteria to assess compliance with the
Regulation AB Servicing Criteria applicable to the Servicer;
(c) An assessment by such officer of the Servicer's compliance
with the applicable Regulation AB Servicing Criteria for the
period consisting of the preceding calendar year, including
disclosure of any material instance of non-compliance with
respect thereto during such period, which assessment shall be
based on the activities it performs with respect to asset-backed
securities transactions taken as a whole involving the Servicer
that are backed by the same asset type as the Receivables;
(d) A statement that a registered public accounting firm has
issued an attestation report on the Servicer's Regulation AB
Assessment of Compliance for the period consisting of the
preceding calendar year; and
(e) A statement as to which of the Regulation AB Servicing
Criteria, if any, are not applicable to the Servicer, which
statement shall be based on the activities it performs with
respect to asset-backed securities transactions taken as a whole
involving the Servicer that are backed by the same asset type as
the Receivables.
Such report at a minimum shall address each of the Regulation AB
Servicing Criteria and shall be in the form of a an Officers
Certificate by an officer of the Servicer delivered to the
Receivables Trustee.
(c) ANNUAL SERVICING REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS; COPIES OF
REPORTS AVAILABLE; COMPLIANCE REQUIREMENTS.
(i) Only if required by the Regulation AB Assessment Rules, or if
HSBC Bank plc's ▇▇▇▇▇'▇ long term or short term rating falls
below A3 or P-1 respectively, on or before the 90th day
following the end of each fiscal year, beginning with the fiscal
year ending December 31, 2006, the Servicer shall cause a firm
of internationally recognized independent public accountants
(who may also render other services to the Servicer or the
Transferor) to furnish to the Receivables Trustee, the Servicer,
the Transferor, each Beneficiary and each Rating Agency each
attestation report on the Assessments of Compliance (each an
"REGULATION AB ATTESTATION REPORT") with respect to the Servicer
or any affiliate thereof during the related fiscal year
delivered by such accountants pursuant to Rule 13a-18 or Rule
15d-18 of the Exchange Act and Item 1122 of Regulation AB, which
Regulation AB Attestation Report(s) must be made in accordance
with the standards for attestation reports issued or adopted by
the U.S. Public Company Accounting Oversight Board.
(ii) A copy of each certificate and report provided pursuant to
Clauses 9.6, 9.4(b) or 9.4(c) may be obtained by any Noteholder
by a request in writing to the Receivables Trustee addressed to
the Directors.
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(iii) The Servicer shall cause each subcontractor determined by the
Servicer to be "participating in the servicing function" within
the meaning of Item 1122 of Regulation AB to deliver to the
Trustee an assessment of compliance and accountants'
attestation.
(iv) If the Servicer cannot deliver the related Regulation AB
Assessment of Compliance or Regulation AB Attestation Report by
the date required hereunder, the Sponsor, at its sole option,
may permit a cure period for the Servicer to deliver such
Regulation AB Assessment of Compliance or Regulation AB
Attestation Report, but in no event more than 30 days.
(v) Failure of the Servicer to timely comply with Clause 9.6, 9.4(b)
or 9.4(c) shall be deemed a Servicer Event of Default
automatically, without notice and without any cure period, and
the Trustee may, in addition to whatever rights the Trustee may
have under this Agreement and at law or equity or to damages,
including injunctive relief and specific performance, terminate
all the rights and obligations of the Servicer under this
Agreement and in and to the Receivables and the proceeds thereof
without compensating the Servicer for the same. This paragraph
shall supercede any other provision in this Agreement or any
other agreement to the contrary.
9.5 REPORTS AND RECORDS FOR THE RECEIVABLES TRUSTEE
(a) SERVICER DAILY REPORTS:
On the second Business Day following the relevant Date of Processing,
the Servicer shall prepare and make available, with reasonable prior
notice, at the office of the Servicer for inspection by the Receivables
Trustee or its agents during normal business hours, a daily activity
record (a "SERVICER DAILY REPORT") setting out:
(i) the aggregate amount of Collections representing Trust Property
processed by the Servicer on such Date of Processing and with
reference to the Designated Accounts (on an aggregate basis):
(A) the outstanding balance of the Future Receivables which
have arisen and which have automatically been assigned
in equity to the Receivables Trustee since the previous
Servicer Daily Report and which are Eligible
Receivables;
(B) the Outstanding Face Amount of the Eligible Receivables
Pool and the amount of the Finance Charge Receivables
comprised in such Eligible Receivables Pool; and
(C) the outstanding balance of Future Receivables which have
arisen and which have automatically been assigned in
equity to the Receivables Trustee since the previous
Servicer Daily Report and which are Ineligible
Receivables;
(ii) the aggregate amount of Collections representing Trust Property
to be transferred (or to be distributed pursuant to Clause
5.2(a)(ii)) with respect to such Date of Processing on a
Relevant Date pursuant to Clause 5.2(a)(i) from
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the Card Operating Account to the Trustee Collection Account (to
be recorded in the Principal Collections Ledger and the Finance
Charge Collections Ledger);
(iii) the aggregate amount of such Collections referred to in
paragraph (ii) which will be distributed pursuant to Clause
5.2(b), (A) to the Card Proceeds Account to repay Incorrect
Payments in respect of Finance Charge Receivables or Principal
Receivables, (B) to the Card Proceeds Account as Ineligible
Collections, (C) to the relevant ledger or account as Principal
Collections distributable in respect of the Investor Beneficiary
as specified in the relevant Supplement, (D) to the Card
Proceeds Account as Transferor Finance Charge Amount, (E) to be
retained in the Trustee Collection Account as Investor Finance
Charge Amount, (F) on each Transfer Date, to the Card Proceeds
Account as Transferor Acquired Interchange Amount and (G) on
each Transfer Date to the account specified in the relevant
Supplement as Investor Acquired Interchange Amount;
(iv) the aggregate amount to be transferred from the Trustee
Collection Account to the Trustee Investment Account (being Cash
Available for Investment and Unavailable Principal Collections)
with respect to such Date of Processing on a Relevant Date
pursuant to Clause 5.2(b)(iii) (and the corresponding adjustment
made to the Principal Collections Ledger);
(v) the aggregate amount to be transferred from the Trustee
Investment Account to the Card Proceeds Account with respect to
such Relevant Date (1) by way of Consideration for Receivables
pursuant to Clause 5.2(c)(i), (ii) and (iii) and (2) by way of
Deferred Consideration "Loss Make-up" pursuant to Clause
5.2(c)(vi);
(vi) the aggregate amount to be transferred from the Trustee
Investment Account to the Card Proceeds Account with respect to
such Relevant Date in respect of Cash Available for Investment
required to be applied to the Transferor Interest in the
Eligible Receivables Pool pursuant to Clause 5.2(c)(iv);
(vii) the aggregate amount to be transferred from the Receivables
Trustee Consideration Account to the Card Proceeds Account with
respect to such Relevant Date by way of Deferred Consideration
(other than Deferred Consideration "Loss Make-Up") pursuant to
Clause 5.2(c)(vii);
(viii) after taking into account (i) to (vii) above, (aa) the aggregate
amount of the Eligible Receivables Pool; (bb) the Combined
Aggregate Investor Interest and each Investor Interest comprised
therein; (cc) the Transferor Interest, and (dd) the aggregate
amount of the Ineligible Receivables Pool, in each case at the
close of business on such Date of Processing; and
(ix) on any Proposed Addition Date, inform the Receivables Trustee on
such day of the Outstanding Face Amount of Existing Receivables
which are Eligible Receivables and Ineligible Receivables
(stating separate Outstanding Face Amounts for each) on the
Accounts nominated in the relevant Offer as of the opening of
business on such Proposed Addition Date.
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(b) SERVICER MONTHLY REPORT
Unless otherwise stated in the related Supplement with respect to any
Series or issuance of Related Debt, on or before each Transfer Date the
Servicer shall forward to the Receivables Trustee (copied to any
Enhancement Provider, the Investor Beneficiary and each Rating Agency),
a report (the "SERVICER MONTHLY REPORT") of an Authorised Officer
setting out with respect to the preceding Monthly Period (inter alia):
(i) the aggregate amount of Collections representing Trust Property
processed;
(ii) the aggregate amount of the applicable Investor Percentage of
Principal Collections processed by the Servicer with respect to
each Outstanding Issuance for the Investor Beneficiary;
(iii) the aggregate amount of the applicable Investor Percentage of
Collections of Finance Charge Collections processed by the
Servicer with respect to each Outstanding Issuance for the
Investor Beneficiary;
(iv) the aggregate amount of Eligible Principal Receivables and
Finance Charge Receivables processed as of the end of the last
day of the preceding Monthly Period;
(v) the balance on deposit in each of the Trust Accounts, on the
last day of such Monthly Period, with respect to Collections
representing Trust Property processed by the Servicer;
(vi) the aggregate amount, if any, of withdrawals, drawings or
payments under any Enhancement, if any, for each Series or
issuance of Related Debt required to be made in the manner
provided in the related Supplement;
(vii) the sum of all amounts allocated to the Investor Beneficiaries
of each issuance of Related Debt and/or Series (or for a Series
with more than one Class of Investor Beneficiaries, each such
Class) on such Transfer Date to be utilised to meet their
obligations to pay principal and interest with regard to Related
Debt on the immediately succeeding Distribution Date or on a
later Distribution Date (as specified in a related Supplement);
(viii) the sum of all amounts paid and payable to the Transferor
Beneficiary;
(ix) the sum of all amounts payable to the Servicer by way of
Servicing Fee;
(x) the sum of all amounts paid or payable in respect of Deferred
Consideration; and
(xi) such other matters are set out in Exhibit A.
The Servicer Monthly Report shall be substantially in the form of
Exhibit A to this Deed, with such changes as the Servicer may reasonably
determine to be necessary or desirable, PROVIDED, HOWEVER, that no such
changes shall serve to exclude information required by the Deed or any
Supplement.
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9.6 SERVICER ANNUAL REPORT
On or before the 90th day following the end of each fiscal year, The Servicer
shall deliver to the Receivables Trustee, each Beneficiary, the Transferor and
each Rating Agency, beginning with the fiscal year ending December 31, 2006,
unless otherwise required by the Regulation AB Assessment Rules, an Officer's
Certificate of the Servicer in the form of Schedule 5 (with appropriate
insertions) to the effect that
(a) a review of the activities of the Servicer during such fiscal year
and of its performance under this Agreement was made under the
supervision of the officer signing such certificate and
(b) to the best of such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement in all
material respects throughout such fiscal year or, if there has been a
failure to fulfil any such obligation in any material respect,
specifying each such failure known to such officer and the nature and
status thereof; or
If required by the Regulation AB Assessment Rules, the Servicer shall instead
provide the statement of compliance required under Item 1123 of Regulation AB
with respect to such fiscal year, which statement will be in the form of an
Officer's Certificate of the Servicer (with appropriate insertions).
A copy of such certificate may be obtained by each Beneficiary by request in
writing to the Receivables Trustee pursuant to Clause 12.5.
9.7 DESIGNATED ACCOUNT FILE
(a) The Servicer shall maintain, at its own expense, to be updated from time
to time, and in any event, forthwith upon receiving instruction from the
Receivables Trustee to do so, the Designated Account File, containing a
true and complete list of all Designated Accounts with the designation
"001", each identified by specific number identifying such Account and
setting forth the balance of Receivables in such Account. The Servicer
shall identify Accounts in the Designated Account File with the
designation "001". For the avoidance of doubt, the parties acknowledge
that the Designated Account File maintained by the Servicer shall not be
conclusively determinative of what property has been assigned to the
Receivables Trustee pursuant to any Offer that may have been accepted.
(b) The Servicer agrees to deliver to the Receivables Trustee, on or before
the tenth Business Day (or within such period as may otherwise be
agreed) after any request by it, a computer file containing a true and
complete list of all Designated Accounts which are each identified by a
specific number, PROVIDED HOWEVER, that the Receivables Trustee may not
request such list or information more than once during any calendar year
unless an Insolvency Event or Notification Event has occurred and is
subsisting, in which case such request may be made at any time with
reasonable frequency. For the avoidance of doubt, the parties
acknowledge that any such list of Designated Account shall not be
conclusively determinative of what property has been assigned to the
Receivables Trustee pursuant to any Offer that may have been accepted.
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9.8 REDESIGNATED ACCOUNT RECORDS
The Servicer shall be obliged to maintain records identifying each Redesignated
Account as an Account in respect of which the Receivables have been assigned,
until the earlier of:
(a) such time as Collections (in an amount equal to the aggregate of the
Outstanding Face Amount of each Principal Receivable and the outstanding
balance of each Finance Charge Receivable) have been received by the
Receivables Trustee in respect of the Receivables which have been
assigned to the Receivables Trustee in respect of that Account other
than Receivables which have been charged-off as uncollectible in
accordance with the Lending Guidelines on the Designated Account File;
or
(b) such time as all Receivables outstanding on such Account which
constitute Trust Property have been reassigned to the Transferor in the
circumstances set out in Clause 11.3 of the Receivables Securitisation
Deed and in the Call Option Agreement.
9.9 REMOVAL OF DESIGNATION
At such time as the Servicer ceases to be obliged to maintain records in respect
of any Redesignated Account in the circumstances set out in Clause 9.8, the
Servicer may at any time thereafter, and in its absolute discretion, remove the
designation "001" in the Designated Account File from such Account with effect
from such date as the Servicer shall specify in that notice and such Account
shall thereafter constitute a "REMOVED ACCOUNT" and shall no longer be
designated "001" in the Designated Account File PROVIDED, HOWEVER, that in
respect of a Zero Balance Account, the Servicer shall have removed such
designation on the Redesignation Date and such Zero Balance Account shall
thereafter also constitute a Removed Account. In addition, where the Transferor
requests, pursuant to Clause 7.6 of the Receivables Securitisation Deed, that
any Designated Account or Redesignated Account be designated by the Servicer to
become a Removed Account, the Servicer shall thereafter remove the designation
"001" in the Designated Account File from such Account with effect from the date
notified to the Servicer by the Transferor and such Account shall thereafter
constitute a "REMOVED ACCOUNT" and shall no longer be designated "001" in the
Designated Account File.
9.10 NOTICES TO HSBC BANK PLC
In the event that HSBC Bank plc is no longer acting as Servicer, the Receivables
Trustee hereby authorises and instructs any Successor Servicer appointed
pursuant to Clause 11.3 to deliver or make available to the Transferor each
certificate and report required to be prepared, forwarded or delivered
thereafter pursuant to Clauses 9.5 and 9.6 and to deliver or make available to
the Transferor each updated computer list pursuant to Clauses 9.7 to 9.9.
10. OTHER MATTERS RELATING TO THE SERVICER
10.1 LIABILITY OF THE SERVICER
The Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Servicer in such capacity herein.
10.2 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF, THE
SERVICER
The Servicer shall not consolidate with or merge into any other company or
Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(a) If the Servicer is not the surviving entity, the entity formed by such
consolidation or into which the Servicer is merged or the Person which
acquires by conveyance or transfer the
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properties and assets of the Servicer substantially as an entirety,
shall expressly assume, by an agreement supplemental hereto, executed by
such entity and delivered to the Receivables Trustee in a form
satisfactory to the Receivables Trustee, the performance of the
obligations of the Servicer hereunder (to the extent that any right,
covenant or obligation of the Servicer is inapplicable to the successor
entity, such successor entity shall be subject to such covenant or
obligation, or benefit from such right, as would apply, mutatis
mutandis, to such successor entity);
(b) the Servicer (or the surviving entity if it is not the Servicer) shall
have delivered to the Receivables Trustee:
(i) a certificate of an authorised officer that such consolidation,
merger, conveyance or transfer and such supplemental agreement
comply with this Clause 10.2 and that all documentation referred
to in (a) above and any conditions precedent specified in such
documentation relating to such transaction have been complied
with; and
(ii) an Opinion of Counsel that such supplemental agreement is legal,
valid, binding and enforceable with respect to the successor
entity and (if applicable) the Servicer, and
the Servicer shall have delivered notice to each Rating Agency of such
consolidation, merger, conveyance or transfer.
10.3 LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS
(a) The directors, officers, employees or agents of the Servicer shall not
be under any liability to the Receivables Trust, the Receivables
Trustee, the Investor Beneficiaries, any Enhancement Provider or any
other person hereunder or pursuant to any document delivered hereunder,
it being expressly understood that all such liability is expressly
waived and released as a condition of, and as consideration for, the
execution of this Deed and any Supplement PROVIDED, HOWEVER, that this
provision shall not protect the directors, officers, employees and
agents of the Servicer against any liability which would otherwise be
imposed by reason of wilful default, bad faith or negligence in the
performance of duties hereunder or under any Supplement.
(b) Except as provided in Clause 10.4 with respect to the Receivables Trust
and the Receivables Trustee and its agents, the Servicer shall not be
under any liability to the Receivables Trust, the Receivables Trustee
and its agents, the Investor Beneficiaries, any Enhancement Provider or
any other person for any action in its capacity as Servicer pursuant to
this Deed or any Supplement, PROVIDED, HOWEVER, that this provision
shall not protect the Servicer against any liability which would
otherwise be imposed by reason of wilful default, bad faith or
negligence in the performance of duties or by reason of its reckless
disregard of its obligations and duties hereunder or under any
Supplement.
(c) The Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any person respecting any
matters arising hereunder.
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(d) The Servicer shall not be under any obligation to appear in, prosecute
or defend any legal action which is not incidental to its duties
pursuant to this Deed which in its reasonable opinion may involve it in
any expense or liability.
10.4 SERVICER INDEMNIFICATION OF THE RECEIVABLES TRUST AND THE RECEIVABLES
TRUSTEE
The Servicer shall indemnify and hold harmless the property subject to
the Receivables Trust, the Receivables Trustee and its agents, for and against:
(a) any amount of reasonable loss, liability, expense or damage suffered or
sustained by reason of any fraud, wilful misconduct, bad faith, or
negligent acts or omissions of the Servicer, in its capacity as
Servicer, with respect the activities it carries out pursuant to this
Deed or any Supplement; and
(b) the amount of any judgment, award, settlement, reasonable legal fees and
other costs or expenses properly incurred by the Receivables Trustee or
its agents in connection with the defence of any actual or threatened
action, proceeding or claim against it in respect of any acts or
omissions of the Servicer referred to in (a) above,
PROVIDED, HOWEVER, that the Servicer shall not:
(i) indemnify the Receivables Trustee if such acts, omissions or
alleged acts or omissions constitute or are caused by fraud, bad
faith, negligence, or wilful misconduct by the Receivables
Trustee or its agents;
(ii) indemnify the Receivables Trust or the Investor Beneficiary for
any liabilities, costs or expenses of the Receivables Trust with
respect to any action taken by the Receivables Trustee at the
request of the Investor Beneficiary in respect of any issuance
of Related Debt and/or Series, otherwise than as a consequence
of a breach by the Servicer of its obligations under this Deed;
(iii) indemnify the Receivables Trust, the Receivables Trustee or the
Investor Beneficiary for any losses, claims or damages incurred
by any of them in respect of the assets of the Receivables Trust
including, without limitation, losses incurred as a result of
Receivables in Defaulted Accounts; and
(iv) indemnify the Receivables Trust, the Receivables Trustee or the
Investor Beneficiary for any liabilities, costs or expenses of
the Receivables Trust, the Receivables Trustee or the Investor
Beneficiaries arising under any Tax law (or any interest or
penalties with respect thereto or arising from a failure to
comply therewith) required to be paid by the Receivables Trust,
the Receivables Trustee or the Investor Beneficiaries in
connection herewith to any taxing authority.
Any such indemnification shall be payable by the Servicer itself and not be
payable from the Trust Property of the Receivables Trust. The provision of this
indemnity shall run directly to and be enforceable by an injured party subject
to the limitations hereof.
10.5 SERVICER NOT TO RESIGN
The Servicer shall not resign from the obligations and duties hereby imposed on
it except upon determination that (i) the performance of its duties hereunder is
no longer permissible under any Requirement of Law and (ii) there is no action
which the Servicer could reasonably take to
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make the performance of its duties hereunder permissible under any Requirement
of Law. Any such determination permitting the resignation of the Servicer shall
be evidenced as to sub-paragraph (i) above by an Opinion of Counsel and as to
sub-paragraph (ii) by an Officer's Certificate, each to such effect delivered to
the Receivables Trustee which the Receivables Trustee agrees to hold for the
Investor Beneficiaries and any Enhancement Provider. No such resignation shall
become effective until a Successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Clause 11.3
hereof.
10.6 DELEGATION OF DUTIES
In the ordinary course of business, the Servicer may at any time delegate any
duties hereunder to any person who agrees to conduct such duties, if applicable
in accordance with the Lending Guidelines. Any such delegations shall not
relieve the Servicer of its liabilities and responsibility with respect to such
duties, and shall not constitute a resignation within the meaning of Clause 10.5
hereof. If any material delegation is to a party other than HSBC Bank plc or any
affiliate thereof notification thereof shall be given to each Rating Agency.
10.7 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE
RECEIVABLES
(a) The Servicer shall, subject always to Clause 10.9, provide to the
Receivables Trustee and the Investor Beneficiary access to documentation
in respect of the Designated Accounts and the Receivables in such cases
where the Receivables Trustee or such Investor Beneficiary is permitted
by any Transaction Document or otherwise by law to review such
documentation.
(b) Such access shall be afforded by the Servicer without any charge (apart
from the Servicing Fee provided for in Clause 9.2) but only:
(i) upon reasonable request;
(ii) during normal business hours;
(iii) subject to the Servicer's normal security and confidentiality
procedures; and
(iv) at offices in the United Kingdom designated by the Servicer.
(c) On or before the twentieth Business Day (or within such period as may
otherwise be agreed between the Servicer and the Receivables Trustee)
following a request in writing from the Receivables Trustee to the
Servicer, the Servicer agrees to deliver (to the extent permitted by
applicable law and subject always to Clause 10.9) a computer file
(maintained by the Servicer pursuant to Clause 9.7) containing a true
and complete list of all Designated Accounts each identified by a
specific number identifying such Designated Account PROVIDED HOWEVER,
that the Receivables Trustee may not request such list or information
more than once during any calendar year unless an Insolvency Event has
occurred and is subsisting, in which case such request may be made at
any time with reasonable frequency.
(d) To the extent permitted by applicable law, the Transferor shall
co-operate fully with the Servicer in connection with, and provide all
information reasonably required to satisfy, the obligations of the
Servicer as set out in this Deed.
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(e) Nothing in this Clause 10.7 shall derogate from the obligation of the
Transferor Beneficiary, the Beneficiaries or the Servicer to observe any
Requirement of Law prohibiting disclosure of information regarding the
Obligors and the failure of the Servicer to provide access as provided
in this Clause 10.7 as a result of such obligations shall not constitute
a breach of this Clause 10.7.
10.8 EXAMINATION OF RECORDS
(a) The Servicer shall identify in its systems (where possible) those
Receivables created in connection with the Designated Accounts which
have been assigned to or are held on trust for the Receivables Trustee.
(b) The Servicer shall, prior to the sale or transfer to a third party of
any receivable held in its custody, examine its computer or other
records (including the Designated Account File) to determine that such
receivable is not a Receivable assigned, or purported to be assigned to
or held on trust for the Receivables Trustee.
(c) The Servicer shall not sell or transfer to third parties any Receivable
assigned or purported to be assigned to the Receivables Trustee except
in accordance with Clause 8 of this Deed.
10.9 DATA PROTECTION
(a) Terms defined in the Data Protection Act 1998 (the "DPA") shall have the
same meanings when used in this Clause 10.9.
(b) Except to the extent that they have complied in all material respects
with applicable law (including, without limitation, the DPA) permitting
them to do so:
(i) the Receivables Trustee and the Investor Beneficiaries shall not
have actual access to, or a right to require access to, either
directly or indirectly, any personal data processed by the
Servicer (or any Successor Servicer); and
(ii) the Receivables Trustee and the Investor Beneficiaries shall not
instruct the Servicer (or any Successor Servicer) to process
personal data on their behalf and shall not determine the
purposes and manner of processing of personal data in connection
with Designated Accounts and Receivables, other than as
permitted by this Deed or any Supplement.
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11. SERVICER DEFAULTS
11.1 SERVICER DEFAULTS
If any one of the following events (a "SERVICER DEFAULT") shall occur and be
continuing:
(a) any failure by the Servicer to give advice or notice to the receivables
trustee pursuant to an agreed schedule of collections and distributions
or to advise the receivables trustee to make any required drawing,
withdrawal or payment pursuant to this Deed or any other Transaction
Document; these events will be considered failures if they do not happen
within 5 Business Days after the date that they were supposed to happen
under the terms of this Deed or any other Transaction Document;
(b) failure on the part of the Servicer duly to observe or perform in any
respect any other covenants or agreements of the Servicer set forth in
this Deed or any Transaction Document which has a Material Adverse
Effect on the interests of the Investor Beneficiaries of any Outstanding
Issuance and which failure, if capable of remedy, continues unremedied
for a period of 60 days (except in relation to a failure of the Servicer
to give advice or notice to the Receivables Trustee pursuant to an
agreed schedule of collections and allocations or to advise the
Receivables Trustee to make any required drawing, withdrawal or payment
pursuant to the Transaction Documents which shall be 5 Business Days) or
more after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
Receivables Trustee, or to the Servicer and the Receivables Trustee by
the Investor Beneficiary or Investor Beneficiaries holding 50 per cent.
or more of the Investor Interests in respect of any Outstanding Issuance
adversely affected thereby and continues to have a Material Adverse
Effect on the interests of such Investor Beneficiary in respect of such
Outstanding Issuance for such period;
(c) delegation by the Servicer of its duties under this Deed to any other
entity, except as permitted by Clause 10.6;
(d) any relevant representation, warranty or certification made by the
Servicer in this Deed or in any certificate delivered pursuant hereto
proves to have been incorrect when made, which has a Material Adverse
Effect on the interests of the Investor Beneficiaries in respect of any
Outstanding Issuance and continues to be incorrect in any material
respect for a period of 60 days or more after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Receivables Trustee or to the Servicer
and the Receivables Trustee by the Investor Beneficiary or Investor
Beneficiaries holding 50 per cent. or more of the Aggregate Investor
Interest in respect of any Outstanding Issuance adversely affected
thereby and continues to have a Material Adverse Effect on the interests
of the Investor Beneficiary in respect of any Outstanding Issuance
affected for such period;
(e) the Servicer shall consent to or take any corporate action relating to
the appointment of a receiver, administrator, administrative receiver,
liquidator, trustee or similar officer of it or relating to all or
substantially all of its revenues and assets or proceedings are
initiated against the Transferor under any applicable liquidation,
insolvency, composition, re-organisation or similar laws for its
winding-up, dissolution, administration or re-organisation (except for a
solvent re-organisation) and such proceedings are not
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discharged within 60 days or a receiver, administrator, administrative
receiver, liquidator, trustee or similar officer of it or relating to
all or substantially all of its revenues and assets is legally and
validly appointed and such appointment is not discharged within 14 days;
or
(f) a director of the Servicer shall admit in writing that the Servicer is
unable to pay its debts as they fall due within the meaning of Section
123(1) of the Insolvency ▇▇▇ ▇▇▇▇ or the Servicer makes a general
assignment for the benefit of or a composition with its creditors or
voluntarily suspends payment of its obligations with a view to the
general readjustment or rescheduling of its indebtedness,
(g) if the Regulation AB Assessment Rules apply, any default set out in
clause 9.4(c)(v).
then so long as such Servicer Default shall not have been remedied, either the
Receivables Trustee, if directed by the Investor Beneficiaries, or Investor
Beneficiaries representing in aggregate more than 66 2/3% of the Combined
Aggregate Investor Interest, in each case by notice then given in writing to the
Servicer (a "SERVICER TERMINATION NOTICE"), may terminate all of the rights and
obligations of the Servicer as Servicer under this Deed.
Notwithstanding the foregoing, a delay in or failure of performance referred to
in paragraph (a) above for a period of 10 London Business Days or under
paragraphs (b), (c) or (d) for a period of 60 London Business Days (in addition
to any period provided in (a) to (d) above) shall not constitute a Servicer
Default if such delay or failure could not have been prevented by the exercise
of reasonable diligence by the Servicer and such delay or failure was caused by
an act of God, acts of declared or undeclared war, public disorder, rebellion,
riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes,
earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar
causes. The preceding sentence shall not relieve the Servicer from using
reasonable efforts to perform its obligations in a timely manner in accordance
with the terms of this Deed and any Transaction Document and the Servicer shall
provide the Receivables Trustee with an Officer's Certificate (copied to any
Enhancement Provider, the Transferor and the Investor Beneficiary) giving prompt
notice of such failure or delay by it, together with a description of the cause
of such failure or delay and its efforts so to perform its obligations.
11.2 EFFECT OF SERVICER TERMINATION NOTICE
(a) After receipt by the Servicer of a Servicer Termination Notice pursuant
to Clause 11.1, and on the date that a Successor Servicer shall have
been appointed by the Receivables Trustee pursuant to Clause 11.3, all
authority and power of the Servicer under this Deed shall pass to and be
vested in a Successor Servicer and, without limitation but subject to
Clause 10.9, the Receivables Trustee is hereby appointed, authorised and
empowered (upon the failure of the Servicer to co-operate in a timely
manner) in order to secure the performance of the Servicer in so doing
to execute and deliver, on behalf of the Servicer, as its attorney, all
documents, records and other instruments upon the failure of the
Servicer to execute or deliver such documents, records or instruments,
and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of such Servicer's
rights and obligations;
(b) The Servicer agrees to use all reasonable efforts and co-operate with
the Receivables Trustee and such Successor Servicer in effecting the
termination of the responsibilities
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and rights of the Servicer to conduct Servicing hereunder including,
without limitation, the transfer to such Successor Servicer of all
authority of the Servicer to carry out Servicing functions in relation
to the Receivables as provided for under this Deed.
(c) The Servicer shall promptly transfer its electronic records or
electronic copies thereof relating to the Receivables to the Successor
Servicer in such electronic form as the Successor Servicer may
reasonably request and shall promptly transfer to the Successor Servicer
all other records, correspondence and documents necessary for the
Successor Servicer to carry out Servicing in relation to the Receivables
in the manner and at such times as the Successor Servicer shall
reasonably request.
(d) To the extent that compliance with this Clause 11.2 shall require the
Servicer to disclose to the Successor Servicer information of any kind
which the Servicer reasonably deems to be confidential, the Successor
Servicer shall be required to enter into such customary licensing and
confidentiality agreements as the Servicer shall reasonably deem
necessary to protect its interests and the Servicer shall not be obliged
to disclose any such confidential information until such licensing and
confidentiality agreements have been entered into.
(e) The Servicer shall, on the date of any transfer of its Servicing
functions under this Deed, transfer all of its rights and obligations
under any Enhancement with respect to any Beneficiaries to the Successor
Servicer.
(f) Upon the termination of the appointment of the Servicer pursuant to this
Clause 11.2, any amounts in respect of Collections of Receivables
constituting Trust Property and any other Trust Property in the
possession of the Servicer (or coming into the possession of the
Servicer at any time thereafter) shall be held on trust by the Servicer
for and to the order of the Receivables Trustee.
11.3 RECEIVABLES TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR
(a) On and after the receipt by the Servicer of a Servicer Termination
Notice pursuant to Clause 11.1, the Servicer shall continue to perform
its Servicing functions under this Deed until the date specified in the
Servicer Termination Notice or otherwise specified by the Receivables
Trustee in writing or, if no such date is specified in such Servicer
Termination Notice, or otherwise specified by the Receivables Trustee,
until a date mutually agreed upon by the Servicer and Receivables
Trustee. The Receivables Trustee shall notify each Rating Agency of such
removal of the Servicer.
(b) The Receivables Trustee shall, within 30 days of giving of a Servicer
Termination Notice or the receipt of the Servicer's resignation pursuant
to Clause 10.4, appoint, on terms substantially the same as this Deed, a
successor Servicer (the "SUCCESSOR SERVICER") which shall at the time of
its appointment as Successor Servicer be an Eligible Servicer, and such
Successor Servicer shall accept its appointment by a written assumption.
The Receivables Trustee shall inform each Rating Agency of the
appointment of such Successor Servicer.
(c) Upon its appointment, the Successor Servicer shall be the successor in
all respects to the Servicer with respect to Servicing functions under
this Deed and each Supplement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on
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the Servicer by the terms and provisions hereof, and all references in
this Deed and each Supplement to the Servicer shall be deemed to refer
to the Successor Servicer. Any Successor Servicer, by its acceptance of
its appointment, will automatically agree to be bound by the terms and
provisions of each agreement relating to Enhancement.
(d) In connection with such appointment and assumption, the Receivables
Trustee shall be entitled to such compensation, or may make such
arrangements for the compensation of the Successor Servicer out of
Collections, as it and such Successor Servicer shall agree Provided,
HOWEVER, that no such compensation shall be in excess of the Servicing
Fee permitted to the Servicer pursuant to Clause 9.2 without the prior
written consent of each Beneficiary and confirmation from the Rating
Agencies that such excess fee will not lead to a reduction or
downgrading of the rating of any outstanding Related Debt or Associated
Debt.
(e) All authority and power granted to the Successor Servicer under this
Deed and each Supplement shall automatically cease and terminate upon
dissolution of the Receivables Trust pursuant to Clause 6.3 or Clause
8.1 and shall pass to and be vested in HSBC Bank plc and, without
limitation, HSBC Bank plc is hereby appointed, authorised and empowered
to execute and deliver, on behalf of the Successor Servicer, as its
attorney, in order to secure the performance of the Successor Servicer
of the matters, referred to in the next paragraph, all documents and
other instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer of
rights in relation to the Servicer.
(f) The Successor Servicer agrees to co-operate with HSBC Bank plc in
effecting the termination of the responsibilities and rights of the
Successor Servicer under this Clause 11.3(e) to carry out Servicing
functions in relation to the Receivables constituting Trust Property.
The Successor Servicer shall transfer its electronic records relating to
the Receivables constituting Trust Property to HSBC Bank plc in such
electronic form as HSBC Bank plc may reasonably request and shall
transfer all other records, correspondence and documents to HSBC Bank
plc in the manner and at such times as HSBC Bank plc shall reasonably
request. To the extent that compliance with this Clause 11.3 shall
require the Successor Servicer to disclose to HSBC Bank plc information
of any kind which the Successor Servicer deems to be confidential, HSBC
Bank plc shall be required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer shall reasonably
deem necessary to protect its interest.
11.4 NOTIFICATION OF SERVICER DEFAULT
Within two Business Days after the Servicer becomes aware of any Servicer
Default, the Servicer shall give prompt written notice thereof to the
Receivables Trustee, the Security Trustee, the Beneficiaries and each Rating
Agency. Upon any termination or appointment of a Successor Servicer pursuant to
this Clause 11 the Receivables Trustee shall give prompt written notice thereof
to the Investor Beneficiary and each Rating Agency at their respective addresses
appearing in the Trust Register.
11.5 WAIVER OF PAST DEFAULTS
The Beneficiaries representing in aggregate not less than 66 per cent. of the
Aggregate Investor Interest of each Outstanding Issuance adversely affected by
any default by the Servicer or the
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Transferor may, with the prior written consent of all the other Beneficiaries,
instruct the Receivables Trustee to waive in writing any default by the Servicer
or the Transferor in the performance of its obligations hereunder or in any
Transaction Document and its consequences, except a default which results
directly in a failure by the Receivables Trustee to make any required deposits
or distributions of Finance Charge Collections or Principal Collections relating
to the relevant issuance of Related Debt and/or Series adversely affected
pursuant to Clause 5 and any Supplement. Upon any such waiver of a past default,
such default shall be deemed not to have occurred. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereon except
to the extent expressly so waived. Each Rating Agency shall be informed upon any
such waiver.
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PART 5
MISCELLANEOUS
12. MISCELLANEOUS PROVISIONS
12.1 ACKNOWLEDGEMENT REGARDING PAYMENTS
(a) Each of the Receivables Trustee, the Transferor and the Transferor
Beneficiary acknowledges and confirms that HSBC Bank plc shall apply any
amounts due from the Receivables Trustee to it as (i) Transferor of the
Receivables or (ii) Transferor Beneficiary of the Receivables Trust, in
or towards satisfaction by way of set-off of any amounts then due to the
Receivables Trustee from it as (i) Transferor of the Receivables or (ii)
Transferor Beneficiary of the Receivables Trust, in those respective
capacities.
(b) HSBC Bank plc acknowledges and confirms to the Receivables Trustee that
it will not take any action which would interfere in any way with the
rights of the Beneficiaries described in Clause 3.
(c) For the avoidance of doubt, as a consequence of the foregoing it is
acknowledged and confirmed that, except in relation to payments of
Acceptance Price, as between HSBC Bank plc as the Transferor and the
Transferor Beneficiary and the Receivables Trustee only net payments
will be made to the relevant parties. Payments made by the Receivables
Trustee of Acceptance Price shall not be the subject of any set-off,
netting or similar arrangement.
12.2 AMENDMENT
(a) This Deed, the Master Definitions Schedule and any Supplement, may be
amended in writing from time to time by the Servicer, the Transferor
Beneficiary and the Investor Beneficiaries, PROVIDED THAT any such
amendment under this Clause 12.2(a) shall not effect a significant
change in the Permitted Activities of the Receivables Trustee unless the
consent of Investor Beneficiaries representing in aggregate not less
than 50% of the aggregate of the Investor Interests of all Outstanding
Issuance materially affected by such change and the Security Trustee is
first obtained.
(b) Any Supplement executed and delivered pursuant to Clause 4.6, shall not
be considered an amendment to this Deed for the purpose of this Clause
12.2.
12.3 PROTECTION OF RIGHT, TITLE AND INTEREST TO TRUST PROPERTY
(a) The Servicer shall cause this Deed, all amendments hereto and/or the
Receivables Securitisation Deed and any other necessary documents
relating to the right, title and interest to the Trust Property of the
Receivables Trustee (or subject to the beneficial ownership of the
Beneficiaries) to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, all in such manner and
in such places as may be required by law fully to preserve and protect
the right, title and interest of the Beneficiaries or the Receivables
Trustee, as the case may be, to all property comprising the Trust
Property.
(b) The Servicer shall deliver to the Receivables Trustee file-stamped
copies of, or filing receipts for, any document recorded, registered or
filed in accordance with Clause 12.3(a), as soon as available following
such recording, registration or filing.
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(c) The Transferor shall co-operate fully with the Servicer in connection
with, and shall execute any and all documents reasonably required to
satisfy, the obligations set out in Paragraphs (a) and (b).
(d) The Servicer will give the Receivables Trustee prompt written notice of
any relocation of any office from which it services Receivables assigned
or purported to be assigned to or held on trust for the Receivables
Trustee or keeps records concerning such Receivables or of its principal
executive office.
12.4 GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW
This Deed (and the Receivables Trust constituted hereby) shall be
governed by, and construed in accordance with the laws of England
without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder (including the
immunities and standard of care of the Receivables Trustee in the
administration of the Receivables Trust hereunder) shall be determined
in accordance with such laws.
(b) JURISDICTION
(i) Each of the parties hereto irrevocably agrees for the benefit of
each other party that the courts of England shall have
non-exclusive jurisdiction to hear and determine any suit,
action or proceeding, and to settle any disputes, which may
arise out of or in connection with this Deed, and for such
purposes, irrevocably submit to the non-exclusive jurisdiction
of such courts. Each of the parties hereto also agrees for the
benefit of each other party that any proceedings against any
party to this Deed arising out of or based upon this Deed may be
instituted in a court of Jersey, Channel Islands.
(ii) Each of the parties hereto irrevocably waives any objection
which it might now or hereafter have to the courts referred to
in Clause 12.3(b)(i) being nominated as the forum to hear and
determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this Deed
and agrees not to claim that any such court is not a convenient
or appropriate forum.
(iii) Each party hereto (if it is not incorporated in England)
irrevocably appoints the person specified against its name on
the execution pages hereof (or, in the case of a successor
Receivables Trustee or a Successor Servicer the document
appointing such successor Receivables Trustee or such Successor
Servicer, as the case may be,) to accept service of any process
on its behalf and further undertakes to the other parties hereto
that it will at all times during the continuance of this Deed
maintain the appointment of some person in England as its agent
for the service of process and irrevocably agrees that service
of any writ, notice or other document for the purposes of any
suit, action or proceeding in the courts of England shall be
duly served upon it if delivered or sent by registered post to
the address of such appointee (or to such other address in
England as that party may notify to the other parties hereto).
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12.5 NOTICES
(a) Unless otherwise stated herein, each communication or notice to be made
hereunder shall be made in writing and may be made by fax or letter.
(b) Any communication, notice or document to be made or delivered by any one
person to another pursuant to this Deed shall (unless that other person
has by fifteen days' prior written notice to the other parties hereto
specified another address) be made or delivered to that other person at
the address identified below and shall be deemed to have been made or
delivered when despatched and confirmation of transmission received by
the sending machine (in the case of any communication made by fax) or
(in the case of any communications made by letter) when left at that
address or (as the case may be) ten days after being deposited in the
post, postage prepaid, in an envelope addressed to it at that address
PROVIDED, HOWEVER, that each fax communication made by one party to
another shall be made to that other person at the fax number notified to
such party by that other person from time to time;
(i) in the case of the Transferor Beneficiary and the Transferor, to
HSBC Bank plc, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, fax number: 020
7991 4663 attention: HSBC Cards Services;
(ii) in the case of the Servicer, to HSBC Bank plc, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, fax number: ▇▇▇ ▇▇▇▇ ▇▇▇▇ attention: HSBC Cards
Services;
(iii) in the case of the Receivables Trustee to ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Channel Islands, fax number: +44 (0)1534
814 815, attention: Directors;
(iv) in the case of an Investor Beneficiary in respect of any
issuance of Related Debt and/or Series, the address specified in
the Supplement relating to such Series;
(v) in the case of the Dormant Investor Beneficiary ▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Channel Islands, fax number: +44
(▇)▇▇▇▇ ▇▇▇ ▇▇▇, attention: Directors;
(vi) in the case of the Enhancement Provider in respect of any
issuance of Related Debt and/or Series, the address, if any,
specified in the Supplement relating to such issuance of Related
Debt and/or Series; and
(vii) in the case of the Rating Agency for Associated Debt in respect
of a particular Investor Beneficiary, the address, if any,
specified in the Supplement relating to such Investor
Beneficiary.
12.6 SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of this
Deed shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Deed and shall in no way
affect the validity or enforceability of the other provisions of this Deed or of
the rights of the Beneficiaries of the Receivables Trust.
- 72 -
12.7 ASSIGNMENT
Notwithstanding anything to the contrary contained herein, except as provided in
Clause 10.2, the rights and benefits of the Servicer under this Deed may not be
assigned by the Servicer without the prior consent of the Receivables Trustee.
The Receivables Trustee shall give such consent if required to do so by the
Investor Beneficiaries representing in aggregate 66 2/3% of the Combined
Aggregate Investor Interest.
12.8 FURTHER ASSURANCES
Subject as provided in any Transaction Document, each of the Transferor, the
Transferor Beneficiary and the Servicer agree to do and perform, from time to
time, any and all acts and to execute any and all further instruments required
or reasonably requested by the Receivables Trustee more fully to effect the
purposes of this Deed.
12.9 NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of the
Receivables Trustee, any Enhancement Provider or the Investor Beneficiaries, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
12.10 COUNTERPARTS
This Deed may be executed in two or more counterparts (and by different parties
on separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
12.11 THIRD PARTY BENEFICIARIES
(a) This Deed will inure to the benefit of and be binding upon the parties
hereto and, to the extent provided in the related Supplement, any
Enhancement Provider named therein and their respective successors and
permitted assigns as Beneficiaries of the Receivables Trust.
(b) Except as provided in this Clause 12.11 and Clause 9.1, no other person
will have any right or obligation hereunder except for any Security
Trustee in respect of the assignment by the Investor Beneficiary of its
rights hereunder.
12.12 ACTIONS BY BENEFICIARIES
Any request, demand, authorisation, direction, notice, consent, waiver or other
act by a Beneficiary shall bind each and every successor of such Beneficiary.
12.13 VOTING BY INVESTOR BENEFICIARIES
Wherever provision is made in this Deed for voting by Investor Beneficiaries,
each Investor Beneficiary (including the Investor Beneficiary who acts in such
capacity in respect of more than one issuance of Related Debt and/or Series)
shall be entitled to one vote in respect of each (pound)1 of that Investor
Beneficiary's Aggregate Investor Interest but shall not be obliged to exercise
such votes (or any of them) or to cast all of the votes exercised the same way.
- 73 -
12.14 MERGER AND INTEGRATION
Except as specifically stated otherwise herein, this Deed sets forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Deed. This Deed
may not be modified, amended, waived or supplemented except as provided herein.
12.15 HEADINGS
The headings are for purposes of reference only and shall not otherwise affect
the meaning or interpretation of any provision hereof.
IN WITNESS WHEREOF, the Receivables Trustee, HSBC Bank plc (in its capacities as
Transferor, Transferor Beneficiary and Servicer), the Investor Beneficiary and
the Dormant Investor Beneficiary have caused this agreement to be duly executed
and delivered by their duly authorised representatives as a deed on the day and
year first above written.
- 74 -
SCHEDULE 1
FORM OF INVESTOR CERTIFICATE
TURQUOISE RECEIVABLES TRUSTEE LIMITED
(INCORPORATED IN JERSEY WITH REGISTERED NUMBER 92324)
THIS CERTIFICATE SHALL BE EXECUTED AND
RETAINED OUTSIDE THE UNITED KINGDOM
RECEIVABLES TRUST
INVESTOR CERTIFICATE
Evidencing an undivided interest and other interest in the trust constituted by
the Receivables Trust Deed and Servicing Agreement dated on or about 23 May 2006
between inter alios HSBC Bank plc and Turquoise Receivables Trustee Limited (as
amended from time to time, the "RECEIVABLES TRUST DEED").
NOT AN INTEREST IN OR OBLIGATION OF HSBC BANK PLC
OR ANY AFFILIATE THEREOF.
This Certificate certifies that [Name of Investor Beneficiary] (the "Investor
Beneficiary") is a Beneficiary of the Receivables Trust and as such is
beneficially entitled to Trust Property in the amount and in the manner set out
in the Receivables Trust Deed and any Supplement to the Receivables Trust Deed
executed from time to time in respect of any additional issuance of Related Debt
and/or Series.
Terms defined in the Master Definitions Schedule set out as schedule 6 to a
receivables trust deed and servicing agreement dated on or about 23 May 2006, as
amended from time to time, shall have the same meaning in this Investor
Certificate.
PLEASE NOTE THE FOLLOWING:
1. The Investor Certificate is in registered form and evidences the
beneficial entitlement of [Name of Investor Beneficiary] in the
Receivables Trust.
2. No transfer of this Investor Certificate or Disposal of the beneficial
entitlement (or any part thereof) of the Investor Beneficiary in the
Receivables Trust shall be permitted except in accordance with the
Receivables Trust Deed. The principal balance of such entitlement shall
be recorded in the attached Schedule.
3. The entries in the Trust Register shall be conclusive in the absence of
manifest error and the Servicer and the Receivables Trustee shall be
entitled to treat the Investor Beneficiary (as the Person in whose name
this Investor Certificate is registered) as the owner hereof and the
Person beneficially entitled to Trust Property as a consequence thereof
(always subject to and in accordance with the terms of the Receivables
Trust Deed).
4. Unless this Investor Certificate has been executed by or on behalf of
the Receivables Trustee, the Investor Beneficiary shall not become
entitled to be registered in the Trust Register as holder of this
Investor Certificate.
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IN WITNESS WHEREOF, the Receivables Trustee has executed this Investor
Certificate as a deed.
SIGNED for and on behalf of )
TURQUOISE RECEIVABLES )
TRUSTEE LIMITED )
pursuant to a resolution of the Board )
Date: [o]
- 76 -
SCHEDULE TO INVESTOR CERTIFICATE
INITIAL PRINCIPAL AMOUNT: (pound)[o]
------------------------------------------------------------------------------------------------------------------------------
RELATED AGGREGATE INVESTOR
DEBT/SERIES DATE OF AMOUNT OF MAXIMUM INVESTOR INTEREST (AS OF FINAL REPAYMENT OF
REF. CONTRIBUTION CONTRIBUTION INTEREST (IF ANY) CONTRIBUTION DATE) CONTRIBUTION
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
- 77 -
SCHEDULE 2
FORM OF TRANSFEROR CERTIFICATE
TURQUOISE RECEIVABLES TRUSTEE LIMITED
(INCORPORATED IN JERSEY WITH REGISTERED NUMBER 92324)
THIS CERTIFICATE SHALL BE EXECUTED AND RETAINED
OUTSIDE THE UNITED KINGDOM
RECEIVABLES TRUST
SELLER CERTIFICATE
Evidencing an undivided interest and other interests in the trust constituted by
the Receivables Deed and Servicing Agreement dated on or about 23 May 2006
between inter alios Turquoise Receivables Trustee Limited and HSBC Bank plc (as
amended from time to time, the "RECEIVABLES TRUST DEED")
NOT AN INTEREST IN OR OBLIGATION OF HSBC BANK PLC OR ANY AFFILIATE THEREOF
This Certificate certifies that HSBC Bank plc ("HSBC") is a Beneficiary of the
Receivables Trust and as such is beneficially entitled to Trust Property in the
amount and in the manner set out in the Receivables Trust Deed and any
Supplement to the Receivables Trust Deed executed from time to time in respect
of any additional issuance of Related Debt and/or Series.
Terms defined in the Master Definitions Schedule set out as schedule 6 to a
receivables trust deed and servicing agreement dated on or about 23 May 2006, as
amended from time to time, shall have the same meaning in this Transferor
Certificate.
PLEASE NOTE THE FOLLOWING:
1. This Transferor Certificate is in registered form and evidences the
beneficial entitlement of HSBC in the Receivables Trust.
2. No transfer of this Transferor Certificate or Disposal of the aggregate
beneficial entitlement of HSBC in the Receivables Trust shall be
permitted except in accordance with the Receivables Trust Deed.
3. The entries in the Trust Register shall be conclusive in the absence of
manifest error and the Servicer and the Receivables Trustee shall be
entitled to treat HSBC (as the person in whose name this Transferor
Certificate is registered) as the owner hereof and the person
beneficially entitled to Trust Property as a consequence thereof (always
subject to and in accordance with the terms of the Receivables Trust
Deed).
4. Unless the Certificate of Authentication hereon has been executed by or
on behalf of the Receivables Trustee by manual signature, HSBC shall not
be registered in the Trust Register as holding the interest evidenced
holder by this Transferor Certificate.
IN WITNESS WHEREOF, HSBC Bank plc has executed this Transferor Certificate as a
deed.
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SIGNED for and on behalf of )
HSBC BANK PLC )
by its duly authorised attorney )
_________________________________________ )
In the presence of:
____________________________________
Signature
____________________________________
Name
____________________________________
Occupation
____________________________________
Address
CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate referred to in the above-mentioned
Receivables Trust Deed.
RECEIVABLES TRUSTEE
By:
Name:
Title:
Date:
- 79 -
SCHEDULE 3
FORM OF SERVICER MONTHLY REPORT
______________________________________
RECEIVABLES TRUST
______________________________________
1. Capitalised terms used in this Report have their respective meanings set
forth in the Master Definitions Schedule set out as schedule 6 to a
receivables trust deed and servicing agreement dated on or about 23 May
2006 PROVIDED, HOWEVER, that the "PRECEDING MONTHLY PERIOD" shall mean
the Monthly Period immediately preceding the calendar month in which
this Certificate is delivered. This Report is delivered pursuant to
Clause 9.5(b) of the Receivables Trust Deed and Servicing Agreement.
References herein to certain Clauses are references to the respective
Clauses of the Receivables Trust Deed and Servicing Agreement.
2. HSBC is Servicer under the Receivables Trust Deed and Servicing
Agreement.
3. The undersigned is an Authorised Officer.
4. The date of this Report is a date on or before a Transfer Date under the
Receivables Trust Deed and Servicing Agreement.
5. The aggregate amount of Collections (pound)_________________
processed during the preceding Monthly
Period in respect of Designated Accounts
was equal to (excluding Acquired
Interchange)
6. The Aggregate Investor Percentage of (pound)_________________
Receivables processed during the preceding
Monthly Period in respect of Designated
Accounts was equal to
7. The amount in paragraph 6 above in respect (pound)_________________
of Principal Receivables which are
Eligible Receivables
8. The amount in paragraph 6 above in respect (pound)_________________
of Finance Charge Receivables
9. The Aggregate Investor Percentage of (pound)_________________
Principal Collections processed by the
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Servicer during the preceding Monthly
Period was equal to
10. The Aggregate Investor Percentage of (pound)_________________
Finance Charge Collections processed by
the Servicer during the preceding Monthly
Period was equal to (excluding Annual Fees
and Acquired Interchange)
11. The aggregate amount of Receivables (pound)_________________
processed by the Servicer as of the end of
the last day of the preceding Monthly
Period
12. Of the balance recorded in the Finance (pound)_________________
Charge Collections Ledger, the amount
attributable to the Aggregate Investor
Percentage of Finance Charge Collections
processed by the Servicer during the
preceding Monthly Period
13. Of the balance recorded in the Principal (pound)_________________
Collections Ledger, the amount
attributable to the Aggregate Investor
Percentage of Principal Collections
processed by the Servicer during the
preceding Monthly Period
14. Of the balance recorded in the Principal (pound)_________________
Collections Ledger the aggregate amount
distributed as Cash Available for
Investment for each Outstanding Issuance
during the preceding Monthly Period
15. The aggregate amount, if any, of (pound)_________________
withdrawals, drawings or payments under
any Enhancement, if any, required to be
made with respect to any Outstanding
Issuance for the preceding Monthly Period
16. The aggregate amount of the Acquired (pound)_________________
Interchange to be recorded in the Finance
Charge Collections Ledger on the Transfer
Date for the current month
17. The aggregate amount of all sums to be (pound)_________________
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distributed to the Investor Beneficiaries
of each Outstanding Issuance on the
succeeding Distribution Date to be
utilised to meet their obligations to pay
principal with regard to Related Debt
18. The aggregate amount of all sums to be (pound)_________________
distributed to the Investor Beneficiaries
of each Outstanding Issuance on the
succeeding Distribution Date to be
utilised to meet their obligations to pay
interest with regard to Related Debt
19. To the knowledge of the undersigned, there are no Encumbrances on any
Receivables in the Receivables Trust except as described below:
[If applicable, insert "None."]
20. We confirm that no Trust Pay Out Event or Investor Pay Out Event has
occurred as at the date hereof.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
_____ day of ______________________, _________.
HSBC BANK PLC
Servicer
By: _________________________
Name:
Title:
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EXERCISE OF OPTION TO PURCHASE DEFAULTED RECEIVABLES
This notice constitutes an Option Notice pursuant to Clause 18.4.1 of the
Receivables Securitisation Deed.
We hereby inform you that pursuant to Clauses 18.2 and 18.4 of the Receivables
Securitisation Deed, HSBC as Transferor hereby requires the Receivables Trustee
to assign to HSBC, Defaulted Receivables in the amount of (pound)[o] in respect
of Designated Accounts (which have not previously been assigned to HSBC pursuant
to any previous Option Assignment) on [insert date] (the "OPTION EXERCISE
DATE").
Please confirm by executing the following confirmation.
SIGNED BY HSBC AS TRANSFEROR
_____________________________
This notice constitutes an Option Assignment pursuant to Clause 18.4.2 of the
Receivables Securitisation Deed.
Pursuant to the requirements of an Option Notice dated [o], the Receivables
Trustee hereby assigns to HSBC as Transferor, Defaulted Receivables in the
amount of (pound)[o] which have not previously been assigned to HSBC pursuant to
a previous Option Assignment.
SIGNED FOR AND ON BEHALF OF
THE RECEIVABLES TRUSTEE BY
HSBC BANK PLC AS SERVICER
_____________________________
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SCHEDULE TO SERVICER MONTHLY REPORT(1)
HSBC BANK PLC
AS SERVICER
______________________________________
RECEIVABLES TRUST
______________________________________
--------------------------------------------------------------------------------
(1) A separate schedule is to be attached for each Series, with appropriate
changes and additions to reflect the specifics of that Series Supplement.
- 84 -
SCHEDULE 4
TRUST REGISTER
------------------------------------------------------------------------------------------------------------------------------
Date of
Related Amount of Principal Amount Cancellation
Name of Investor Debt/Series/ Date of Contribution or of beneficial of Investor
Beneficiary Class Reference Annotation repayment interest Interest Notes
------------------------------------------------------------------------------------------------------------------------------
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SCHEDULE 5
FORM OF SERVICER ANNUAL REPORT
HSBC BANK PLC
____________________________
RECEIVABLES TRUST
____________________________
1. The undersigned, an Authorised Officer of HSBC Bank plc, ("HSBC"), as
Servicer pursuant to the Receivables Trust Deed and Servicing Agreement
(dated on or about the 23 May 2006) (the "RECEIVABLES TRUST DEED AND
SERVICING AGREEMENT") by and between, inter alios, Turquoise Receivables
Trustee Limited as trustee (the "RECEIVABLES TRUSTEE"), and HSBC, does
hereby certify that:
2. HSBC is Servicer under the Receivables Trust Deed and Servicing
Agreement.
3. The undersigned is duly authorised to execute and deliver this
Certificate to the Receivables Trustee.
4. This Certificate is delivered pursuant to Clause 9.6 of the Receivables
Trust Deed and Servicing Agreement.
5. A review of the activities of the Servicer during the period from the
Initial Addition Date until the twelve-month period ended _____ was
conducted under the supervision of the undersigned.
6. Based on such review, the Servicer has, to the best of the knowledge of
the undersigned, fully performed all its obligations under the
Receivables Trust Deed and Servicing Agreement throughout such period
and no default in the performance of such obligations has occurred or is
continuing [except as set out in [paragraph o] below].
7. [The following is a description of each default in the performance of
the Servicer's obligations under the provisions of the Receivables Trust
Deed and Servicing Agreement, including any Supplement, known to the
undersigned to have been made during such period which sets out in
detail (i) the nature of each such default, (ii) the action taken by the
Servicer, if any, to remedy each such default and (iii) the current
status of each such default:]
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
_____ day of ______________________, _________.
___________________
Name:
Title:
- 86 -
Schedule to Annual
Servicer's Certificate(2)
HSBC BANK PLC
AS SERVICER
____________________________
RECEIVABLES TRUST
____________________________
--------------------------------------------------------------------------------
(2) A separate schedule is to be attached for each Series, with appropriate
changes and additions to reflect the specifics of that Series Supplement.
- 87 -
SCHEDULE 6
MASTER DEFINITIONS SCHEDULE
- 88 -
EXECUTION PAGE
RECEIVABLES TRUSTEE
EXECUTED as a Deed by )
TURQUOISE RECEIVABLES )
TRUSTEE LIMITED )
) S.M. HOLLYWOOD
DIRECTOR
TRANSFEROR, TRANSFEROR BENEFICIARY AND SERVICER
EXECUTED AS A DEED )
By ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
acting as attorney )
for and on behalf of )
HSBC BANK PLC )
in the presence of: )
Signature of witness: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------
Name of witness: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------
Address: ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
------------------------
Occupation: LEGAL ADVISER
------------------------
LOAN NOTE ISSUER AND INVESTOR BENEFICIARY
EXECUTED as a Deed by )
TURQUOISE FUNDING )
1 LIMITED )
) S.M. HOLLYWOOD
DIRECTOR
DORMANT INVESTOR BENEFICIARY
EXECUTED as a Deed by )
TURQUOISE FUNDING )
2 LIMITED ) S.M. HOLLYWOOD
DIRECTOR
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